Cohen v. Cohen

• Decision Date: 23 February 2015
• Docket Number: SJC–11594.
• Citation: 25 N.E.3d 840,470 Mass. 708
• Parties: M. David COHEN v. Shelley COHEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

470 Mass. 708

25 N.E.3d 840

M. David COHEN

v.Shelley COHEN.

SJC–11594.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 9, 2014.

Decided Feb. 23, 2015.

Anna S. Richardson for the father.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

DUFFLY

, J.

This case requires that we resolve the extent to which the Probate and Family Court has subject matter jurisdiction to enforce or modify a support order issued by a California court in

connection with proceedings dissolving the marriage of M. David Cohen (father) and Shelley Cohen (mother). After the parties separated in 1999, a Los Angeles County Superior Court entered a judgment establishing monthly child and spousal support payments payable by the father to the mother. The father moved to Massachusetts in 2002. In 2004, the California support order was registered in the Probate and Family Court, upon request of the Los Angeles County Department of Child Services (California CSSD). Pursuant to the Uniform Interstate Family Support Act (UIFSA), which has been adopted by both California and Massachusetts, Massachusetts courts thus acquired jurisdiction to enforce the support order. See Cal. Fam.Code, §§ 4900

, 4950, 4951 (West 2013) ; G.L. c. 209D, §§ 6–601, 6–602. The child support division of the Massachusetts Department of Revenue (DOR), acting on behalf of the mother, initiated contempt proceedings against the father in the Probate and Family Court, and a Probate and Family Court judge subsequently issued multiple orders that sought to enforce the California support order. The orders incorporated the parties' stipulated agreements, which, inter alia, obligated the father to pay the child's uninsured medical expenses and to contribute to her college education costs; neither of these items had been included in the order of the California court. In 2010, a Probate and Family Court judge found the father in contempt for having failed to make payments in the amounts agreed toward support arrears, to pay the agreed share of the child's college costs and her uninsured medical expenses, and to pay previously-awarded attorney's fees and costs incurred by the mother in seeking enforcement. The father challenges the jurisdiction of the court to enter this judgment.

We conclude that, in the circumstances of this case, the jurisdiction of the Probate and Family Court was limited to enforcement of the California support order, and that the parties' stipulated agreements did not extend the jurisdiction of the Probate and Family Court to modify the California support order. To the extent the Probate and Family Court orders modify the California support order, they are therefore void, and the court accordingly had no authority to enforce these orders or to find the father in contempt for failing to comply with them. The Probate and Family Court nonetheless retained jurisdiction to continue to enforce the California child support and spousal support order, at least until the father returned to live in California and California

resumed enforcement. The Probate and Family Court judge therefore had authority to hold the father in contempt for failing to comply with orders that he pay the mother's attorney's fees and costs incurred in connection with enforcement of the California order.

Background and prior proceedings. 1. California proceedings. The father and the mother lived in Los Angeles with their daughter. After a lengthy marriage, the parties separated in 1999, and a Los Angeles County Superior Court ordered the father to pay the mother monthly payments for child and spousal support.¹ The father relocated to the Boston area in January, 2002, while the mother and child remained in California. Arrearages accumulated, and, in February, 2003, the California CSSD transmitted to the child support enforcement division of the DOR the first of two requests for registration of the California support order. This transmittal sought enforcement in Massachusetts through income withholding, pursuant to G.L. c. 209D, § 6–602 (a )

.² In June, 2003, a “judgment of dissolution of marriage” entered in the Los Angeles County Superior Court that increased the father's monthly child support obligation to $1,035, and his spousal support to $600; the judgment also reserved jurisdiction over arrearages.

In March, 2004, on request of the California CSSD, the 2003 California support order was registered in the Probate and Family Court, giving the Massachusetts court authority to enforce the California support order. See G.L. c. 209D, §§ 6–601

to 6–603. The child support enforcement transmittal document stated that registration was “for enforcement only” and for “collection of arrears.”

2. Massachusetts proceedings. On March 31, 2004, the DOR initiated contempt proceedings on behalf of the mother against the father in the Probate and Family Court. Each represented by

counsel, the parties reached an agreement and, in June, 2005, a Probate and Family Court judge issued a stipulated order reflecting that agreement. The stipulated order required the father to make a lump sum payment and further weekly payments to reduce all spousal and child support arrears; to pay one-third of the child's college costs; and to pay the mother's attorney's fees.³ The stipulation included the father's “acknowledge[ment] that he is earning less than he is capable [of] and will forthwith commence a job search to obtain employment commensurate with his education and experience.”

In October, 2006, the mother filed another complaint for contempt.⁴ In December, 2006, the father was found in contempt for, among other things, his failure to pay his agreed contribution to the child's college expenses and uninsured medical expenses.⁵ Another order issued in May, 2007, incorporating a four-page written stipulation of the parties. In that stipulation, the father agreed that he was guilty of contempt for having failed to pay “child support.” The order required, among other things, that the father “continue to pay $150 per week toward the child support arrears,” and that he reimburse the mother for attorney's fees and costs, “including travel incurred as a result of the hearing” that day.⁶ The written stipulation provided that the father would “focus his efforts on his new employment,” and resign from involvement in all but one specific nonprofit organization.

In February, 2009, the DOR informed the father that the California CSSD had requested that the DOR close its case against him, because the California CSSD was then garnishing the father's Social Security payments.⁷ In June, 2009, the mother filed another complaint for contempt. Nothing in the record suggests that, prior to the filing of the mother's complaint in 2009, the Probate and Family Court was notified of the request by the California CSSD to DOR, or asked by any party, agency, or California court to cease enforcement efforts.⁸ A Probate and Family Court judge found the father in contempt for failure to pay $26,940.60 in child support, $54,432 in spousal support, $24,000 towards the child's college education, the child's uninsured medical expenses in the amount of $26,230, and the mother's legal fees and costs incurred in connection with prior and then-pending enforcement proceedings. A judgment of contempt entered on September 22, 2010, dated May 26, 2010,⁹ established a schedule of monthly payments to be made toward these arrears. In August, 2010, the father sought relief from that judgment pursuant to Mass. R. Civ. P. 60(b)(4)

, 365 Mass. 828 (1974).¹⁰ The motion

was denied later that month. In December, 2010, the father returned to California.

Discussion. We note as a preliminary matter that the father did not challenge the jurisdiction of the Probate and Family Court concerning the support orders, nor its authority to hold him in contempt for violation of those orders, prior to this appeal. Nonetheless, “a party has the right to raise subject matter jurisdiction at any time.” ROPT, Ltd. Partnership v. Katin,

431 Mass. 601, 607, 729 N.E.2d 282 (2000). A claim that a court lacks subject matter jurisdiction cannot be waived. See Harker v. Holyoke, 390 Mass. 555, 559, 457 N.E.2d 1115 (1983), quoting Litton Business Sys. v. Commissioner of Revenue, 383 Mass. 619, 622, 420 N.E.2d 339 (1981) (“Subject matter jurisdiction cannot be conferred by consent, conduct or waiver”); Mass. R. Civ. P. 60(b)(4).

1. Uniform Interstate Family Support Act. “UIFSA aims to cure the problem of conflicting support orders entered by multiple courts, and provides for the exercise of continuing, exclusive jurisdiction by one tribunal over support orders.” Child Support Enforcement Div. of Alaska v. Brenckle, 424 Mass. 214, 218, 675 N.E.2d 390 (1997)

(Brenckle ). UIFSA establishes continuing, exclusive jurisdiction in the State issuing a support order, so as to ensure that the issuing State is the only State with jurisdiction to modify its order absent specified, narrow circumstances. G.L. c. 209D, § 6–611 (a ) (1)-(2). Every State appears to have adopted some version of UIFSA. See Annot., Construction and Application of Uniform Interstate Family Support Act, 90 A.L.R. 5th 1 (2001). Cf. 42 U.S.C. § 666(f) (2012) (requiring States to adopt UIFSA in order to access Federal funding for child support enforcement).

“Under UIFSA, once one court enters a support order, no other court may modify that order for as long as the obligee, obligor, or

child for whose benefit the order is entered continues to reside within the jurisdiction of that court unless each party consents in writing to another jurisdiction.” Brenckle, supra at 218, 675 N.E.2d 390

. See G.L. c. 209D, §§ 2–205 (a ),¹¹ 6–611 (a ) (1)-(2).¹² See also Draper v. Burke, 450 Mass. 676, 679, 881 N.E.2d 122 (2008) ; Peddar v. Peddar, 43 Mass.App.Ct. 192, 194–195, 683 N.E.2d 1045 (1997) ; C.P. Kindregan, M. McBrien, & P.A. Kindregan, Family Law and Practice, § 30.6, at 255 (4th ed. 2013). The written consent must...