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| UIFSA Definitions and Provisions UIFSA comprises nine articles. Article 1 contains general provisions, including definitions. Article 2, divided into three parts, contains the provisions concerning jurisdiction, probably the most important part of UIFSA. Article 3 contains the provisions relating to the duties of the state in a UIFSA action. Article 4 contains the provisions relating to the establishment of an order. Article 5 contains the provisions relating to direct enforcement of an order of another state without the need for registration. Article 6, divided into 3 parts, concerns the enforcement and modification of support orders after registration. Article 7 concerns paternity actions. Article 8 concerns interstate rendition. Article 9 contains miscellaneous provisions, i.e., the title of the act, its severability, the effective date of the act, etc. 1. Definitions Many of the definitions under UIFSA are the same or similar to the definitions under URESA. As stated in the Prefatory Note to UIFSA, the terminology of URESA was retained as much as possible to ease the transition from URESA to UIFSA. Nevertheless, some changes were made, and it is useful to consider all the important terms, which are contained in Section 101 of the Act. Child is defined to include a child over the age of majority if he or she is the beneficiary of a support order. Section 101(1). Thus, UIFSA may be used to enforce support arrears on behalf of an obligee even if the child is no longer a minor. UIFSA may also be used to enforce an order for college tuition. The definition of child support order embodies this new definition of child. Section 101(2). Duty of support is defined as an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse, including an unsatisfied obligation to provide support. Section 101(3). Thus, duty of support is broadly defined to include both prospective and retrospective support; UIFSA may be used to establish an initial support order. Home state is defined as
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 an order, priority goes to the child's home state. This definition is consistent with the definition of home state in the Uniform Child Custody and Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA). Income is defined as earnings or other periodic entitlements to money from any source and from any other property subject to withholding for support under the law of the state. Section 101(5). This definition of income incorporates the enacting state's definition of 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 an initial filing in the initiating state. Section 101(7), (8). Thus, the definitions of Responding State and Responding Tribunal in Section 101(16) and (17) also accommodate the direct filing 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 case of child support it can be the child, the custodial parent or other legal guardian, or a support enforcement agency to whom the right of support has been assigned. Obligor is the person who owes the duty of support. Section 101(12), (13). State includes any foreign jurisdiction that has established procedures for the issuance and enforcement of support orders that are substantially similar to the procedures under UIFSA. Section 101(19). This Section essentially withdraws the requirement of reciprocity demanded by URESA. A state need not enact UIFSA in order for support orders issued by its tribunal to be enforced in other states. Support enforcement agency replaces the role that the prosecutor played under URESA. Under UIFSA, the support enforcement agency is a public agency or official that provides general child support services. Section 101(20). In most states, the support enforcement agency is the state child support agency. Support order under UIFSA is defined expansively. A support order includes an order 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 entity authorized 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. For example, the definitions of child and child support order refer to the age of majority, which is determined by reference to state law. Similarly, the definition of support order refers to health care, arrearages, or reimbursement, which is determined by state law. Income also depends on state law. 2. Provisions The jurisdictional rules are set out in Part A of Article 2 of UIFSA, Sections 201 and 202. 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 individual if (1) the individual has been properly served in the state; (2) the individual submits to the jurisdiction of the court by entering a general appearance or by filing a responsive document; (3) the individual resided with the child for whom support is being sought within the state; (4) the individual provided prenatal expenses or child support while residing within the state; (5) the child resides within the forum state because of some activities of the individual; (6) the individual engaged in sexual intercourse in the state; (7) the individual 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 States for the exercise of personal jurisdiction. One scholar has stated that basis (1) is a codification of Burnham v. Superior Court, 495 U.S. 604 (1990), which affirmed the constitutionality 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 for the 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-state URESA actions. Under Section 203, a tribunal can serve as a responding tribunal when there is no initiating tribunal in another state in order to accommodate the direct filing of an action in a responding tribunal by a nonresident. Section 204 concerns the situation where there are simultaneous proceedings in another state. The Section requires cooperation between and deference by sister-state tribunals in order to avoid the issuance of competing support orders. UIFSA opts for the PKPA method of resolving disputes between competing jurisdictional assertions by establishing priority for the tribunal in the child's home state. If there is no home state, then the state of first filing controls. Section 205 is, according to the drafters' comments, perhaps the most crucial provision in UIFSA. This Section establishes the principle of continuing, exclusive jurisdiction over support orders: The issuing tribunal retains continuing, exclusive jurisdiction over the support order except in narrowly defined circumstances. Child support orders may be modified by another jurisdiction when (1) there is an agreement of the parties, or (2) the obligor, the obligee, and the child have permanently left the issuing state. Thus, where all parties reside outside the issuing state, the issuing state loses its continuing, exclusive jurisdiction. On the other hand, spousal support orders may always be modified by the issuing state, i.e., the issuing tribunal retains continuing, exclusive jurisdiction over an order of spousal support throughout the entire existence of the support obligation. Section 207 establishes a priority scheme for recognition and enforcement of existing multiple orders regarding the same obligor, obligee, and child, and was designed to 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 home state is given the highest priority. If more than one of these exists, then the most recent is given 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 is similar to URESA. The most profound difference from URESA occurs in the function of the initiating state: Under UIFSA, the initiating state's function is purely clerical, forwarding the appropriate documents to the responding state. Section 301 provides that UIFSA governs the following types of proceedings:
UIFSA also recognizes that interstate cases present special problems of evidence. UIFSA thus contains provisions on the transmission of evidence and the relaxation of the best evidence rule. Sections 316-318. Article 4 of UIFSA, Section 401, concerns the establishment of a support order. This Section authorizes a tribunal in a responding state to issue temporary and permanent orders. Of course, a tribunal cannot issue such orders when another support order exists and another tribunal has continuing, exclusive jurisdiction under Sections 205 and 206. Article 5 of UIFSA, Sections 501-502, concerns the direct enforcement of an order of another state without registration of that order. Direct recognition by the obligor's employer of an income-withholding order issued by another state was long sought by child support enforcement advocacy groups, and these Sections are intended to replace the Model Interstate Income Withholding Act. Under Section 501, the employer, upon receiving an income-withholding order issued in another state, shall treat the order as though it had been issued in the state of the employer. Under Section 502, summary enforcement of a sister-state child support order through any administrative means available for local support orders is authorized. Article 6, divided into three parts, concerns the enforcement and modification of support orders after registration. Sections 601-604 detail the means for registration. Under the one order, one time, one place system of UIFSA, only the existing order may be enforced, and registration is the first step to enforcement. If a prior support order has been validly issued, only that order may be enforced against the obligor. Sections 605-608 provide the procedure by which the nonregistering party may contest registration of an order. To prevail in a challenge to the validity of a support order, the obligor must show that:
Sections 609-611 concern those situations where it is necessary for a registering state to modify the existing child support order of another state. Particular attention should be paid to these Sections. As long as the issuing state has continuing, exclusive jurisdiction over its order, a registering state is precluded from modifying that order. This is the most significant departure from the URESA multiple-order, multiple- modification system. Where the issuing state does not have continuing, exclusive jurisdiction, the registering state may assume the power to modify. Section 611 is thus the counterpart to Section 205(b), which establishes continuing, exclusive jurisdiction. (Note that these provisions relate only to child support. UIFSA does not contemplate modification of spousal support orders.) Section 611 provides:
In sum, under UIFSA, there are two ways for a state to assume jurisdiction for the purpose of modifying another state's order. Either no one continues to reside in the issuing state, and the petitioner seeking modification is a nonresident of the same state assuming jurisdiction, and the assuming state has personal jurisdiction over the respondent; or some person is subject to personal jurisdiction and all the parties have filed a written consent in the issuing state for the assuming state to modify the order. It is quite important to note that jurisdiction for modification of child support is quite different from jurisdiction for modification of custody under the PKPA and UCCJA. In custody modification, a court with continuing, exclusive jurisdiction may decline jurisdiction. This privilege is not authorized under UIFSA. Once an initial child support order is established, 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 the court remains fully enforceable until a court with modification jurisdiction issues a new order. Section 611 also provides that the final, nonmodifiable aspects of a child support order may not be modified. For example, if the issuing state issued an order that child support 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, Section 612 provides the deference to the support order of a sister state that was missing in URESA. For purposes of illustration, let us take a number of examples where the parties are in different states. (Unless otherwise stated, assume that the custodial parent and child have 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 STATE 2. 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 STATE 2. STATE 1 has not issued an order; STATE 2 has issued an order. The controlling order is in STATE 2. Example 3: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 1 has issued an order; STATE 2 has issued an order. Assuming that the child has been in STATE 1 for the prior consecutive six months, the controlling order is in STATE 1. Example 4: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 1 has issued an order; STATE 3 has issued an order. The controlling order is in STATE 1. Example 5: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 1 has issued an order; STATE 2 has issued an order. This time, however, the child 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 controlling order is in STATE 2. Example 6: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 1 issued an order in 1990; STATE 2 issued an order in 1994. This time, the child has been in STATE 1 for one month and, prior to that, had been in STATE 2 for two months. The controlling order is in STATE 2. Example 7: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 3 has issued an order; STATE 4 has issued an order. There is no controlling order, and STATE 1 or STATE 2 may issue an order. The first order issued will have priority. 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 requisites for modification are met under Section 611. (2) If more than one outstanding child support order exists, then the priority scheme contained 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 the terms initiating state and responding state. One important difference in terminology is the use of the word tribunal instead of court, so that a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or determine parentage 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 support order. Thus, several conflicting support orders governing the same parties and child could exist at the same time. UIFSA has dealt with this major flaw by establishing priority among orders to achieve one order, one time, one place. Under UIFSA, there can be only one controlling 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 involved with a support order. Under UIFSA, several states may enforce a support order at the same time. What distinguishes UIFSA is that, for the first time, all states will be enforcing the same amount: there is only one controlling order. UIFSA accomplished the one order, one time, one place principle by adopting continuing, 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 state to assert jurisdiction over a nonresident and to process the case locally. Bases for exercising 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 the child; (3) the child resides in the forum state as a result of the acts or directives of the individual; (4) the individual engaged in sexual intercourse in the state and the child may have been conceived as a result of that sexual act. Section 201. By containing expanded long-arm jurisdiction, UIFSA follows what was termed by the drafters as a one-stop shop approach. Included within UIFSA are both the traditional two-state remedies contained in URESA and the one-state remedies that are available to establish and enforce support. Third, UIFSA contains a one-state enforcement mechanism referred to as direct withholding. Under Section 501, an attorney or a child support agency can send an income-withholding order directly to an out-of-state employer, regardless of whether the employer does business in the issuing state. This one-state enforcement mechanism is in addition to the traditional two-state mechanism found in URESA for establishing paternity and support, for enforcing support, and for modifying support. Fourth, URESA was available to only obligees. UIFSA, however, is available to both obligors 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 the proceeding under UIFSA. Fifth, UIFSA eliminates the requirement that URESA or R-URESA be enacted in a state before another state can enforce its order. Public policy favored this reciprocity between states even when such reciprocity is not included in a state's statute. The reciprocity 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 order because URESA allowed multiple support orders. URESA in effect encouraged an obligee to begin a second suit in the responding state rather than utilizing the process of registration. In contrast, UIFSA makes registration the primary means by which support is enforced in a nonissuing state. D. Case Law Interpreting UIFSA 1. Reciprocity As noted above, Section 101(19) defines state to include any foreign jurisdiction that has established procedures for the issuance and enforcement of support orders that are substantially similar to the procedures under UIFSA. This Section withdraws the requirement of reciprocity demanded by URESA. This provision was interpreted, or rather ignored, by the trial court in Jefferson County Child Support Enforcement Unit v. Hollands, 23 Fam. L. Rep. (BNA) 1236, 1997 WL 96398 (Ark. Mar. 3, 1997). In that case, the trial court held that because Michigan had not adopted UIFSA the support order could not be registered and enforced under UIFSA in Arkansas. The Supreme Court of Arkansas reversed and held that, although Michigan did not have UIFSA at the time the order was registered, the order could nonetheless be registered and enforced under UIFSA in Arkansas, as Michigan's law concerning child support 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, the Texas courts were required to recognize the continuing, exclusive jurisdiction of Hawaii over its orders. Accord Neville v. Perry, 648 N.Y.S.2d 508 (N.Y. Fam. Ct. 1996) (New York's Uniform Support of Dependents Law is substantially similar to UIFSA); Thompson v. Thompson, 893 S.W.2d 301 (Tex. App. 1995) (Indiana law under URESA is substantially similar to Texas's UIFSA; Texas could not modify Indiana order since Indiana had continuing, exclusive jurisdiction). 2. Long-Arm Jurisdiction Although not technically a UIFSA case, one case is certain to affect future UIFSA litigation, in Alaska at least. In McCaffery v. Green, 931 P.2d 407 (Alaska 1997), the court held that jurisdiction under the UCCJA to modify a custody order gives the court jurisdiction to modify a child support order. In this case, the husband and wife were divorced 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 Texas support order in Alaska. The father objected on the grounds that Alaska had no jurisdiction over him. The trial court sustained the father's objections, noting that the mother had failed to register the Texas order in Alaska and that, even if she had, while the court would have had jurisdiction over the father on matters of custody under the UCCJA, it did not have jurisdiction 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 Alaska court would have jurisdiction to hear custody and visitation issues since Alaska was the child's home state. The court then distinguished Kulko by noting that, in Kulko, the father had 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 any longer. The order merely remained in effect until it was properly modified. The court further distinguished Kulko by noting that Kulko was decided before the widespread enactment of the UCCJA. The court also found it significant that if Alaska could not hear the support issue then the mother would have to divide her issues among various states; Texas or Oregon 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 be seen what difference UIFSA will bring, McCaffery v. Green, 931 P.2d at 413, the court nevertheless determined that Alaska's assertion of jurisdiction over the issue of child support simply made sense under its long-arm statute. It thus appears that in at least one case long-arm jurisdiction may be asserted by the fact that the UCCJA would grant jurisdiction, 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 support decrees when the children live in a state that cannot obtain personal jurisdiction over the defendant). Tag-rule long-arm jurisdiction and UCCJA jurisdiction were also utilized in In re Marriage 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 then to Minnesota. The father, a Navy physician, lived in Japan and then transferred to Washington State. When the father came to Minnesota to pick up his child for visitation in 1993, he was personally served with the mother's request to modify support. The trial court found that it had jurisdiction over the father because he had availed himself of the Minnesota courts for postdivorce modification of visitation under the UCCJA. The appellate court affirmed, holding that Burnham v. Superior Court, 495 U.S. 604 (1990), fully supported 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, 547 N.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 for extended personal jurisdiction over nonresidents in child support on eight separate grounds. 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 husband resided in the state and provided for the wife and the second, then unborn, child in the state; (3) the husband lived in the state for a short while. Thus, an initial support order could properly be entered against the husband under UIFSA. The same result was reached in In re Marriage of Lustig, 1996 WL 679693, 1996 Minn. App. LEXIS 1335 (1996). In that case, during the marriage of the parties they lived in Minnesota from 1983 to 1992 and in South Dakota from 1992 to 1995. In 1995, the wife moved back to Minnesota. Before the wife and children established residency in Minnesota, the husband filed for divorce in South Dakota. Then, when the wife and children established residency in Minnesota, she filed for divorce there. Simultaneously, the husband moved to dismiss the Minnesota action on the basis that it lacked personal jurisdiction over him as to child custody and support, spousal support, and marital property in South Dakota, and the wife moved to dismiss the South Dakota action on the basis of forum non conveniens. The Minnesota court denied the husband's motion, while the South Dakota court granted the wife's motion. The Minnesota Court of Appeals agreed that Minnesota was the better forum for a determination of all the issues and remanded the matter back to the trial court for specific findings regarding its UIFSA jurisdiction, i.e., that the 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 a Uniform Support Petition, claiming that Charles Davis, a resident of Arkansas, was the father of her child. The petition was forwarded from Minnesota to the Arkansas Child Support 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 the proceedings were unconstitutional in that he was denied his constitutional right of confrontation. The court found both arguments infirm, referring to UIFSA's provisions on the right to present evidence: In a proceeding under this chapter, a tribunal of this state may permit a party or witness residing in another state to be deposed or testify by telephone, audiovisual means, or other electronic means at a designated tribunal or other location in that state. A tribunal of this state shall cooperate with tribunals of other states in designating an appropriate location for the deposition or testimony. 933 S.W.2d at 800. Since Davis made no effort to confront his witnesses using this provision, 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, 675 N.E.2d 390 (1997), the Supreme Judicial Court of Massachusetts held that UIFSA is a remedial statute not affecting substantive rights and, thus, applied retroactively. In that case, the husband and wife were married in California and divorced in Alaska in 1978. The wife and son remained in Alaska, while the husband moved to Massachusetts. A year and a half after the divorce decree was entered, in December 1979, the father stopped making child support payments. In 1991, when the son turned 17, the mother filed an action in Alaska 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 and transmitted the case to the Massachusetts Department of Revenue. The Massachusetts district court entered judgment for the mother on February 10, 1995, the exact same day that URESA was repealed and UIFSA instated. The supreme judicial court held that UIFSA would apply to the action: It was the express intention of the Legislature that UIFSA be applied retrospectively; its provisions govern any URESA action that is pending or was previously adjudicated. It is also clear that UIFSA, like its predecessor URESA, does not create a duty of support, but rather provides a procedural framework for enforcing one state's support order in another jurisdiction. As a remedial statute, and one not affecting substantive rights, it is proper that UIFSA should be applied retroactively. 675 N.E.2d at 393. This pronouncement of the court is true as it was applied to the facts of the case. Remember, however, that UIFSA can be used to create an initial support order under Section 401. Would the result have been different under those circumstances? The Massachusetts Supreme Judicial Court's opinion gives no guidance. See also Office of Child Support Enforcement v. Troxel, 326 Ark. 524, 931 S.W.2d 784 (1996) (when decision relating to previous R-URESA order was reversed and remanded, on remand, trial court was to apply UIFSA). A different result as to retroactivity was reached in Deltorro v. McMullen, 471 S.E.2d 742 (S.C. Ct. App. 1996). In that case, the parties lived in South Carolina but then relocated to Virginia. The parties separated in 1982, and the mother and children returned to South Carolina, while the father remained in Virginia. In 1985, the mother brought a URESA action in South Carolina, and the matter was transmitted to Virginia. The Virginia court entered an order of support, and the mother then registered the order in South Carolina. In 1985, the mother initiated a divorce in South Carolina, which was granted. In 1993 the mother instituted an action in South Carolina seeking modification of the Virginia support order. An order modifying the support obligation was entered by the South Carolina 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 the jurisdiction to modify the previously registered order. UIFSA would not operate retroactively 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 the core of Cowan v. Moreno, 903 S.W.2d 119 (Tex. App. 1995). In that case, the court held that UIFSA, effective September 1, 1993, applied to registration proceedings commenced on 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 case because the original order to be enforced was entered in 1982. The court disagreed and held that the language referred to orders entered under the Act, not prior orders to be enforced. Accord Neal v. Office of Attorney General, 1997 WL 122236, 1997 Tex. App. LEXIS 1381 (1997) (1991 Iowa support order enforceable under UIFSA, where UIFSA Notice 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, 675 N.E.2d 390 (1997), the Supreme Judicial Court of Massachusetts noted that under UIFSA a responding state is not required to make an independent finding that a duty of support is owed. Rather, under UIFSA, a support order issued by a tribunal of another state is registered in the responding state. Once registered, it may be enforced according to its terms unless one of the enumerated defenses are proven:
675 N.E.2d at 394. Thus, the defense that a duty of support is not owed is not cognizable under UIFSA. Only those defenses enumerated by UIFSA may be brought forth. The same result regarding an enforcing state's ability to revisit issues previously litigated 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 court determined, prevented a party whose parentage had already been determined from pleading nonparentage as a defense to a proceeding to register and enforce a foreign order. The trial court thus did not have jurisdiction to order blood tests and determine paternity. In In re Marriage of Comer, 14 Cal. 4th 504, 59 Cal. Rptr. 2d 155 (1996), not a UIFSA case, the concurrence felt compelled to comment upon the powers of a responding state in enforcing another state's support order under UIFSA:
59 Cal. Rptr. 2d at 175. Because Section 607 of UIFSA permits a party contesting the validity or the enforcement of a child support order registered in the responding state to contest only on grounds that (1) the issuing court lacked personal jurisdiction, (2) the order was 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 a defense to the remedy sought, or (6) payment has been made or the statute of limitations precludes enforcement of the order, it necessarily follows that an equitable defense such as concealment of the child cannot be used to bar enforcement in an interstate support action. The concurrence further opined that the Bradley Amendment, 42 U.S.C. Section 666(a)(10), which prevents retroactive modification of child support, mandates that proof of 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 order was entered in New Jersey requiring the father to pay $100 per week. The father later moved to Mississippi. Due to a back injury, the mother agreed to transfer custody to the father. The father consequently filed requests in Mississippi to transfer custody to him and to terminate his support obligation. The Mississippi court entered an order granting the father'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 trial court granted the father support, but set off the support by the amount of a debt that the mother had paid on behalf of the father after his bankruptcy, and further conditioned support on certain visitation rights. The father appealed. The Arkansas Supreme Court held that, under UIFSA, a court simply may not condition a support order upon compliance with visitation rights. Moreover, consideration of the debt issue was beyond the jurisdiction of the court:
914 S.W.2d at 741. A defense to registration and enforcement of a foreign support order based on lack of visitation was also rejected in Cowan v. Moreno, 903 S.W.2d 119 (Tex. App. 1995). In a defense to registration of a Colorado support order, the father contended that arrearages did not accrue because he did not exercise his visitation rights. The court held that this issue related to enforceability, not to the existence and registration of the order, and was thus not a valid defense to registration. The defense that the original orders were ambiguous was rejected as a cognizable defense 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 a child support order. In 1983, the same court found the obligor in arrears and entered a judgment in the amount of $1,800. In March 1995, the Texas Attorney General filed a Notice 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 seven grounds of defense provided in UIFSA which allow a party to contest the validity or enforcement of a registered order. The attempted grounds, there is a defense under the law of the state, is without merit because there is no law to support the proposition that an order 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, 1997 WL 71782 (S.C. Ct. App. Feb. 18, 1997), the Texas court held that the trial court was not compelled to order blood tests and discovery to determine the issue of paternity. Since the Indiana decree referred to the child of the marriage, the obligor was not free to argue that he 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 is that of continuing, exclusive jurisdiction. So long as a state has continuing, exclusive jurisdiction, another state may not modify the support order. This provision was applied in Link v. Alvarado, 929 S.W.2d 674 (Tex. App. 1996). In that case, William Link and Pamela Alvarado were married and divorced in Hawaii. The Hawaii divorce decree ordered the father to pay child support in the amount of $240 per month. Alvarado moved to Texas and filed a motion there to increase child support. Link responded that he could not attend the hearings 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 Court of 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 and modification is sought in another state, should be contrasted with the situation in Commonwealth, Department of Social Services, Division of Child Support Enforcement ex rel. Kenitzer v. Richter, 23 Va. App. 186, 475 S.E.2d 817 (1996). In that case, the parties were divorced in Virginia, and the father was ordered to pay child support. After the divorce, the mother moved to California and the father moved to South Carolina. Neither party resided in Virginia any longer. While in California, the mother filed a request for wage withholding of the father's salary in South Carolina. South Carolina stayed implementation of the request, finding there 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 arrearages by an action in Virginia. The mother registered the Virginia order in California, and a URESA petition was received by the Virginia Department of Child Support Enforcement (DCSE). The father made a special appearance in Virginia and claimed that South Carolina had jurisdiction over him by virtue of its support order. The trial court agreed and dismissed. The DCSE appealed. The appellate court reversed. The trial court clearly erred in registering the South Carolina stay. The South Carolina order barred automatic withholding in light of the father's possible defenses and stayed further action without making a factual determination. 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 by another state that had jurisdiction to modify, Virginia continued to have the right to enforce its 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 regarding support); 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 and modify 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, 204 Wis. 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 its own orders under UIFSA, notwithstanding URESA order). The principles of continuing, exclusive jurisdiction under UIFSA were referenced in Harbour v. Harbour, 677 So. 2d 700 (La. Ct. App. 1996). Although the case was decided under the provisions of the FFCCSOA, the court noted that under Louisiana's recently enacted UIFSA the results would be the same. In that case, Mississippi had entered a support order in connection with the divorce of the parties. Subsequently, the mother and child relocated to Louisiana. In 1995, the mother filed an action in Louisiana, seeking to make 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 and under UIFSA Mississippi retained continuing, exclusive jurisdiction over the order because the father still resided in Mississippi. Therefore, Louisiana could not modify the support order. 6. Procedure In this period of URESA being phased out and UIFSA being phased in, questions of 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/paternity proceeding against a New York resident under the provisions of UIFSA. Texas was the assignee 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 the mother was the real party in interest, then the court lacked jurisdiction because the mother did 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 because Texas 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 could verify the petition. Accord Arkansas Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995) (whenever duties are imposed on the state pursuant to UIFSA, state is real party in interest in proceedings). In Mathis v. State, 930 S.W.2d 203 (Tex. App. 1996), the issue was the sufficiency of the registration of a New Jersey support order. The court held that a copy of the New Jersey judgment, bearing an original seal of Somerset County, with the certification that it was a true copy, signed by the Somerset County clerk, satisfied the requirement of registration. 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 of Registration of Foreign Support Order under UIFSA. The mother then requested ex parte a wage-withholding order, which was issued on November 9, 1994. The entity to which the wage-withholding order was sent, Coldwell Banker, replied to the clerk of the court that it was not the father's employer; the father was an independent contractor, and, thus, his wages 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 to her for support. Coldwell Banker then filed a motion to set aside the wage- withholding order. The trial court granted Coldwell Banker's motion. The mother appealed, arguing that Coldwell Banker had only 20 days after the original issuance of the wage-withholding order to contest it. Since it did not contest the order by December 8, 1994, the trial court did not have jurisdiction to set aside the wage-withholding order. The appellate court disagreed, reasoning that it was only when the mother filed her Motion for Enforcement against Coldwell Banker that the issue of whether Coldwell Banker was the father's employer was placed into contention. Coldwell Banker therefore had responded in a timely fashion, and the trial court had jurisdiction to consider the issue. VI. CONCLUSION The increasing mobility of the American population has wrought many legal problems. For example, the issue of custodial parent relocation has exploded in the last 10 years. This mobility has also had the effect of decreased child support compliance. 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. The FFCCSOA and UIFSA are the primary weapons in the arsenal of interstate child support enforcement. Practitioners must become familiar with their provisions in order to service their clients. |