OCS/Pappas v. O'Brien - 2013 VT 11, 193 Vt. 340, 67 A.3d 916

Rule:

In general, if there is no child support order in place, then the custodial parent can initiate a proceeding in his or her state of residence—assuming the custodian has personal jurisdiction over the non-custodial parent under the liberal personal jurisdiction rules of the Uniform Interstate Family Support Act, and then seek an enforcement order in the state of the non-custodial parent.  

Facts:

Mother and father were married in Oklahoma in 1979. They had two sons, P.P. and A.P. The couple moved to New York in 1983, where they lived until they separated in 1985. The parties were divorced in Los Angeles County, California, in October 1986. Pursuant to the California divorce order, the parties were awarded joint legal custody of the children, then ages three and five. Primary physical custody was awarded to mother, and father was ordered to pay child support in the amount of $237 per month for each child. Eventually, father returned to Oklahoma, and mother moved with the children to Atlanta, Georgia. In October 1994, the Superior Court of Gwinnett County, Georgia, issued an order domesticating the California divorce order and modifying the child support obligation. Finding that father's financial condition had improved and that the needs of the children had increased, the court ordered father to pay $350 per month for each child, as well as a percentage of any bonuses father should receive in addition to his salary. This order stated that child support would cease if “custody is changed by a Court of competent jurisdiction.” In 1996, mother moved with the children to New York.

Beginning in July 1998, the younger child, P.P., moved from his mother's home in New York to his father's home in Oklahoma. In November 1998, the older child, A.P., turned eighteen years of age. In April 1999, father filed documents to initiate a child custody proceeding in Oklahoma under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Father initially petitioned to have custody of P.P. transferred to him and to have his child support obligation for both children ended — for A.P. because he had attained the age of majority and for P.P. because he was residing with father. Mother moved to bifurcate the issues of custody and child support. A hearing was held in October 1999, at which mother attempted to make a limited appearance for the purposes of the child custody determination. During the hearing, father requested an order obligating mother to pay him child support for P.P. in addition to changing the child's custody. The Oklahoma court awarded custody to father and retroactively relieved him of any child support obligation as of April 22, 1999, the date he moved for a change of custody. Furthermore, the court ordered mother to pay child support to father in the amount of $338.50 per month, retroactive to April 22, including an arrearage of $2724.00. Mother made two motions for new trials in the Oklahoma court raising jurisdictional concerns. The court denied the first, and mother withdrew the second, after P.P. returned to her custody. He did not appeal either the initial Oklahoma order or the denial of her motion for a new trial.

In early July 2000, P.P. returned to live with mother in Georgia. At that time, father sought enforcement of the child support judgment for the time when P.P. had been in his custody. On July 18, 2000, an Oklahoma Administrative Law Judge issued an administrative order awarding judgment to father in the amount of $2369.50 for child support for the period from January through July of 2000. When this amount was added to the previous judgment, the total arrearage became $5093.50. That amount was reduced in June 2001 by an involuntary payment of $1366.46 made by an administrative offset. Under Oklahoma law, interest on arrears accumulated at a rate of 10% per year. Including the interest and principal, the total amount due through December 31, 2009 comes to $7611.30. The parties do not dispute this calculation.

Mother is now a resident of Vermont; father continues to reside in Oklahoma. In 2008, the Oklahoma Department of Human Services sought to collect the outstanding child support from mother. These enforcement efforts were transferred to Vermont, and, on September 4, 2009, Vermont's Office of Child Support (OCS) filed a petition to register the Oklahoma support order in Vermont, pursuant to UIFSA. Mother responded on October 16, 2009, by filing a motion to set aside the Oklahoma order, contesting inter alia the subject matter jurisdiction, personal jurisdiction, and notice in the Oklahoma proceedings. After three days of hearings, a magistrate issued an order registering the Oklahoma support order and granting judgment against mother in the amount of $7611.30. Mother appealed the magistrate's order to the Chittenden Superior Court, Family Division, pursuant to Vermont Rule for Family Proceedings 8(g). On September 15, 2010, the superior court affirmed, concluding that collateral estoppel barred mother from challenging the Oklahoma court's subject matter jurisdiction, that Oklahoma had personal jurisdiction in light of mother's physical presence and participation, and that mother had received adequate notice of the Oklahoma hearings. Mother also responded to father's enforcement action by pursuing her own enforcement. She filed three documents simultaneously on April 21, 2010, within thirty days from the date of the magistrate's decision: (1) an appeal of the magistrate's decision to the family court; (2) a request for a stay of the magistrate's decision; and (3) an application to register and enforce the Georgia child support order to collect support owed by father to mother under that order. The stay request argued that father owed back child support to mother and it would be inequitable for father to collect back child support owed to him, without paying the child support he owed to mother. The application to enforce the Georgia order was to have the Vermont court determine the amount of back support owed to mother. She claimed that the amount due under the Georgia order, with interest, amounted to $34,093.50. On May 12, before the application was accepted as a separate case, the court denied the stay saying: “If [mother] is entitled to collect past due child support from [father], she may seek appropriate enforcement.” Mother served father with the application, and, in addition, the court notified OCS of the filing. OCS intervened and moved to dismiss. On August 11, 2010, the magistrate granted OCS's motion and dismissed mother's petition, concluding that Vermont courts lacked personal jurisdiction over father under UIFSA. The magistrate added: “Proper forum more likely state of [father]'s residence. Case could have been initiated in this court but transferred to proper forum to be heard.” Mother appealed the magistrate's order to the family division of the superior court, challenging both the determination that personal jurisdiction was absent and the participation of OCS. In an April 18, 2011 order, the family division affirmed the magistrate's decision.

Issue:

Did the Oklahoma order modify the preexisting Georgia order for the purposes of UIFSA?

Answer:

No.

Conclusion:

As noted, the Georgia order explicitly stated that child support would cease if “custody is changed by a Court of competent jurisdiction.” Here, there is no dispute that custody was changed by a court of competent jurisdiction. As a result, father's ongoing support obligation expired. This does not mean that the Georgia support order no longer exists or cannot form the basis for an arrearage or other claim. But though the Georgia order still governs the parties' support obligations from before the change of custody, it has expired in the sense that it has no prospective effect with respect to support obligations. Once the Oklahoma court, a court of competent jurisdiction, entered an order transferring custody of the only remaining minor child from mother to father, father's support obligation expired under the terms of the Georgia support order. Having modified custody, and with the Georgia support obligation no longer in effect by its own terms, the Oklahoma court had jurisdiction to address father's new and independent request for child support. In short, by its own terms, the Georgia order expired when father obtained custody of P.P., thereby ending both parents' prospective child support obligations under the order. Absent the automatic termination provision of the Georgia order, father's obligation to pay mother child support would have continued — even after he was awarded custody of the child — until the Georgia order was modified by court decision. Thus, without a provision automatically terminating child support upon change of custody, an award of child support to the new custodian would have been a modified order necessarily terminating the former custodian's right to child support under the preexisting order and would therefore have been subject to the jurisdictional requirements for modification under UIFSA. This case is different, however, because, for the reasons stated above, the Georgia support order expired when the Oklahoma court transferred custody to father.

This case is not controlled by the line of cases culminating in Spencer v. Spencer, 10 N.Y.3d 60, 882 N.E.2d 886, 853 N.Y.S.2d 274 (N.Y. 2008), a decision that is factually very different, but provides some context and a basis for comparison. Spencer was the final resolution of a series of New York cases where the prospective obligation to pay child support had reached an end point because the child covered by the order had reached the age of majority in the state where the order was issued. Some New York courts had held that in the case of an order from another state that had expired due to the age of the minor, they could extend the duration of the previous obligation at the request of the obligee because the age of majority was higher in New York than in the state where the order was issued. They held that such an extension was not a modification of the initial order because that order had expired by its terms. The “only issue” in Spencer, however, was whether the New York child support petitions that were filed after the termination of the initial out-of-state child support obligation “because the child reached the issuing state's age of majority [sought] a ‘modification’ of the issuing state's order.” The Spencer court answered in the affirmative for three reasons. First, the New York orders fit within FFCCSOA's broad definition of “modification” because they changed the amount, scope, and most particularly the duration of the out-of-state order. Second, drafters of UIFSA made explicit in comments and amendments to the model act that subsequent orders extending the duration of initial support orders that had expired because of the original issuing state's lower age limit on such orders should be considered a modification of the original order for purposes of UIFSA. Third, allowing New York courts to enter support orders extending the duration of support beyond the age limit in the original issuing courts' orders undermined the principle of comity critical to the policies underlying FFCCSOA and UIFSA.

This case is plainly distinguishable. In the cases governed by Spencer, the New York orders were inconsistent with, and therefore a modification of, the original issuing courts' support orders. In contrast, the Oklahoma order in this case was entirely consistent with the expired Georgia order, which, by its own terms, ended father's ongoing child support obligations upon a change of custody, which occurred before the Oklahoma court issued its support order. This is not a situation in which one court extended the duration of the original child support obligation. In this case, the support obligation no longer had any prospective effect based on the original order's own terms following a change of custody. Thus, as explained above, the Oklahoma court's order was a new and independent order rather than a modification of the expired Georgia order.

In sum, the Court does not consider this result to be at odds with UIFSA's one-order philosophy. The primary aim of UIFSA is to ensure that states do not second-guess the support orders of other states, thereby opening the door to forum shopping and the proliferation of conflicting orders. That is not what occurred in this case. Allowing father to proceed in Oklahoma also makes practical sense. Having obtained custody of P.P., father was in no different position than a custodial parent who was seeking a support order for the first time against the other parent residing in another state.