Hook v. Hook

• Decision Date: 03 May 2005
• Docket Number: No. COA04-683.,COA04-683.
• Citation: 611 S.E.2d 869
• Court: North Carolina Supreme Court
• Parties: James HOOK, Plaintiff, v. Dana HOOK (now Schwenzfeier), Defendant.

611 S.E.2d 869

James HOOK, Plaintiff, v. Dana HOOK (now Schwenzfeier), Defendant.

No. COA04-683.

Court of Appeals of North Carolina.

May 3, 2005.

Appeal by plaintiff from order entered 24 February 2004 by Judge Regina R. Parker in Tyrrell County District Court. Heard in the Court of Appeals 8 December 2004.

Prichett & Burch, P.L.L.C., by Lloyd C. Smith, Jr., Lars P. Simonsen and Maria Misse, Windsor, for plaintiff appellant.

Tharrington Smith, L.L.P., by Lynn P. Burleson and Jill Schnabel Jackson, Raleigh, for defendant-appellee.

ELMORE, Judge.

James Hook (plaintiff) and Dana Schwenzfeier (defendant), formerly Dana Hook, were married on 18 June 1965 in New Jersey. The two divorced on 7 October 1996, and entered into a settlement agreement, including alimony; that agreement was then incorporated into a judgment of divorce entered by the appropriate court in New Jersey. Following their divorce, both plaintiff and defendant moved out of New Jersey, plaintiff moving to North Carolina and defendant to Massachusetts. Neither party had significant contacts with New Jersey after their respective moves.

On 31 December 1999, plaintiff lost his job and sought to terminate the alimony provisions of the New Jersey court's judgment. Prior to the hearing on the motion, defendant filed a motion seeking to enforce the alimony provision. On 20 August 2002, the New Jersey court, sua sponte, dismissed plaintiff's motion to modify and defendant's motion to enforce the judgment of divorce. The court determined that New Jersey no longer had subject matter or personal jurisdiction over the parties because neither was domiciled in New Jersey at that time. Neither party appealed that determination.

After the New Jersey court's order dismissing the case, plaintiff ceased making alimony payments to defendant. Defendant then filed a notice of registration of a foreign support order with the Tyrrell County Clerk's Office. A hearing on the matter was scheduled due to the fact that defendant opposed the filing and enforcement of the original New Jersey judgment, and in his written response included a motion that under the judgment the alimony should be modified or terminated. After the hearing, Judge Parker entered an order registering the New Jersey judgment and ordering plaintiff to pay the accrued arrears and monthly alimony payments according to the judgment. The trial court also denied plaintiff's motion to modify the judgment of divorce, determining that North Carolina lacked jurisdiction to do so. From this order, plaintiff appeals.

Plaintiff argues that the trial court erred in making findings of fact and conclusions of law that, pursuant to the Uniform Interstate Family Support Act (UIFSA), New Jersey retains continuing, exclusive jurisdiction to modify or terminate plaintiff's alimony obligation and that North Carolina's jurisdiction in this matter is limited to registration and enforcement of the parties' judgment of divorce. We affirm the trial court's order.

UIFSA has been enacted by all fifty states and is codified in North Carolina as Chapter 52C of the North Carolina General Statutes. See N.C. Gen.Stat. § 52C-1-100 et seq. (2003); see also N.J. Stat. § 2A:4-30.65 et seq. (2005). UIFSA establishes a procedural mechanism through which an obligee (here, defendant) who resides in another state may use the North Carolina courts to enforce a support order entered by a court in another state (New Jersey) against an obligor who resides in North Carolina (plaintiff). See N.C. Gen.Stat. § 52C-3-301 (2003). UIFSA procedures apply to both child support orders and spousal support orders. See N.C. Gen.Stat. §§ 52C-1-101(18) and (21) and 52C-2-205(f) (2003).

Under UIFSA, a support order is first entered by the "issuing tribunal" in the "issuing state." N.C. Gen.Stat. § 52C-1-101(9) and (10) (2003). If an obligee wishes to enforce a support order against an obligor who resides in a different state, the obligee may "register" the order in the state where the obligor resides. See N.C. Gen.Stat. §§ 52C-6-601 and 52C-6-602 (2003). Unless the responding state, North Carolina in this matter, has "continuing, exclusive jurisdiction" over a registered foreign support order, the jurisdiction of a responding state is limited to the ministerial function of enforcing the registered order. See N.C. Gen.Stat. § 52C-1-101(16) (2003) (defining responding state); N.C. Gen.Stat. § 52C-3-305(a) (2003) (official commentary characterizes the listing of duties in subsection (a) as "ministerial."); see also Welsher v. Rager, 127 N.C.App. 521, 527, 491 S.E.2d 661, 664 (1997) (citing to N.C. Gen.Stat. § 52C-2-205, the Court determined that without 1) both parties' consent to a modification of a support order or 2) the issuing state having lost continuing, exclusive jurisdiction, North Carolina may not modify a support order).

N.C. Gen.Stat. § 52C-2-205 and N.J. Stat. § 2A:4-30.72, discussing continuing, exclusive jurisdiction over support orders, provide that

[a] tribunal of this State issuing a support order consistent with the law of this State has continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation. A tribunal of this State may not modify a spousal support order issued by a tribunal of another state having continuing, exclusive jurisdiction over that order under the law of that state.

N.C. Gen.Stat. § 52C-2-205(f) (2003); N.J. Stat. § 2A:4-30.72(f) (2005) (Subsection (f) in New Jersey is identical, save the second sentence where New Jersey inserted a comma after "spousal support" and added "custody visitation, or non-child support provisions of an" before "order."). Under both North Carolina and New Jersey's UIFSA statutory scheme, the issuing state retains "continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation," regardless of whether either party continues to reside in the issuing state. See id. (emphasis added). Pursuant to UIFSA, New Jersey is the "issuing state" of the spousal support order and retains continuing, exclusive jurisdiction over the judgment of divorce throughout the existence of the support obligation. Although UIFSA provides that a state loses continuing, exclusive jurisdiction over a child support order when the obligor and obligee no longer reside in that state, there is no parallel exception for spousal support orders. See N.C. Gen.Stat. § 52C-2-205 (a) and (f) (2003). Instead, UIFSA specifically provides that the issuing state retains continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation. See N.C. Gen.Stat. § 52C-2-205(f) (2003).

We are persuaded that the statute's differing treatment regarding continuing, exclusive jurisdiction of spousal support orders and child support orders is purposeful, as evidenced by the official commentary to section 52C-2-205.

Spousal support is treated differently; the issuing tribunal retains continuing, exclusive jurisdiction over an order of spousal support throughout the entire existence of the support obligation. Sections 205(f) and 206(c) state that the procedures of UIFSA are not available to a responding tribunal to modify the existing spousal support order of the issuing State. This marks a radical departure from RURESA, which treated spousal and child support orders identically.... The prohibition of modification of spousal support by a nonissuing State tribunal under UIFSA is consistent with the principle that a tribunal should apply local law to such cases to insure efficient handling and to minimize choice of law problems. Avoiding conflict of law problems is almost impossible if spousal support orders are subject to modification in a second State.

* * *

A wavier of continuing, exclusive jurisdiction and subsequent modification of spousal support by a tribunal of another State simply is not authorized under the auspices of UIFSA.

N.C. Gen.Stat. § 52C-2-205 official commentary (2003).

Defendant's registration of the parties' judgment of divorce in North Carolina had no effect on New Jersey's status as the issuing state with continuing, exclusive jurisdiction over the spousal support order. New Jersey is the only state, therefore, with jurisdiction to modify or terminate plaintiff's alimony obligation pursuant to the parties' judgment of divorce.

Plaintiff next argues that North Carolina has obtained jurisdiction over the parties' judgment of divorce and that the trial court erred by failing to modify or terminate his alimony obligation pursuant to N.C. Gen. Stat. § 50-16.9. We disagree.

Section 50-16.9 of the North Carolina General Statutes provides:

When an order for alimony has been entered by a court of...