The issues presented by this appeal are whether: (I) subject
matter jurisdiction exists under UIFSA for a North Carolina court
to enforce a British support order; (II) England has reciprocitywith North Carolina in issues of spousal support; (III)
res
judicata or collateral estoppel bar plaintiff's UIFSA claim because
of the prior filing pursuant to URESA; (IV) support orders
established prior to the effective date of UIFSA can be enforced.
[1]/A HREF>Defendant argues first that there is no subject matter
jurisdiction for a North Carolina court to enforce a British
support order. We disagree.
UIFSA is the applicable statute that gives authority to the
district courts of North Carolina to deal with interstate family
support matters.
See N.C.G.S. § 52C-1-102 (1999). The
registration of foreign support orders is a matter over which UIFSA
has authority. N.C.G.S. § 52C-1-101. The case at bar deals with
the attempted registration of a support order from England, a
foreign jurisdiction. Thus, we conclude that the Wake County
district court had subject matter jurisdiction to hear the
plaintiff's claim that the foreign order should be registered under
UIFSA, and to hear the defendant's claim that the order should not
be so registered.
Orders of “another state” may be registered under UIFSA.
N.C.G.S. § 52C-3-301(b)(3) (1999). Within the “definitions”
section of UIFSA, N.C.G.S. § 52C-1-101(19), the following
definition is given for the term, “state:”
(19) “State” means a state of the United
States, the District of Columbia, Puerto Rico,
the United States Virgin Islands, or any
territory or insular possession subject to the
jurisdiction of the United States. The term
includes:
a. An Indian tribe; and
b. A foreign jurisdiction that has enacted a
law or established procedures for issuance and
enforcement of support orders which are
substantially similar to the procedures under
this Act, the Uniform Reciprocal Enforcement
of Support Act, or the Revised Uniform
Reciprocal Enforcement of Support Act.
The threshold question, then, is whether England is a “foreign
jurisdiction that has enacted a law or established procedures for
issuance and enforcement of support orders which are substantially
similar to the procedures under this Act.”
Id. If so, then North
Carolina has statutory authority under UIFSA to register the
British order.
We acknowledge that “there is very little precedent for how a
trial court should make the determination of what constitutes
'substantially similar law or procedures.'”
Country of Luxembourg
v. Canderas, 338 N.J.Super. 192, 197, 768 A.2d 283, 286 (2000)
(citing
Selected Topics in International Law for the Family
Practitioner: International Child Support-1999, 32 Fam. L.Q. 525,
550 (1998)). In fact, “UIFSA does not specify who is responsible
for determining whether a foreign country is entitled to
reciprocity.” John Saxon,
International Establishment and
Enforcement of Family Support, 10 Family Law Bulletin at 10,
footnote 5 (August 1999). Saxon notes that the “child support
enforcement (IV-D) agency in each state should maintain a current
list of foreign countries that are considered to be reciprocating
foreign countries under UIFSA.”
Id at 10, footnote 6. In his
article, he asserts that “[r]eciprocity currently exists underUIFSA between all American states and the following foreign
jurisdictions: Australia, Austria, Bermuda . . . United Kingdom
(England, Wales, Scotland, Northern Ireland).”
Id. at 2.
Plaintiff's application for support is based on the New York
Convention on the Recovery Abroad of Maintenance (the treaty). 268
U.N.T.S. 3. The treaty “was promulgated by the United
Nations . . . [and] is comparable to URESA.” Arnold H. Rutkin,
Family Law and Practice § 48.11(4) (5 vol. 2001). Although the
United States is not a signatory nation to the treaty, we find
reciprocity between England and North Carolina based on a 1972
British Act (the Act).
Maintenance Orders (Reciprocal
Enforcement) Act, 1972, ch. 18 (Eng.). The Act has two parts,
either of which justify our finding of reciprocity. Under part one
of the Act, reciprocity is established between England and any
country that is not a party to the treaty if that country is
specified in a statutory instrument executed pursuant to section 1
or section 40 of the Act.
Id. A 1995 British statutory instrument
states that England “is satisfied that arrangements have been made
in the States of the United States of America . . . to ensure that
maintenance orders made by courts in the United States can be
enforced there . . . [and] that in the interest of reciprocity it
is desirable to ensure that maintenance orders made by courts in
those States can be enforced in the United Kingdom.”
Reciprocal
Enforcement of Maintenance (United States of America) Order, S.I.
1995, No. 2709. This statutory instrument applies part one of the
Act to “maintenance orders made by courts in the United Kingdom andto maintenance orders made by courts in a specified State,”
including North Carolina, pursuant to section 40 of the Act.
Id.
Under part two of the Act, reciprocity is established between
England and any country that is not a party to the treaty if that
country is specified in a statutory instrument executed pursuant to
section 25 or section 40 of the 1972 Act. A 1993 British statutory
instrument expressly applies part two of the 1972 Act to North
Carolina.
Recovery of Maintenance (United States of America)
Order, S.I. 1993, No. 591. We hold that England, then, has
reciprocity with North Carolina in issues of support.
Id. As
such, England is treated as a “State” for purposes of the
application of UIFSA.
Id.
This Court recently spoke in a similar case involving the
nation of Switzerland.
Haker-Volkening v. Haker, 143 N.C.App. 688,
547 S.E.2d 127 (2001). The rule announced by the Court in
Haker-
Volkening requires a determination by the trial court of whether
the foreign jurisdiction has “enacted a
law for the issuance and
enforcement of support orders that is 'substantially similar to the
procedures under [UIFSA or URESA].'”
Id. at 694, 547 S.E.2d at
131. The Court held that the burden was on the petitioner to
produce “evidence in the record documenting” that such a law
exists.
Id. This rule is appropriate where, as in
Haker-
Volkening, the foreign jurisdiction is not given reciprocal status
by law, treaty or international agreement. Where, as in the case
at bar, however, the foreign jurisdiction is given reciprocalstatus, such requirement is not necessary.
[2]Defendant next assigns error to the trial court's failure
to dismiss the case on a theory of
res judicata.
Res judicata, or
claim preclusion, is the theory whereby whenever a final judgment
is rendered in a court of law, the claim that was settled may not
be relitigated by the same parties or by parties in privity with
the same parties.
Thomas M. McInnis & Assoc., Inc. v. Hall, 318
N.C. 421, 349 S.E.2d 552 (1986). "A final judgment is one which
disposes of the cause as to all the parties, leaving nothing to be
judicially determined between them in the trial court.”
Veazey v.
Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950);
see Russ
v. Woodard, 232 N.C. 36, 41, 59 S.E.2d 351, 355 (1950) (final
judgment "decides the case upon its merits, without any reservation
for other and further directions of the court"). While this case
involved the same cause of action and the same parties as a
previous case (the initial 1995 Wake County petition), there had
not been a final judgment in that previous case. There was a
dismissal based on a lack of subject matter jurisdiction, which is
not on the merits and thus is not given res judicata effect.
Cline
v. Teich, 92 N.C. App 257, 264, 374 S.E.2d 462, 466 (1988).
Accordingly, the plaintiff was not precluded from bringing her
claim before the court again;
res judicata should not apply.
Defendant also argues that the case should have been dismissed
based on the theory of collateral estoppel or issue preclusion.
[In order] to assert a plea of collateral
estoppel under North Carolina law as
traditionally applied, [defendant] would needto show that the earlier suit resulted in a
final judgment on the merits, that the issue
in question was identical to an issue actually
litigated and necessary to the judgment, and
that both [parties] were either parties to the
earlier suit or were in privity with parties.
McInnis at 429, 349 S.E.2d at 557.
Res judicata is distinct from collateral estoppel in that the
former focuses on specific claims while the latter focuses on
specific issues. "Thus, while
res judicata precludes a subsequent
action between the same parties or their privies based on the same
claim, collateral estoppel precludes the subsequent adjudication of
a previously determined
issue, even if the subsequent action is
premised upon a different claim.”
Hales v. N.C. Insurance Guaranty
Assn., 337 N.C. 329, 333, 445 S.E.2d 590, 594 (1994)(emphasis in
original). For our purposes today, however, the differences are
unimportant as the threshold question under both theories is
whether there was a final judgment on the merits. If there was a
final judgment on the merits, then either theory might apply,
depending on the other facts. If there was not a final judgment on
the merits, then neither theory should apply regardless of the
other facts. Again, in the case
sub judice, the original action
was dismissed for a lack of subject matter jurisdiction.
Therefore, there was never a judgment on the merits and the same
parties should not be precluded from raising the same issue.
See,
e.g., C
line, 92 N.C. App. At 264, 374 S.E.2d at 466. The trial
court therefore did not err in failing to dismiss because of
collateral estoppel.
[3]Defendant next argues that the trial court had no
jurisdiction to award payments established prior to the date UIFSA
came into effect. Defendant asserts that UIFSA governs foreign
support orders registered in North Carolina only after 1 January
1996. Defendant argues that, because § 52C is effective only for
orders registered as of 1 January 1996, the trial court lacked the
authority to require plaintiff's payments accruing from June 1994
until January 1996. This argument also fails.
It is true that UIFSA did not come into effect until 1 January
1996 when it replaced URESA, the previously applicable statute.
UIFSA, however, governs orders, regardless of when entered, so long
as the orders were registered in North Carolina after 1 January
1996.
Indeed, this Court has addressed this issue before when we
wrote:
[I]t is important that we address the
applicability of UIFSA to an order issued
prior to the effective date of the Act. We now
hold that UIFSA governs the proceedings over
any foreign support order which is registered
in North Carolina after 1 January 1996,
UIFSA's effective date. . . . [O]ur
interpretation saves the courts from the
arduous task of attempting to determine
arrearage based on the application of two
different sets of law to the same order. Other
states addressing this issue have also applied
the effective date of their own UIFSA laws in
a similar way.
See Child Support Enforcement
v. Brenckle, 675 N.E.2d 390 (Mass.
1997)(applying UIFSA retroactively);
Cowan v.
Moreno, 903 S.W.2d 119 (Tex Ct. App.
1995)(applying UIFSA to a 1982 foreign support
order where UIFSA became effective in 1993).
Welsher v. Rager, 127 N.C. App. 521, 527, 491 S.E.2d 661, 664-65
(1997).
In the present case, the British support order was properly
registered in Wake County on 23 September 1997. Registration
having taken place after 1 January 1996, we conclude that the trial
court properly registered and enforced payments for claims prior to
1 January 1996. Defendant's argument therefore fails.
Having found no error in the issues raised on appeal, the
judgment of the trial court is affirmed.
Affirmed.
Judges MARTIN and TYSON concur.