New Hanover County v. Kilbourne

• Decision Date: 15 April 2003
• Docket Number: No. COA01-1521.,COA01-1521.
• Parties: NEW HANOVER COUNTY, on behalf of Sherri M. Mannthey, Plaintiff, v. Brad W. KILBOURNE, Defendant.
• Court: North Carolina Court of Appeals

578 S.E.2d 610

157 NC App. 239

NEW HANOVER COUNTY, on behalf of Sherri M. Mannthey, Plaintiff, v. Brad W. KILBOURNE, Defendant.

No. COA01-1521.

Court of Appeals of North Carolina.

April 15, 2003.

Johnson & Lambeth, by Maynard M. Brown, Anna J. Averitt, and Carter T. Lambeth, Wilmington, for plaintiff-appellant.

Brad Kilbourne, pro se.

GEER, Judge.

Plaintiff, Sherri M. Mannthey, appeals from an order denying her request that a 1989 Oregon child support order be found controlling over a 1992 North Carolina child support order. The trial court concluded that "[t]he North Carolina order of September 1992 is the controlling order in this matter." Because the record reveals that the only issue before the trial court was arrearages, we hold that the trial court erred in failing to give full faith and credit to the 1989 Oregon child support order in violation of the United States Constitution and, therefore, reverse.

Ms. Mannthey and Brad Kilbourne were married in January 1982. They are the parents of Jamie M. Kilbourne, born 10 September 1982. During the marriage, the family resided in Oregon. The parties divorced in February 1987. On 3 November 1989, the Oregon courts entered a child support order (the "Oregon order"), requiring defendant to pay $175.00 per month, beginning in December 1989 and continuing until the child reached age 18 (unless the child married or was emancipated) or until age 21 if the child was regularly attending school. After entry of the Oregon order, defendant moved to North Carolina.

In March 1992, pursuant to the Uniform Reciprocal Enforcement of Support Act ("URESA"), the Oregon courts sent the North Carolina courts a Uniform Support Petition requesting the establishment of a URESA order for child support and medical coverage. Oregon's URESA petition failed to request arrears, although defendant allegedly owed Oregon $5,958.00 in arrears pursuant to the Oregon order because of public assistance provided to plaintiff. On 22 September 1992, a North Carolina court entered a new child support order (the "North Carolina order") in which the court applied the North Carolina Child Support Guidelines. Mr. Kilbourne consented to the order and judgment, which required defendant to pay $54.00 per week in child support beginning October 1992. Defendant followed the North Carolina order in making child support payments until 2001.

In 2001, Oregon requested that North Carolina register the original 1989 Oregon order under the Uniform Interstate Family Support Act ("UIFSA"). On 6 April 2001, the New Hanover Child Support Agency filed a URESA/UIFSA motion in the cause in New Hanover County requesting that the court:

1. Determine the Oregon order to be the controlling order pursuant to NCGS 52C-2-207(b)(2).

2. Confirm registration of the November 7, 1989 Oregon order in the state of North Carolina.

3. Dismiss the North Carolina Order and Judgment.

On 16 April 2001 North Carolina entered a notice of registration of foreign support order, which registered the Oregon order in North Carolina. After an 11 July 2001 hearing on plaintiff's motion in the cause, the trial court denied plaintiff's requests and found the North Carolina order to be controlling.

On appeal, plaintiff argues that the application of N.C. Gen.Stat. § 52C-2-207(b) and State ex rel. Harnes v. Lawrence, 140 N.C.App. 707, 538 S.E.2d 223 (2000) render the Oregon order controlling and, therefore, enforceable under UIFSA. While we agree with plaintiff that the trial court's ruling was in error, because of the particular facts of this case, we do not reach the question of which order controls.

I

Because of the complexity and multiplicity of pertinent state and federal child support legislation, a summary of the law regarding review of multi-state child support orders is critical in order to define the proper analytical framework for cases such as this one.

From 1951 until 1996, URESA provided the procedural mechanism in North Carolina for establishing, modifying, and enforcing child support across state lines. Under URESA, a state was not bound to adopt a child support order entered in another state. Instead, "a state had jurisdiction to establish, vacate, or modify an obligor's support obligation even when that obligation had been created in another jurisdiction." Welsher v. Rager, 127 N.C.App. 521, 524, 491 S.E.2d 661, 663 (1997). As a result, child support obligors could have multiple, inconsistent obligations in different states. As this Court noted, this aspect of URESA meant that "obligors could avoid their responsibility by moving to another jurisdiction and having their support obligations modified or even vacated." Id.

In 1986, in an effort to improve the collection of child support, Congress amended Title IV-D of the Social Security Act ("the Bradley amendment"). 42 U.S.C. 666(a)(9) (2003); see also Lisa Dukelow, Child Support in North Carolina: What is the State of the Law and How Did We Get Here?, 22 N.C. Cent. L.J. 14, 18 (1996). The Bradley amendment's intent was to "concentrate on the collection of child support rather than on the amount of child support to be awarded." Id. As one commentator has noted, the amendment "required states to enact laws providing that unpaid, court-ordered child support constituted a vested right when due, prohibiting the retroactive modification of vested child support arrearages, considering past-due child support as a final judgment, and extending full faith and credit with respect to the enforceability of judgments for past-due child support." John L. Saxon, "Reconciling" Multiple Child Support Orders Under UIFSA and FFCCSOA: The Twaddell, Roberts, and Dunn Cases, Family Law Bulletin No. 11 (Institute of Government, The University of North Carolina at Chapel Hill), June 2000, at 20 n. 68 (hereinafter "Reconciling"); see also 42 U.S.C. 666(a)(9) (2003).

To comply with the Bradley amendment, North Carolina enacted N.C. Gen.Stat. § 50-13.10 in 1987, which provided:

(a) Each past due child support payment is vested when it accrues and may not thereafter be vacated, reduced, or otherwise modified in any way for any reason, in this State or any other state, except that a child support obligation may be modified as otherwise provided by law ....

(b) A past due child support payment which is vested pursuant to G.S. 50-13.10(a) is entitled, as a judgment, to full faith and credit in this State and any other state, with the full force, effect, and attributes of a judgment of this State, except that no arrearage shall be entered on the judgment docket of the clerk of superior court or become a lien on real estate, nor shall execution issue thereon, except as provided in G.S. 50-13.4(f)(8) and (10).

N.C. Gen.Stat. § 50-13.10(a) and (b) (2001) (emphasis added). Under § 50-13.10, past due child support is vested in the obligee, is not subject to retroactive modification, and is entitled to full faith and credit by sister states.

In a further effort to address interstate child support issues, Congress enacted the Full Faith and Credit for Child Support Orders Act ("FFCCSOA") in 1994. While the Bradley amendment addressed arrearages, FFCCSOA addressed the proliferation of inconsistent child support orders being filed across the country. Wilson Cty. ex rel. Egbert v. Egbert, 153 N.C.App. 283, 286, 569 S.E.2d 727, 729 (2002) ("Congress passed FFCCSOA for the purpose of establishing `national standards' to facilitate the payment of child support, discourage interstate conflict over inconsistent orders, and to avoid jurisdictional competition."). According to one scholar, FFCCSOA was significant because prior to its enactment, "states were required to give full faith and credit to out-of-state child support orders only to the extent that child support payments under another state's order were past-due arrearages that were vested and not subject to retroactive modification under the rendering state's law." John L. Saxon, The Federal "Full Faith and Credit for Child Support Orders Act," Family Law Bulletin No. 5 (Institute of Government, The University of North Carolina at Chapel Hill), Feb. 1995, at 1.

FFCCSOA, codified at 28 U.S.C. § 1738B, requires "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." Lawrence, 140 N.C.App. at 710, 538 S.E.2d at 225. Under § 1738B(e), a child support order may be modified by a sister state only if the rendering state has lost continued, exclusive jurisdiction over the child support order, which in turn occurs only if (1) neither the child nor any of the parties continue to reside in the state; or (2) each of the parties has consented to the assumption of jurisdiction by another state. 28 U.S.C. § 1738B(e)(2) (2003); Lawrence, 140 N.C.App. at 710, 538 S.E.2d at 226. Under the Supremacy Clause of the United States Constitution, FFCCSOA is binding on all states "and supersede[s] any inconsistent provisions of state law, including any inconsistent provisions of uniform state laws such as URESA...." Kelly v. Otte, 123 N.C.App. 585, 589, 474 S.E.2d 131, 134 (1996). Thus, to the extent URESA conflicted with FFCCSOA, FFCCSOA was binding on North Carolina prior to North Carolina's adoption of UIFSA in 1996.

UIFSA—the Uniform Interstate Family Support Act—was promulgated in 1992 by the National Conference of Commissioners on Uniform State Laws. North Carolina's adoption of UIFSA, codified in Chapter 52C of the North Carolina General Statutes and replacing URESA, did not become effective, however, until 1 January 1996. Enacted by states as a mechanism to reduce the multiple, conflicting child support orders existing in numerous states, UIFSA creates a structure designed to provide for only one controlling support order at a time: "UIFSA establishes a one order system whereby all states adopting UIFSA are required to recognize and enforce the...