Kelly v. Otte

• Decision Date: 20 August 1996
• Docket Number: No. COA95-1121,COA95-1121
• Citation: 474 S.E.2d 131,123 N.C.App. 585
• Parties: Mary KELLY, Plaintiff, v. Timothy C. OTTE, Defendant.
• Court: North Carolina Court of Appeals

Page 131

474 S.E.2d 131

123 N.C.App. 585

Mary KELLY, Plaintiff, v. Timothy C. OTTE, Defendant.

No. COA95-1121.

Court of Appeals of North Carolina.

Aug. 20, 1996.

No brief filed by defendant-appellee.

JOHNSON, Judge.

This case presents an issue of first impression as to the effect of the Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738B, Pub.L. No. 103-383) on the now-repealed North Carolina Uniform Reciprocal Enforcement of Support Act (URESA)(N.C.Gen.Stat. ch. 52A). The facts are as follows.

Plaintiff Mary Kelly and defendant Timothy C. Otte were married on 19 January 1975, and later divorced on 17 September 1981. There were two children born of the marriage--Timothy Devin Otte, born 27 July 1977, and Jennifer Arielle Otte, born 10 July 1979.

Prior to the parties' divorce, plaintiff and defendant entered into a property settlement agreement. This agreement was subsequently incorporated into and made a part of the parties' New Jersey divorce decree. Pursuant to the agreement, defendant agreed to pay support to plaintiff in the amount of $300.00 per month for support of the two minor children. Defendant further agreed that beginning July 1982, his child support payments would be adjusted annually on 1 July in accordance with the United States Department of Labor Consumer Price Index for New York City.

After the divorce, plaintiff and the minor children moved to North Carolina. Thereafter, in 1983, defendant also moved to North Carolina. Defendant made regular monthly child support payments of $300.00 through and including the month of July 1991; and beginning July 1991 through February 1994, defendant made monthly child support payments of $360.00. Finally, in March 1994, defendant made a $300.00 child support payment. Thereafter, until the registration of the New Jersey order, defendant failed to make another child support payment to plaintiff.

On 31 October 1994, plaintiff registered the 1981 New Jersey order with the Wake County Clerk of Superior Court. The Clerk forwarded a Notice of Registration of Foreign Support Order to defendant. The Notice of Registration claimed that as of 27 October 1994, there were total child support arrearages of $17,442.72. Defendant was served with the Notice of Registration on 27 December 1994, but filed no response to the Notice until 26 April 1995.

On that date, defendant filed a Motion to Vacate and Set Aside Registered Foreign Support Order, alleging that the Consumer Price Index found in the New Jersey order was void as a matter of law and that the statute of limitations precluded enforcement of arrearages accruing on or before 31 October 1984. This motion came on for hearing before Judge James R. Fullwood in Wake County District Court on 5 May 1995. After hearing the arguments of both parties, the trial court entered an order on 3 July 1995, denying defendant's Motion to Vacate and Set Aside Registered Foreign Support Order with respect to arrearages accruing during the ten (10) year period immediately prior to the registration of the foreign support order in North Carolina, but granting said motion with respect to arrearages accruing prior to 27 October 1984; and ordering defendant to pay support in the amount of $300.00 per month prospectively from the date of registration of the foreign order of support until further modification or termination of the support order. Plaintiff appeals.

At the outset, we must note that plaintiff has failed to comply with Rule 28 of the North Carolina Rules of Appellate Procedure. Rule 28 requires that immediately following each question presented in a brief, there be reference to the assignment(s) of error pertinent to the question, identified by their number and by the page at which they appear in the record. N.C.R.App.P. 28(b)(5). Plaintiff, however, presents three arguments on appeal without reference to their respective assignments of error or the page at which they appear in the record. As such, these arguments are not properly before us, and may be deemed abandoned. Id. In the interest of justice, irrespective of these violations, we choose to address plaintiff's arguments on appeal. N.C.R.App.P. 2.

Plaintiff first argues that the trial court erred in finding and concluding that the foreign support order in this case is to be treated as an order by the State of North Carolina upon its registration (pursuant to section 52A-30(a)) on the grounds that the finding and conclusion violates the Full Faith and Credit for Child Support Orders Act (FFCCSOA). For the reasons discussed herein, we find that section 52A-30(a) does violate the FFCCSOA, but that the trial court's finding and conclusion, in and of itself, does not.

The FFCCSOA became effective on 20 October 1994. The FFCCSOA adds a new section to the United States Code, 28 U.S.C. § 1738B, which

(1) requires the appropriate authorities of each state to "enforce according to its terms a child support order made consistently with [the act's jurisdictional and due process standards] by a court of another State;" and

(2) prohibits states from modifying, except as allowed under 28 U.S.C. § 1738B(e), a child support order that has been entered by another state's court consistently with 28 U.S.C. § 1738B(c).

John L. Saxon, The Federal "Full Faith and Credit for Child Support Orders Act", 5 INST. OF GOV'T FAM. L. BULL . 1, 2 (1995) [hereinafter Saxon] (interpreting the FFCCSOA). Section 1738B(e) of the FFCCSOA allows modification of a child support order by a sister state if the rendering state loses continued, exclusive jurisdiction over the child support order. See 28 U.S.C. § 1738B(e) (Supp.1996). The rendering state may lose continued, exclusive jurisdiction over the order if: "(1) neither the child nor any of the [parties] continue to reside in the state, or (2) each of the [parties] has consented to the assumption of jurisdiction by another state." Saxon, at 3; see 28 U.S.C. § 1738B(e)(2). Under the Supremacy Clause of the United States Constitution, the provisions of the FFCCSOA are binding on all states and supersede any inconsistent provisions of state law, including any inconsistent provisions of uniform state laws such as URESA, which was adopted by North Carolina and previously codified at Chapter 52A of the North Carolina General Statutes. Saxon, at 2; see Isabel M. v. Thomas M., 164 Misc.2d 420, 624 N.Y.S.2d 356 (1995).

In addition, the FFCCSOA also establishes uniform rules regarding the choice of law that state courts must follow in proceeding to enforce or modify out-of-state child support orders. See 28 U.S.C. § 1738B(g)(Supp.1996). Section 1738B(g)(2) provides that the forum state must apply the law of the rendering state when interpreting an out-of-state child support order. 28 U.S.C. § 1738B(g)(2). When enforcing the rendering state's child support order, however, section 1738B(g)(3) requires that the longer of the forum state's statute of limitation and the rendering state's statute of limitation be applied. 28 U.S.C. § 1738B(g)(3). In all other regards, section 1738B(g)(1) provides that the law of the forum state is to be applied in the proceeding to enforce foreign child support orders that are entitled to full faith and credit under the FFCCSOA. 28 U.S.C. § 1738B(g)(1). "This means that, with the possible exception of the statute of limitation, the procedures and remedies of the forum state will apply to the enforcement of out-of-state child support orders within the forum state." Saxon, at 4.

Chapter 52A of the North Carolina General Statutes, North Carolina's version of URESA, was repealed by Session Laws 1995, effective 1 January 1996. However, this case was decided before chapter 52A was repealed, and as such is not affected by the recision. See N.C. Gen.Stat. ch. 52A (1995) Editor's Note. Section 52A-30, entitled "Effect of registration; enforcement procedure" provided in pertinent part,

(a) Upon registration, the registered foreign support order shall be treated in the same manner as a support order issued by a court of this State. It has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating or staying as a support order of this State and may be enforced and satisfied in like manner.

(b) The obligor has 20 days after the mailing of notice of the registration in which to petition the court to vacate the registration or for other relief. If he does not so petition, the registered support order is confirmed.

N.C. Gen.Stat. § 52A-30(a),(b)(1992)(repealed 1995, effective 1 Jan. 1996). Sub-section (c) of this same section described the manner of enforcement of a registered foreign support order. See N.C. Gen.Stat. § 52A-30(c) (1992) (repealed 1995, effective 1 Jan. 1996). To the extent that this section directly conflicts with the purposes of the FFCCSOA, it is superseded by the FFCCSOA. Saxon, at 4; Isabel M., 164 Misc.2d 420, 624 N.Y.S.2d 356.

In the instant case, plaintiff registered a foreign order of support with the Wake County Clerk of Superior Court on 31 October 1994, in accordance with section 52A-29 of the General Statutes. At that time, she, defendant, and their two minor children all resided in North Carolina. As such, the rendering state of New Jersey had lost continuing, exclusive jurisdiction over the New Jersey support order. See 28 U.S.C. § 1738B(e). Defendant was served with Notice of Registration in accordance with section 52A-29, but failed to respond within the twenty-day statutory period provided by section 52A-30. Accordingly, the registered support order was subsequently confirmed.

In its order, the trial court made the following finding and conclusion:

10. That the foreign support order is treated as an order issued by a court of North Carolina upon registration pursuant to North Carolina General Statute[s] [s]52A-30(a).

Plaintiff takes issue with this statement, alleging that such is in violation of the FFCCSOA. As section 52A-30(a)...