Harding v. Harding

Decision Date21 June 2002
Docket NumberNo. B151542.,B151542.
Citation99 Cal.App.4th 626,121 Cal.Rptr.2d 450
CourtCalifornia Court of Appeals Court of Appeals
PartiesMarla HARDING, Plaintiff and Appellant, v. Michael S. HARDING, Defendant and Respondent.

HASTINGS, J.

The trial court dismissed Maria Harding's request for order to show cause for modification of a Texas child support order because it lacked subject matter jurisdiction pursuant to the federal Full Faith and Credit for Child Support Orders Act (FFCCSOA), title 28 United States Code section 1738B, and the complementary state statute, the California Uniform Interstate Family Support Act (Fam.Code, § 4900 et seq.) She argues that the FFCCSOA and the state law are unconstitutional because they infringe upon what is traditionally a local issue. She also argues there is insufficient evidence that respondent remains a Texas resident for either law to apply and preclude the court from having jurisdiction. We conclude there is no constitutional infirmity and that sufficient evidence supports the trial court determination that respondent is a Texas resident. We accordingly affirm.

FACTS

Appellant and respondent were divorced in Texas in 1994 and appellant was awarded child support for the parties' two children. Appellant and the children later moved to California. Respondent claimed his residence remained in Texas, although he also has a residence in Missouri, his place of employment.

On July 19, 2000, appellant filed a Statement for Registration of Foreign Support Order in the Los Angeles County Superior Court. In her declaration in support of the statement, appellant declared that respondent's last known residence was in Texas. In August 2000, appellant filed a motion for modification of child support.

On October 5, respondent moved "TO QUASH AND STRIKE PETITIONER'S MOTION FOR MODIFICATION OF CHILD SUPPORT ..." with the notation that he was making a "SPECIAL APPEARANCE." In support of the motion, respondent declared in writing, "I have been a resident of Texas continuously since 1991. I am registered to vote in Texas, I own a car in Texas, my car is registered in Texas, I own a home in Texas, I pay property taxes in Texas, and have not had a primary residence other than in Texas since I moved to Texas from New Jersey in 1991. All of my child and spousal support obligations have been timely paid through a Texas Wage Assignment Order." Respondent further declared that aside from his children's and his former spouse's presence in California, respondent has no connections with California. In addition, respondent declared that he has a teenage daughter from a prior marriage who has lived with him in Texas for approximately six years, he has a fiancee who lives in Texas with him, and all evidence of his income and expenses, as well as his ability to pay support, is in Texas or at the Missouri headquarters of his employer.

He also filed a declaration from Tina Mueller, his employer's Senior Relocation Coordinator. The declaration states that the employer provided "relocation services" to employees transferred to jobs increasing their commutes by 50 miles, and the term "relocation" refers to an employee's relocation to a different or new position with the employer. Mueller declared that respondent's employer's records reflect that his address is in Texas, and that respondent used the company relocation services to buy a condominium in Missouri "for his use while in Missouri. Respondent did not utilize Relocation Services to sell his residence in Texas."

On October 20, 2000, respondent filed a response to appellant's original motion to modify and termed it a "special appearance." He checked off the portion of the form stating he did not consent to the order requested, and wrote, "The Court does not have jurisdiction to modify the Texas Order."

On November 7, the trial court granted appellant's request to conduct discovery on the issue of respondent's place of residence.

Respondent also propounded discovery but limited it to the issue of his residence which was the key determination in connection with the issue of jurisdiction.

On April 17, 2001, the trial court determined that respondent resides in Texas, and not Missouri, as contended by appellant. The court found that respondent "did not make a general appearance in this matter. All responsive papers filed on behalf of the Respondent are marked `special appearance'. There is no authority to support Petitioner's contention that the propounding of discovery about the jurisdictional issues in this case will constitute a general appearance." Because the court found that the parties' older child was conceived in California, the court found sufficient contact between respondent and the state to confer personal jurisdiction over respondent. The court concluded that it therefore "may exercise jurisdiction to modify the child support order issued by the State of Texas only as to the child who was conceived in this state." The court then set the matter for a status conference for the purpose of setting a hearing on appellant's motion to modify support.

Respondent filed a notice of intention to move for a new trial and/or to vacate the trial court's April 17 order.

On May 17, 2001, after hearing argument on the motion for new trial, the trial court reversed itself. It concluded that respondent is a Texas resident registered to vote in Texas, has a Texas driver's license, owns a car which is registered in Texas, pays property taxes in Texas, has a teenager from a prior marriage who lives with him in Texas, has a fiancee who lives with him in Texas and has an EZ Tag account in Texas. It also noted that respondent's child and spousal support obligations were paid through a Texas wage assignment order, and respondent's payroll and bank statements and many of his credit card statements were sent to respondent's Texas address. It concluded that "the above-referenced facts sufficiently support Respondent's contention that he lives in Texas, notwithstanding that he spends time outside of the State of Texas, owns property in Missouri, and has an office in Missouri." Based on these findings, it concluded it lacked subject matter jurisdiction under 28 United States Code section 1738B and under California Family Code sections 4960 et seq. It entered an order granting respondent's motion for a new trial, vacated the portion of its April 17, 2001 order finding that the court had subject matter jurisdiction to modify the parties' Texas child support order, and dismissed appellant's motion to modify child support.

DISCUSSION

The main issue here is the constitutionality of the FFCCSOA, which we now address.

Subdivision (a)(2) of 28 United States Code section 1738B sets forth the general rule that each state shall enforce other states' child support orders, and "shall not seek or make a modification of such an order except in accordance with subsections (e), (f), and (i)."

Subdivision (e) of section 1738B authorizes a state court to modify another state's child support order if "(1) the court has jurisdiction to make such a child support order pursuant to subsection (i); and [¶] (2)(A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any individual contestant; or [f] (B) each individual contestant has filed written consent with the State of continuing, exclusive jurisdiction for a court of another State to modify the order and assume continuing, exclusive jurisdiction over the order."

Subdivision (f), as applicable, provides: "(1) If only 1 court has issued a child support order, the order of that court must be recognized."

Subdivision (i) provides: "If there is no individual contestant or child residing in the issuing State, the party ... seeking to modify ... a child support order issued in another State shall register that order in a State with jurisdiction over the nonmovant for the purpose of modification."

Also relevant is subdivision (d) of section 1738B, which concerns continuing jurisdiction. This subdivision states: "A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is ... the residence of any individual contestant unless the court of another State, acting in accordance with subsections (e) and (f), has made a modification of the order." (Italics added.)

As appellant notes, Congress declared in 1994 that it was enacting section 1738B to deal with the lack of uniformity of child support laws from different states. Appellant quotes an excerpt from the congressional findings that the nonuniform laws, among other things, encouraged noncustodial parents to relocate from the states where the original support orders were made, placing a burden on interstate travel and communication and the custodial parent which is "time consuming, and disruptive of occupations and commercial activity" and results in "inequities in child support payments] levels that are based solely on the noncustodial parent's choice of residence." Appellant argues that the FFCCSOA does not consider the contingency here, where the minor children and custodial parent move from the state where the child support order was originally issued and contends that "[w]isdom, therefore, dictates that consideration of these matters should be local rather than national; and, indeed, the more local ... the better." Appellant further maintains that the FFCCSOA's "failure ... to distinguish between the different circumstances that arise when the obligor and the obligee leave the state where the order was originally entered" "creates...

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