Burke v. Burke

• Decision Date: 21 July 1993
• Docket Number: No. 45A05-9207-CV-235,45A05-9207-CV-235
• Citation: 617 N.E.2d 959
• Parties: James E. BURKE, Sr., Appellant-Petitioner, v. Sandra J. BURKE, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 959

617 N.E.2d 959

James E. BURKE, Sr., Appellant-Petitioner, v. Sandra J. BURKE, Appellee-Respondent.

No. 45A05-9207-CV-235.

Court of Appeals of Indiana,

Fifth District.

July 21, 1993.

Bradley W. Skolnik, Freihofer Minton Keeler & McClamrock, Indianapolis, John M. Kopack, Kopack & Gikas, Merrillville, for appellant-petitioner.

Mark A. Bates, Steve H. Tokarski, Schererville, for appellee-respondent.

SHARPNACK, Chief Judge.

James E. Burke, Sr., ("Father") appeals from the judgment of the trial court that denied Father's petition to terminate and abate support and refused to recognize an order of the Circuit Court of Sagamon County, Illinois ("Illinois Court"), that had modified prior support orders of the trial court. We reverse and remand for further proceedings.

Father raises one issue for our review which we separate and restate as:

1. Did the Illinois Court's order modify the prior support orders of the trial court in this case pursuant to the Revised Uniform

Reciprocal Enforcement of Support Act ("RURESA")?

2. Did the trial court err by denying full faith and credit to the Illinois court's modification of the prior support orders of the trial court?

3. Was the trial court precluded from prospectively imposing a support obligation upon Father where the Illinois Court's order specified that Father's duty of support would terminate upon the youngest child reaching eighteen years of age and where the youngest child had turned eighteen prior to the instigation of the present proceedings?

The parties stipulated to the following facts, which are dispositive of this appeal. On June 24, 1976, the Lake Superior Court No. 4 (Indiana Court) dissolved the parties' marriage. The dissolution decree awarded Sandra J. Cook ("Mother") custody of the parties' four minor children: James, Denise, Kelly and Karrin. In addition, the decree ordered Father to pay support in the amount of $700 per month.

Shortly after entry of the decree, Father lost his job and moved to Illinois to accept substantially less lucrative employment. The following is a summary of relevant court proceedings involving Father's duty of support.

On January 21, 1981, following a hearing, the Indiana Court reduced support to $173 "bi-monthly" ¹ and ordered Father to pay an additional $32.40 bi-monthly to reduce his arrearage, which the parties stipulated as being $16,000. ² Two years later, in April, 1982, the Indiana Court, pursuant to Mother's petition, found Father in contempt. In addition, the court found that Father owed an arrearage of $20,281.05.

In October, 1982, Mother filed a petition in the Illinois Court to register a foreign judgment as well as a petition to show cause. ³ Mother sought to register the Indiana decree. Father responded with a petition to reduce support and an objection to registration of the Indiana decree.

On November 16, 1983, the Illinois Court held a hearing on Mother's petition to show cause and Father's petition to reduce support. The following day, the court issued its order in which it denied Mother's petition to show cause and ordered Father to pay $250 per month for support of Kelly and Karrin, to be reduced by one-half upon the older child reaching the age of eighteen and to abate in full upon the younger child turning eighteen. The court specifically found that "there has been a substantial change in Respondent's circumstances sufficient to warrant a modification in his present child support obligation." (Supplemental Record, document b, p. 2).

Father subsequently moved back to Lake County. Kelly turned eighteen on April 12, 1987, and Karrin turned eighteen on May 31, 1989. On June 14, 1989, Father filed with the Indiana Court a verified petition to terminate and abate support in the Indiana Court. Mother moved to dismiss and filed a verified petition for citation and modification.

Following a consolidated hearing on all three motions on July 12, 1991, the Indiana Court entered an order containing the following relevant provisions:

"The Court finds that [Mother] did not transfer jurisdiction over the subject matter of this action to the [Illinois Court]. [Mother] merely applied the provisions of the Reciprocal Support Act.... The previous Orders of this court were merely registered in the State of Illinois for enforcement purposes only since Burke was a resident of the State of Illinois at that time.

This court still maintains subject matter jurisdiction.

This Court will recognize and credit Burke for Support payments made in Illinois on this Court's Orders. The two Orders still in force and effect are the Court's entries of January 7, 1981 and July 12, 1982. Any modification thereof by any other court is void and not recognized by this Court."

(Record, pp. 87-88). The court also found that Father owed an arrearage of $48,500.49, which it computed by adding the $20,281.05 accumulated prior to July 12, 1982, and an amount computed at $173.33 "bi-monthly" between that date and July 14, 1989.

Father argues that the trial court was required to give full faith and credit to the Illinois order under Article 4 Sec. 1 of the United States Constitution. Full faith and credit requires the courts of each state to give preclusive effect to final judgments of sister jurisdictions if the court rendering such judgments had both subject matter jurisdiction and jurisdiction over the parties. Williams v. North Carolina (1945), 325 U.S. 226, 229, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577, reh'g denied 325 U.S. 895, 65 S.Ct. 1560, 89 L.Ed. 2006; Kniffen v. Courtney (1971), 148 Ind.App. 358, 363, 266 N.E.2d 72, 75.

However, portions of a judgment which are not final fall under the doctrine of comity, which, unlike full faith and credit, is not of constitutional dimension. County of Ventura, State of California v. Neice (1982), Ind.App., 434 N.E.2d 907, 910. The doctrine of comity "represents a willingness to grant a privilege, not as a matter of right, but out of deference and good will. Its primary value is to promote uniformity of decision by discouraging repeated litigation of the same issue." Id. (quoting, State of Florida ex rel. O'Malley v. Department of Insurance of the State of Indiana (1973), 155 Ind.App. 168, 176-177, 291 N.E.2d 907, 909). Under the doctrine of comity, Indiana courts are bound to help enforce the laws of sister states unless enforcement would result in a violation of Indiana law or injury to local citizens. Abney v. Abney (1978), 176 Ind.App. 22, 26-27, 374 N.E.2d 264, 268, cert. denied 439 U.S. 1069, 99 S.Ct. 836, 59 L.Ed.2d 34.

As will be made clearer below, the concepts of full faith and credit and comity are both relevant to this case. However, their application to this case is circumscribed by a uniform act, the Uniform Reciprocal Enforcement of Support Act, which all fifty states have enacted in some form. Indiana has enacted the original version of the act (URESA), I.C. Sec. 31-2-1 et. seq. and Illinois has enacted a revised version (RURESA) 750 Illinois Compiled Statutes 20/1 et. seq. While the statutes are similar, there are some significant differences between them which come into play in our decision. It is important to keep in mind that the common goal of full faith and credit and the doctrine of comity is to give judgments the same effect as would be given to them by a court in their state of issuance. Therefore, we are governed by RURESA where that statute differs from URESA, because the Illinois court acted under the former in entering its order.

RURESA, like its predecessor, URESA, was designed "to improve and extend by reciprocal legislation the enforcement of duties of support...." I.C. Sec. 31-2-1-1; 750 ILCS 20/1. The remedies provided in both versions "are in addition to and not in substitution for any other remedies." I.C. Sec. 31-2-1-3; 750 ILCS 20/3. Both versions likewise provide that a responding state may issue a support order for an amount different than that contained in the order sought to be enforced. I.C. Sec. 31-2-1-23; Banton v. Mathers (1974), 159 Ind.App. 634, 642, 309 N.E.2d 167, 172; 750 ILCS 20/24.

RURESA and URESA differ, however, with regard to the effect of a support order in the responding state which departs from the foreign support order sought to be enforced. IND. CODE Sec. 31-2-1-29 (hereinafter, "antisupersession clause") provides:

"No order of support issued by a court of this state when acting as a responding state shall supersede any other order of support but amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both."

I.C. Sec. 31-2-1-29.

Courts have read the antisupersession clause in conjunction with the purpose of URESA--to provide an additional and separate means of enforcement--to reach the conclusion that orders by responding courts under URESA for amounts different than those established by the orders sought to be enforced do not modify those prior orders. Banton v. Mathers 159 Ind.App. at 642-644, 309 N.E.2d at 171-173; but see Sullivan v. Sullivan (1981), 98 Ill.App.3d 928, 933-934, 54 Ill.Dec. 207, 211, 424 N.E.2d 957, 961 (reading antisupersession clause to refer only to responding court orders which seek to retroactively modify past due support). As explained by Banton, the orders are made in two separate actions; therefore while the responding court's order may be enforceable in the responding state, it does not affect the enforceability of the order entered by the initiating court in either the initiating state or any other state. Banton, 159 Ind.App. at 642-644, 309 N.E.2d at 171-173; see also Coons v. Wilder (1981), 93 Ill.App.3d 127, 48 Ill.Dec. 512, 516-517, 416 N.E.2d 785, 789-790; Osborne v. Goeke (1991), Mo., 806 S.W.2d 670, 672. ⁴ Thus, arrearages accumulate under the original order if the obligor fails to pay the full amount specified in that order, although any amount paid under the reduced order in the responding state...