Haker-Volkening v. Haker

• Decision Date: 05 June 2001
• Docket Number: No. COA00-598.,COA00-598.
• Citation: 547 S.E.2d 127,143 NC App. 688
• Court: North Carolina Court of Appeals
• Parties: Brigitte HAKER-VOLKENING, Petitioner, v. Werner Andreas HAKER, Respondent.

547 S.E.2d 127

143 NC App. 688

Brigitte HAKER-VOLKENING, Petitioner, v. Werner Andreas HAKER, Respondent.

No. COA00-598.

Court of Appeals of North Carolina.

June 5, 2001.

Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Dale A. Curriden, Asheville, for petitioner-appellee.

James M. Kimzey, Brevard, for respondent-appellant.

HUDSON, Judge.

The background facts here are not in dispute. Brigitte Haker-Volkening (petitioner) and Werner Andreas Haker (respondent) were married in 1967 and lived in Switzerland at that time. In 1984, respondent commenced a civil action in the Zuerich District Court seeking divorce. On 29 April 1985, petitioner and respondent entered into a voluntary agreement regarding alimony payments, distribution of property, and custody, visitation and support in relation to their two minor children. On 7 May 1985, the Zuerich District Court entered an order (the Swiss order) granting the divorce, determining custody of the two minor children, ordering visitation, requiring respondent to pay child support, and expressly approving the 29 April 1985 document embodying the agreement between the parties. Respondent complied with the alimony provisions of the 29 April 1985 agreement through 1994, at which time he relocated to North Carolina.

On 10 June 1998, petitioner filed a petition in the district court of Transylvania County, North Carolina, seeking to have the Swiss order registered and enforced in North Carolina pursuant to the Uniform Interstate Family Support Act (UIFSA), N.C.G.S. §§ 52C-1-100 to -9-902 (1999). On 10 June 1998, the Clerk of Superior Court for Transylvania County filed a "Notice of Registration of Order," notifying respondent that the Swiss order had been registered in Transylvania County pursuant to N.C.G.S. § 52C-6-602 (1999). This registration order provides that respondent was, as of 22 May 1998, in arrears of 57'074 in Swiss Francs. On 22 June 1998, respondent filed a motion challenging the validity and enforcement of the registration. Following a hearing, the trial court entered an order on 27 March 2000, holding the Swiss order registered and enforced under UIFSA. Respondent appeals from this order.

We first address petitioner's motion to dismiss this appeal. Petitioner contends the appeal should be dismissed because it is interlocutory. In the alternative, petitioner contends this Court should stay the appeal until such time as the trial court enters an order directing respondent to make support payments and respondent posts a bond in the amount of such payments pursuant to N.C.G.S. § 1-289 (1999). Both arguments are without merit.

UIFSA, which became effective 1 January 1996, replaced former Chapter 52A of the General Statutes, the Uniform Reciprocal Enforcement of Support Act (URESA). The statutory schemes set forth in the two acts are significantly different. URESA provided for a two-step procedure concerning foreign support orders in North Carolina: (1) registration of the order (and, if required, a hearing on whether to vacate the registration or grant the respondent other relief); and (2) enforcement of the order. See Lang v. Lang, 132 N.C.App. 580, 582, 512 S.E.2d 788, 790 (1999)

. URESA provided that a petitioner could seek to accomplish both of these steps simultaneously, or, in the alternative, seek first to register the order, and then seek to enforce the order separately at a later date. Id. In Lang, we explained the significant differences between the registration of a foreign support order and the enforcement of a foreign support order under URESA:

"Personal jurisdiction is not a requisite for registration of an order under [URESA]." Furthermore, "[r]egistration does not prejudice any rights of the obligor; it merely changes the status of the foreign support order by allowing it to be treated the same as a support order issued by a court of North Carolina." "Once the order is so treated the obligee or the obligor may request modifications in the order, and when the obligee attempts to enforce the order, the court must determine whether jurisdiction exists over the person or property of the obligor and what amount, if any, is in arrears."

Id. at 582-83, 512 S.E.2d at 790 (citations omitted). For these reasons, we held that where a petitioner had successfully registered a foreign support order, but had not yet sought enforcement of the order, the registration alone did not finally determine the action and did not affect a substantial right of the respondent. Therefore, the respondent's appeal of the registration order was held to be interlocutory and not immediately appealable.

However, under UIFSA, the filing of a foreign support order by definition achieves both registration and enforcement of the order. See N.C.G.S. § 52C-6-603 (1999). As explained in the UIFSA Official Comments:

The common practice under RURESA was to initiate a new suit for the establishment of a support order, even though there was an existing order.... That practice is specifically rejected by UIFSA....

Under the one-order system of UIFSA, only one existing order is to be enforced prospectively.... Rather than being an optional procedure, as was the case under RURESA, registration for enforcement under UIFSA is the primary method for interstate enforcement of child support....

Registration should be employed if the purpose is enforcement. Although registration not accompanied by a request for affirmative relief is not prohibited, the Act does not contemplate registration as serving a purpose in itself.

Official Comment, N.C.G.S. § 52C-6-601 (1999) ("Registration of order for enforcement.").

Once a foreign support order is registered for enforcement, a respondent's only remedy is to request a hearing to contest the validity or enforcement of the registered order, which request must be made within 20 days after notice of registration. See N.C.G.S. § 52C-6-606 (1999). The final step in the UIFSA scheme is "confirmation," which can only occur in two ways. Confirmation occurs where a respondent contests a registered order within 20 days, a hearing is held, and respondent's contest is unsuccessful. See N.C.G.S. § 52C-6-608 (1999). Otherwise, confirmation occurs by operation of law where a respondent fails to contest a registered order within 20 days. See G.S. § 52C-6-606(b).

Here, petitioner registered the Swiss order for enforcement under UIFSA. Respondent requested a hearing within 20 days of notice of registration, a hearing was held, and respondent's contest was unsuccessful. Pursuant to UIFSA, the result of the hearing, therefore, was confirmation of the original order which served both as registration and enforcement of the Swiss order. See N.C.G.S. § 52C-6-607(c) (1999) (trial court only has authority to "issue an order confirming the order"). The original order directs respondent to pay to petitioner the support payments contained in the foreign support order, including arrears of 57'074 in Swiss Francs as of 22 May 1998. Unlike the situation in Lang, the order from which respondent here appeals is both a registration and enforcement order. Therefore, respondent's appeal is not interlocutory.

In response to petitioner's alternative argument for dismissal of this appeal, we note that G.S. § 1-289 does not require an appellant to post a bond. Rather, that statute gives an appellant the option to stay the execution of a judgment by posting a bond. The only result of the fact that respondent has not posted a bond is that there has been no stay of the execution of the registration order directing respondent to pay support in accordance with the Swiss order. However, the failure to post a bond, contrary to petitioner's contention, does not require that this Court stay the appeal. Petitioner's motion to dismiss is therefore without merit and is denied.

Turning to the substance of this appeal, respondent contends the trial court erred in denying his contest of the validity and enforcement of the registered order. Respondent offers a number of arguments in support of this contention. First, respondent argues that this matter does not fall within the purview of UIFSA because Switzerland does not constitute a "state" pursuant to the definition provided in UIFSA. Because we agree, and conclude that the trial court did not have the authority to register the Swiss order, we need not reach respondent's other arguments.

We first note that respondent contends that the issue of whether Switzerland constitutes a "state" under UIFSA is an issue of subject matter jurisdiction. However, a court's authority to act pursuant to a statute, although related, is different...