Eastern Regional Interstate Child Support Association

Eastern Regional Interstate Child Support Enforcement Association

2007-2008 INTERSTATE/INTERNATIONAL

CASE LAW UPDATE[1]

Moderator:

Gordon F. Bailey Esq.

Atlanta, GA

Faculty:

Susan Friedman Paikin, Esq.

Center for the Support of Families

Newark, DE

Memphis, Tennessee

April 16, 2008

1:30 PM – 3:00 PM

26

CSF -Center for the Support of Families, Inc. April 24, 2008

ALABAMA

Lattimore v Lattimore, 2008 Ala. Civ. App. LEXIS 134 (Ala. Civ. App. March 14, 2008) Alabama support order for twin boys was entered in 1991 divorce proceedings. At that time mother and children resided in Tennessee; no custody or visitation order. One day before the boys 19th birthday mother filed a petition in Alabama for modification (seeking post minority educational support) and for contempt. Father moved to dismiss. He asserted Alabama did not have subject matter jurisdiction under the UCCJEA to modify the support order based on the fact that the children were over 19 and no one lived in Alabama. He resided in Texas; mother and children continued to reside in Tennessee. Trial court granted father’s motion to dismiss, without explanation; mother appealed.

Court of Civil Appeals finds UCCJEA inapplicable and analyses the case under UIFSA. It notes that there is no direct decision in Alabama but “…courts of several other states interpreting virtually identical versions of § 205(a) have held that section lends itself to at least two differing interpretations.” The court holds the two subsections should be read in tandem, allowing Alabama to retain CEJ to modify its support order only so long as the obligor, individual obligee or child resides in the state and the individual parties have not filed a written consent in Alabama for another state to assume modification jurisdiction.

Although father asserts in his motion that no one resides in Alabama he did not file a reply brief and there is a factual question as to whether father now is a military service member. (The court notes that he has three different addresses and was apparently an Alabama resident when the divorce order was entered.) Under Alabama divorce law residency means domicile. Once a domicile is acquired, it is presumed to exist until a new one has been acquired. Although the record indicates that the father is currently absent from Alabama, the record does not reveal whether that absence is temporary or whether the father has obtained a new domicile. “Because the record does not provide adequate information to determine whether the father ever was, or is presently, domiciled in Alabama, the mother could possibly be correct that the trial court had jurisdiction over her modification claim pursuant to § 30-3A-205(a).”

Because the children had not reached the age of majority when mother filed her petition, the trial court had jurisdiction to hear it. Finally, even if the trial court finds that father is not an Alabama domicile and cannot hear the modification petition, it has jurisdiction under UIFSA to enforce the arrears accrued under the Alabama support order.

Filer v. Owings, 2007 Ala. Civ. App. LEXIS 396 (Ala. Civ. App. June 15, 2007) Colorado child support order was entered in 1972 (the current support obligation ended in 1986 under Colorado law). In 1997, mother obtained a money judgment in Colorado for $14,250 in arrears plus $35,179 in interest. In 2006 she filed a complaint in Alabama seeking to register the Colorado money judgment order under the Uniform Enforcement of Foreign Judgments Act (UEFJA) and also sought accrued interest under the money judgment for a total of $147,685. Father contested. The trial court found that mother’s attempt to register the Colorado order for a money judgment was governed by UIFSA. Then applying the Alabama statute of limitations, the trial court found mother’s claim was time-barred.

The Court of Appeals determined that the UIFSA registrations for enforcement provisions are cumulative; mother was not precluded from seeking enforcement under UEFJA. (Given this holding, the court declined to address the application of UIFSA in this case.) The Court of Appeals further held that in a case where a money judgment for child past due child support had been obtained, the Alabama statute of limitations began to run from the date the party obtained the money judgment, not from the date each child support payment was due. (No Alabama cases had addressed this issue. The Court of Appeals cited the similar analysis in Smith v. Baumgartner, 665 N.W.2d 12 (N.D. 2003) and Twaddell v. Anderson, 523 S.E.2d 710 (1999).) “When party seeks domestication of a valid foreign judgment under the UEFJA, the only basis to challenge domestication is that the foreign court did not have jurisdiction to enter the order.” Under Colorado law, statute of limitations is an affirmative defense and if available to father, should have been raised in 1997 when the money judgment order was obtained. Case was reversed and remanded.

S.A.T. v. E.D., 972 So.2d 804 (Ala. Civ. App. 2007) (released for publication 1/18/08) Father, a resident of Georgia, petitioned the juvenile court in Alabama (where mother and child reside) to find the child dependent. Much of the litigation over several hearings focused on custody and visitation disputes between the parties, who had never married. A Texas court had previously established child support at $365/month but had never adjudicated custody or visitation. In addition to other provisions regarding custody, visitation, and an award of attorney’s fees against mother, the juvenile court decreased father’s child support obligation to $175/month. Mother appealed. Regarding child support, mother argued that the juvenile court erred in modifying the Texas child support order because neither father nor mother had registered it for modification in Alabama. The Court of Civil Appeals considered mother’s argument because it challenges the juvenile court’s subject matter jurisdiction. Subject-matter jurisdiction may not be waived, so it may be raised for the first time on appeal. The decision reviews the requirements for registration under UIFSA and holds that registration is required for an Alabama court to exercise jurisdiction to modify a foreign child support order. “A judgment entered by a court that lacks subject-matter jurisdiction is void.” As the judgment will “not support an appeal” mother’s appeal on this issue was dismissed and the juvenile court was ordered to vacate the portion of its order that modifies father’s child support obligation.

ARKANSAS

Office of Child Support Enforcement v. Moore, 2007 Ark. App. LEXIS 462 (Ark. App. June 13, 2007) The litigation history in this case is more complex than this summary and should be read. In essence, father then resident of Arkansas filed for divorce in Faulkner County in 2007. Mother and her twins, earlier adopted by father, were then living in Pennsylvania. A UIFSA petition was filed from PA to Arkansas. The Arkansas child support agency sought to intervene in the divorce action for the sole purpose of determining child support. The Chancery Court granted OCSE’s motion to intervene (without objection from father’s lawyer). A temporary support order was entered in 2001 against father, payable by income withholding. (Mother was also granted custody.) A number of continuances and several attorneys later, in 2004 the trial court dismissed the divorce action, set aside the support order and directed OCSE to refund any support payments after 10/1/04 to father. OCSE successfully sought to vacate the portion of the 2004 order setting aside the support order. In 2006 a hearing was set to abate child support, though no motion had been filed. By this time father was living and working in New York. He alleged that mother and children were in Georgia. Among varying claims he asserted that the dismissal of the divorce dismissed the child support action, that he had been induced to adopt the children, that no support order existed in Pennsylvania that could be enforced in Arkansas, and that mother had withheld visitation. Only father testified; a motion to abate followed the hearing. OCSE responded and contested the motion. In May 2006 later father filed another motion to abate based on the fact that he had lost his $100,000/year job through no fault of his own and had no income. The trial court issued an order on 9/8/06 terminating father’s support obligation. OCSE appealed.

The Court of Appeals noted that OCSE “does not represent either parent in this dispute; the State of Arkansas is the real party in interest…. Whether the parties are divorcing, or whether they ever married, does not affect the children’s need for support or the public’s interest in seeking that they are supported.” Further, contrary to father’s assertion that the Arkansas order was rendered invalid due to a lack of a Pennsylvania order, as a responding UIFSA tribunal, Arkansas could issue a support order only where there was no existing valid support order. There was no proof mother had left Pennsylvania – and no evidence to support father’s assertion he had no income. Reversed and remanded.

Office of Child Support Enforcement v. Wood, 2007 Ark App LEXIS 692 (Ark. App. Oct. 10, 2007) Kansas divorce order, included child support payable by father and joint custody. Mother in Oklahoma with children registers Kansas order in Arkansas where father resides. Registration first seeks enforcement (including arrears judgment of $181.76). Father seeks an abatement of the “back support” for the period of summer visitation with him. Mother then also sought modification of the Kansas order through the registration. Trial court registered the order for enforcement, declined to exercise its jurisdiction to modify the support order, and found the visitation issue to be collateral and beyond the scope of a UIFSA proceeding. Mother appealed; father did not.

The primary issue on appeal was whether the there was error in declining to exercise jurisdiction on the request for an upward modification. The Court of Appeals found; “There were no specific findings made to allow the Arkansas court to modify the Kansas decree. More importantly, the Arkansas court was authorized but not mandated to entertain the request for modification; the statutes use the term "may." See Ark. Code Ann. § 9-17-305(b) and 9-17-611(a).” Inasmuch as the parties were before the court and were seeking relief pertaining to child support it would have served their convenience and judicial economy for the trial court to have exercised its jurisdiction. Appellant's request for an increase in support was not a collateral matter. However, we do not conclude that the trial court abused its discretion in declining to address these issues.”

As father failed to raise the issue of the denial of the abatement in a cross-appeal, the issue could not be heard.

Payne vs. France, 2008 Ark. LEXIS 244 (Ark. Sup. Ct April 10, 2008) Appeal taken from circuit court’s summary judgment in favor of the mother, finding the appellant to be the father of T.J.F. and ordering him to pay child support. Mom lived in Arkansas and filed petition to establish paternity and support after a paternity test found Mr. Payne to be the father. Mr. Payne moved to dismiss, alleging lack of subject matter and personal jurisdiction over him. Mr. Payne argued none of the bases for long arm personal jurisdiction applied but the court found the defendant should respond to Ms. France’s request for information. Mr. Payne failed to do so and Ms. France filed a petition for contempt and an amended petition for paternity alleging the Arkansas had authority to exercise personal jurisdiction as Mr. Payne submitted to paternity tests in Arkansas and did other business there. She also asked the court to enter a summary judgment to establish paternity and set support based on information she had about the appellant’s income, as there was no material fact in dispute.

The court granted the summary judgment, finding that there were no genuine issues of material fact and that it had personal jurisdiction over Mr. Payne because he availed himself of the benefits and protections of Arkansas when he submitted to paternity tests in the State, and set support in the amount of $1500 a month.

The issue Mr. Payne challenges is the court’s exercise of jurisdiction over him. On review the court found that the Arkansas long-arm statute (cite Ark. Code Ann § 9-17-201) gives the broadest interpretation to the courts’ jurisdiction and looks to the Eighth Circuit Court of Appeals’ five-factor test for assistance: 1) the nature and quality of the contacts; 2) the number of contacts; 3) the relation of the cause of action to the contacts;

4) the interest of the state in providing a forum for its residents; and 5) the convenience of the parties.

Following International Shoe v. Washington, the quality and nature of the contacts with the state and whether the individual enjoyed the benefits and protections of the state will determine whether the contacts were enough to convey personal jurisdiction, even though the cause of action may be distinct from those contacts, such that exercising jurisdiction would not offend “traditional notions of fair play”.

In this case Mr. Payne voluntarily submitted to Arkansas for the paternity test; he drove to Little Rock from Ennis, Texas to submit; he made a business call while in Arkansas; and he and his pastor who accompanied him had lunch with Ms. France. The court found sufficient basis for jurisdiction and that notions of fair play and substantial justice would be met in the Arkansas court. Judgment affirmed.

CALIFORNIA

Knabe v. Brister, 154 Cal.App.4th 1316 (Cal. App. 3rd Dist. 2007) Mother and father lived in Texas, where child was born. 2000 Texas order established paternity and set child support, custody and visitation. Mother and child moved to California. In 2001 father registered the Texas order in CA seeking enforcement of visitation. In September 2001mother filed petition in CA to modify custody and to limit father’s visitation. Father objected, asserting CA lacked jurisdiction over the TX order. He argued mother had filed in a pleading in Texas, seeking to transfer the case to CA and the Texas court refused. In December 2001, attorneys for mother and father filed a stipulation in CA stating that jurisdiction of custody, visitation and support was transferred to CA and that father submitted to the personal jurisdiction of the CA court in this case. Litigation continued on substantive issues, not jurisdiction. The CA court issued an order affecting visitation. In 2005 mother filed a motion in CA seeking to modify the child support provisions of the Texas order, arguing that the 2001 stipulation also transferred jurisdiction of child support to CA. Father objected, asserting he never saw a copy of the stipulation, never signed it and that he only authorized his attorney only to address custody/visitation, not child support. He also argued there is no order in Texas transferring jurisdiction to CA. He sought to set aside the stipulation as to child support. His motion was denied and father appealed.