Plaintiff appeals trial court's order which denied
registration of foreign child support orders as to arrears based on
the ex mero motu argument that registering such orders denied
defendant of his substantive and procedural due process rights.
The dispositive question before this Court is whether the trial
court erred in not confirming the registration of the foreign
support orders in their entirety as defendant failed to raise any
valid defense under the Uniform Interstate Family Support Act,
codified in chapter 52 of the North Carolina General Statutes. For
the following reasons, we reverse and remand.
On 5 June 1988 Craig A. Berry (hereinafter “defendant”) and
Patricia A. Lively (hereinafter “mother”) were married inRockledge, Florida. On 12 August 1989 defendant and mother had a
son, hereinafter referred to as “the child”. On 29 January 1991
defendant and mother were divorced.
Defendant and mother agreed to a Separation, Child Custody and
Property Settlement Agreement (“agreement”). The parents agreed
the child's primary residence would be with his mother. The
agreement was signed and verified by defendant and incorporated
into the Final Judgment of Dissolution of Marriage by the Circuit
Court in Brevard County, Florida. The judgment provided:
Child Support. The Father, CRAIG A. BERRY,
shall promptly pay by cash, postal money
order, or check payable to the Circuit Court,
Brevard County, Florida, P.O. Drawer H,
Titusville, Florida, 32780, for disbursement
to the Mother, PATRICIA A. BERRY, whose
address is 1900 Post Road, #176, Melbourne,
Florida, 32935, for support and maintenance of
said minor child, the sum of $50.00 per week,
commencing February 1, 1991, plus court costs
of $1.50 per payment and a like sum on each
Friday thereafter, until furthr [sic] notice
of this Court. Mailed certified checks and
money orders must show the Father's name and
the above Court case number.
On or about 6 July 2005 an order was entered in Florida which
established defendant's child support arrears as of 28 April 2005
in the amount of $31,915.00 and public assistance arrears in the
amount of $850.00. On or about 18 November 2005 the Florida Child
Support Enforcement office requested a verification of address for
defendant. On 30 December 2005, Tara Tanaka, manager of the
Compliance Enforcement Process Child Support Enforcement Program
verified the defendant's Fairfield, North Carolina address. On 9
February 2006 the Office of Child Support Enforcement in BrevardCounty, Florida requested the Child Support Enforcement division of
the Department of Human Resources in Raleigh, North Carolina to
register two foreign support orders.
The first order under the case number 05-1990-DR-012494
(hereinafter “child support order”) required defendant to pay the
Florida State Disbursement Unit: (1) $50.00 per week for ongoing
child support payments due to mother and (2) $33,865.00 as of 23
January 2006 for child support arrears owed to mother. The second
order under the case number 05-2004-DR-70325 (hereinafter “public
assistance order”) required defendant to pay $850.00, to be paid in
the amount of $5.00 per week, to the Florida State Disbursement
Unit for arrears while the child was in foster care.
On or about 12 April 2006 both orders were registered in Hyde
County, North Carolina. On or about 13 April 2006 a certified copy
of the notice of registration was sent to defendant and defendant
received the notice. On 28 April 2006 defendant filed a request
for hearing and motion to vacate registration of the foreign
support orders based solely on the grounds that he had been denied
visitation rights with the child. On 22 May 2006 notice was sent
to defendant that a hearing was scheduled on 8 June 2006 at 9:30
a.m. in District Court, Hyde County, North Carolina. Defendant
requested continuance of the 8 June 2006 hearing, and it was
continued to 6 July 2006 at 9:30 a.m. in District Court, Hyde
County, North Carolina.
At the hearing defendant testified, inter alia, that: (1) in
or around 1992 defendant moved to North Carolina from Florida, (2)he was not aware of the location of mother for a short period of
time after the divorce, (3) since approximately 1993 he has been
residing at the same address in North Carolina, his current
address, (4) on 6 November 2003 by regular mail at the address
where he is currently residing, Florida notified defendant that his
son was being taken into custody, (5) he had received documents
from social services informing him that his son had been placed in
juvenile hall, (6) he had not attended his son's juvenile hearings
in Florida because he knew that there were outstanding orders for
his arrest in Florida for failure to pay child support, and (7) he
did not make child support payments because he was not allowed to
visit with his child. The only defense to his non-payment of child
support defendant raised in his response or at the hearing was that
he has not had visitation with the child.
On or about 23 August 2006 the trial court registered only the
ongoing $50.00 monthly payment portion of the child support order
and declined to register the portion of the child support order
requiring defendant to pay arrears. The trial court also declined
to register the public assistance order requiring defendant to pay
arrears to Florida for the time the child was in foster care on the
grounds that defendant's substantive and procedural due process
rights were denied because the State of Florida did not notify
defendant in advance that it would be enforcing the child support
order even though “the Florida and Brevard County officials knew
the defendant's address.” The defense of due process was notraised by defendant but by the trial court
ex mero motu.
(See footnote 1)
Plaintiff appeals.
II. Registration of Foreign Support Orders
Plaintiff argues that the trial court was required to follow
the statutory language of the Uniform Interstate Family Support Act
(“UIFSA”), codified in chapter 52C of the North Carolina General
Statutes, and to allow the registration of the foreign support
orders unless defendant presented evidence sufficient to establish
at least one of the seven specifically enumerated defenses under
UIFSA. We agree. “Where a party asserts an error of law occurred,
we apply a
de novo standard of review.”
Craven Reg'l Med. Auth. v.
N.C. Dep't. of Health and Human Servs., 176 N.C. App. 46, 51, 625
S.E.2d 837, 840 (2006).
Pursuant to N.C. Gen. Stat. § 52C-6-607
(a) A party contesting the validity or
enforcement of a registered order or seeking
to vacate the registration has the burden of
proving one or more of the following defenses:
(1) The issuing tribunal lacked personal
jurisdiction over the contesting party;
(2) The order was obtained by fraud;
(3) The order has been vacated,
suspended, or modified by a later order;
(4) The issuing tribunal has stayed the
order pending appeal;
(5) There is a defense under the law of
this State to the remedy sought;
(6) Full or partial payment has been
made; or
(7) The statute of limitations under G.S.
52C-6-604 precludes enforcement of some or all
of the arrears.
(b) If a party presents evidence establishing
a full or partial defense under subsection (a)
of this section, a tribunal may stay
enforcement of the registered order, continue
the proceeding to permit production of
additional relevant evidence, and issue other
appropriate orders. An uncontested portion of
the registered order may be enforced by all
remedies available under the law of this
State.
(c) If the contesting party does not establish
a defense under subsection (a) of this section
to the validity or enforcement of the order,
the registering tribunal shall issue an order
confirming the order.
N.C. Gen. Stat. § 52C-6-607 (2005) (emphasis added). “As used in
statutes, the word 'shall' is generally imperative or mandatory.”
State v. Johnson, 298 N.C. 355, 361, 259 S.E.2d 752, 757 (1979);
see also In re Z.T.B., 170 N.C. App. 564, 569, 613 S.E.2d 298, 300
(2005) (“The use of the word 'shall' by our Legislature has been
held by this Court to be a mandate . . . .”).
In
Martin County ex rel. Hampton v. Dallas, the trial court
denied registration of a foreign child support order. 140 N.C.
App. 267, 269, 535 S.E.2d 903, 905 (2000). This Court reversed and
remanded stating that “[t]he trial court did not have the
discretion to vacate that registration unless the defendant met theburden of proving one of the defenses set out in N.C. Gen. Stat. §
52C-6-607(a).”
Id. at 269-70, 535 S.E.2d 903, 905-06.
Plaintiff's support order became
registered in North Carolina upon filing.
Applying the appropriate law, UIFSA, the
record is devoid of a defense under section
52C-6-607 of the General Statutes, which would
justify vacating a properly registered support
order. Under UIFSA, unless the court finds
that the defendant has met his burden of
proving one of the specified defenses,
enforcement is compulsory.
Welsher v. Rager, 127 N.C. App. 521, 526, 491 S.E.2d 661, 664
(1997).
We also note that federal law, the Full Faith and Credit for
Child Support Orders Act (“FFCCSOA”), has been interpreted by this
Court in conjunction with UIFSA.
See, e.g.,
New Hanover Cty. ex
rel Mannthey v. Kilbourne, 157 N.C. App. 239, 578 S.E.2d 610
(2003). We have stated that
G.S. 52C-6-607(a)(5) allows defendant to
assert defenses under North Carolina law to
the enforcement procedures sought but does not
allow defendant to assert equitable defenses
under North Carolina law to the amount of
arrears.
See John L. Saxon,
The Federal “Full
Faith and Credit for Child Support Orders
Act,” 5 INST. OF GOV'T FAM. L. BULL. 1, 4
(1995) (“When
interpreting an out-of-state
child support order, the forum state is
required to apply the law of the rendering
state,” [. . .] but “with the possible
exception of the statute of limitation, the
procedures and remedies of the forum state
will apply to the enforcement of out-of-state
child support orders within the forum state.”)
Because G.S. 52C-6-607(a)(5) is limited to
“defenses under the law of this State,” this
subsection does not authorize the assertion of
defenses against enforcement raised by
defendant in this case . . . .
State ex rel. George v. Bray, 130 N.C. App. 552, 558, 503 S.E.2d
686, 691 (1998).
The trial judge erroneously concluded as a matter of law that
“enforcement of foreign support orders under Chapter 52C of the
General Statutes of North Carolina is an equitable remedy.”
Chapter 52C provides a legal remedy, not an equitable remedy.
Id.
at 558, 503 S.E.2d at 691. Any equitable defenses to the child
support obligations that defendant may wish to raise can be raised
only in Florida.
See id. If defendant is successful in Florida,
he could then contest enforcement of the orders “in North Carolina
under G.S. 52C-6-607(a)(3) on the grounds that the order has been
modified.”
Id. at 559, 503 S.E.2d at 691.
In addition, under the FFCCSOA, the trial court did not have
the authority to modify the Florida child support order by
permitting registration of a portion of the order, the ongoing
monthly child support, and denying registration of the arrears.
“Modification is defined by FFCCSOA as a change in a child support
order that affects the amount, scope, or duration of the order and
modifies, replaces, supersedes, or otherwise is made subsequent to
the child support order.”
Id. at 555, 503 S.E.2d at 689 (citation
and internal quotations omitted).
Modification of a valid order by a
responding state is allowable only if the
court has jurisdiction to enter the order and
(1) all parties have consented to the
jurisdiction of the responding state to modify
the order or (2) neither the child nor any of
the parties remain in the issuing state.
Id. Mother still resides in Florida and she has not consented to
have North Carolina exercise jurisdiction to modify the orders.
Florida therefore “retains continuing, exclusive jurisdiction over
the action . . . and North Carolina does not have jurisdiction to
modify the order.”
Id.
In North Carolina defendant's only potential defenses to
registration of the orders were those enumerated defenses under
N.C. Gen. Stat. § 52C-6-607.
See Dallas at 269-70, 535 S.E.2d at
905-06;
Bray at 558, 503 S.E.2d at 691. The only defense raised by
defendant was that he was not allowed to visit his child. Denial
of visitation is not one of the seven enumerated defenses under
N.C. Gen. Stat. § 52C-6-607. Defendant did not argue or present
evidence as to any other potential defense under either North
Carolina or Florida law. The refusal of the trial court to
register the arrears portion of the orders affected the amount of
the orders and thus effectively modified the orders.
See Bray at
555, 503 S.E.2d at 689. Pursuant to the mandatory language of N.C.
Gen. Stat. § 52C-6-607, the trial court erred by failing to confirm
the registration of the Florida orders in full and without
modification.
See N.C. Gen. Stat. § 52C-6-607.
III. Conclusion
We reverse and remand this case because of the trial court's
failure to follow the statutory language of N.C. Gen. Stat. § 52C-
6-607. Defendant failed to establish any defense to registration
of the orders under N.C. Gen. Stat. § 52C-6-607 and therefore the
registration of the orders should be confirmed. Due to our rulingupon this issue, we need not review plaintiff's other assignments
of error.
REVERSED AND REMANDED.
Chief Judge MARTIN and Judge Arrowood concur.
Footnote: 1