Coogan v. Fennell

• Decision Date: 18 December 1985
• Docket Number: No. 11020,11020
• Parties: Kathryn T. COOGAN, formerly Kathryn T. Fennell, Plaintiff and Appellant, v. Preston N. FENNELL, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 791

379 N.W.2d 791

Kathryn T. COOGAN, formerly Kathryn T. Fennell, Plaintiff and Appellant, v. Preston N. FENNELL, Defendant and Appellee.

Civ. No. 11020.

Supreme Court of North Dakota.

Dec. 18, 1985.

Ella Van Berkom, Minot, for plaintiff and appellant.

Teevens, Johnson & Montgomery, Minot, for defendant and appellee; argued by Bruce R. Montgomery.

ERICKSTAD, Chief Justice.

Kathryn T. Coogan appeals from a district court judgment dismissing with prejudice her action for arrearages in child support payments against Preston N. Fennell. We reverse and remand for further proceedings.

On February 18, 1976, Kathryn and Preston were divorced in Ward County, North Dakota. That divorce judgment granted Kathryn custody of the couple's four minor children subject to visitation. The court ordered Preston to pay $200 per month child support for 48 months, and thereafter $130 per month until the youngest child reached her 18th birthday which was on March 13, 1984.

Kathryn subsequently moved to California and, when Preston did not make the child support payments required by the divorce judgment, she initiated proceedings under the Uniform Reciprocal Enforcement of Support Act (URESA) to enforce the judgment. Preston had moved to McHenry County, so the URESA proceeding was heard in the District Court of McHenry County in August 1980. After a hearing, the District Court of McHenry County entered an order dated August 29, 1980, which provided:

"1. That the Respondent's support payments of One Hundred Dollars ($100.00) ¹ per month for the months of June, July, and August in 1980 are forgiven.

"2. That no further monthly child support payments will be due to the McHenry County Clerk of Court as long as the two minor children are in the custody of the Respondent.

"3. That the Respondent pay Fifty Dollars ($50.00) per month per child in those months in which one or both of the minor children are in Petitioner's custody.

"4. That the Respondent make payments on the arrearage of Seven Hundred Dollars ($700.00) as follows:

(a) Twenty Dollars ($20.00) per month beginning September 15, 1980, and upon the 15th of each successive month so long as the Respondent is unemployed;

(b) One Hundred Dollars ($100.00) per month shall be due if the Respondent is employed and both minor children are in Respondent's custody;

(c) Fifty Dollars ($50.00) per month shall be due if one or both of the minor children are in the Petitioner's custody and the Respondent is employed.

"5. That every two (2) weeks the Respondent inform the McHenry County Clerk of Court as to his employment status and the custody of the minor children."

On August 30, 1982, Kathryn commenced the instant action in the District Court of Ward County to collect child support arrearages based on the amounts ordered in the February 18, 1976 divorce decree. ² After a bench trial, the District Court of Ward County entered a judgment which provided, in pertinent part:

"IT IS ORDERED, ADJUDGED AND DECREED that the Ward County Court has jurisdiction over this matter and that the Order of August 29, 1980 by Judge Neumann, District Judge, McHenry County District Court did modify and/or amend the divorce judgment of the parties hereto in Ward County District Court, Civil Number 41379, and that the McHenry County District Court had jurisdiction over the subject matter and the parties when it made its order of August 29, 1980, and that order of the District Court in and for McHenry County was a valid order and stands as the controlling order in this matter.

"The Three Hundred Dollars ($300.00) in accrued child support arrearages forgiven by the McHenry County Court Order will be included in any arrearage payments now owed by the Defendant.

"Except for the Three Hundred Dollars ($300.00) additional arrearage, this action against the Defendant is in all ways dismissed with prejudice." [Emphasis added.]

Kathryn contends that Preston is responsible for all the arrearages under the February 18, 1976 judgment because the District Court of McHenry County did not have jurisdiction to modify the divorce judgment of the District Court of Ward County. She asserts that only the District Court of Ward County could modify the child support payments and that, in an URESA proceeding, a person who is unable to pay the full amount due pursuant to a previous child support order can seek temporary relief from that order and receive credit against the monthly payments accruing under the previous order. Thus, Kathryn contends that Preston still owes the difference between the original judgment and the temporary reduction.

In resolving these issues, we must consider the propriety of the August 29, 1980 order and its effect on the original judgment. That order was entered as a result of an URESA proceeding.

The purpose of URESA is to facilitate an effective and supplemental method of collecting child support for dependent children from persons legally responsible for their support. Section 14-12.1-01, N.D.C.C.; Craft v. Hertz, 182 N.W.2d 293 (N.D.1970). URESA proceedings are separate, independent proceedings to enforce support obligations, and the remedies provided under the Act are "in addition to and not in substitution for any other remedies." Section 14-12.1-03, N.D.C.C.; see People ex rel. Oetjen v. Oetjen, 92 Ill.App.3d 699, 48 Ill.Dec. 247, 416 N.E.2d 278 (1981); Foster v. Marshman, 96 Nev. 475, 611 P.2d 197 (1980); Oglesby v. Oglesby, 29 Utah 2d 419, 510 P.2d 1106 (1973).

Section 14-12.1-24, N.D.C.C., deals with orders of support in URESA proceedings and, as amended in 1979, ³ provides:

"14-12.1-24. ORDER OF SUPPORT. If the responding court finds a duty of support it may order the obligor to furnish support or reimbursement therefor in accordance with the present needs and circumstances of the obligee and the present ability of the obligor to pay and subject the property of the obligor to the order. The court, upon a finding of a material change in circumstances relative to the obligor's discharge of obligations under any existing order for child support or decree of divorce, may modify the order for child support or alimony combined with child support, and order the obligor to furnish support or reimbursement therefor and subject the property of the obligor to the order. Support orders made pursuant to this chapter shall require that payments be made to the clerk of the court of the responding state. The court and prosecuting attorney of any county in which the obligor is present or has property have the same powers and duties to enforce the order as have those of the county in which it was first issued. If enforcement is impossible or cannot be completed in the county in which the order was issued, the prosecuting attorney shall send a certified copy of the order to the prosecuting attorney of any county in which it appears that proceedings to enforce the order would be effective. The prosecuting attorney to whom the certified copy of the order is forwarded shall proceed with enforcement and report the results of the proceedings to the court first issuing the order." [1979 amendment underscored.]

The legislative materials pertaining to the 1979 amendments reflect that those amendments were in response to North Dakota district court interpretations of language in Craft v. Hertz, supra, 182 N.W.2d at 297, in which this Court stated that a North Dakota court, as a responding court, had no alternative but to find a duty on the obligor to furnish support in the amount provided by a foreign decree. See Printed Testimony of Bill Schmidt before Senate Judiciary Committee, February 21, 1979, and House Judiciary Committee, January 23, 1979, at pp. 4-5. Based on our statement in Craft, supra, North Dakota district courts in URESA proceedings had been refusing to order the obligor to pay any amount different from the amount provided by a prior decree even if circumstances had changed substantially since the prior decree. Id. The legislative history evidences a clear intent that the purpose of the 1979 amendments was to permit responding courts in URESA proceedings to enter a child support order different in amount from a previous support order and to clarify and reaffirm the original intent of the Act and correct the interpretation of the law resulting from Craft, supra. Id. at page 7. The legislative history reflects that the 1979 amendment to Section 14-12.1-24, N.D.C.C., was not intended to detrimentally affect the underlying purposes of URESA, ⁴ and that, before the 1979 amendments, URESA proceedings contemplated that "more than one order for child support payments [could] be in existence at one time and that those orders [could] be for different amounts." Testimony of Bill Schmidt at p. 4. ⁵

We conclude that the 1979 amendments reaffirmed the original intent of URESA and gave the District Court of McHenry County the authority, under appropriate circumstances, ⁶ to enter an order for child support in an amount different from that provided in the original divorce judgment.

However, we must also consider the effect of the August 29, 1980 order on the divorce judgment. Section 14-12.1-31, N.D.C.C., provides as follows:

"14-12.1-31. APPLICATION OF PAYMENTS. A support order made by a court of this state pursuant to this chapter does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance or variation in amounts ordered to be paid, unless otherwise specifically provided by the court. Amounts paid for a particular period pursuant to any support order made by the court of another state or by a court of this state pursuant to any other law shall be credited against the amounts accruing or accrued for the same period under any support order made by the court of this state under this...