Appeal by plaintiff from order entered 13 May 2004 by Judge
Alexander Lyerly in Avery County District Court. Heard in the
Court of Appeals 14 April 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gerald K. Robbins, for the State.
Joseph W. Seegers for defendant-appellee.
GEER, Judge.
The North Carolina Department of Health and Human Services
("DHHS"), on behalf of Audrey F. Jones, appeals from an order of
the trial court dismissing a petition to enforce a child support
order entered in the State of Florida and registered in North
Carolina. We reverse and remand for further proceedings because
the Florida order is still valid, has not been lawfully superceded,
and must be afforded full faith and credit, at least with respect
to past-due child support owed under that order.
Facts
Michael Jones and Audrey Jones divorced in Florida in 1994.
They had five children. The Marion County Circuit Court of Florida
entered a Final Judgment and Dissolution of Marriage on 26
September 1994 ("the 1994 Florida order") that provided for child
custody, child support, alimony, and equitable distribution of
property. Mr. Jones was given custody of three of the children,
while Ms. Jones received custody of the other two children. The
1994 Florida order also ordered Mr. Jones to "pay child support to
[Ms. Jones] for the minor children in her care in the amount of
$500.00 per month."
On 12 July 1995, the State of Florida filed a petition in
Avery County, North Carolina, naming Mr. Jones as the respondent
and requesting (1) the establishment of an order under the Uniform
Reciprocal Enforcement of Support Act ("URESA") for child support,
medical coverage, and other unspecified costs and (2) the
collection of arrears under URESA. Following a hearing on 25
October 1995, the district court entered an order on 12 December
1995 ("the 1995 North Carolina order") addressing the request for
"establishment of an order for child support, medical coverage and
'other costs', as well as collection of arrearage in the amount of
$2,087.00." After applying the North Carolina Child Support
Guidelines to the parties' incomes, the district court found "that
[Ms. Jones] would in fact owe [Mr. Jones] child support" and,
therefore, concluded that "[Mr. Jones] shall not be required to paychild support to [Ms. Jones]." With respect to arrearages, the
court observed that the 1994 Florida order establishing the amount
of arrearages was on appeal and determined that resolution of the
question of arrearages should be held in abeyance until after the
Florida Court of Appeals ruled on the appeal.
On 5 March 1997, Mr. Jones filed a motion requesting that the
district court address the arrearages issues. In its order filed
on 26 March 1997 ("the 1997 North Carolina order"), the district
court noted that the 1994 Florida order finding arrearages of
$2,087.00 had been affirmed on appeal, but ruled that Mr. Jones was
entitled to a set off in the amount of $4,591.44 _ the amount that
Ms. Jones owed Mr. Jones for payment of medical and dental
expenses.
On 19 August 2003, the State of Florida, on behalf of Ms.
Jones, filed a Notice of Registration of Foreign Support Order in
Avery County District Court, stating that the 1994 Florida order
was being registered for enforcement. The Notice indicated that
Mr. Jones owed $51,520.77 in arrearages as of 29 July 2003. On 6
January 2004, the district court entered an order confirming the
registration based in part on the representation of Mr. Jones'
counsel that he did not contest the registration. The order
directed that Ms. Jones recover from Mr. Jones arrears in the
amount of $51,570.20 and that Mr. Jones begin making payments
toward the arrears in the amount of $500.00 each month.
On 20 February 2004, the court issued an order directing Mr.
Jones to appear and show cause for his failure to comply with the6 January 2004 order. Subsequently, on 3 March 2004, the district
court entered an amended order confirming registration, but noting
that while defendant did not contest registration, he did intend to
contest the enforcement of the 1994 Florida order. The court found
that defense counsel had not been given an opportunity to review
the 6 January 2004 order and that the order granted more relief
than defense counsel had consented to in open court. The court re-
confirmed registration of the 1994 Florida order, but provided that
issues of enforcement, modification, wage withholding, and arrears
would be determined at a subsequent hearing.
Prior to that hearing, Mr. Jones filed a response to the
request for enforcement, seeking dismissal of that request. After
a hearing on 23 April 2004, the Avery County district court, on 13
May 2004, filed an order ("the 2004 North Carolina order")
dismissing DHHS' request for enforcement on the grounds that
DHHS/Ms. Jones did not appeal the 1995 North Carolina order or the
1997 North Carolina order. DHHS has filed a timely appeal from the
2004 North Carolina order.
Discussion
In determining the validity and effect of the 1994 Florida
order and the 1995 North Carolina order, we must apply the law in
effect at that time: URESA, N.C. Gen. Stat. §§ 52A-1
et seq. (1994)
(repealed 1996).
See New Hanover County v. Kilbourne, 157 N.C.
App. 239, 244, 578 S.E.2d 610, 614 (2003) ("URESA is still
applicable to determine the validity of an order originally entered
when URESA was in effect . . . ."). Under URESA, a party who hadobtained a child support order in another state had two options if
the child support payor was residing in North Carolina: (1) the
party could seek establishment of a
de novo order for child support
or (2) the party could seek registration of his or her foreign
support order.
Following the filing of a complaint for support pursuant to
URESA, if the North Carolina court "[found] a duty of support, it
[could] order the defendant to furnish support or reimbursement
therefore and subject the property of the defendant to such order."
N.C. Gen. Stat. § 52A-13 (1994). URESA, however, further provided
that "[i]f the duty of support is based on a foreign support order,
the obligee has
the additional remedies provided in the following
sections." N.C. Gen. Stat. § 52A-25 (1994) (emphasis added).
Those additional remedies included registration of the foreign
support order, N.C. Gen. Stat. § 52A-26 (1994), and income
withholding, N.C. Gen. Stat. § 52A-30.1 (1994).
See also John L.
Saxon,
"Reconciling" Multiple Child Support Orders Under UIFSA and
FFCCSOA: The Twaddell, Roberts,
and Dunn
Cases, 11 Fam. L. Bull.
(Inst. of Gov't, U.N.C. at Chapel Hill), 18 n.52, June 2000
(observing that rather than registering the foreign support order,
a parent could file a petition under URESA "asking the court of a
'responding' state to establish a new ('de novo') child support
order").
Thus, as this Court explained in 1997, "[u]nder URESA, a state
had jurisdiction
to establish, vacate, or modify an obligor's
support obligation even when that obligation had been created inanother jurisdiction."
Welsher v. Rager, 127 N.C. App. 521, 524,
491 S.E.2d 661, 663 (1997) (emphasis added).
See also Twaddell v.
Anderson, 136 N.C. App. 56, 62-63, 523 S.E.2d 710, 715 (1999)
("Under URESA, a subsequent order [in North Carolina] does not
necessarily nullify a prior order [from another state]. . . .
[U]nder URESA, more than one state could have simultaneous
jurisdiction over a case."),
disc. review denied, 351 N.C. 480, 543
S.E.2d 510 (2000). As a result, under URESA, "a case may involve
more than one valid child support order even though the orders may
be inconsistent in their terms."
Kilbourne, 157 N.C. App. at 245,
578 S.E.2d at 614.
DHHS argues that, regardless of URESA, the Full Faith and
Credit for Child Support Orders Act ("FFCCSOA"), 28 U.S.C. § 1738B
(2000), effective 20 October 1994, deprived a North Carolina court
of subject matter jurisdiction to enter an order inconsistent with
a foreign state's child support order. The 1994 version of the
FFCCSOA required "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."
State ex rel. Harnes v. Lawrence, 140 N.C. App.
707, 710, 538 S.E.2d 223, 225 (2000). The FFCCSOA thus presumes
that a party has sought to enforce a foreign state's child support
order. As a leading North Carolina family law commentator has
pointed out, "The FFCCSOA applies only to child support orders and
deals only with recognizing and enforcing foreign child supportorders, not with establishing them." Suzanne Reynolds, 2
Lee's
North Carolina Family Law § 11.58 (5th ed. 1999).
In this case, in 1995, Florida did not seek registration of
the 1994 Florida order. Instead, it sought "
establishment of an
order (URESA)" for child support, medical coverage, and other
costs. (Emphasis added.) Left unchecked were the boxes in the
form petition for "enforcement of existing order" and "registration
of foreign support order." Since Florida sought establishment of
a
de novo order, the FFCCSOA had no bearing on the North Carolina
court's jurisdiction in 1995.
The fact that the North Carolina court had jurisdiction in
1995 under URESA to enter the
de novo child support order does not,
however, answer the question whether the 1995 North Carolina order
precluded enforcement of the 1994 Florida order. As this Court has
previously held, "[u]nder URESA, a subsequent [child support] order
does not necessarily nullify a prior order."
Twaddell, 136 N.C.
App. at 62, 523 S.E.2d at 715. "This Court has previously
determined that a subsequent URESA order nullifies a prior order
only if it specifically so provides."
Kilbourne, 157 N.C. App. at
245, 578 S.E.2d at 614.
See also N.C. Gen. Stat. § 52A-21 (1994)
(repealed 1996) (a support order of this State does not nullify a
support order by a court of any other state "unless otherwise
specifically provided by the court"). While a foreign support
order remains in effect, its terms may still later be enforced in
other states that have issued contrary orders.
Kilbourne, 157 N.C.
App. at 247-48, 578 S.E.2d at 616 (holding that an Oregon childsupport order was enforceable in North Carolina despite a previous,
inconsistent child support order entered by a North Carolina
court);
Twaddell, 136 N.C. App. at 63-64, 523 S.E.2d at 716
(holding that where the North Carolina order did not supercede a
California order under URESA, the California order was still valid
and could be enforced in this state).
No language in the 1995 North Carolina order can be construed
as specifically providing for nullification of the 1994 Florida
order.
(See footnote 1)
Accordingly, the 1994 Florida order is still valid and
enforceable and the 1995 North Carolina order did not prevent the
State of Florida from seeking enforcement of its order in North
Carolina at a later date.
See Stephens v. Hamrick, 86 N.C. App.
556, 559-60, 358 S.E.2d 547, 549 (1987) (holding that plaintiff was
entitled to enforce a South Carolina child support order in this
state and collect arrearages under that order even though a
contrary child support order was also in effect in North Carolina).
Ms. Jones' failure to appeal from the 1995 North Carolina order is
immaterial, since the 1994 Florida order remained valid and in
effect after the North Carolina district court issued its
de novo
order.
Id. (holding that plaintiff's acquiescence in the North
Carolina order did not preclude enforcement of the South Carolina
order). Accordingly, the trial court erred in dismissing DHHS'
request for enforcement of the 1994 Florida order. Once there is a determination that two valid URESA orders
exist, a court "must focus on the relief sought by the plaintiff"
in order to determine how next to proceed.
Kilbourne, 157 N.C.
App. at 245, 578 S.E.2d at 614. In this case, DHHS seeks
collection of arrearages and also ongoing enforcement of the 1994
Florida order. The two types of relief each require a different
analysis.
With respect to arrearages, the trial court need not decide
which of the valid URESA orders controls because if the other state
(in this case, Florida) has "provided that the past-due child
support amounts are vested," then "the court must give full faith
and credit to the other state's order and enforce the past-due
support obligation" subject to the defense of statute of
limitations.
Id., 578 S.E.2d at 615. DHHS claims that the
arrearages owed under the 1994 Florida order as of 29 July 2003
amount to $51,520.77, including the $2,087.00 that was the subject
of the 1997 North Carolina order. Florida law provides that past-
due child support is a vested right.
See Kutz v. Fankhanel, 608
So. 2d 873, 877 (Fla. Dist. Ct. App. 1992) ("[T]he long accepted
general rule in Florida is that past due and unpaid child support
payments become 'vested' and are unmodifiable retroactively.").
Since the child support due under the 1994 Florida order vested
when it became due, this State must give full faith and credit to
the Florida order and enforce the past-due child support
obligation.
Kilbourne, 157 N.C. App. at 245, 578 S.E.2d at 615. We hold, however, that Ms. Jones' failure to appeal from the
1997 North Carolina order precludes recovery of the $2,087.00
arrearage. In the 1997 North Carolina order, the district court
gave full faith and credit to the $2,087.00 arrearage affirmed on
appeal in Florida, but then enforced the terms of the 1994 Florida
order that required Ms. Jones to pay for half of the children's
medical expenses. The district court offset the amount Ms. Jones
owed Mr. Jones for medical expenditures against the arrearages then
owed by Mr. Jones. Since the amount owed by Ms. Jones exceeded the
child support arrearages of Mr. Jones, the court ruled that Ms.
Jones was not entitled to recover any portion of the $2,087.00.
This order was never appealed and is, therefore, final and binding
with respect to the $2,087.00 in arrearages previously sought.
DHHS appears also to seek ongoing enforcement of the 1994
Florida order. With respect to ongoing child support obligations,
the district court must apply the current law _ the Uniform
Interstate Family Support Act ("UIFSA") _ to determine whether the
North Carolina or Florida order controls and the amount of support
due.
If the case involves, in full or in part,
the question of prospective payment of child
support, then the court must apply UIFSA and
FFCCSOA to the URESA orders for the purpose of
reconciling the orders and determining which
one order will control the obligor's
prospective obligation.
Id. at 246, 578 S.E.2d at 615. Thus, on remand the trial court
should determine whether ongoing child support is an issue, and, ifso, determine the amount of any prospective child support
obligation in accordance with UIFSA and the FFCCSOA.
Reversed and remanded.
Judges WYNN and CALABRIA concur.
Footnote: 1
