Smith v. Baumgartner

• Decision Date: 16 July 2003
• Docket Number: No. 20020323.,20020323.
• Citation: 2003 ND 120,665 N.W.2d 12
• Parties: Carol Hope SMITH, n/k/a Carol Graves, Plaintiff and Appellee v. Leo John BAUMGARTNER, Defendant and Appellant.
• Court: North Dakota Supreme Court

665 N.W.2d 12

2003 ND 120

Carol Hope SMITH, n/k/a Carol Graves, Plaintiff and Appellee v. Leo John BAUMGARTNER, Defendant and Appellant.

No. 20020323.

Supreme Court of North Dakota.

July 16, 2003.

Rehearing Denied August 20, 2003.

Donavin L. Grenz, Linton, for defendant and appellant. Sheila K. Keller, Child Support Enforcement, Bismarck, for plaintiff and appellee.

MARING, Justice.

[¶ 1] Leo Baumgartner appeals from the October 30, 2002, Memorandum Opinion and Order concluding the arrearage of $23,667.86 is a valid obligation of Baumgartner. We affirm.

I

[¶ 2] The marriage of Baumgartner and Carol Smith, now known as Carol Graves, was dissolved by a Colorado district court decree dated July 25, 1975. The decree awarded custody of the couple's two minor children to Smith and ordered Baumgartner to pay $200 per month in child support. When Baumgartner failed to pay support according to the Colorado decree, Smith brought a motion for a judgment for the unpaid support arrearages. On June 11, 1984, the Colorado court entered a $21,000 money judgment against Baumgartner for the child support arrearages which had accrued between August 1, 1975, and May 9, 1984.

[¶ 3] After the money judgment was entered, Baumgartner continued to default on his child support payments. On May 24, 1985, a hearing was held to show cause because Baumgartner failed to pay the court-ordered child support. As a result of this hearing, Baumgartner and Smith entered into a stipulation, whereby Baumgartner acknowledged the Colorado court's $21,000 money judgment against him for child support arrearages and agreed to pay monthly toward the judgment until the full principal balance was satisfied. Baumgartner also agreed to pay $1,300 for the child support that had accrued between June 1, 1984, and June 1, 1985. Finally, he agreed to pay $100 per month for the current support of the one remaining daughter who had not yet reached the age of majority. Baumgartner paid the $1,300 and began making the $100 payments each month toward his child support. With the exception of one payment in August of 1987, Baumgartner stopped making the $100 payments after June of 1986. Baumgartner never made any payment toward the $21,000 money judgment.

[¶ 4] On April 17, 2002, the Bismarck Regional Child Support Enforcement Unit filed a Notice of Registration of Foreign Support Order in North Dakota, following the filing of a petition by the state of Colorado, seeking to enforce payment of Baumgartner's arrearages under the current enforcement statutes known as the Uniform Interstate Family Support Act ("UIFSA"). See N.D.C.C. ch. 14-12.2. Baumgartner resisted the enforcement of the foreign support order, claiming the Revised Uniform Reciprocal Enforcement of Support Act ("RURESA"), rather than UIFSA, should be applied because RURESA was the enforcement statute in effect when his support obligations terminated in 1985 and 1987. See N.D.C.C. ch. 14-12.1 (repealed 1995). After a hearing, the trial court issued its Memorandum Opinion and Order on October 30, 2002, in which it applied UIFSA, found Baumgartner was obligated to pay the child support arrearages of $23,667.86, and ordered payment of $200 per month toward the obligation. The court based its decision on the fact that UIFSA was enacted before the ten-year statute of limitations mandated by RURESA had run. Therefore, it reasoned UIFSA could be applied retroactively.

[¶ 5] Baumgartner appeals from the Memorandum Opinion and Order. Baumgartner claims under RURESA, the enforcement of all his child support obligations would be barred by North Dakota's ten-year statute of limitations on judgments. He further argues the trial court erred in calculating his child support arrearages. He asserts that under UIFSA, all but $6,667.86 of his child support obligations would be barred by Colorado's twenty-year statute of limitations. We conclude that UIFSA applies to the enforcement of Baumgartner's child support arrearages and that none of Baumgartner's child support arrearages are barred by the statute of limitations.

II

[¶ 6] The issue in this case is whether RURESA or UIFSA should be applied to Smith's child support enforcement proceedings. The North Dakota Legislature repealed RURESA effective August 1, 1995. In its place, the legislature adopted UIFSA in chapter 14-12.2, N.D.C.C. RURESA and UIFSA have different choice of law provisions, the application of which result in the use of different statutes of limitation.

[¶ 7] RURESA contained a choice of law provision stating:

Duties of support applicable under this chapter are those imposed under the laws of any state where the obligor was present for the period during which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.

N.D.C.C. § 14-12.1-07 (repealed 1995). As applied to the facts of this case, RURESA's choice of law provision requires that North Dakota law be applied to enforce Baumgartner's child support arrearages. At the time Baumgartner's child support obligations accrued, child support judgments were subject to cancellation ten years after the entry of judgment. See N.D.C.C. § 28-20-35; see also Ruscheinsky v. Ulrich, 2000 ND 133, ¶ 9, 612 N.W.2d 283

. They were also subject to the ten-year statute of limitations under N.D.C.C. § 28-01-15(1), which begins when the duty to support terminates. Ruscheinsky, at ¶ 11. Therefore, under RURESA, Baumgartner would not be obligated to pay the arrearages.

[¶ 8] UIFSA's choice of law provision, in proceedings for child support arrearages, allows the court to apply either the enforcing state's statute of limitations or the issuing state's statute of limitations, whichever is longer. See N.D.C.C. § 14-12.2-38(2). In this case, the enforcing state, North Dakota would apply a ten-year statute of limitations to Baumgartner's arrearages, as discussed above. See N.D.C.C. § 28-20-35; N.D.C.C. § 28-01-15(1). In the issuing state of Colorado, the applicable statute of limitations for child support arrearages is the twenty-year period under Colo.Rev.Stat. § 13-52-102(2)(a), for execution on judgments of any kind. See In re the Marriage of Morris, 32 P.3d 625, 626 (Colo.Ct.App.2001)

. Therefore, under UIFSA, Colorado's twenty-year statute of limitations would apply to this case because it is the longer of the two, and Baumgartner would be obligated to pay the arrearages.

III

[¶ 9] Baumgartner argues UIFSA cannot be applied retroactively. This is a question of law. In determining whether UIFSA can be applied retroactively to this case, we must consider N.D.C.C. § 1-02-10 which provides, "[n]o part of this code is retroactive unless it is expressly declared to be so." We, however, said in State v. Davenport, that it is not necessary that a statute expressly declare it is to operate retroactively, because an intent of retroactive application can be implied. See 536 N.W.2d 686, 688 (N.D.1995) (citing In re W.M.V., 268 N.W.2d 781, 783-84 (N.D. 1978)). [¶ 10] The dissent is critical of our reliance on Davenport. The position the dissent takes in both this case and in Davenport was rejected by the majority of this Court. See Davenport, 536 N.W.2d at 692 (VandeWalle, C.J., concurring and dissenting). To the extent Reiling v. Bhattacharyya, 276 N.W.2d 237 (N.D.1979), stood for the position that there must be an express declaration that the statute is retroactive, it was overruled by Davenport.

[¶ 11] We have stated: "A statute is employed retroactively when it is applied to a cause of action that arose prior to the effective date of the statute." State v. Cummings, 386 N.W.2d 468, 471 (N.D. 1986). "[L]aws which confer benefits are often excepted from the general rule against retroactive application." Id. The issue in this case is whether the judgments for child support arrearages have expired or been canceled and, thus, whether they can be enforced. The general purpose of UIFSA is to ensure more efficient enforcement of these judgments. The judgments in this case were valid judgments under the law of the issuing state of Colorado when they were filed in North Dakota for enforcement. At that time, UIFSA was in effect in North Dakota.

[¶ 12] In Davenport, we quoted Landgraf v. USI Film Products, 511 U.S. 244, 269-70, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (citations omitted) stating:

A statute does not operate "retrospectively" merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates "retroactively" comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have "sound ... instinct[s]," and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.

From this language, Davenport concluded, "[t]hus it is questionable whether application of an amended statute of limitations to actions accruing before its adoption is "retroactivity" in the legal sense." Davenport, at 689 n. 1. The effect of applying UIFSA in this case is to lengthen the period before a judgment for child support arrearages expires and can no longer be enforced.

[¶ 13] Finally, the dissent states the Davenport opinion relies on In re W.M.V., 268 N.W.2d 781 (N.D.1978). While W.M.V. is cited, Davenport relies heavily on Cummings for the position that N.D.C.C. § 1-02-10 is but a canon of...