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THE NONMODIFIABLE ASPECTS OF A CHILD SUPPORT ORDER UNDER SECTION 611 OF UIFSA:
UIFSA was originally drafted by the National Conference of Commissioners on Uniform
State Laws in an effort to revise and replace the Uniform Reciprocal Enforcement of
Support Act (URESA), as originally adopted in 1950 and amended in 1958, and its revised
version, the Revised Uniform Reciprocal Enforcement Act of 1968 (RURESA). UIFSA was
approved by the National Conference of Commissioners on Uniform State Laws in 1992 and
ratified by the American Bar Association in February 1993. Most United States
jurisdictions have since enacted UIFSA as their local law. See 9, Part IB, U.L.A. 26-27
(Supp. 2001).
Section 611 of UIFSA deals with modification of a child support order by a state other
than the original issuing state. Pursuant to this section, paragraph (c):
A tribunal of this State may not modify any aspect of a child-support order that may
not be modified under the law of the issuing state.
9, Part IB, U.L.A. at 370 (1999).
The official commentary to this section explains:
Subsection (c) prevents the modification of any final, nonmodifiable aspect of the
original order. For example, if child support was order through age 21 in accordance with
the law of the issuing state and the law of the forum state ends the support obligation at
18, modification my the forum tribunal may not affect the duration of the support order to
age 21.
9, Part IB, U.L.A. at 373. See also Janet E. Atkinson & Laura W. Morgan, The
Uniform Interstate Family Support Act: 1999 Comprehensive Update, 11 Divorce Litig.
173, 192 (1999) (“Under UIFSA, nonmodifiable terms are set for the life of the order.
Thus, a court with jurisdiction to modify an existing child support order cannot change
the fixed terms of the controlling order, such as the duration of the child support
obligation. The policy behind this provision is to prevent parties from seeking
modification in a state that terminates child support at an earlier date.”)
UIFSA has a federal counterpart, the Full Faith and Credit for Child Support Orders Act
(FFCCSOA), 28 U.S.C. § 1738(B). UIFSA and the FFCCSOA are complementary and not
contradictory, working together the same way the UCCJEA and the PKPA work together.
Section h of the FFCCSOA provides likewise:
(h) Choice of law.
(1) In general. In a proceeding to establish, modify, or enforce a child support order,
the forum state’s law shall apply except as provided in paragraphs (2) and (3).
(2) Law of state of issuance of order. In interpreting a child support order including
the duration of current payments and other obligations of support, a court shall apply the
law of the State of the court that issued the order.
(3) Period of limitation. In an action to enforce arrears under a child support order,
a court shall apply the statute of limitation of the forum State or the State of the court
that issued the order, whichever statute provides the longer period of limitation.
As noted by at least one authority commenting on FFCCSOA, “[I]t seems obvious that
a court of State A would be required to enforce a post-majority child support order from
State B even if State A had a rule ending support at age 18. Such an issue would fit
neatly into the ‘duration of current payments’ language of the statute.” 2
Sowald & Morganstern, Domestic Relations Law, § 23.27, at 60 (1997).
The cases have been absolutely consistent in their application of this section of
UIFSA: the responding state, if modifying the child support order, cannot modify when the
order terminates.
In one of the first cases to interpret this provision, Welcher v. Rager, 491
S.E.2d 661 (N.C. Ct. App. 1997), a 1985 New York child support order required the father
to pay $45.00 per week in support for his two sons. Later, the father moved to North
Carolina, while the mother and children remained in New York. The father stopped paying
child support when the youngest child reached age 18. The mother then registered the order
for enforcement in North Carolina. The North Carolina trial court granted the
father’s motion to dismiss based on the children’s majority in North Carolina.
The Court of Appeals reversed, finding that UIFSA required the court to use the law of the
issuing state to interpret the support order. Thus, New York’s 21-year age limit on
the duration of the obligation continued to determine the duration of the support
obligation.
The same result was reached in State ex rel. Harnes v. Lawrence, 538 S.E.2d
223 (N.C. Ct. App. 2000). In that case, the original order was entered in New Jersey. The
Final Judgment of Divorce ordered the father 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.” When the mother attempted to enforce
the decree, the North Carolina court entered an order for arrears, but terminated the
child support obligation as of the date the child turned 18 and graduated from high
school. The appellate court reversed. “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 Jersey order. This is not in accordance with New Jersey law, which we
must apply.” Accord Holbrook v. Cummings, 750 A.2d 724 (Md. Ct.
App. 2000) (The original order was issued in New York, where the age of emancipation is
21. The father moved to California, and the mother moved to Maryland. The father then
moved to terminate support when child turned 18 under law of Maryland. The court held that
it was undisputed that New York law requires parents to support their children until they
reach twenty-one years of age and that the duration of the father’s obligation to
provide such support could not be reduced under New York law. Accordingly, the judge below
acted properly in denying the father’s request to reduce the duration of his
obligation to provide child support for his son); Sharp v. Sharp, 765 A.2d 271
(N.J. Super. App. Div. 2001) (Original order was entered in California. Mother moved to
New Jersey, sought enforcement, and to impose on father New Jersey duty of support, which
allows an order for college costs. The court held that the California order applied as to
duration); Emig v. Massau, No. 99AP-1473 (Ohio App. Dist.10 Nov. 16, 2000) (The
original order was entered in Missouri, providing for support until the child reached age
21. The mother moved to Ohio, and the father moved to Pennsylvania. The father then sought
to terminate support under Ohio law, asserting that since Ohio law provides for
emancipation at age eighteen (assuming graduation from high school) of a child receiving
child support, his support obligation should have terminated when his daughter reached
that age, based upon the child’s Ohio residency. The court held that the order had to
be enforced according to its own terms, including the age of termination for support.); Robdau
v. Commonwealth, 543 602 (Va. Ct. App. 2001) (Original order was entered in New York.
The father moved to Virginia, where the mother sought enforcement. The father claimed that
the age of majority in Virginia applied. The court held that to accept the father’s
contention would encourage parents obligated to pay support to avoid one state’s
child support order by moving to another state that has a lower age requirement for
support. Through such “forum shopping,” the parent would be able to control the
duration of child support. Such a result undermines the very purpose of UIFSA.)
The result is no different when the case is a modification case rather than an
enforcement case. In Cooney v. Cooney, 946 P.2d 305 (Or. Ct. App. 1997), a Nevada
divorce decree awarded the parents joint legal custody of the children and ordered the
father to pay child support to the mother. Later, after the father relocated in Tennessee
and the mother and children moved to Oregon, the mother petitioned an Oregon court to
modify the Nevada custody order. The father entered an appearance in the action and asked
the court to reduce the amount of his child support obligation, based on a reduction in
his income. The trial court found that the father had not intentionally impoverished
himself and applied Oregon’s child support guidelines to reduce the amount of his
child support obligation, but denied the mother’s request to extend the duration of
the father’s child support obligation, pursuant to Oregon law. The Court of Appeals
upheld the trial court’s determination, finding that UIFSA applies to all actions to
modify or enforce foreign child support orders; and precludes modification of any aspect
of a child support order that may not be modified under the law of the issuing state.
In Cavallari v. Martin, 732 A.2d 739 (Vt. 1999), the court reached the same
result. The court first noted that UIFSA governs when a state court may modify a child
support order from another state if the parties to that order have left the original
issuing state. As to the duration of the order, the court stated,
Generally, [a state] court may modify the order, but certain of the substantive
restrictions of UIFSA apply to that modification decision. . . . The important applicable
restriction is contained in § 611(c). That section provides that the [new modification
state court] “may not modify any aspect of a child support order that may not be
modified under the law of the issuing state.” Because the [original issuing court]
could not modify the order before it to reduce its duration to the eighteenth birthday of
the child, the new modification state court could not make that modification under §
611(c).
732 A.2d at 744.
The court engaged in a rather expansive discussion of section 611(c) of UIFSA in Groseth
v. Groseth, 600 N.W.2d 159 (Neb. 1999). In that case, the parties were divorced in
Massachusetts. The mother and children relocated to Nebraska, while the father relocated
to Texas. The parties then agreed to submit to the jurisdiction of the Nebraska court
concerning the mother’s request for modification. The Nebraska court applied the
substantive law of Massachusetts, and the mother appealed.
The court held that the substantive law of Nebraska, i.e., its child support
guidelines, applied to determining the amount of the child support order, but the law of
Massachusetts applied as to the duration of the order.
[O]nce Nebraska assumes continuing, exclusive jurisdiction, then Nebraska’s Judges
are to apply familiar, local rules. In doing so, Nebraska courts are to apply
Nebraska’s substantive law to any provision of the child support order that could
have been modified under Massachusetts law; by the same token, Nebraska may not modify any
aspect of the Massachusetts child support order which could not have been modified in
Massachusetts.
600 N.W.2d at 168. See also Palagi v. Palagi, 10 Neb. App. 231 (2001)
(The court interpreted a Nebraska child support order, which terminates at age 19. The
father sought to terminate the Nebraska order, alleging that the child had established a
residence in Kansas, and so the Kansas age of majority (18) applied. The court held that
although UIFSA was not controlling, because all the parties still resided in under UIFSA,
the result would have to be that Nebraska law, the law of the issuing state, controls as
to the duration of the order.)
In sum, when a court takes jurisdiction to modify a child support order under UIFSA, it
may NOT modify the order to change the date of termination if the issuing state could not
have so modified the order. |
