Bowman v. Bowman

• Decision Date: 17 February 2011
• Citation: 917 N.Y.S.2d 379,82 A.D.3d 144
• Parties: In the Matter of Rebecca L. BOWMAN, Appellant, v. Jason R. BOWMAN, Respondent.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 379

82 A.D.3d 144

In the Matter of Rebecca L. BOWMAN, Appellant,

v.Jason R. BOWMAN, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 17, 2011.

Pro Bono Appeals Program, Albany (Cynthia Feathers of counsel), for appellant.

Jason R. Bowman, San Diego, California, respondentpro se.

Before: PETERS, J.P., SPAIN, ROSE, LAHTINEN and McCARTHY, JJ.

PETERS, J.P.

Appeal from an order of the Family Court of Saratoga County(Hall, J.), entered January 13, 2010, which, in a proceeding pursuant to Family Ct. Act article 4, granted respondent's motion to dismiss the petition.

[917 N.Y.S.2d 381, 82 A.D.3d 145]

Petitioner and respondent were married in Washington and are the parents of a daughter (born in 2005).Following the parties' separation in 2007, petitioner and the child relocated to Saratoga County and respondent moved to California.Pursuant to a judgment of divorce entered in Washington which incorporated, but did not merge, a custody order and order of child support, petitioner was granted custody and respondent was awarded visitation and ordered to pay child support in the amount of $479 per month until the child reached 18 years of age, as well as a certain percentage of extraordinary health care expenses.

In 2009, petitioner filed a petition in Saratoga County to modify respondent's visitation.Respondent answered and cross-petitioned seeking sole custody of the child.Both parties appeared before Family Court and, in December 2009, an order was entered modifying the visitation provisions of the custody order.In the meantime, petitioner registered the Washington support order in New York and commenced this proceeding seeking an upward modification.Respondent moved to dismiss the petition on the ground that New York did not have personal jurisdiction over him or subject matter jurisdiction to modify the Washington support order.A Support Magistrate granted respondent's motion to dismiss the petition for lack of subject matter jurisdiction.Family Court subsequently dismissed petitioner's objections regarding jurisdiction and confirmed the Support Magistrate's order, prompting this appeal.

Petitioner's contention that Family Court has jurisdiction to modify the Washington child support order centers around a perceived conflict between the jurisdictional requirements contained in the Uniform Interstate Family Support Act(hereinafter UIFSA)( seeFamily Ct. Act art 5-B) and the Federal Full Faith and Credit for Child Support Orders Act(hereinafter FFCCSOA)( see28 USC § 1738B)."FFCCSOA 'follow[s] the contours of UIFSA,'[and t]he two statutes have complimentary goals"( Matter of Auclair v. Bolderson,6 A.D.3d 892, 893, 775 N.Y.S.2d 121[2004], lv. denied3 N.Y.3d 610, 786 N.Y.S.2d 814, 820 N.E.2d 293[2004], quotingLeTellier v. LeTellier,40 S.W.3d 490, 498[Tenn.2001] ).UIFSA, which Congress required each state to adopt in order to receive federal funding ( seeMatter of Spencer v. Spencer,10 N.Y.3d 60, 65, 853 N.Y.S.2d 274, 882 N.E.2d 886[2008] ), was created "to alleviate the confusion engendered by multiple child support orders from different jurisdictions [and] is addressed to the courts' subject matter jurisdiction to entertain support proceedings where there is more than one state involved"( Ventura v. Leong,68 A.D.3d 1318, 1320, 890 N.Y.S.2d 687[2009][internal citations omitted];seeMatter of Spencer v. Spencer,10 N.Y.3d at 66, 853 N.Y.S.2d 274, 882 N.E.2d 886;Matter of Auclair v. Bolderson,6 A.D.3d at 893-894, 775 N.Y.S.2d 121).FFCCSOA "requires that all child support orders be given full faith and credit and precludes out-of-[s]tate modifications of such orders by establishing jurisdictional rules whereby [s]tates are to refrain from modifying or issuing contrary orders except in limited circumstances"( Matter of Reis v. Zimmer,263 A.D.2d 136, 142, 700 N.Y.S.2d 609[1999][internal quotation marks and citations omitted], amended270 A.D.2d 968, 710 N.Y.S.2d 259[2000];see28 USC § 1738B [a];Matter of Spencer v. Spencer,10 N.Y.3d at 65, 853 N.Y.S.2d 274, 882 N.E.2d 886;Matter of Auclair v. Bolderson,6 A.D.3d at 893, 775 N.Y.S.2d 121).Like UIFSA, FFCCSOA was enacted "(1) to facilitate the enforcement of child support orders among the [s]tates; (2) to discourage continuing interstate controversiesover child support in the interest of greater financial stability and secure family relationships for the child; and (3) to avoid jurisdictional competition and conflict among [s]tate courts in the establishment of child support orders"(Pub L 103-383, § 2[c] ).

Under both UIFSA and FFCCSOA, the state issuing a child support order retains continuing, exclusive jurisdiction over that order so long as an individual contestant continues to reside in the issuing state ( seeFamily Ct. Act § 580-205[a], [d];28 USC § 1738B [d], [e][2][A];Matter of Spencer v. Spencer,10 N.Y.3d at 66, 853 N.Y.S.2d 274, 882 N.E.2d 886;Matter of Auclair v. Bolderson,6 A.D.3d at 894, 775 N.Y.S.2d 121).Here, inasmuch as neither the parties nor the child continues to reside in Washington, that state ceased to have continuing, exclusive jurisdiction ( seeFamily Ct. Act § 580-205[a][1];28 USC § 1738B [d] ).This fact alone, however, does not confer upon the New York courts the power to modify the child support order.

Where, as here, the issuing state has lost continuing jurisdiction, UIFSA confers jurisdiction upon the New York courts to modify an out-of-state support order only if that order is registered in New York ( seeFamily Ct. Act § 580-611[a] ) and "(1) none of the parties or children continues to reside in the issuing state; (2)the party seeking modification is not a resident of the modifying state; and (3) the nonmoving party is subject to personal jurisdiction in the modifying state"( Matter of Auclair v. Bolderson,6 A.D.3d at 894, 775 N.Y.S.2d 121;seeFamily Ct. Act § 580-611[a][1] ).Putting aside, for the moment, the question of whether respondent is subject to the personal jurisdiction of New York, it is not disputed that petitioner resides in New York.Therefore, under UIFSA, Family Court lacks jurisdiction to modify the Washington support order.

FFCCSOA, on the other hand, provides that where the issuing court loses its continuing, exclusive jurisdiction, a state court may modify a child support order issued by another state "if ... the court has jurisdiction to make such a child support order pursuant to [28 USC § 1738B] subsection (i)"(28 USC § 1738B [e][1] ).28 USC § 1738B (i), in turn, provides that "[i]f there is no individual contestant or child residing in the issuing [s]tate, the party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another [s]tate shall register that order in a[s]tate with jurisdiction over the nonmovant for the purposes of modification"(emphasis added).The parties' dispute centers on the meaning of the phrase "jurisdiction over the nonmovant."

Petitioner argues that the phrase "jurisdiction over the nonmovant" in FFCCSOA contemplates only a requirement of personal jurisdiction, not subject matter jurisdiction, and to the extent that UIFSA sets forth the additional requirement that the party seeking modification be a nonresident of the modifying state, it is preempted by FFCCSOA under the Supremacy Clause of the U.S. Constitution.Respondent, on the other hand, argues that the term "jurisdiction over the nonmovant" in FFCCSOA should be interpreted to refer to both personal and subject matter jurisdiction, and that FFCCSOA should be read as incorporating the subject matter jurisdiction requirements of UIFSA—i.e., the nonresidency requirement—such that the jurisdictional requirements of the two statutes are harmonious.Initially, we agree with petitioner that the term "jurisdiction over the nonmovant" plainly and expressly refers to personal jurisdiction alone, and not subjectmatter jurisdiction ( seeDraper v. Burke,450 Mass. 676, 684-685, 881 N.E.2d 122, 128[2008];but seeLeTellier v. LeTellier,40 S.W.3d 490, 498-499[Tenn.2001], supra ).Indeed, in Matter of Auclair v. Bolderson,6 A.D.3d 892, 775 N.Y.S.2d 121[2004], supra—a case in which we were not confronted with the question of whether the provisions of FFCCSOA and UIFSA conflict—this Court interpreted this phrase to mean "personal jurisdiction over the nonmoving party"( id. at 894, 775 N.Y.S.2d 121).Moreover, inasmuch as we find the phrase "jurisdiction over the nonmovant" to be clear and unambiguous, we need not consider the legislative history of FFCCSOA to aid in our interpretation ( seeMatter of Amorosi v. South Colonie Ind. Cent. School Dist.,9 N.Y.3d 367, 373, 849 N.Y.S.2d 485, 880 N.E.2d 6[2007];Matter of Raritan Dev. Corp. v. Silva,91 N.Y.2d 98, 106-107, 667 N.Y.S.2d 327, 689 N.E.2d 1373[1997] ).

In light of our conclusion that FFCCSOA requires only personal jurisdiction, and given the absence of UIFSA's nonresidency requirement in FFCCSOA, we are confronted with the issue of whether FFCCSOA preempts this inconsistent provision of UIFSA.In determining whether state law is preempted by federal law under the Supremacy Clause ( seeU.S. Const., art. VI, cl. 2), our " 'sole task is to ascertain the intent of Congress' "( Rosario v. Diagonal Realty, LLC,8 N.Y.3d 755, 763, 840 N.Y.S.2d 748, 872 N.E.2d 860[2007], cert. denied552 U.S. 1141, 128 S.Ct. 1069, 169 L.Ed.2d 808[2008], quotingCalifornia Fed. Sav. & Loan Assn. v. Guerra,479 U.S. 272, 280, 107 S.Ct. 683, 93 L.Ed.2d 613[1987] )."Congressional preemptive intent may be discerned in three ways: (1) expressly in the language of the [f]ederal statute; (2) implicitly, when the [f]ederal legislation is so comprehensive in scope that it is inferable that Congress intended to fully occupy the 'field' of its subject matter; or (3) implicitly, when [s]tate law actually 'conflicts' with [f]ederal law"( Drattel v. Toyota Motor Corp.,...