Basileh v. Alghusain, 29S02-0810-CV-584.

• Citation: 912 N.E.2d 814
• Decision Date: 03 September 2009
• Docket Number: No. 29S02-0810-CV-584.,29S02-0810-CV-584.
• Parties: In re the Marriage of Mahmoud M. BASILEH, Appellant (Plaintiff below), v. Arwa G. ALGHUSAIN, Appellee (Defendant below).
• Court: Supreme Court of Indiana

912 N.E.2d 814

In re the Marriage of Mahmoud M. BASILEH, Appellant (Plaintiff below), v. Arwa G. ALGHUSAIN, Appellee (Defendant below).

No. 29S02-0810-CV-584.

Supreme Court of Indiana.

September 3, 2009.

David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Attorney for Appellant.

Peter S. French, Joseph P. Rompala, Lewis & Kappes, P.C., Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 29A02-0712-CV-1132.

RUCKER, Justice.

In this post-dissolution action the Indiana trial court relinquished its jurisdiction over matters of child support to a California trial court. At issue is the interplay between the Full Faith and Credit for Child Support Orders Act and the Uniform Interstate Family Support Act. We affirm the judgment of the trial court.

Background and Procedural History

The marriage between Arwa Alghusain (Mother) and Mahmoud Basileh (Father) was dissolved in Indiana—the Hamilton Superior Court—in 2002. The parties were awarded joint legal custody of their two minor children with Mother having physical custody. The parties agreed to a weekly child support amount payable by Father to Mother and to a liberal visitation schedule between Father and the children. At the time of dissolution, Mother indicated her intention to relocate with the children to Monterey County, California, and the parties' visitation schedule accounted for the relocation.

The cooperative relationship between the parents apparently fell apart, and in May 2004 Mother filed a petition for modification and sought transfer of jurisdiction to California. At some point in mid- to late-2004, Father, who is a United States citizen, left Indiana for his native country of Jordan in order to care for his ailing mother. On December 1, 2004, Father lost his Indiana job after he was unable to return to the United States following expiration of his leave under the Family Medical Leave Act. Father later explained that he was unable to return because his mother still had not recovered from her illness. Father remained in Jordan seeking employment in either Jordan or the United States.

In February 2005, Mother registered the parties' Indiana dissolution decree and the agreements concerning child custody, parenting time, and child support with the Monterey County, California trial court. Mother also filed with the California court an "Application for Order and Support Declaration." Appellant's App. at 50. In response, the California court entered a temporary order pertaining to visitation and custody, but not support. In the meantime Father filed in the Indiana court an objection to Mother's petition to transfer jurisdiction to California. On May 6, 2005, the Indiana court granted Mother's motion with a written order that provided: "After reviewing the pleadings and hearing the arguments of counsel, the Court hereby concedes and relinquishes its jurisdiction under the [Uniform Child Custody Jurisdiction Act] to the Superior Court of Monterey County, California. All pending matters will be transferred to be heard by the Superior Court in California." Appellant's App. at 64. Father did not appeal.

Thereafter, the California court accepted jurisdiction over child custody and visitation matters, but concluded that jurisdiction over child support matters had not been transferred from Indiana. In August 2007, the California court sent a "Memorandum" to the Indiana court informing the court that Mother and the children resided in California, that Father "now resides in Saudi Arabia," and that the parties had conducted visitation following orders issued by the California court. Id. at 66. The California court also inquired "whether Hamilton County [Indiana] will cede jurisdiction to Monterey County [California]." Id. The judge of the Hamilton Superior Court issued an order ceding jurisdiction "in all matters pertaining to visitation, custody, and child support matters[,]" noting that this is what he intended to do in 2005. Appellant's App. at 11-12.

Father appealed and the Court of Appeals affirmed the judgment of the trial court. In doing so the Court of Appeals reviewed Indiana's version of the Uniform Interstate Family Support Act ("UIFSA," sometimes referred to as the "Uniform Act") and the federal Full Faith and Credit for Child Support Orders Act ("FFCCSOA," sometimes referred to as the "Federal Act"). The court determined: (1) Father was not a resident of Indiana within the meaning of the Federal Act, and (2) the Federal Act preempts the Uniform Act because of a conflict between the two statutes. Basileh v. Alghusain, 890 N.E.2d 779 (Ind.Ct.App.2008). We granted transfer to address the Court of Appeals' preemption determination. We summarily affirm its determination concerning residency.¹

Discussion

The trial court's 2005 order ceded jurisdiction to the California court pursuant to the Uniform Child Custody Jurisdiction Act ("UCCJA"), which deals with child custody matters. See State ex rel. Meade v. Marshall Super. Ct. II, 644 N.E.2d 87, 89 n. 2 (Ind.1994) ("[T]he legislature has provided for jurisdictional stability among the states by adopting the Uniform Child Custody Jurisdiction Act.... The purpose of this act is to `discourage continuing controversies over child custody' and to `avoid re-litigation of custody decisions of other states in this state.'" (quoting Ind. Code § 31-1-11.6-1(4), (6) (1994))). However, the instant appeal, which involves child support matters, implicates the Federal Act and Indiana's version of the Uniform Act. The Indiana version provides in relevant part:

An Indiana tribunal that issues a support order consistent with Indiana law has continuing, exclusive jurisdiction over a child support order:

(1) if Indiana remains the residence of the:

(A) obligor;

(B) individual obligee; or

(C) child for whose benefit the support order is issued; or

(2) until each individual party has filed written consent with the Indiana tribunal for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.

Ind.Code § 31-18-2-5(a) (emphasis added). The Federal Act provides in relevant part:

Continuing jurisdiction.—A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is the child's State or the residence of any individual contestant unless the court of another State, acting in accordance with subsections (e) and (f), has made a modification of the order.

28 U.S.C. § 1738B. In concluding that the Federal Act preempts Indiana's version of the Uniform Act, the Court of Appeals determined there was a "crucial" distinction between the two; namely, the Uniform Act requires the parties' written consent to another state's jurisdiction, whereas the Federal Act does not. Basileh, 890 N.E.2d at 785. This conclusion hinged on the court's interpretation of the word "or" in I.C. § 31-18-2-5 that links subsection (a)(1) (the nonresidency requirement) and subsection (a)(2) (the consent requirement).

General Rules of Federal Preemption

The Supremacy Clause, which provides in relevant part that the laws of the United States "shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding," U.S. Const. art. VI, cl. 2, provides Congress with the power to preempt state law. Courts, however, are reluctant to presume that preemption of state law has occurred. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663-64, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993) ("In the interest of avoiding unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption.").

Three variations of federal preemption doctrine exist: express preemption, which occurs when a statute expressly defines the scope of its preemptive effect, Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), field preemption, which occurs when a pervasive scheme of federal regulation makes it reasonable to infer that Congress intended exclusive federal regulation of the area, English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990), and conflict preemption, which occurs when there is an outright conflict between federal and state law and thus it is either impossible to comply with both federal and state or local law, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-73, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). In this case the Court of Appeals relied on conflict preemption to determine that Indiana's version of UIFSA must yield to the FFCCSOA. "[T]he language of Indiana Code § 31-18-2-5(a) and 28 U.S.C. § 1738B (d) and (e) render the state and federal laws in conflict because they define continuing, exclusive jurisdiction differently." Basileh, 890 N.E.2d at 785 n. 7.

Preemption is basically a question of congressional intent. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 30, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996). "`[T]he purpose of Congress is the ultimate touchstone' in every pre-emption case." Altria Group, Inc. v. Good, ___ U.S. ___, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)). But, "[t]here is indeed a presumption against pre-emption in areas of traditional state regulation such as family law." Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001). The best evidence of preemptive intent is an express preemption clause. Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 895, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). However, in the absence of explicit...