In re Marriage of Amezquita
Decision Date | 13 September 2002 |
Docket Number | No. C038927.,C038927. |
Citation | In re Marriage of Amezquita, 124 Cal.Rptr.2d 887, 101 Cal.App.4th 1415 (Cal. App. 2002) |
Court | California Court of Appeals |
Parties | In re the MARRIAGE OF Mark A. AMEZQUITA and Roberta D. Archuleta. Mark A. Amezquita, Appellant, v. Roberta D. Archuleta, Respondent. |
Michael E. Barber, Sacramento, for Appellant.
Roberta D. Archuleta, in pro. per., for Respondent.
Family Code section 4962 allows California courts to modify another state's child support order if, among other things, the obligor of the order "resides" in California.The question presented is whether a person "resides" in California while stationed here in the military, even though his domicile remains in another state.We conclude he does not "reside" here for the purpose of applying Family Code section 4962.Because the trial court concluded otherwise and modified the support order, we reverse.
The parties, who have three children (born in 1981, 1984, and 1987), were divorced in 1990.The New Mexico decree set child support payable from Mark A. Amezquita(Husband) to Roberta D. Archuleta(Wife) at $600 per month.In September 1999, Wife, who had moved to California with the children, registered the out-of-state support order in Sacramento and obtained an order to show cause for a modification of the support.She filed a declaration stating that Husband, an employee of the United States Air Force, was living in San Pedro, California.The pleadings were served on Husband personally within California.
Husband, in propria persona, filed a responsive declaration stating that he did not consent to the requested order but would consent to an order to "be specified after advisement by legal counsel."Soon thereafter, counsel for Husband filed a declaration and memorandum of points and authorities seeking to amend the responsive pleading so as not to admit that the court had jurisdiction over the support matter.Counsel asserted Husband was misled into filing the responsive pleading by a court employee and by the office of opposing counsel and that New Mexico is the only state with jurisdiction to modify the support order.
Husband is a sergeant in the Air Force assigned to active duty in California.He maintains a New Mexico driver's license.He votes and files income tax returns there.Husband holds, in his words, a "residual interest" in his parents' home in New Mexico and intends to return to that state when he retires from the military.
In January 2000, the trial court concluded it had jurisdiction to modify child support.It ordered Wife to prepare a formal order including an appropriate amount of support consistent with the court's findings.In June 2001, after many months of delay, Wife submitted and the trial court signed an order requiring Husband to pay a total of $974 in monthly child support.The court also found Husband was in arrears on support payments under the New Mexico order and directed Husband to pay $50 per month to satisfy that debt.Husband appeals.
Husband filed his notice of appeal almost 18 months after the trial court's ruling on the submitted matter yet less than a month after the court signed the formal Findings and Order After Hearing.He asserts his appeal is timely because the time to file the notice of appeal ran from entry of the formal order, not from the ruling, because the ruling expressly contemplated a formal, written order.Wife did not file a respondent's brief and, therefore, does not contend the appeal is untimely.We agree with Husband that the time to file his notice of appeal ran after entry of the formal Findings and Order After Hearing and his appeal is therefore timely.(SeeCal. Rules of Court, rule 2(c)(2)[ ].)
"Residence" Under Family Code Section 962
A California court may modify another state's child support order "[i]f all of the parties ... reside in this state and the child does not reside in the issuing state...."(Fam.Code, § 4962, subd. (a), italics added.)If these conditions are not met, the California court does not have subject matter jurisdiction to make the modification.(SeeFam.Code, § 4909.)
Husband asserts the trial court had no subject matter jurisdiction to modify the support order because, even though Wife and the children "resided" in California, he did not.He claims the term "reside" in Family Code section 4962 refers to domicile.After considering the statute in context, we agree.
(Torres v. Parkhouse Tire Service, Inc.(2001)26 Cal.4th 995, 1003, 111 Cal. Rptr.2d 564, 30 P.3d 57.)
(Smith v. Smith(1955)45 Cal.2d 235, 239, 288 P.2d 497, italics in original.)In the context of jurisdiction to enter a judgment dissolving a marriage, (In re Marriage of Thornton(1982)135 Cal.App.3d 500, 507, 185 Cal.Rptr. 388.)Since there is no plain meaning of "reside" that we can apply to Family Code section 4962, we turn to extrinsic aids.(Torres v. Parkhouse Tire Service, Inc., supra,26 Cal.4th at p. 1003, 111 Cal.Rptr.2d 564, 30 P.3d 57.)
Family Code section 4962 was borne of section 613 of the Uniform Interstate Family Support Act (UIFSA);they are identical in every way relevant to this case.The Legislature adopted the UIFSA in 1997.(Stats.1997, ch. 194, p. 96.)Drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL), the UIFSA was imposed on the states by Congress as a condition to receiving federal funding of child support enforcement efforts.(42 U.S.C. § 666.)
Family Code section 4962 is just one piece of the UIFSA, which was meant to ensure that, in the words of the NCCUSL, "only one valid support order may be effective at any one time"(National Conference of Commissioners on Uniform State Laws, Uniform Interstate Family Support Act (1996) PrefatoryNote, p. 5), even though the parties and their children may move from state to state.With that in mind, we turn to section 205 of the UISA, which was adopted in California as Family Code section 4909 and in New Mexico as section 40-6A-205.It provides: "A tribunal of this State issuing a support order consistent with the law of this State has continuing, exclusive jurisdiction over a child-support order: [¶](1) as long as this State remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or [¶](2) until all of the parties who are individuals have filed written consents with the tribunal of this State for a tribunal of another State to modify the order and assume continuing, exclusive jurisdiction."(UIFSA § 205, subd. (a), italics added.)The NCCUSL referred to this section as "perhaps the most crucial provision in UIFSA."(National Conference of Commissioners on Uniform State Laws, Uniform Interstate Family Support Act(1996)§ 205, Comment, p. 22.)
Under this section, which we will refer to as Family Code section 4909, New Mexico retains "continuing, exclusive jurisdiction" if that state is Husband's "residence."If New Mexico's jurisdiction is exclusive, then, by definition, California does not have jurisdiction.In other words, under the UIFSA, it is assumed that a person cannot have more than one residence.This, however, does not comport with the more general definition of residence noted above, allowing for multiple residences.(SeeSmith v. Smith, supra,45 Cal.2d at p. 239, 288 P.2d 497.)Instead, "residence," for the purpose of the UIFSA, must mean "domicile," of which there can be only one.(Ibid.)
Interpreting "reside in this state" in Family Code section 4962 to mean "are domiciled in this state" does not stretch the meaning of the words used beyond an acceptable, plain-meaning limit.When section 4962 was adopted in 1997, the Legislature was aware, at least...
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