During the last four years, the President of the United States and Department of Health and Human Services have sought to shine the spotlight on the problem of child support enforcement. In 1995, HHS released a joint report with the Department of Commerce, based on data collected in 1991 as part of the April 1992 supplement to Current Population Survey. The report showed that in 1991, of the 54% of custodial parents who had support obligations in place, only 67% of outstanding child support obligations were met. Of particular significance was another report issued by the General Accounting Office in 1995 based on data collected in 1992. This report showed that a smaller percentage of obligees who receive support from out-of-state obligors actually receive the support that is due than obligees who receive support from in-state obligors.
This focus on the problems of interstate support enforcement led to a number of new federal and state laws that every family law attorney must become familiar with: the Uniform Interstate Family Support Act (UIFSA), 9 U.L.A. 255 (Supp. 1996), approved by the American Bar Association in 1993, now enacted in all jurisdictions; the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B (Supp. 1999), enacted in 1994 and amended in 1996; and the Uniform Enforcement of Foreign Judgments Act (UEFJA), most recently revised in 1964, and enacted in some form in 44 states and the District of Columbia.
These materials will describe each act and analyze the case law, if any, that has arisen under these acts.
I. The Full Faith and Credit for Child Support Orders Act (FFCCSOA)
A. Why FFCCSOA Was NecessaryAs noted above, the problem of enforcement of child support orders was particularly troublesome to Congress. Congress haS an interest in enforcement of child support orders because when child support is not paid by a non-custodial parent, the federal government pays child support in the form of welfare. As stated by one author:
To a large extent, the problem of welfare in the United States is due to the nonsupport of children by their absent parents. AFDC benefits are in a direct sense child support paid by the taxpayer: eligibility for AFDC requires a dependent child and a parent who is absent from the home.
Marian F. Dobbs, Margaret Campbell Haynes, Marilyn Ray Smith, Enforcing Child and Spousal Support § 4.04 at 4-10 (1995).
Compounding the financial burden on Congress was the fact that interstate modifications of child support orders were governed by the Uniform Reciprocal Enforcement of Support Act (URESA) or its revised version (RURESA). Under URESA, the forum state frequently asserted the right to modify any outstanding support orders. Under the anti-supercession clause of URESA, however, this led to the anamolous result of more than one valid support order being in effect in more than one state.
Congress recognized the confusion caused by this state of the law. See Bednarsh v. Bednarsh , 282 N.J. Super. 482, 660 A.2d 575, 578, fn. 5 (Ch. Div. 1995) (Congress no doubt had in mind the various interpretations of URESA emanating from the states when enacting the FFCCSOA). In 1994, Congress addressed the problems of interstate enforcement of child support by enacting the Full Faith and Credit for Child Support Orders Act (FFCCSOA), codified at 28 U.S.C. § 1738B. The FFCCSOA was drafted by the United States Commission on Interstate Child Support, and was intended to be consistent with the principles of the Uniform Interstate Family Support Act (UIFSA). To this end, FFCCSOA defines its key term, "continuing, exclusive jurisdition" in a manner consistent with UIFSA.
As part of the legislative history, Congress found that because of URESA, there was excessive relitigation of cases and the establishment of conflicting orders, leading to confusion, waste of judicial resources, disrespect for the courts, and a diminution of public confidence in the law. As stated in one case:
In 1994, Congress determined that a lack of uniformity in the laws regarding child support orders encouraged noncustodial parents to relocate to other states to avoid the jurisdiction of the courts of the home state. This contributed to the relatively low levels of child support payments in interstate cases and to inequities in child support payment levels that are based solely on the noncustodial parent's choice or residence. To counteract this problem, Congress enacted Public Law 103-383, known as the Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738B (1994)).
Day v. Child Support Enforcement Division , 272 Mont. 170, 900 P.2d 296, 300 (1995).
Congress specifically provided that the central purposes of FFCCSOA were:
- to facilitate the enforcement of child support orders among the states;
- to discourage continuing interstate controversies over child support in the interest of greater financial stability and secure family relationships for the child; and
- to avoid jurisdictional competition and conflict among state courts in the establishment of child support orders.
Pub. L. No. 103-383, § 2, 108 Stat. 4063, 1994 U.S. Code Cong. & Admin. News No. 9 (Oct. 20, 1994). Congress thus determined it was necessary to establish national standards under which the courts of the various states shall determine their jurisdiction to issue a child support order and the effect to be given by each state to child support orders issued by the courts of the other states. 140 Cong. Rec. 13,436 (1994).
The FFCCSOA and UIFSA thus interact together much like the PKPA and the UCCJA interact together. The federal statute lays out jurisdictional requirements for state courts to recognize, enforce, and modify orders of sister states, while the state statute lays out the requirements for the state to made original orders, recognize foreign orders, and modify any outstanding order. See Child Support Enforcement Division of Alaska ex rel. Brenckle v. Brenckle, 1997 WL 45159, *6, 23 Fam. L. Rep. (BNA) 1176 (Mass. Sup. Ct. 2/6/97) (requiring an independent finding of a duty of support by the Massachusetts court after Alaska has already made that determination would impede and frustrate the purposes of UIFSA, it would deny the court issuing the support order the full faith and credit of its judgment in violation of article IV, § 1, and it would violate FFCCSOA).
B. The Provisions of FFCCSOAFFCCSOA is a federal statute that establishes the standards by which the states can determine their jurisdiction to issue their own support orders and the effect to be given to support orders from other states. As a jurisdictional statute, it is authorized by the Full Faith and Credit Clause of the United States Constitution, which empowers Congress to enact general laws, and to prescribe the manner in which state acts, records, and proceedings shall be proved, and the effect thereof. U.S. Const. art. IV, sec. 1. (The Parental Kidnapping Prevention Act (PKPA) is codified at 28 U.S.C. § 1738A; the Defense of Marriage Act is codified at 28 U.S.C. § 1738C.)
As a federal statute, the FFCCSOA pre-empts all similar state laws pursuant to theSupremacy Clause of the United States Constitution, U.S. Const. art. VI, § 2. IsabelM. v. Thomas M. , 164 Misc. 2d 420, 624 N.Y.S.2d 356, 359 (Fam. Ct. 1995); Kelly v. Otte ,123 N.C. App. 585, 474 S.E.2d 131, 134 (1996); Wilkie v. Silva , 685 A.2d 1239, 1241 (N.H.1996); Office of Child Support ex rel. Degolier v. Crone , 21 Fam. L. Rep. (BNA) 1422 (Vt.Fam. Ct. 1995).
The PKPA similarly is a federal jurisdictional statute, superseding state law. In fact,the definitions in the FFCCSOA, contained in subSection (b), are similar to those in thePKPA.
"Child" is a person under 18 years of age and a person 18 years ofage or more who is the subject of a child support order.
"Child's state" is the state in which a child resides.
"Child's home state" is the state in which a child lived with aparent or person acting as a parent for at least 6 consecutive months immediatelypreceding the time of the filing of a petition or comparable pleading for support and, if achild is less than 6 months old, the state in which the child lived from birth with a parentor person acting as a parent. A period of temporary absence of the child, parent, or personacting as a parent is counted as part of the 6 month period.
"Child support" is a payment of money, continuing support, orarrearages or the provision of a benefit (including payment of health insurance, child care,and educational expenses) for the support of a child.
"Child support order" is a judgment, decree, or order of a courtrequiring the payment of child support and includes both permanent and temporarysupport, and both an initial order and modification. "Court" is further definedeither a court or administrative agency that is authorized to establish child support.
"Contestant" means a person who has the right to receive childsupport, a person who may have to pay child support, and the child who is the subject ofthe support order. A contestant also includes a state agency that has been assigned theright to obtain support.
"Modification" is a change in the child support order that affectsamount, scope, or duration and modifies, replaces, supersedes, or otherwise is madesubsequent to the child support order.
The FFCCSOA confers upon the originating state "continuing, exclusivejurisdiction" to modify its child support orders. The general rule for jurisdiction isstated in subsection (a):
(a) The appropriate authorities of each State
(1) shall enforce according to its terms a child support order madeconsistently with this Section by a court of another state; and
(2) shall not seek or make a modification of such order except inaccordance with subSections (e), (f), and (i).
Thus, a court must enforce a child support order made by another state, so long as it wasmade consistently with the FFCCSOA, and a court may not modify the order of anotherstate except under subsections (e), (f), and (i).
Pursuant to subsection (c), an order is "made consistently" with theFFCCSOA if the court that makes the order, pursuant to its own laws and subSections (e),(f), and (g): (1) had subject matter jurisdiction and personal jurisdiction, according to thelaws of the state of the originating court, and (2) reasonable notice was given to thecontestants.
If an order is "made consistently" with the FFCCSOA under subSection(c), then, under subSection (d), the originating court has continuing, exclusive jurisdctionover the order if the state is the child's state or the residence of any party, unless the courtof another state, acting in accordance with subSections (e) and (f), modified the childsupport order.
Modification may be made under subsection (e). Pursuant to this subsection, acourt of a state may modify a child support order issued by a court of another state if twoconditions are met. First, the state must have jurisdiction under subsection (i), and second,the issuing state must no longer have continuing exclusive jurisdiction because the issuingstate is no longer the child's state or the residence of any individual contestant, or eachindividual has filed a written constent with the state of exclusive, continuing jurisdiction fora court of another state to modify the order and assume jurisdiction over the order.
Jurisdiction under subsection (i) may be had when there is no individual contestantor child residing in the issuing state. In that case, the party seeking modification mayregister the order with the state having jurisdiction over the nonmovant for purposes ofmodification.
Under subsection (g), once a state gives up its continuing, exclusive jurisdiction,it may still enforce the order with respect to nonmodifiable obligations and arrears thataccrued prior to the modification, under subsection (g).
Under subsection (f), if one or more child support have been issued with regard toan obligor and child, then a court must apply the following rules in determining which orderto recognize for purposes of continuing, exclusive jurisdiction and enforcement: (1) if onlyone court has issued a child support order, the order of state court must be recognized;(2) if two or more courts have issued child support orders and only one of the court wouldhave continuing, exclusive jurisdiction under the FFCCSOA, then that order must berecognized; (3) if two more more courts have issued child support order and more than oneof the courts would have continuing exclusive jurisdiction under the FFCCSOA, then anorder issued in the current home state of the child must be recognized; if an order has notbeen issued by the child's current home state, then the last order issued must berecognized; (4) if two or more court have issued child support orders and none of the courtwould have continuing exclusive jurisdiction under the FFCCSOA, the court may issue itsown order which must be recognized; (5) the court that has issued an order recognizedunder the FFCCSOA is the court having continuing, exclusive jurisdction.
Finally, subsection (h) provides the court with choice of law rules. In a proceedingto establish, modify, or enforce a child support order, the forum state's law shall apply,except: (1) when interpreting an issuing state's order, including interpretation as toduration and other obligations of support, then the issuing state's law shall apply; (2) in anaction to enforce arrears, a court shall apply the limitations period of the forum state or theissuing state, whichever is longer.
C. Inconsistencies Between UIFSA and FFCCSOA
It was the goal of the United States Commission on Interstate Child Support thatFFCCSOA be consistent with the principles of UIFSA. The 1994 version of FFCCSOAcontained a number of inconstencies, however.
In the 1994 and 1996 versions, the definition of " contestant " in subsetion(b) includes a state or political subdivision of a state to which the right to obtain childsupport has been assigned. In the 1994 version, continuing, exclusive jurisdition remainedin the issuing state so long as a "contestant" resided there. Thus, a stateagency may hold the case in one state forever, even if all parties have left the state. UIFSAavoided that problem by referring only to individual parties. The 1996 version of FFCCSOAprovides that continuing, exclusive jurisdiction is based on the residence of the child or theindividual contestants, as in UIFSA.
The 1996 amendments also: added a definition of a child's home state that isidentical to the definition contained in UIFSA; provided rules for determining the controllingorder for purposes of enforcement and determination of continuing, exclusive jurisdictionto modify that are consistent with UIFSA; amended the choice of law subsection to beconsistent with UIFSA, and clarified that the law of the issuing state governs duration ofsupport; added a provision that if there is no state with continuing, exclusive jurisdiction,the party or agency seeking modification must register the order in a state with jurisdictionover the nonmovant for the purpose of modification, consistent with UIFSA. The result ofthis retooling is that the FFCCSOA is compatible with UIFSA. See Margaret CampbellHaynes, Full Faith and Credit for Child Support Orders Act , 10 Delaware Lawyer 26 (Spring1996) (outlining conflicts between UIFSA and FFCCSOA); John L. Saxon, The Federal FullFaith and Credit for Child Support Orders Act , 5 Institute of Government Family LawBulletin 1 (University of North Carolina at Chapel Hill, 1995).
Despite the amendments, it is possible that under FFCCSOA, a state must giverecognition to a child support order that would not be recognized under UIFSA, and wouldrefuse to recognize its own jurisdiction to modify an order because of FFCCSOA. This isthe current state of the case law.
D. Case Law Interpreting FFCCSOA
1. "Continuing, Exclusive Jurisdiction"
The most important concept in the FFCCSOA is that of continuing, exclusivejurisdiction. If an order is made consistently with the FFCCSOA under subsection (c), then,under subsection (d), the originating court has continuing, exclusive jurisdction over theorder so long as the state is the child's state or the residence of any party, unless the courtof another state, acting in accordance with subsections (e) and (f), modified the childsupport order.
This provision was explained in Porter v. Porter , 684 A.2d 259 (R.I. 1996). In thatcase, a Rhode Island family court divorced the parties in 1982. In 1989, the father wasliving in Massachusetts, and at that time, the Rhode Island family court entered an orderfor child support. The father did not contest the court's jurisdiction. In 1990, the mother andchildren moved to Florida. In 1994, the mother and children moved back to Rhode Island,and the mother then moved in the Rhode Island court for a judgment of arrears andmodification of the original order. The father contest the jurisdiction of the Rhode Islandcourt. The Rhode Island Supreme Court held that the present case involved the issuingstate enforcing its own order that had never been modified by another state. Thus, theFFCCSOA did not control. Even if it did, under subsection (d) of the FFCCSOA, RhodeIsland, as the originating state where the mother and child lived, had continuing, exclusivejurisdiction over its order.
The concept of "continuing, exclusive jurisdiction" under the FFCCSOAhas been interpreted to mean that a URESA court cannot modify a child support ordermerely because such an order has been registered in the state. Kelly v. Otte , 123 N.C.App. 585, 474 S.E.2d 131 (1996), explains the concept of continuing, exclusive jurisdiction.In that case, the North Carolina court conceded that when the trial court stated that a NewJersey order, on registration under URESA, becomes an order of the North Carolina court,the trial court erred. The FFCCSOA does not allow such a "transmutation" ofa New Jersey order into a North Carolina order. The New Jersey court, however, had lostits continuing, exclusive jurisdiction because all the parties had moved to North Carolina.North Carolina could, therefore, modify the New Jersey order pursuant to subsection (e).In Schuyler v. Ashcraft , 293 N.J. Super. 261, 680 A.2d 765 (1996), the court made thesame point: merely registering an out-of-state order in the forum state under URESA doesnot transmute the child support order into an order of the forum state that can be modified. Accord Harbour v. Harbour , 677 So. 2d 700 (La. Ct. App. 1 Cir. 1996) (under FFCCSOA,because father still lived in issuing state (Mississippi), although mother and child movedto Louisiana, Louisiana did not have jurisdiction under FFCCSOA to modify support order,but it could enforce order).
The impact of the FFCCSOA on URESA states has been dramatic. Whereas a statewould previously not hesitate to issue a new order under the provisions of URESA, a stateis now much more cognizant of its inability to do so. The recent State, Dept. of Revenueex rel. Skladanuk v. Skladanuk , 683 So. 2d 624 (Fla. 2d DCA 1996) demonstrates thevarious courts' attitude toward FFCCSOA. In that case, in July 1994, a New York FamilyCourt entered an order finding the father responsible for weekly child support in theamount of $168.49, plus $56.51 toward arrearages. The mother then filed a URESA actionin Florida to enforce the order against the father. Because the mother and child still livedin New York, the originating state, Florida held that it did not have jurisdiction to modify theNew York order. The court reasoned that the FFCCSOA preempted Florida law to theextent of removing jurisdiction to modify child support orders where the exceptions listedin subsection (e) of the FFCCSOA have not been satisfied. Accord State, Dept. ofRevenue ex rel. Jorda v. Fleet , 679 So. 2d 326 (Fla. 1st DCA 1996).
Likewise, in the recent Wilkie v. Silva , 685 A.2d 1239 (N.H. 1996), the mother andfather were divorced in Florida. At that time, a child support order was entered. The fatherthen moved to New Hampshire, and the mother continued to reside in Florida with thechildren. The mother then had the Florida decree registered in New Hampshire. Shortlythereafter, the father moved to have the registered order modified. The New HampshireSupreme Court held that because the mother and the children continued to reside inFlorida and there was no written consent filed allowing New Hampshire to take jurisdiction,then New Hampshire could not modify the Florida decree, even though the order had beenregistered.
The same result was reached in Paton v. Brill , 104 Ohio App. 3d 826, 663 N.E.2d421 (10th Dist. 1995). In that case, pursuant to a Maryland decree, the husband wasordered to pay support for the parties' two minor children. The husband moved to Ohio,and the wife filed a URESA petition for enforcement. The appellate court affirmed that aresponding URESA court cannot modify a URESA enforcement order because of theinapplicability of the exceptions listed in subsection (e) of the FFCCSOA. The courtconcluded that the FFCCSOA clearly prohibits modification by the responding URESAcourt and requires the party seeking modification to petition the issuing court. Accord Isabel M. v. Thomas M. , 164 Misc. 2d 420, 624 N.Y.S.2d 356 (Fam. Ct. 1995); Kelly v.Otte , 123 N.C. App. 585, 474 S.E.2d 131, 135 (1996); DeGolier v. Crone , 21 Fam. L. Rep.(BNA) 1422 (Vt. Fam. Ct. 1995).
2. Made "Consistently with the Act"
In order for a court to have "continuing, exclusive jurisdiction" under theFFCCSOA, the order made by the court must have been made "consistently"with the terms of the FFCCSOA. An act is made "consistently" with theFFCCSOA if the court that entered theorder had subject matter and personal jurisdictionover the parties, and the parties had notice and opportunity to be heard. In Bednarsh v.Bednarsh , 282 N.J. Super. 482, 660 A.2d 575 (Ch. Div. 1995), New Jersey interpreted therequirement that an order be made "consistently with the Act" to include allegations of fraud. A fraudulently induced order, the court concluded, was aking to thedefrauded party's lack of opportunity to be heard. Until that fraud is proven in the issuingcourt, however, the FFCCSOA still demands that the order be given full faith and creditunder the terms of the FFCCSOA.
3. An "Order" Entitled to Full Faith and Credit
According to subsection (b) of FFCCSOA, a "child support order"means a judgment, decree or order of a court requiring the payment of child support, andincludes a temporary order or an initial order. In In Matter of Cross v. Mastowski , 650N.Y.S.2d 511 (N.Y. Fam. Ct. 1996), the court interpreted this provision. In that case, anorder for child support was entered in New York against the father pursuant to its UniformSupport of Dependents Law. Thereafter, parties were divorced by decree of a Floridacourt, which also ordered the father to pay child support, but in an amount slightly higherthan the New York order. The Florida order was then registered in New York. The ChildSupport Enforcement Unit then determined that the father was in arrears, and suspendedthe father's driver's license. One of the father's arguments to the court was that the Floridacourt's order as to child support could not supersede the New York court's order underFFCCSOA. The court disagreed, holding that the initial New York order under New York'sUSDL was not the type of order that was to be given full faith and credit under FFCCSOA.By definition, a USDL order cannot affect any other proceeding or remedy available. Thus,FFCCSOA could not be applied to bar Florida from entering its own order based on the"continuing, exclusive jurisdiction" of New York. "To hold that the USDLorder invalidates or otherwise affects the subsequent judgment of divorce would clearlybe inconsistent with the purpose of the federal act." 650 N.Y.S.2d at 513, fn. 1.
4. A "Written Agreement" Shifting Jurisdiction to Modify from Continuing, Exclusive Jurisdiction State to New State
What constitutes a "written agreement" was considered in Bednarsh v.Bednarsh , 282 N.J. Super. 482, 660 A.2d 575 (1995). In that case, a Florida court enteredan order for child support and arrears on December 10, 1993. This order was entered onagreement of the parties. Without knowledge of the Florida order, a New Jersey courtentered an order on December 6, 1994, in excess of the Florida order. The court appellatecourt addressed its jurisdiction to modify the Florida order and concluded that theconditions of subsection (e) were not met: the father still resided in Florida, and there wasno "written consent" to vest jurisdiction in New Jersey. The court paid particularattention to the "written consent" condition of subsection (e), holding that theparties' complete absence of any mention of the Florida order in the prior moving,opposing and reply papers of the parties cannot be equated with written consent to NewJersey's exercise of jurisdiction. The "written consent" requirementcontemplated an unequivocal and express consent that the forum state assume jurisdictionover the matter of child support.
In Office of Child Support ex rel. Degolier v. Crone , 21 Fam. L. Rep. (BNA) 1422 (Vt.Fam. Ct. 1995) the court also addressed the "written consent" option. Inparticular, the court considered whether the petitioner's registration of a support orderunder URESA and the respondent's failure to object to the registration constituted animplied consent to Vermont's assumption of jurisdiction to modify under the FFCCSOA.The court concluded that the respondent's act of telephoning his lack of objection toregistration could not be said to satisfy the requirement of a written consent.
5. Choice of Law Provisions of FFCCSOA
In In re Marriage of Lurie , 33 Cal. App. 4th 658, 39 Cal. Rptr. 2d 835 (1995), thecourt applied the choice of law provisions contained in subsection (h) (formerly subsection(g)). In that case, the ex-wife sought to enforce and modify her New York child supportorder in California pursuant to URESA. The trial court held that California's age of majorityapplied to the child support order, and declined to increase support for the 20 year old son.The Court of Appeals held that URESA's choice of law principles required application ofCalifornia's age of majority. Moreover, the FFCCSOA did not compel a different result. Thecourt held that since the mother, father, and child no longer lived in New York, then NewYork did not have continuing, exclusive jurisdiction. subsection (d). Thus, the Californiacourts were free to modify the New York support order under FFCCSOA subsection (e).The "modification" that California could undertake under its own law appliedto both the scope and duration of the order. subsection (b). Further, the choice of lawclause in FFCCSOA that requires that an order be "interpreted" under the lawof the issuing state did not change the result. The California court was not only"interpreting" the New York order, it was also "enforcing" the NewYork order. Hence, Californa could apply California law.
Subsection (h) also has a provision relating to the statute of limitations. subsection(h)(2) provides that in an action to enforce arrears, a court shall apply the limitations periodof the forum state or the issuing state, whichever is longer. This subsection was appliedin Day v. Child Support Enforcement Division , 272 Mont. 170, 900 P.2d 296 (1995). In thatcase, the court held that the longer Montana statute of limitations of 10 years must applyover the shorter limitations period of five years as provided by the Fort Peck Tribal Code.(Indian tribes are included within the definition of "state" under the FFCCSOA.)
6. Retroactivity of FFCCSOAThus far, in the states that have considered the issue of retroactivity, all haveconcluded that the FFCCSOA may be applied retroactively to support actions that werepending when the FFCCSOA was enacted. In the recent Child Support EnforcementDivision of Alaska ex rel. Brenckle v. Brenckle , 1997 WL 45159, *6, 23 Fam. L. Rep. (BNA)1176 (Mass. Sup. Ct. 2/6/97), the court determined that the provisions of FFCCSOA andUIFSA were not substantive but rather procedural changes in the law. Hence, theirprovisions could be applied retroactively. Accord Isabel M. v. Thomas M ., 164 Misc. 2d420, 624 N.Y.S.2d 356, 359 (Fam. Ct. 1995); Paton v. Brill , 104 Ohio App. 3d 826, 663N.E.2d 421 (1995).
E. The Need to Adopt UIFSA and Recognize FFCCSOA
Because jurisdiction to modify a child support order is subject matter jurisdiction, amodified child support order issued by a court that did not have jurisdiction to modify underthe FFCCSOA is void. In order to avoid the proliferation of void orders, it is incumbentupon the parties to notify the court of any and all outstanding child support orders. See Bednarsh v. Bednarsh , 282 N.J. Super. 482, 660 A.2d 575 (1995) (New Jersey court'sorder, modifying Florida order of which it was unaware, resulted in void New Jersey order).If the court is not cognizant of the FFCCSOA, it must be made so by the parties and theircounsel. Otherwise, courts will issue orders that fail to address the FFCCSOA, just ascourts issued orders that failed to address the PKPA. The result can only be more litigationof the type that the FFCCSOA specifically sought to reduce. See, e.g., In re Marriage ofChester , 37 Cal. App. 4th 1624, 44 Cal. Rptr. 2d 717 (1995) (in discussion of court'sjurisdiction to modify registered order under URESA, court fails to discuss FFCCSOA);Oklahoma Dept. of Human Services ex rel. Pavlovich v. Pavlovich , 22 Fam. L. Rep. (BNA)1381 (Okla. Ct. App. 1996) (court notes that UIFSA changes scheme outlined in URESA,but fails to note that FFCCSOA already changed that scheme); Cordie v. Tank , 538N.W.2d 214 (N.D. 1995) (court states that the United States Constitution does not require that the court give full faith and credit to foreign child support judgment; court does notmention FFCCSOA). See also In re Marriage of Comer , 14 Cal. 4th 504, 59 Cal. Rptr. 2d155 (1996) (declining to decide whether FFCCSOA provides father with defense tomother's claim for support arrearages, although noting the FFCCSOA's existence).
II. The Uniform Enforcement of Foreign Judgments Act (UEFJA) and Child Support
A. What is UEFJA?Many of the problems engendered by the lack of uniformity in state laws regardinginterstate enforcement of child support will be remedied by January 1, 1998, when allstates must have UIFSA in place. UIFSA, in tandem with FFCCSOA, should provideconsistent rules for the recognition, enforcement, and modification of child support ordersacross state lines.
There is, however, yet another weapon in the arsenal of interstate child supportenforcement. The Uniform Enforcement of Foreign Judgments Act (UEFJA) was firstapproved by the National Conference of Commissioners on Uniform State Laws in 1948and revised in 1964. The 1964 UEFJA "provides the enacting state with a speedyand economicla method of doing that which is required by the Constitution of the UnitedStates. It also relieves creditors and debtors of the additional cost and harassment offurther litigation which would otherwise be incident to the enforcement of foreignjudgments."
Only one state still has the 1948 statute on its books: Missouri. Forty-four states andthe District of Columbia have enacted some version of UEFJA. 13 U.L.A. 10 (Supp. 1996).Because UEFJA is a model uniform act, and there is no requirement that states enact theact as written, states are free to enact the law with variations, so the act is not necessarily"uniform." See generally Sara L. Johnson, Annotation, Validity, Construction,and Application of the Uniform Enforcement of Foreign Judgments Act , 31 A.L.R.4th 706(1984 & Supp. 1999).
UEFJA applies to: (1) judgments, decrees or orders, (2) of a court, (3) which areentitled to full faith and credit. Accordingly, the act covers not only money judgments, butany order, such as to pay health insurance costs of name a support obligor as thebeneficiary of an insurance policy. But see 42 Pa. C.S. § 4306 (UEFJA limited toforeign orders requiring payment of money). The act also covers only judgments, decreesor orders of a court ; thus, administrative orders are not covered. Cf . FFCCOSA, 28 U.S.C.§ 1738B(b) ("court" is defined as including a court or administrativeagency empowered to issue support orders). Some states have also excluded from theirdefinition of "judgment" any default judgment obtained by confession. E.g. ,Conn. Gen. Stat. § 52-604; N.Y. Civ. Prac. L & R § 5401.
The most important definitional requirement of UEFJA is the third: it applies only tojudgments, decrees or orders "which are entitled to full faith and credit."Supreme Court decisions have consistently held that states must give full faith and creditto orders that are non-modifiable in the issuing state. E.g. , Barber v. Barber , 323 U.S. 77,65 S. Ct. 137 (1944). Since child support and spousal support are prospectivelymodifiable, UEFJA appears to apply only to money judgments for arrears or past-dueinstallments of child support (which are non-modifiable by virtue of the BradleyAmendment, 42 U.S.C. § 666(a)(9)). E.g. , Hixson v. Haygood , 516 So. 2d 694 (Ala.Civ. App. 1987) (judgment of sister state is entitled to full faith and credit for child supportonly to the extent that accrued child support is no longer modifiable under law of sisterstate); Robbins v. Robbins , 647 P.2d 589 (Alaska 1982) (California child supportarrearages enforceable under UEFJA); Matson v. Matson , 310 N.W.2d 502 (Minn. 1981)(if judgment is subject to modification by rendering court, it need not be afforded full faithand credit; full faith and credit clause applies to past due support payments, which cannotbe reduced); Siegel v. Mosier , 632 S.W.2d 76 (Mo. Ct. App. 1992) (past due child supportconstituted final judgment entitled to full faith and credit); Overman v. Overman , 514S.W.2d 625 (Mo. Ct. App. 1974) (alimony, even past due, not entitled to full faith and creditwhere law of Tennessee provided that alimony could be retroactively modified); Wolfe v.Wolfe , 64 A.D.2d 700, 407 N.Y.S.2d 568 (2d Dep't 1978) (money judgment for arrearswhich had accrued under Florida decree was entitled to full faith and credit); Ehrenzweigv. Ehrenzweig , 86 Misc. 2d 656, 383 N.Y.S.2d 487, aff'd, 61 A.D.2d 1003, 402 N.Y.S.2d683 (1976) (wife could use UEFJA to enforce Connecticut divorce decree requiringpayment of alimony and support as to arrears); Sabrina D. v. Thomas W. , 110 Misc. 2d796, 443 N.Y.S.2d 111 (Fam. Ct. 1981) (foreign child support order, being subject to futuremodifications, is not a final money judgment within meaning of UEFJA); Mittenthal v.Mittenthal , 99 Misc. 2d 778, 417 N.Y.S.2d 175 (Fam. Ct. 1979) (full faith and credit doesnot apply to judgment that is subject to modification by the rendering court); Barnett v.Barnett , 85 Ohio App. 3d 1, 619 N.E.2d 38 (9th Dist. 1993) (order for child support,payable in installments and subject to modification under the laws of the rendering state,are not entitled to full faith and credit since they are not sufficiently final); Ames v. Ames ,66 Or. App. 50, 652 P.2d 1280 (1982) (child support order entitled to full faith and creditinsofar as it represented past due support); Salmeri v. Salmeri , 554 P.2d 1244 (Wyo.1976) (New Jersey judgment for support arrears enforceable in Wyoming under UEFJA).Cf. Gedeon v. Gedeon , 630 P.2d 579 (Colo. 1981) (judgment in favor of former wife forattorney's fees, contempt fine, and guardian ad litem fees, were final and collectible, andentitled to full faith and credit).
Since the passage of the FFCCSOA, however, we may query whether that definitionstill holds true. The FFCCSOA requires that full faith and credit be given to any childsupport order. "Child support order" is a judgment, decree, or order of a courtrequiring the payment of child support and includes both permanent and temporarysupport, and both an initial order and modification. 28 U.S.C. § 1738B(b). But see Cordie v. Tank , 538 N.W.2d 214 (N.D. 1995) (child support orders are recognizedpursuant to comity, and the Constitution does not require that ongoing support orders begiven full faith and credit; FFCCSOA not mentioned).
B. Procedure Under UEFJAIn order to enforce an order for support issued in another state pursuant to UEFJA,the obligee must file an authenticated copy of the support order in the clerk's office of theforum state. See McGinn v. McGinn , 884 S.W.2d 277 (Mo. Ct. App. 1994) (Texas judgmentfor child support in arrears could not be enforced in Missouri under UEFJA where wifefailed to present authenticated copy of Texas judgment to court bearing attestation andseal of clerk of court, as well as certification of judge). If there is a money judgment forarrears, that judgment must be filed. If there is no money judgment for arrears, the obligeemust file the original order and any modifications to that order. UEFJA § 2.
Authentication must be according to either 28 U.S.C. § 1738 or the statutesof the issuing state. Pursuant to 28 U.S.C. § 1738, an "authenticatedcopy" is one that the clerk of the issuing court has attested to with the court's sealand a certificate from the judge stating that attestation is in the proper form.
Along with the authenticated copy of the foreign judgment, the obligee must file anaffidavit setting forth certain required information, such as the name and address of theobligor. UEFJA § 3. Some experts recommend that the obligee also file a true copyof any pay records and a sworn statement as to the support arrearage as of a particulardate. Marian F. Dobbs, Margaret Campbell Haynes, Marilyn Ray Smith, Enforcing Childand Spousal Support § 6:94 at 6-98 (1995). See also Patricia M. Hoff, "TheUniform Enforcement of Foreign Judgments Act and Other Actions to Enforce ChildSupport in Sister States," in Margaret Campbell Haynes & Diane Dodson, eds.,Interstate Child Support Remedies (U.S. Dep't of Health and Human Services 1989).
Once the order is filed with the clerk, the order has the same effect and is subjectto the same procedures, defenses, and proceedings for reopening, vacating, or staying asa judgment of the forum state and may enforced or satisfied in like manner. UEFJA §2. The effect of filing an order under UEFJA is the same as the effect of registering anorder under URESA. After the filing with the clerk, the obligor must be notified promptly.UEFJA § 3(b).
UEFJA provides for defenses to enforcement: an appeal from the foreign order ispending or will be taken; a stay of execution has been granted; a defense to enforcementexists under the laws of the forum state. UEFJA § 4.
C. Case Law Interpreting UEFJAMany cases concerning UEFJA and the enforcement of support obligations havearisen under § 4: the obligor asserts a defense to enforcement under the laws of theforum state. As stated in Hatch v. Hatch , 247 Or. 588, 431 P.2d 832 (1967), the defensesof lack of jurisdiction, fraud in obtaining the original judgment, the running of the statuteof limitations, and similar such defenses going to the viability of the judgment can beinterposed in a proceeding for registration of a foreign judgment under UEFJA. Thus, anobligor can raise lack of personal jurisdiction in the original judgment as a defense,Stevens v. Stevens , 44 Colo. App. 252, 611 P.2d 590 (1980); Glotzer v. Glotzer , 112 Misc.2d 851, 447 N.Y.S.2d 603 (1982), and lack of notice and opportunity to be heard.Ackerman v. Ackerman , 676 F.2d 898 (2d Cir. 1982); Nissen v. Miller , 642 S.W.2d 428(Tenn. Ct. App. 1982). An obligor can also raise the statute of limitations as a defense tothe judgment. E.g. , In re Marriage of Kramer , 254 Ill. App. 3d 923, 625 N.E.2d 808 (1993);Foley v. Foley , 641 S.W.2d 138 (Mo. Ct. App. 1982); Ames v. Ames, 60 Or. App. 50, 652P.2d 1280 (1982); Wellington v. Wellington , 19 Wash. App. 328, 575 P.2d 1088 (1978).The existence of these defenses, however, does not allow a party to relitigate issues offact that were conclusively decided. Davis v. Davis , 558 So. 2d 814 (Miss. 1990). Theexistence of these defenses also does not allow party to assert these defenses when theywere asserted in the original action. Bureau of child Support Enforcement v. Holjeson , 42Wash. App. 69, 708 P.2d 661 (1985).
While many states have stated that only a final, nonmodifiable support order canbe enforced under UEFJA, these same states have also held that an ongoing supportorder can be filed under UEFJA under the principles of "comity." Where stateshave permitted a UEFJA petition for ongoing support under the principles of comity, thecourts have held that they may modify the ongoing support, see, e.g. , Hutto v. Plagens ,354 Ga. 512, 330 S.E.2d 341 (1985); Light v. Light , 12 Ill. 2d 502, 147 N.E.2d 34 (1957);Foley v. Foley , 641 S.W.2d 138 (Mo. Ct. App. 1982); Paden v. Warnke , 110 Misc. 2d 61,441 N.Y.S.2d 575 (Fam. Ct. 1981); Hatch v. Hatch , 247 Or. 888, 431 P.2d 832 (1967);Burback v. Burback , 724 P.2d 853 (Or. Ct. App. 1986), so long as the court has personaljurisdiction over the parties. Stephens v. Stephens , 229 Va. 610, 331 S.E.2d 484 (1985).
A state can modify a support order under UEFJA only in a manner consistent withUIFSA. If a state has enacted UIFSA, which defines full faith and credit, then UIFSA willact as a limitation on the court's subject matter jurisdiction to modify another state'ssupport. Thus, although in Paden v. Warnke , 110 Misc. 2d 61, 441 N.Y.S.2d 575 (1981),the court held that it had the power to modify prospectively the filed order, it is doubtful thatUIFSA would allow this result.
A. Why UIFSA?UIFSA was approved by the American Bar Association in 1993 and has now beenenacted in all jurisdictions. Quite significantly, all states were required toenact UIFSA byJanuary 1, 1998, by virtue of 42 U.S.C. Section 666(f), inserted by Pub. L. No. 104-193,Section 321, 110 Stat. 2221 (1996) (part of the Personal Responsibility and JobOpportunity Reconciliation Act of 1996, also known as the Welfare Reform Bill):
(f) Uniform Interstate Family Support Act. In order to satisfy 42 U.S.C.Section 654(20)(A), on and after January 1, 1998, each State must have ineffect the Uniform Interstate Family Support Act, as approved by theAmerican Bar Association on February 9, 1993, together with anyamendments officially adopted before January 1, 1998 by the NationalConference of Commissioners on Uniform State Laws.
UIFSA takes the place of the Uniform Reciprocal Enforcement of Support Act(URESA), which was first drafted and approved by the National Conference ofCommissioners on Uniform State Laws in 1950. At the time, URESA was an importantdevelopment in the law of support enforcement: URESA provided the first mechanism bywhich support orders could be established and enforced across state lines. Pursuant toURESA, an obligee could establish paternity, establish a support duty, enforce an existingsupport order for both arrears and prospective support, seek a new order in a higheramount, and register a foreign support order in a second state. See generally Margaret C.Haynes, "The Uniform Reciprocal Enforcement of Support Act," in Margaret C.Haynes & G. Diane Dodson, eds., Interstate Child Support Remedies (United StatesDepartment of Health and Human Services 1989).
In the years since its adoption, URESA has proved incredibly troublesome, for anumber of reasons. Indeed, criticisms of URESA were even noted by the United StatesSupreme Court:
Although appellant's argument that URESA is inadequate to enforce supportobligations is persuasive, for purposes of deciding this case we need neitheraccept nor reject it.
Jones v. Helms , 452 U.S. 412, 425 n.26 (1981) (citing commentators critical of URESA).
The shortcomings of URESA were many. First, URESA did not have a long-armprovision all proceedings under URESA required initiation of a proceeding in the initiatingstate through the filing of a petition or a request for registration that was forwarded to theappropriate entity in the responding state. URESA thus always involved two states.Further, once the responding state took the URESA case, the responding state was limitedto the URESA petition only, and jurisdiction was not conferred on the court on anycounterclaim the obligor might have. Jurisdiction for modification had to exist independentof the URESA petition.
Second, URESA began its life as the Runaway Pappy Act : It was designed to allowobligees to track down obligors. Thus, through all its revisions and amendments, it onlyallowed obligees to initiate an action. Parties, however, may relocate for legitimatereasons, and both the obligor and the obligee should have access to the system of revisionand enforcement.
Third, the biggest problem under URESA was that a URESA order did not nullifyany other support order, and was not nullified by any other support order, regardless of thepriority of issuance, unless as specifically provided by the court. Therefore, a URESAorder existed independent of any other support order between the parties. If the URESAorder required payment of support in a different amount than that required by anothersupport order, both were valid orders with which the obligor had to comply. This result ofmultiple, conflicting orders caused the National Conference of Commissioners on UniformState Laws to reexamine URESA and ultimately to abandon URESA altogether.
URESA was amended in 1952 and in 1956, and it was substantially redrafted in1968, resulting in R-URESA, the Revised Uniform Reciprocal Enforcement of Support Act.In 1988, the National Conference of Commissioners on Uniform State Laws formed adrafting committee to again revise URESA to reflect the changes in child supportenforcement since 1968. The drafting committee concluded that the best course of actionwould be not to revise URESA, but to draft an entirely new act to supersede URESA,embodying the radically different, but better, policy of one order, one time, one place. Thefruit of the efforts of the drafting committee is the Uniform Interstate Family Support Act(UIFSA), found at 9 U.L.A. (Master Edition) pt. 1 (Supp. 1999). URESA is dead; long liveUIFSA. See Susan F. Paikin & William J. Reynolds, Ethical Issues in Interstate FamilySupport Litigation , 26 Del. Law. 10 (Spring 1996); United States Department of Health andHuman Services, Uniform Interstate Family Support Act (UIFSA) Handbook (1995); JohnL. Saxon, The Uniform Interstate Family Support Act , 8 Institute of Government Family LawBulletin (University of North Carolina at Chapel Hill 1995); Robert Levy, Highlights of theUniform Interstate Family Support Act , 83 Ill. B.J. 647 (1995); Margaret C. Haynes, TheUniform Interstate Family Support Act , 15 Wis. J. Fam. L. 1 (1995); Tina M. Fielding, TheUniform Interstate Family Support Act: The New URESA , 20 U. Dayton L. Rev. 425 (1994);John J. Sampson & Paul M. Kurtz, UIFSA: An Interstate Support Act for the 21st Century ,27 Fam. L.Q. 85 (Spring 1993).
B. UIFSA Definitions and ProvisionsUIFSA comprises nine articles. Article 1 contains general provisions, includingdefinitions. Article 2, divided into three parts, contains the provisions concerningjurisdiction, probably the most important part of UIFSA. Article 3 contains the provisionsrelating to the duties of the state in a UIFSA action. Article 4 contains the provisionsrelating to the establishment of an order. Article 5 contains the provisions relating to directenforcement of an order of another state without the need for registration. Article 6, dividedinto 3 parts, concerns the enforcement and modification of support orders afterregistration. Article 7 concerns paternity actions. Article 8 concerns interstate rendition.Article 9 contains miscellaneous provisions, i.e., the title of the act, its severability, theeffective date of the act, etc.
1. DefinitionsMany of the definitions under UIFSA are the same or similar to the definitions underURESA. As stated in the Prefatory Note to UIFSA, the terminology of URESA was retainedas much as possible to ease the transition from URESA to UIFSA. Nevertheless, somechanges were made, and it is useful to consider all the important terms, which arecontained in Section 101 of the Act.
Child is defined to include a child over the age of majority if he or she is thebeneficiary of a support order. Section 101(1). Thus, UIFSA may be used to enforcesupport arrears on behalf of an obligee even if the child is no longer a minor. UIFSA mayalso be used to enforce an order for college tuition. The definition of child support orderembodies this new definition of child. Section 101(2).
Duty of support is defined as an obligation imposed or imposable by law to providesupport for a child, spouse, or former spouse, including an unsatisfied obligation to providesupport. Section 101(3). Thus, duty of support is broadly defined to include bothprospective and retrospective support; UIFSA may be used to establish an initial supportorder.
Home state is defined as
the state in which a child lived with a parent or a person acting as a parentfor at least six consecutive months immediately preceding the time of filingof a petition or comparable pleading for support and, if a child is less thansix months old, the state in which the child lived from birth with any of them.A period of temporary absence of any of them is counted as part of thesix-month or other period.
Section 101(4). Thus, the home state will decide priority among competing jurisdictions.When two or more states have continuing, exclusive jurisdiction under UIFSA to modify anorder, priority goes to the child's home state. This definition is consistent with the definitionof home state in the Uniform Child Custody and Jurisdiction Act (UCCJA) and the ParentalKidnapping Prevention Act (PKPA).
Income is defined as earnings or other periodic entitlements to money from anysource and from any other property subject to withholding for support under the law of thestate. Section 101(5). This definition of income incorporates the enacting state's definitionof income for purposes of income withholding.
Initiating State and Initiating Tribunal are similarly defined in URESA. UIFSA,however, permits the direct filing of an interstate action in the responding state without aninitial filing in the initiating state. Section 101(7), (8). Thus, the definitions of RespondingState and Responding Tribunal in Section 101(16) and (17) also accommodate the directfiling of a petition in the responding state without the initial filing in the initiating state.
Obligee is defined to include a spouse in the case of spousal support, in the caseof child support it can be the child, the custodial parent or other legal guardian, or asupport enforcement agency to whom the right of support has been assigned. Obligor isthe person who owes the duty of support. Section 101(12), (13).
State includes any foreign jurisdiction that has established procedures for theissuance and enforcement of support orders that are substantially similar to theprocedures under UIFSA. Section 101(19). This Section essentially withdraws therequirement of reciprocity demanded by URESA. A state need not enact UIFSA in orderfor support orders issued by its tribunal to be enforced in other states.
Support enforcement agency replaces the role that the prosecutor played underURESA. Under UIFSA, the support enforcement agency is a public agency or official thatprovides general child support services. Section 101(20). In most states, the supportenforcement agency is the state child support agency.
Support order under UIFSA is defined expansively. A support order includes anorder for monetary support, arrears, health care, reimbursement, related costs and fees,interest, income withholding, and attorney's fees. Section 101(21).
Tribunal is defined as a court, administrative agency, or quasi-judicial entityauthorized to establish, enforce or modify support orders or to determine parentage.Section 101(22). UIFSA thus recognizes administrative and judicial orders.
It is important to note that many crucial definitions depend on state law. Forexample, the definitions of child and child support order refer to the age of majority, whichis determined by reference to state law. Similarly, the definition of support order refers tohealth care, arrearages, or reimbursement, which is determined by state law. Income alsodepends on state law.
2. ProvisionsThe jurisdictional rules are set out in Part A of Article 2 of UIFSA, Sections 201 and202. Section 201 establishes UIFSA's bases for jurisdiction over a nonresident, i.e.,long-arm jurisdiction, by providing that a state may exercise jurisdiction over an individualif (1) the individual has been properly served in the state; (2) the individual submits to thejurisdiction of the court by entering a general appearance or by filing a responsivedocument; (3) the individual resided with the child for whom support is being sought withinthe state; (4) the individual provided prenatal expenses or child support while residingwithin the state; (5) the child resides within the forum state because of some activities ofthe individual; (6) the individual engaged in sexual intercourse in the state; (7) theindividual asserted parentage in the state's registry or in another appropriate agency; (8)there is any other basis consistent with the constitutions of this State and the United Statesfor the exercise of personal jurisdiction. One scholar has stated that basis (1) is acodification of Burnham v. Superior Court, 495 U.S. 604 (1990), which affirmed theconstitutionality of asserting personal jurisdiction based on personal service within a state(the tag rule). See John J. Sampson & Paul M. Kurtz, UIFSA: An Interstate Support Act forthe 21st Century , 27 Fam. L.Q. 85, 114 (Spring 1993).
Part B of Article 2 of UIFSA, Sections 203-206, deals with what used to be two-stateURESA actions. Under Section 203, a tribunal can serve as a responding tribunal whenthere is no initiating tribunal in another state in order to accommodate the direct filing ofan action in a responding tribunal by a nonresident.
Section 204 concerns the situation where there are simultaneous proceedings inanother state. The Section requires cooperation between and deference by sister-statetribunals in order to avoid the issuance of competing support orders. UIFSA opts for thePKPA method of resolving disputes between competing jurisdictional assertions byestablishing priority for the tribunal in the child's home state. If there is no home state, thenthe state of first filing controls.
Section 205 is, according to the drafters' comments, perhaps the most crucialprovision in UIFSA. This Section establishes the principle of continuing, exclusivejurisdiction over support orders: The issuing tribunal retains continuing, exclusivejurisdiction over the support order except in narrowly defined circumstances. Child supportorders may be modified by another jurisdiction when (1) there is an agreement of theparties, or (2) the obligor, the obligee, and the child have permanently left the issuingstate. Thus, where all parties reside outside the issuing state, the issuing state loses itscontinuing, exclusive jurisdiction. On the other hand, spousal support orders may alwaysbe modified by the issuing state, i.e., the issuing tribunal retains continuing, exclusivejurisdiction over an order of spousal support throughout the entire existence of the supportobligation.
Section 207 establishes a priority scheme for recognition and enforcement ofexisting multiple orders regarding the same obligor, obligee, and child, and was designedto cover the time between the present, when some states still have URESA, and the future,when all states have UIFSA. Under this provision, an order issued by the child's homestate is given the highest priority. If more than one of these exists, then the most recent isgiven priority.
Article 3 of UIFSA, Sections 301-319, provides rules of general application,detailing the functions of the initiating and responding tribunals, and in many ways issimilar to URESA. The most profound difference from URESA occurs in the function of theinitiating state: Under UIFSA, the initiating state's function is purely clerical, forwarding theappropriate documents to the responding state.
Section 301 provides that UIFSA governs the following types of proceedings:
- establishment of an order for spousal support or child support
- enforcement of a support order and income-withholding order of anotherstate without registration
- registration of an order for spousal support or child support of another statefor enforcement
- modification of an order for child support or spousal support issued by atribunal of this state
- registration of an order for child support of another state for modification
- determination of parentage
UIFSA also recognizes that interstate cases present special problems of evidence.UIFSA thus contains provisions on the transmission of evidence and the relaxation of thebest evidence rule. Sections 316-318.
Article 4 of UIFSA, Section 401, concerns the establishment of a support order. ThisSection authorizes a tribunal in a responding state to issue temporary and permanentorders. Of course, a tribunal cannot issue such orders when another support order existsand another tribunal has continuing, exclusive jurisdiction under Sections 205 and 206.
Article 5 of UIFSA, Sections 501-502, concerns the direct enforcement of an orderof another state without registration of that order. Direct recognition by the obligor'semployer of an income-withholding order issued by another state was long sought by childsupport enforcement advocacy groups, and these Sections are intended to replace theModel Interstate Income Withholding Act. Under Section 501, the employer, upon receivingan income-withholding order issued in another state, shall treat the order as though it hadbeen issued in the state of the employer. Under Section 502, summary enforcement of asister-state child support order through any administrative means available for localsupport orders is authorized.
Article 6, divided into three parts, concerns the enforcement and modification ofsupport orders after registration. Sections 601-604 detail the means for registration. Underthe one order, one time, one place system of UIFSA, only the existing order may beenforced, and registration is the first step to enforcement. If a prior support order has beenvalidly issued, only that order may be enforced against the obligor. Sections 605-608provide the procedure by which the nonregistering party may contest registration of anorder. To prevail in a challenge to the validity of a support order, the obligor must showthat:
- the issuing tribunal lacked personal jurisdiction over the contesting party
- the order was obtained by fraud
- the order has been vacated, suspended, or modified by a later order
- the issuing tribunal has stayed the order pending appeal
- there is a defense under the law of the responding state to the remedysought
- full or partial payment has been made
- the statute of limitations under the Section 604 choice-of-law Sectionprecludes enforcement of some or all of the arrearage
Sections 609-611 concern those situations where it is necessary for a registeringstate to modify the existing child support order of another state. Particular attention shouldbe paid to these Sections. As long as the issuing state has continuing, exclusivejurisdiction over its order, a registering state is precluded from modifying that order. Thisis the most significant departure from the URESA multiple-order, multiple- modificationsystem. Where the issuing state does not have continuing, exclusive jurisdiction, theregistering state may assume the power to modify. Section 611 is thus the counterpart toSection 205(b), which establishes continuing, exclusive jurisdiction. (Note that theseprovisions relate only to child support. UIFSA does not contemplate modification ofspousal support orders.)
Section 611 provides:
(a) After a child support order issued in another state has been registeredin this State, the responding tribunal of this State may modify that order if,after notice and hearing, it finds that:
(1) the following requirements are met:
(i) the child, the individual obligee, and the obligor do not reside in theissuing state;
(ii) a petitioner who is a nonresident of this State seeks modification;
(iii) the respondent is subject to the personal jurisdiction of the tribunal of thisState; or
(2) an individual party of the child is subject to the personal jurisdiction of thetribunal and all of the individual parties have filed a written consent in theissuing tribunal providing that a tribunal of this State may modify the supportorder and assume continuing, exclusive jurisdiction over the order.
In sum, under UIFSA, there are two ways for a state to assume jurisdiction for thepurpose of modifying another state's order. Either no one continues to reside in the issuingstate, and the petitioner seeking modification is a nonresident of the same state assumingjurisdiction, and the assuming state has personal jurisdiction over the respondent; or someperson is subject to personal jurisdiction and all the parties have filed a written consent inthe issuing state for the assuming state to modify the order.
It is quite important to note that jurisdiction for modification of child support is quitedifferent from jurisdiction for modification of custody under the PKPA and UCCJA. Incustody modification, a court with continuing, exclusive jurisdiction may decline jurisdiction.This privilege is not authorized under UIFSA. Once an initial child support order isestablished, there is, at all times thereafter, an existing order in force to be enforced. Thus,even if the issuing court no longer has continuing, exclusive jurisdiction, the order of thecourt remains fully enforceable until a court with modification jurisdiction issues a neworder.
Section 611 also provides that the final, nonmodifiable aspects of a child supportorder may not be modified. For example, if the issuing state issued an order that childsupport terminates at age 21, the responding state cannot change that aspect of the order,even if support in the responding state ends at age 18. To make this Section work, Section612 provides the deference to the support order of a sister state that was missing inURESA.
For purposes of illustration, let us take a number of examples where the parties arein different states. (Unless otherwise stated, assume that the custodial parent and childhave been living in STATE 1 for the last six consecutive months.)
Example 1 : Custodial parent and child are in STATE 1; noncustodial parent is in STATE2. STATE 1 has issued an order; STATE 2 has not. The controlling order is in STATE 1.
Example 2 : Custodial parent and child are in STATE 1; noncustodial parent is in STATE2. STATE 1 has not issued an order; STATE 2 has issued an order. The controlling orderis in STATE 2.
Example 3 : Custodial parent and child are in STATE 1; noncustodial parent is in STATE2. STATE 1 has issued an order; STATE 2 has issued an order. Assuming that the childhas been in STATE 1 for the prior consecutive six months, the controlling order is inSTATE 1.
Example 4 : Custodial parent and child are in STATE 1; noncustodial parent is in STATE2. STATE 1 has issued an order; STATE 3 has issued an order. The controlling order isin STATE 1.
Example 5 : Custodial parent and child are in STATE 1; noncustodial parent is in STATE2. STATE 1 has issued an order; STATE 2 has issued an order. This time, however, thechild had been in STATE 1 for one month before STATE 1's order was issued; prior to that,the child had lived in STATE 2 for at least the prior consecutive six months. The controllingorder is in STATE 2.
Example 6 : Custodial parent and child are in STATE 1; noncustodial parent is in STATE2. STATE 1 issued an order in 1990; STATE 2 issued an order in 1994. This time, the childhas been in STATE 1 for one month and, prior to that, had been in STATE 2 for twomonths. The controlling order is in STATE 2.
Example 7 : Custodial parent and child are in STATE 1; noncustodial parent is in STATE2. STATE 3 has issued an order; STATE 4 has issued an order. There is no controllingorder, and STATE 1 or STATE 2 may issue an order. The first order issued will havepriority.
A Decision Tree may also be utilized to determine what state's order controls:
First ask, Are there any child support orders?
A. If no, then the responding state is involved in an establishment case under Section 401,and may become the court of continuing, exclusive jurisdiction.
B. If yes, then ask, How may outstanding child support orders are there?
(1) If one, then the responding state must recognize that order under Section 207(a)(1),and must enforce the order. The responding court may modify the order if the requisitesfor modification are met under Section 611.
(2) If more than one outstanding child support order exists, then the priority schemecontained in Section 207 of UIFSA controls.
C. A Comparison of UIFSA and URESA
Much of the terminology of URESA is retained in UIFSA. For example, both use theterms initiating state and responding state. One important difference in terminology is theuse of the word tribunal instead of court, so that a court, administrative agency, orquasi-judicial entity authorized to establish, enforce, or modify support orders or determineparentage is embraced within the definition.
Apart from terminology, UIFSA differs from URESA in several significant respects,and each difference bears discussion.
First, under URESA, a URESA order existed independent of any other supportorder. Thus, several conflicting support orders governing the same parties and child couldexist at the same time. UIFSA has dealt with this major flaw by establishing priority amongorders to achieve one order, one time, one place. Under UIFSA, there can be only onecontrolling order. Thus, for the first time, all states will be enforcing the same amount.
It is important to note that UIFSA does not result in only one state being involvedwith a support order. Under UIFSA, several states may enforce a support order at thesame time. What distinguishes UIFSA is that, for the first time, all states will be enforcingthe same amount: there is only one controlling order.
UIFSA accomplished the one order, one time, one place principle by adoptingcontinuing, exclusive jurisdiction principles similar to those contained in the UCCJA.Sections 204-207.
Second, UIFSA contains a much-expanded long-arm provision that allows the stateto assert jurisdiction over a nonresident and to process the case locally. Bases forexercising jurisdiction include (1) the individual resided with the child in the forum state;(2) the individual resided in the state and provided prenatal expenses and support for thechild; (3) the child resides in the forum state as a result of the acts or directives of theindividual; (4) the individual engaged in sexual intercourse in the state and the child mayhave been conceived as a result of that sexual act. Section 201.
By containing expanded long-arm jurisdiction, UIFSA follows what was termed bythe drafters as a one-stop shop approach. Included within UIFSA are both the traditionaltwo-state remedies contained in URESA and the one-state remedies that are available toestablish and enforce support.
Third, UIFSA contains a one-state enforcement mechanism referred to as directwithholding. Under Section 501, an attorney or a child support agency can send anincome-withholding order directly to an out-of-state employer, regardless of whether theemployer does business in the issuing state. This one-state enforcement mechanism is inaddition to the traditional two-state mechanism found in URESA for establishing paternityand support, for enforcing support, and for modifying support.
Fourth, URESA was available to only obligees. UIFSA, however, is available to bothobligors and obligees. Both an obligor and an obligee can register an order under UIFSA.This is accomplished by UIFSA using the word petitioner to refer to the party initiating theproceeding under UIFSA.
Fifth, UIFSA eliminates the requirement that URESA or R-URESA be enacted in astate before another state can enforce its order. Public policy favored this reciprocitybetween states even when such reciprocity is not included in a state's statute. Thereciprocity language thus allows for easier enforcement of Canadian and Mexican orders,provided that the orders substantially conform to the principles of UIFSA.
Sixth, under URESA, obligees may have been reluctant to register an orderbecause URESA allowed multiple support orders. URESA in effect encouraged an obligeeto begin a second suit in the responding state rather than utilizing the process ofregistration. In contrast, UIFSA makes registration the primary means by which support isenforced in a nonissuing state.
D. Case Law Interpreting UIFSA
As noted above, Section 101(19) defines state to include any foreign jurisdictionthat has established procedures for the issuance and enforcement of support orders thatare substantially similar to the procedures under UIFSA. This Section withdraws therequirement of reciprocity demanded by URESA.
This provision was interpreted, or rather ignored, by the trial court in JeffersonCounty Child Support Enforcement Unit v. Hollands , 23 Fam. L. Rep. (BNA) 1236, 1997WL 96398 (Ark. Mar. 3, 1997). In that case, the trial court held that because Michigan hadnot adopted UIFSA the support order could not be registered and enforced under UIFSAin Arkansas. The Supreme Court of Arkansas reversed and held that, although Michigandid not have UIFSA at the time the order was registered, the order could nonetheless beregistered and enforced under UIFSA in Arkansas, as Michigan's law concerning childsupport was substantially similar.
Similarly, in Link v. Alvarado , 929 S.W.2d 674 (Tex. App. 1996), the court held that Hawaii,a URESA state, was a state with law substantially similar to Texas's UIFSA. Thus, theTexas courts were required to recognize the continuing, exclusive jurisdiction of Hawaiiover its orders. Accord Neville v. Perry , 648 N.Y.S.2d 508 (N.Y. Fam. Ct. 1996) (NewYork's Uniform Support of Dependents Law is substantially similar to UIFSA); Thompsonv. Thompson , 893 S.W.2d 301 (Tex. App. 1995) (Indiana law under URESA issubstantially similar to Texas's UIFSA; Texas could not modify Indiana order since Indianahad continuing, exclusive jurisdiction).
2. Long-Arm Jurisdiction
Although not technically a UIFSA case, one case is certain to affect future UIFSAlitigation, in Alaska at least. In McCaffery v. Green , 931 P.2d 407 (Alaska 1997), the courtheld that jurisdiction under the UCCJA to modify a custody order gives the courtjurisdiction to modify a child support order. In this case, the husband and wife weredivorced in Texas in 1987. At that time, a child custody and support order was entered.The support obligation was modified in Texas in 1991.
In 1991, the mother and child moved to Alaska, and the father moved to Oregon.No one lives in Texas anymore. In 1994, the mother filed a request to modify the Texassupport order in Alaska. The father objected on the grounds that Alaska had no jurisdictionover him. The trial court sustained the father's objections, noting that the mother had failedto register the Texas order in Alaska and that, even if she had, while the court would havehad jurisdiction over the father on matters of custody under the UCCJA, it did not havejurisdiction over the father on matters of support, citing Kulko v. Superior Court , 436 U.S.84 (1978).
The Alaska Supreme Court reversed. It first noted that under the UCCJA the Alaskacourt would have jurisdiction to hear custody and visitation issues since Alaska was thechild's home state. The court then distinguished Kulko by noting that, in Kulko , the fatherhad remained in the original issuing state. In Green, all parties had left the issuing state.Thus, Texas did not have continuing, exclusive jurisdiction over its child support order anylonger. The order merely remained in effect until it was properly modified. The court furtherdistinguished Kulko by noting that Kulko was decided before the widespread enactmentof the UCCJA. The court also found it significant that if Alaska could not hear the supportissue then the mother would have to divide her issues among various states; Texas orOregon would have to hear the support claim, while Alaska, as the child's home state,would have to hear the custody claims. Although the court concluded that it remains to beseen what difference UIFSA will bring, McCaffery v. Green , 931 P.2d at 413, the courtnevertheless determined that Alaska's assertion of jurisdiction over the issue of childsupport simply made sense under its long-arm statute. It thus appears that in at least onecase long-arm jurisdiction may be asserted by the fact that the UCCJA would grantjurisdiction, Kulko notwithstanding. See also In re Marriage of Peck , 82 Wash. App. 809,920 P.2d 236, 240 n.1 (1996) (UIFSA may provide mechanism for enforcing supportdecrees when the children live in a state that cannot obtain personal jurisdiction over thedefendant).
Tag-rule long-arm jurisdiction and UCCJA jurisdiction were also utilized in In reMarriage of Calhoun , 1995 WL 265047, 1995 Minn. App. LEXIS 624 (1995). In that case,the parties were divorced in 1984. The mother and child moved to West Virginia and thento Minnesota. The father, a Navy physician, lived in Japan and then transferred toWashington State. When the father came to Minnesota to pick up his child for visitationin 1993, he was personally served with the mother's request to modify support. The trialcourt found that it had jurisdiction over the father because he had availed himself of theMinnesota courts for postdivorce modification of visitation under the UCCJA. The appellatecourt affirmed, holding that Burnham v. Superior Court , 495 U.S. 604 (1990), fullysupported jurisdiction over the father. He had been properly served personally in the state.
Long-arm jurisdiction was properly invoked in Abu-Dalbough v. Abu-Dalbough , 547N.W.2d 700 (Minn. Ct. App. 1996). In that case, the wife and children lived in Minnesota,while the husband resided in Jordan. The appellate court noted that UIFSA provides forextended personal jurisdiction over nonresidents in child support on eight separategrounds. The district court properly asserted jurisdiction based on the following facts: (1)the mother and father conceived the couple's first child in the state; (2) the husbandresided in the state and provided for the wife and the second, then unborn, child in thestate; (3) the husband lived in the state for a short while. Thus, an initial support ordercould properly be entered against the husband under UIFSA.
The same result was reached in In re Marriage of Lustig , 1996 WL 679693, 1996Minn. App. LEXIS 1335 (1996). In that case, during the marriage of the parties they livedin Minnesota from 1983 to 1992 and in South Dakota from 1992 to 1995. In 1995, the wifemoved back to Minnesota. Before the wife and children established residency inMinnesota, the husband filed for divorce in South Dakota. Then, when the wife andchildren established residency in Minnesota, she filed for divorce there. Simultaneously,the husband moved to dismiss the Minnesota action on the basis that it lacked personaljurisdiction over him as to child custody and support, spousal support, and marital propertyin South Dakota, and the wife moved to dismiss the South Dakota action on the basis offorum non conveniens. The Minnesota court denied the husband's motion, while the SouthDakota court granted the wife's motion. The Minnesota Court of Appeals agreed thatMinnesota was the better forum for a determination of all the issues and remanded thematter back to the trial court for specific findings regarding its UIFSA jurisdiction, i.e., thatthe husband and the children had resided in Minnesota.
Jurisdiction was also the issue in Davis v. Child Support Enforcement Unit , 326 Ark.677, 933 S.W.2d 798 (1996). In that case, the mother, a Minnesota resident, executed aUniform Support Petition, claiming that Charles Davis, a resident of Arkansas, was thefather of her child. The petition was forwarded from Minnesota to the Arkansas ChildSupport Enforcement Unit, which filed paternity and support claims against Davis.Pursuant to the Arkansas UIFSA, a hearing was held on the petition. Davis, however,objected to the proceeding on the bases that the court lacked jurisdiction and theproceedings were unconstitutional in that he was denied his constitutional right ofconfrontation. The court found both arguments infirm, referring to UIFSA's provisions onthe right to present evidence:
In a proceeding under this chapter, a tribunal of this state may permit a partyor witness residing in another state to be deposed or testify by telephone,audiovisual means, or other electronic means at a designated tribunal orother location in that state. A tribunal of this state shall cooperate withtribunals of other states in designating an appropriate location for thedeposition or testimony.
933 S.W.2d at 800. Since Davis made no effort to confront his witnesses using thisprovision, he could not challenge the proceedings on that basis.
3. Retroactivity of UIFSA
In Child Support Enforcement Division of Alaska v. Brenckle , 424 Mass. 214, 675N.E.2d 390 (1997), the Supreme Judicial Court of Massachusetts held that UIFSA is aremedial statute not affecting substantive rights and, thus, applied retroactively. In thatcase, the husband and wife were married in California and divorced in Alaska in 1978. Thewife and son remained in Alaska, while the husband moved to Massachusetts. A year anda half after the divorce decree was entered, in December 1979, the father stopped makingchild support payments. In 1991, when the son turned 17, the mother filed an action inAlaska to recover arrears. The Alaska court entered a judgment of $75,000 plus interest.The mother then filed a petition in Alaska under URESA. Alaska certified the petition andtransmitted the case to the Massachusetts Department of Revenue. The Massachusettsdistrict court entered judgment for the mother on February 10, 1995, the exact same daythat URESA was repealed and UIFSA instated. The supreme judicial court held that UIFSAwould apply to the action:
It was the express intention of the Legislature that UIFSA be appliedretrospectively; its provisions govern any URESA action that is pending orwas previously adjudicated. It is also clear that UIFSA, like its predecessorURESA, does not create a duty of support, but rather provides a proceduralframework for enforcing one state's support order in another jurisdiction. Asa remedial statute, and one not affecting substantive rights, it is proper thatUIFSA should be applied retroactively.
675 N.E.2d at 393. This pronouncement of the court is true as it was applied to the factsof the case. Remember, however, that UIFSA can be used to create an initial support orderunder Section 401. Would the result have been different under those circumstances? TheMassachusetts Supreme Judicial Court's opinion gives no guidance. See also Office ofChild Support Enforcement v. Troxel , 326 Ark. 524, 931 S.W.2d 784 (1996) (when decisionrelating to previous R-URESA order was reversed and remanded, on remand, trial courtwas to apply UIFSA).
A different result as to retroactivity was reached in Deltorro v. McMullen , 471 S.E.2d742 (S.C. Ct. App. 1996). In that case, the parties lived in South Carolina but thenrelocated to Virginia. The parties separated in 1982, and the mother and children returnedto South Carolina, while the father remained in Virginia. In 1985, the mother brought aURESA action in South Carolina, and the matter was transmitted to Virginia. The Virginiacourt entered an order of support, and the mother then registered the order in SouthCarolina. In 1985, the mother initiated a divorce in South Carolina, which was granted. In1993 the mother instituted an action in South Carolina seeking modification of the Virginiasupport order. An order modifying the support obligation was entered by the SouthCarolina court on July 15, 1994. UIFSA became effective in South Carolina on July 1,1994.
On appeal, the South Carolina Court of Appeals held that URESA, not UIFSA,governed the mother's modification action. As a URESA action, the trial court had thejurisdiction to modify the previously registered order. UIFSA would not operateretroactively to deny the court jurisdiction to modify the Virginia order.
The issue of the effective date of UIFSA, an issue related to retroactivity, was at thecore of Cowan v. Moreno , 903 S.W.2d 119 (Tex. App. 1995). In that case, the court heldthat UIFSA, effective September 1, 1993, applied to registration proceedings commencedon December 15, 1993. The obligee had cited the language of UIFSA that provides:
This Act takes effect September 1, 1993, and applies only to an order,decree or judgment entered on or after that date.
Based on that language, the obligee argued that UIFSA could not apply to the casebecause the original order to be enforced was entered in 1982. The court disagreed andheld that the language referred to orders entered under the Act, not prior orders to beenforced. Accord Neal v. Office of Attorney General , 1997 WL 122236, 1997 Tex. App.LEXIS 1381 (1997) (1991 Iowa support order enforceable under UIFSA, where UIFSANotice of Registration of Foreign Support Order was filed March 20, 1995).
4. Defenses to Enforcement Under UIFSA
In Child Support Enforcement Division of Alaska v. Brenckle , 424 Mass. 214, 675N.E.2d 390 (1997), the Supreme Judicial Court of Massachusetts noted that under UIFSAa responding state is not required to make an independent finding that a duty of supportis owed. Rather, under UIFSA, a support order issued by a tribunal of another state isregistered in the responding state. Once registered, it may be enforced according to itsterms unless one of the enumerated defenses are proven:
UIFSA requires no de novo or independent review by a [responding state's]tribunal whether [the obligor] owns a duty of support[.]. . . Indeed, requiringan independent finding of a duty of support when [the initiating state] hasalready made that determination would impede and frustrate the purpose ofUIFSA.
675 N.E.2d at 394. Thus, the defense that a duty of support is not owed is not cognizableunder UIFSA. Only those defenses enumerated by UIFSA may be brought forth.
The same result regarding an enforcing state's ability to revisit issues previouslylitigated was reached in Beyer v. Metze , 23 Fam. L. Rep. (BNA) 1206, 1997 WL 71782(S.C. Ct. App. Feb. 18, 1997). In that case, a divorce decree was entered in 1981 in Ohio,stating that three children were born of the marriage. UIFSA, the South Carolina courtdetermined, prevented a party whose parentage had already been determined frompleading nonparentage as a defense to a proceeding to register and enforce a foreignorder. The trial court thus did not have jurisdiction to order blood tests and determinepaternity.
In In re Marriage of Comer , 14 Cal. 4th 504, 59 Cal. Rptr. 2d 155 (1996), not aUIFSA case, the concurrence felt compelled to comment upon the powers of a respondingstate in enforcing another state's support order under UIFSA:
[R]ecognition of a concealment defense to an action for arrearages isinconsistent with URESA and [the Full Faith and Credit for Child SupportOrders Act, 28 U.S.C. Section 1738B]. Finally, it is also inconsistent with theUniform Interstate Family Support Act (UIFSA) which the NationalConference of Commissioners on Uniform Laws adopted in 1992 with theintent that it ultimately replace URESA. UIFSA expressly provides that astate responding to an interstate request for enforcement of a support ordermay not condition payment of a support order on compliance with visitationprovisions.
59 Cal. Rptr. 2d at 175. Because Section 607 of UIFSA permits a party contesting thevalidity or the enforcement of a child support order registered in the responding state tocontest only on grounds that (1) the issuing court lacked personal jurisdiction, (2) the orderwas procured by fraud, (3) the issuing state has suspended, vacated, or modified its order,(4) the order has been stayed pending appeal, (5) responding state law provides adefense to the remedy sought, or (6) payment has been made or the statute of limitationsprecludes enforcement of the order, it necessarily follows that an equitable defense suchas concealment of the child cannot be used to bar enforcement in an interstate supportaction.
The concurrence further opined that the Bradley Amendment, 42 U.S.C. Section666(a)(10), which prevents retroactive modification of child support, mandates that proofof arrearages must result in enforcement.
The same point was made in Chaisson v. Ragsdale , 323 Ark. 373, 914 S.W.2d 739(1996), a UIFSA case. In that case, the parties were divorced in New Jersey, and an orderwas entered in New Jersey requiring the father to pay $100 per week. The father latermoved to Mississippi. Due to a back injury, the mother agreed to transfer custody to thefather. The father consequently filed requests in Mississippi to transfer custody to him andto terminate his support obligation. The Mississippi court entered an order granting thefather's requests.
The father then filed a UIFSA petition in Arkansas, where the mother had relocated.The father requested that the mother pay him support. After the hearing, the Arkansas trialcourt granted the father support, but set off the support by the amount of a debt that themother had paid on behalf of the father after his bankruptcy, and further conditionedsupport on certain visitation rights. The father appealed.
The Arkansas Supreme Court held that, under UIFSA, a court simply may notcondition a support order upon compliance with visitation rights. Moreover, considerationof the debt issue was beyond the jurisdiction of the court:
UIFSA actions are not intended to open up for renewed scrutiny all issuesarising out of a foreign decree. The purpose of UIFSA is support of the childand enforcement of the same. Other issues such as visitation and paymentof debts under the divorce decree are collateral matters which necessarilyburden the child support determination and run counter to the goal ofstreamlining these proceedings.
914 S.W.2d at 741.
A defense to registration and enforcement of a foreign support order based on lackof visitation was also rejected in Cowan v. Moreno , 903 S.W.2d 119 (Tex. App. 1995). Ina defense to registration of a Colorado support order, the father contended that arrearagesdid not accrue because he did not exercise his visitation rights. The court held that thisissue related to enforceability, not to the existence and registration of the order, and wasthus not a valid defense to registration.
The defense that the original orders were ambiguous was rejected as a cognizabledefense under UIFSA in Villanueva v. Office of Attorney General , 935 S.W.2d 953 (Tex.App. 1996). In that case, in 1982 the circuit court in Howard County, Indiana, entered achild support order. In 1983, the same court found the obligor in arrears and entered ajudgment in the amount of $1,800. In March 1995, the Texas Attorney General filed aNotice of Registration of Foreign Support Order and Motion for Enforcement under UIFSA.The obligor contested the validity and/or enforcement of the orders.
The Texas appellate court held that the obligor had not proven any of the sevengrounds of defense provided in UIFSA which allow a party to contest the validity orenforcement of a registered order. The attempted grounds, there is a defense under thelaw of the state, is without merit because there is no law to support the proposition that anorder which is not enforceable by contempt cannot be the subject of an order for arrears.
Finally, much like the court in Beyer v. Metze , 23 Fam. L. Rep. (BNA) 1206, 1997WL 71782 (S.C. Ct. App. Feb. 18, 1997), the Texas court held that the trial court was notcompelled to order blood tests and discovery to determine the issue of paternity. Since theIndiana decree referred to the child of the marriage, the obligor was not free to argue thathe was not the father of the child; that issue had already been determined.
5. Defense to Modification: Continuing, Exclusive Jurisdiction
As noted in the discussion above, one of the most important concepts in UIFSA isthat of continuing, exclusive jurisdiction. So long as a state has continuing, exclusivejurisdiction, another state may not modify the support order. This provision was applied inLink v. Alvarado , 929 S.W.2d 674 (Tex. App. 1996). In that case, William Link and PamelaAlvarado were married and divorced in Hawaii. The Hawaii divorce decree ordered thefather to pay child support in the amount of $240 per month. Alvarado moved to Texas andfiled a motion there to increase child support. Link responded that he could not attend thehearings as he was a sailor in the Navy, citing the Soldiers' and Sailors' Relief Act.Nonetheless, the Texas court entered a support order of $600 per month. The Texas Courtof Appeals reversed. Under UIFSA, the court held, Hawaii had retained its continuing,exclusive jurisdiction.
The situation in Link, where one of the parties remains in the originating state andmodification is sought in another state, should be contrasted with the situation inCommonwealth, Department of Social Services, Division of Child Support Enforcement exrel. Kenitzer v. Richter , 23 Va. App. 186, 475 S.E.2d 817 (1996). In that case, the partieswere divorced in Virginia, and the father was ordered to pay child support. After thedivorce, the mother moved to California and the father moved to South Carolina. Neitherparty resided in Virginia any longer.
While in California, the mother filed a request for wage withholding of the father'ssalary in South Carolina. South Carolina stayed implementation of the request, findingthere was a genuine question or dispute concerning the existence of the arrearage. Later,through the California child support agency, the mother sought to collect the arrearagesby an action in Virginia. The mother registered the Virginia order in California, and aURESA petition was received by the Virginia Department of Child Support Enforcement(DCSE). The father made a special appearance in Virginia and claimed that SouthCarolina had jurisdiction over him by virtue of its support order. The trial court agreed anddismissed. The DCSE appealed.
The appellate court reversed. The trial court clearly erred in registering the SouthCarolina stay. The South Carolina order barred automatic withholding in light of thefather's possible defenses and stayed further action without making a factualdetermination. It was not the type of order that could be registered under UIFSA.Moreover, even if all the parties had left the state, until the support order was modified byanother state that had jurisdiction to modify, Virginia continued to have the right to enforceits own decrees even if all the parties were no longer residents. See also Taylor v. Taylor ,672 A.2d 44 (Del. 1996) (a court always has the power to enforce its own orders regardingsupport); Cordie v. Tank , 538 N.W.2d 214 (N.D. 1995) (Meschke, J., dissenting)(Minnesota decree relating to custody did not interrupt North Dakota's continuing,exclusive jurisdiction as to support; North Dakota thus had jurisdiction to enforce andmodify its own order); Porter v. Porter , 684 A.2d 259 (R.I. 1996) (under FFCCSOA,originating state retains jurisdiction to enforce its own orders); Hubanks v. Hubanks , 204Wis. 2d 386, 555 N.W.2d 647 (Ct. App. 1996) (original order entered in Wisconsin,different order entered in Iowa under URESA; Wisconsin still had authority to enforce itsown orders under UIFSA, notwithstanding URESA order).
The principles of continuing, exclusive jurisdiction under UIFSA were referenced inHarbour v. Harbour , 677 So. 2d 700 (La. Ct. App. 1996). Although the case was decidedunder the provisions of the FFCCSOA, the court noted that under Louisiana's recentlyenacted UIFSA the results would be the same. In that case, Mississippi had entered asupport order in connection with the divorce of the parties. Subsequently, the mother andchild relocated to Louisiana. In 1995, the mother filed an action in Louisiana, seeking tomake the order executory in Louisiana and requesting modification of the support award.The father still resided in Mississippi. The court concluded that under the FFCCSOA andunder UIFSA Mississippi retained continuing, exclusive jurisdiction over the order becausethe father still resided in Mississippi. Therefore, Louisiana could not modify the supportorder.
6. ProcedureIn this period of URESA being phased out and UIFSA being phased in, questionsof procedure are bound to arise. For example, in Neville v. Perry , 648 N.Y.S.2d 508 (N.Y.Fam. Ct. 1996), the Texas Attorney General commenced a child support/paternityproceeding against a New York resident under the provisions of UIFSA. Texas was theassignee of the mother's support rights, as she was receiving public assistance benefits.The father argued that the New York court did not have jurisdiction to hear the case. If themother was the real party in interest, then the court lacked jurisdiction because the motherdid not execute or verify the petition. If the State of Texas was the real party in interest,then the court lacked jurisdiction because it was not the named petitioner in the caption.The New York court held that the State of Texas was the real party in interest, but becauseTexas was the initiating state, the state itself did not have to be named the petitioner.Texas, under its own law, was authorized to commence the litigation, and its agent couldverify the petition. Accord Arkansas Office of Child Support Enforcement v. Harnage, 322Ark. 461, 910 S.W.2d 207 (1995) (whenever duties are imposed on the state pursuant toUIFSA, state is real party in interest in proceedings).
In Mathis v. State , 930 S.W.2d 203 (Tex. App. 1996), the issue was the sufficiencyof the registration of a New Jersey support order. The court held that a copy of the NewJersey judgment, bearing an original seal of Somerset County, with the certification thatit was a true copy, signed by the Somerset County clerk, satisfied the requirement ofregistration.
In Dotzler v. Coldwell Banker Island Realtors , 1997 WL 13745, 1997 Tex. App.LEXIS 162 (1997), the issue was the sufficiency of a wage-withholding order. In that case,the parties were divorced in 1989 in Nebraska. At the time, the father was ordered to pay$800 per month in child support. On September 9, 1994, the mother filed a Notice ofRegistration of Foreign Support Order under UIFSA. The mother then requested ex partea wage-withholding order, which was issued on November 9, 1994. The entity to which thewage-withholding order was sent, Coldwell Banker, replied to the clerk of the court that itwas not the father's employer; the father was an independent contractor, and, thus, hiswages could not be withheld. No hearing was requested by Coldwell Banker.
In April 1995, the mother then filed a motion for enforcement and clarification,arguing that since Coldwell Banker had not withheld the husband's wages it was liable toher for support. Coldwell Banker then filed a motion to set aside the wage- withholdingorder. The trial court granted Coldwell Banker's motion. The mother appealed, arguing thatColdwell Banker had only 20 days after the original issuance of the wage-withholding orderto contest it. Since it did not contest the order by December 8, 1994, the trial court did nothave jurisdiction to set aside the wage-withholding order.
The appellate court disagreed, reasoning that it was only when the mother filed herMotion for Enforcement against Coldwell Banker that the issue of whether Coldwell Bankerwas the father's employer was placed into contention. Coldwell Banker therefore hadresponded in a timely fashion, and the trial court had jurisdiction to consider the issue.
The increasing mobility of the American population has wrought many legalproblems. For example, the issue of custodial parent relocation has exploded in the last10 years. This mobility has also had the effect of decreased child support compliance. Asmaller percentage of obligees who receive support from out-of-state obligors actuallyreceive the support that is due than obligees who receive support from in-state obligors.The FFCCSOA and UIFSA are the primary weapons in the arsenal of interstate childsupport enforcement. Practitioners must become familiar with their provisions in order toservice their clients.