1. Child Support, Custody, and Visitation--support--New Jersey
order--continuing exclusive jurisdiction
The trial court erred by finding a 1995 North Carolina child
support order controlling over a 1982 New Jersey order where
plaintiff and the child continued to reside in New Jersey and
plaintiff did not sign or consent to North Carolina exercising
jurisdiction to modify the New Jersey order. Under the Full
Faith and Credit for Child Support Orders Act, New Jersey
retained continuing, exclusive jurisdiction over the action and
the North Carolina court erred in failing to register the New
Jersey order and in entering a North Carolina Voluntary Support
Agreement contrary to the terms of the New Jersey order.
2. Child Support, Custody, and Visitation--support--New Jersey
order--continuing until age 22
The trial court erred by finding a 1995 North Carolina child
support order controlling over a 1982 New Jersey order, contrary
to the Uniform Interstate Family Support Act. The plain meaning
of N.C.G.S. § 52C-2-207 requires that, if the current home state
of the child issued the support order, then that state retains
continuing exclusive jurisdiction. Our state's courts must apply
New Jersey law in the enforcement of the child support order,
even if the law of New Jersey is contradictory to the law of
North Carolina, and the New Jersey court in this case had the
authority to order child support until the age of twenty-two
under its state law.
Attorney General Michael F. Easley by Assistant Attorneys
General Gerald K. Robbins, Kathleen U. Baldwin and Susana E.
Honeywell for plaintiff-appellant.
No brief filed for defendant-appellee.
McGEE, Judge.
This action arises out of plaintiff Barbara M. Harnes' attemptto enforce a New Jersey child support order. Plainti
ff and
defendant Paul A. Lawrence were married to each other on 17
September 1977 and their daughter was born 3 December 1979. The
parties were divorced in Ocean County, New Jersey Superior Court on
29 January 1982. The Final Judgment of Divorce ordered the
defendant to provide support for the couple's daughter "until the
infant child reaches the age of twenty-two (22) years, or is
emancipated whichever event will occur first." The order required
defendant to pay child support in the amount of $65.00 per week.
Attorneys for plaintiff and defendant signed the judgment
consenting to its form.
Plaintiff, who still resides in New Jersey, initiated this
action on 13 January 1995 by transmitting a Certificate and Order
and a Uniform Support Petition from the Chancery Division, Family
Part, Ocean County Probation Division, Superior Court of New Jersey
to the North Carolina Division of Social Services and its
department of Child Support Enforcement. Plaintiff's petition
requested entry of an order for child support of $65.00 per week
and collection of an arrearage of $2805.00 as of 9 December 1994.
Plaintiff included copies of the New Jersey reciprocal child
support statute pursuant to the Uniform Reciprocal Enforcement of
Support Act (URESA) and the original New Jersey child support
order. She alleged in her petition that defendant was residing inMorehead City, North Carolina.
Defendant responded to plaintiff's petition by signing a
voluntary support agreement and order entered in Carteret County
District Court by Judge Kenneth Crow on 30 August 1995. Pursuant
to this order, defendant agreed to pay an arrearage of $5945.00 at
a monthly rate of $50.00 per month, in addition to ongoing child
support of $282.00 per month beginning 1 September 1995. However,
plaintiff neither consented to a modification of the New Jersey
child support order nor did she authorize any approval of the
voluntary support agreement and order. The IV-D Attorney signed
the voluntary order as a representative of the Carteret County
Child Support Enforcement Division. See N.C. Gen. Stat. § 110-130.1(c) (1995) (no attorney client relationship shall be
considered to have been created between the attorney who represents
the child support enforcement agency and any person by virtue of
the action of the attorney in providing the services required.)
The New Jersey order was not registered in Carteret County District
Court as requested by plaintiff.
Defendant again failed to pay child support for his daughter
in compliance with the 1995 North Carolina Voluntary Support
Agreement and Order and an order of willful contempt of court was
entered against him in Carteret County District Court on 24 July
1998. The court ordered defendant to pay $200.00 per month in
arrearage but terminated defendant's ongoing child support
obligation "as of 30 June 1998 as the child is 18 and graduated
from high school." The provision of the order terminating child
support at age eighteen directly controverted the 1982 New Jersey
child support order to continue child support until the daughter
attained the age of twenty-two.
Plaintiff forwarded another New Jersey child support
enforcement transmittal to Carteret County on 24 July 1998,
requesting registration of the New Jersey child support order in
accordance with the 1982 New Jersey judgment and included a copy of
the original order. The URESA transmittal also noted that the New
Jersey court-ordered child support was to continue until the child
reached the age of twenty-two and that the child was attending
college and not emancipated. The 1982 New Jersey order was finally
registered in Carteret County on 28 April 1999 and a notice ofRegistration of Foreign Support Order was served on defendant on 13
May 1999.
Carteret County Support Enforcement Agency, through its IV-D
agency attorney, filed a motion in the cause on 11 May 1999
requesting that the court determine whether the 1982 New Jersey
support order or the 1995 North Carolina support order was
controlling and to determine the amount of child support arrearage
based on the controlling order. The matter was heard in Carteret
County District Court on 29 June 1999. The trial court determined
that the 1995 North Carolina order was controlling "due to the fact
that the North Carolina order is newer and due to the lapse of time
considering that the New Jersey order dates from 1982." Plaintiff
appeals.
Plaintiff argues the trial court erred in finding the 1995
North Carolina order is controlling because: (I) the North Carolina
court did not have subject matter jurisdiction under the federal
Full Faith and Credit for Child Support Orders Act, 28 U.S.C. 1738B
(1994) and (II), the 1982 New Jersey order was the controlling
order pursuant to the Uniform Interstate Family Support Act
(UIFSA), Chapter 52C of the North Carolina General Statutes.
&
nbsp;I.
[1]Plaintiff first argues that the trial court erred in
finding the 1995 North Carolina order controlling because the court
in 1995 was without subject matter jurisdiction. Plaintiff
contends that the federal Full Faith and Credit for Child Support
Orders Act provides that the state in which a child support orderis issued has continuing, exclusive jurisdiction over the order and
therefore the 1995 North Carolina child support order and the 1998
North Carolina order of contempt are void. We agree.
The United States Congress enacted the Full Faith and Credit
for Child Support Orders Act (FFCCSOA), 28 U.S.C. 1738B (1994) on
20 October 1994. The FFCCSOA requires that state courts afford
"full faith and credit" to child support orders issued in other
states and refrain from modifying or issuing contrary orders except
in limited circumstances. The purpose of FFCCSOA is
(1) to facilitate the enforcement of child
support orders among the States; (2) to
discourage continuing interstate controversies
over child support in the interest of greater
financial stability and secure family
relationships for the child; and (3) to avoid
jurisdictional competition and conflict among
State courts in the establishment of child
support orders.
Pub. L. No. 103-383, § 2(c), 108 U.S. Stat. 4064 (to be codified at
28 U.S.C. § 1738B (1994)). Section 1738B(a) provides that "[t]he
appropriate authorities of each State--(1) shall enforce according
to its terms a child support order made consistently with this
section by a court of another State; and (2) shall not seek or
make a modification of such an order except in accordance with
subsection (e)."
"Under the supremacy clause of the United States Constitution,
the provisions of FFCCSOA are binding on all states and supersede
any inconsistent provisions of state law, including any
inconsistent provisions of uniform state laws such as URESA[.]"
Kelly v. Otte, 123 N.C. App. 585, 589, 474 S.E.2d 131, 134, disc.review denied, 345 N.C. 180, 479 S.E.2d 204 (1996). FFCCSOA
"obligates states to enforce, according to its terms, a child
support order issued by another state which is made consistent with
the Act's jurisdiction and due process standards." Welsher v.
Rager, 127 N.C. App. 521, 528, 491 S.E.2d 661, 665 (1997); see also
Kelly, 123 N.C. App. at 589, 474 S.E.2d at 134. Modification of a
valid order is permitted only when: (1) all parties have consented
to the jurisdiction of the forum state to modify the order; or (2)
neither the child nor any of the parties remains in the issuing
state and the forum state has personal jurisdiction over the
parties. Id. Our Court held in Kelly that while the law of the
forum state may apply to the enforcement and remedy applied to a
registered foreign support order, under URESA and FFCCSOA the law
of the rendering state (the state that issued the order) must
govern the order's interpretation. Id.
In the case before us, consistent with this definition and the
statute's intended purpose to prevent the issuance of conflicting
child support orders among different states, New Jersey had
continuing exclusive jurisdiction over the child support order in
1995. Plaintiff and the child continued to reside in the issuing
state of New Jersey. Plaintiff did not sign nor consent to the
State of North Carolina exercising jurisdiction to modify the New
Jersey order. Therefore, New Jersey retained continuing, exclusive
jurisdiction over the action. See 28 U.S.C. 1738B(d).
In addition, New Jersey had continuing exclusive jurisdiction
over the child support action when the trial court in NorthCarolina entered a contempt order in 1998 for defendant's failure
to pay support. It was error for the trial court to terminate
defendant's ongoing child support in 1998 based on the finding that
the child was eighteen and graduated from high school. This 1998
order arose from the invalid 1995 child support proceedings and is
also governed by FFCCOSA. Therefore, the law of New Jersey must be
applied and the New Jersey support order requiring payments to the
child until the age of twenty-two years must be upheld. The North
Carolina court did not have jurisdiction to modify the 1982 New
Jersey order in 1995 nor in 1998. N.C. Gen. Stat. § 52C-2-205
(1995). We also note that the court in Carteret County failed to
register plaintiff's 1995 URESA transmittal and instead defendant
signed a voluntary support agreement that was entered as an order
of the court. Our Court in Williams v. Williams, 97 N.C. App. 118,
121, 387 S.E.2d 217, 219 (1990) held that "N.C.G.S. § 52A-29
(repealed by Sessions Law 1995 and codified in 1996 under N.C.G.S.
§ 52C-6-602, Procedure to register order for enforcement) requires
only that certain documents be transmitted to the clerk of court.
After submitting the required documents, an obligee seeking
registration has no other duties under the statute." The record
in this case shows that plaintiff met the requirements by properly
transmitting all of the required URESA documentation in 1995. The
North Carolina trial court erred both in failing to register the
New Jersey order in 1995 and in entering a North Carolina Voluntary
Support Agreement contrary to the terms of the New Jersey order.
Once the documentation was sent to the clerk of court, NorthCarolina became the registering tribunal of the New Jersey child
support order and the North Carolina court was required to register
and enforce the New Jersey order. Welsher, 127 N.C. App. at 526,
491 S.E.2d at 664.
&
nbsp;II.
[2]Plaintiff next argues that the trial court erred in
finding the 1995 North Carolina order controlling in conflict with
the Uniform Interstate Family Support Act, codified as Chapter 52C
of the North Carolina General Statutes. Plaintiff contends that
the plain meaning of N.C. Gen. Stat. § 52C-2-207 (1995) requires
that if the current home state of the child issued the support
order, then that state retains continuing exclusive jurisdiction.
We agree.
N.C.G.S. § 52C-2-207 established a priority scheme for the
recognition and enforcement of multiple existing child support
obligations. N.C.G.S. § 52C-2-207(a). The official comment to
N.C.G.S. § 52C-2-207 notes that
A keystone of UIFSA is to provide a
transitional procedure for the eventual
elimination of existing multiple support
orders in an expeditious and efficient manner
. . .[i]n choosing among existing multiple
orders, UIFSA subsection (b)(1) gives priority
to the order issued by the only tribunal that
is entitled to continuing exclusive
jurisdiction . . .[when] an individual party
or the child continues to reside in that State
[which issued the original order].
Our Court stated in Welsher that "UIFSA governs the
proceedings over any foreign support order which is registered in
North Carolina after 1 January 1996, UIFSA's effective date." Welsher, 127 N.C. App. at 527, 491 S.E.2d at 664. In the case
before us, the New Jersey support order was registered in Carteret
County, North Carolina in 1999. Upon notification of the filing,
defendant did not contest the order and therefore "a tribunal of
this State shall recognize and enforce, but may not modify, a
registered order[.]" N.C. Gen. Stat. § 52C-6-603(c) (1995). New
Jersey is the child's home state in this case and the support order
of the New Jersey court is the controlling order. The 1982 New
Jersey order issued by a court in the current home state of the
child had priority over the 1995 North Carolina order. The trial
court in North Carolina was required to recognize the New Jersey
order as controlling. 28 U.S.C.A. 1738B(f)(3) (1994).
As to the choice of state law governing the support order, our
courts have clarified that the law of the issuing state must be
applied by the adopting state. UIFSA requires that "a support
order be interpreted according to the law of the state in which it
[was] issued." Welsher, 127 N.C. App. at 524, 491 S.E.2d at 663.
"The FFCCSOA is very stringent in its mandate that a foreign child
support order be enforced according to its terms." Kelly, 123 N.C.
App. at 591, 474 S.E.2d at 135. Therefore, our state's courts must
apply New Jersey law in the enforcement of the child support order,
even if the law of New Jersey is contradictory to the law of this
state. The 1995 North Carolina court order implied that because
the age of emancipation in North Carolina is eighteen, then the
court could modify the New Jersey support order to end support at
age eighteen, not age twenty-two as required by the New Jerseyorder. This is not in accordance with New Jersey law, which we
must apply. N.J.S.A. 2A:34-23 (1988) provides:
Pending any matrimonial action . . . or after
judgment of divorce . . . the court may make
such order as to the alimony or maintenance of
the parties, and also to the care, custody,
education and maintenance of the children . .
. as the circumstances of the parties and the
nature of the case shall render fit . . . and
require reasonable security for due observance
of such orders[.]
This statute has been applied by the New Jersey courts to permit
enforcement of support orders for children over the age of
eighteen. Quinn v. Johnson, 247 N.J. Super. 572, 589 A.2d 1077
(1991) (holding that N.J.S.A. 2A:34-23 gives the courts broad
authority to continue orders for children over the age of
eighteen); Sakovits v. Sakovits, 178 N.J. Super. 623, 429 A.2d 1091
(1981) (duty to assure the necessary support for the education of
a child over the age of eighteen); Hoover v. Voightman, I, 103 N.J.
Super. 535, 248 A.2d 136 (1968) (order to increase support for a
child over the age of 18 who was attending college).
In the case before us, plaintiff and defendant were both
represented by attorneys at the time of their divorce and their
attorneys signed the 1982 Final Judgment of Divorce. The New
Jersey court had the authority to order child support until the age
of twenty-two under its state law. The record shows the child,
born on 3 December 1979, was eighteen and attending college in New
Jersey and therefore not emancipated under New Jersey case law at
the time of the second transmittal request in 1998 and when the
1998 order was entered. Schumm v. Schumm, 122 N.J. Super. 146, 299A.2d 423 (1973) (there is no fixed age for emancipation, custodial
parent primarily responsible for determining the factors, such as
education, which act to continue a child's dependence upon
support); Keegan v. Keegan, 326 N.J. Super. 289, 741 A.2d 134
(1999) (child would not be emancipated, for support purposes when
she had plans to attend college and had not moved beyond the sphere
of her parents). Therefore, the courts of this state are required
under FFCCSOA and UIFSA to enforce the New Jersey support order,
until the child of the parties reaches the age of twenty-two.
Plaintiff did not consent to the jurisdiction of this state to
modify the New Jersey order in 1995 and New Jersey therefore
retained continuing, exclusive jurisdiction over the order. The
North Carolina trial court was required to give the New Jersey
order full faith and credit, enforcing the order and interpreting
the order according to the law of the state of New Jersey. The
order of the trial court is vacated and this action is remanded to
the trial court for the entry of an order consistent with UIFSA,
FFCCSOA, and this opinion.
Vacated and remanded.
Judges WYNN and TIMMONS-GOODSON concur.
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