Kilroy v. Superior Court

• Citation: 63 Cal.Rptr.2d 390,54 Cal.App.4th 793
• Decision Date: 28 April 1997
• Docket Number: No. B107509,B107509
• Court: California Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 3113, 97 Daily Journal D.A.R. 5421 John B. KILROY, Jr., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Sharon S. Cagle WINTER, Real Party in Interest.

Page 390

63 Cal.Rptr.2d 390

54 Cal.App.4th 793, 97 Cal. Daily Op. Serv. 3113,

97 Daily Journal D.A.R. 5421

John B. KILROY, Jr., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent;

Sharon S. Cagle WINTER, Real Party in Interest.

No. B107509.

Court of Appeal, Second District, Division 5, California.

April 28, 1997.

S. David Rosenson, Wasser, Rosenson & Carter and Michael Brourman, Los Angeles, for Petitioner.

No appearance on behalf of Respondent.

Connolly Oyler and Joel P. Schiff, Los Angeles, for Real Party in Interest.

TURNER, Presiding Justice.

I. INTRODUCTION

John B. Kilroy, Jr., a respondent in a family law child support modification proceeding brought by Sharon S. Cagle Winter, the mother of the minor, has filed a prohibition petition seeking to restrain the respondent court from proceeding with a hearing on an order to show cause concerning potential modification of a Georgia child support decree. Mr. Kilroy argues that the respondent court does not have jurisdiction to modify a Georgia child support order because of the Full Faith and Credit for Child Support Orders Act. (28 U.S.C. § 1738B.) We agree with Mr. Kilroy, issue our writ of prohibition, and direct the respondent court quash the order to show cause.

II. PROCEDURAL AND FACTUAL BACKGROUND

On May 10, 1990, Mr. Kilroy and Ms. Cagle entered into a written agreement which provided: Mr. Kilroy was the father of the minor; Mr. Kilroy agreed to pay to Ms. Cagle $50,000 to provide for the minor; Mr. Kilroy agreed to purchase an annuity contract which would pay $2,750 per month beginning June 1, 1990, as child support; the $2,750 per month child support payment was to continue until the minor turned 18 years; if the minor died before turning 18 years of age, Ms. Cagle would execute the necessary documents to assign the proceeds of the annuity to Mr. Kilroy; if Ms. Cagle died before the minor turned 18, Mr. Kilroy would not object if her parents were named as the guardian for the child; Ms. Cagle was awarded sole custody of the minor; Mr. Kilroy waived his right to visitation at present; however, he could secure reasonable visitation at a later date; and the agreement would be submitted to the "Superior Court of Forsyth County, Georgia" as part of a "petition to legitimate the minor child and establish support payments for the minor child...." Ms. Cagle agreed not to contest the aforementioned petition and that the agreement be incorporated by reference as part of a "consent order and decree...." On June 18, 1990, an order was issued in the Forsyth County Superior Court which: declared the minor to be legitimate within the meaning of Code of Georgia section 19-7-22 ¹; identified Ms. Cagle and Mr. Kilroy as the parents of the minor; and described the custody and visitation rights of the parties. The June 18, 1990, order concluded: "The parties have heretofore entered into an agreement respecting the payment of child support for the benefit of the minor child dated as of May 10, which agreement has been reviewed by the Court, is hereby approved by the Court, and the terms thereof are hereby incorporated by reference as part of this Order and shall be binding and enforceable upon the parties as if set forth in this Order verbatim." The June 18, 1990, order was filed on July 5, 1990.

On July 5, 1996, Ms. Cagle filed a "Statement for Registration of Foreign Support Order and Clerk's Notice" pursuant to Family Code section 4853 ². The statement and notice referred to the order of June 18, 1990, and was accompanied by the May 10, 1990, settlement agreement. On September 11, 1996, Ms. Cagle filed a document entitled "Complaint for Support." It sought to increase the amount of child support payable to the minor. It adverted to: the May 10, 1990, settlement agreement; the judgment issued June 18, 1990; and the July 31, 1996, registration in California of the Georgia judgment. The complaint filed September 11, 1996, sought to increase the amount of child support and alleged as follows: "The minor child ... has been diagnosed with Attention Deficit Disorder and has required special medical treatment which has greatly increased the costs of his support. [p] ... [Ms. Cagle] requests that the Court modify the child support order as registered according to California guidelines based on [Ms. Cagle's] and [Mr. Kilroy's] relative incomes and assets."

Also filed on September 11, 1996, by Ms. Cagle, was an order to show cause re child support and attorney's fees. The order to show cause sought to increase the amount of monthly support from $2,750 to that provided for by the child support guidelines. (Fam.Code, § 4050 et seq.) Further, the order to show cause sought an award of reasonable attorney fees. In support of the order to show cause, Ms. Cagle submitted a declaration which stated the following: she and Mr. Kilroy had never been married; Mr. Kilroy did not visit with the minor; she believed Mr. Kilroy had the resources to pay more for child support; she was unemployed and now married with two sons in addition to the minor; in July 1993, the minor was diagnosed with attention deficit disorder; the cost of the testing and diagnosis was $2,000; because of the attention deficit disorder, the minor was required to take the drug "Ritalin" three times a day at a cost of $1 per dose; because the minor had "poor eyesight," he needed to have an eye examination "every six months at a cost of $130 per exam"; the cost of eyeglasses for the minor was $300 per year; the minor was required to attend a summer school and camp with a total cost of $2,000; the minor was required to see a psychologist "approximately once a week" at a cost of $100 per hour; the school the minor attended which specialized in attention deficit disorder cost $10,175 per year; and the minor also received the assistance of a tutor which cost an additional $150 per month. Finally, Ms. Cagle's declaration indicated she and the minor had been in an automobile accident and there had been costs incurred for medical treatment. Her income and expense declaration indicated her monthly expenses totaled $7,540 while her income was the $2,750 monthly child support paid by Mr. Kilroy.

On October 3, 1996, Mr. Kilroy filed a motion to quash the order to show cause. The evidence indicated Ms. Cagle and the minor were residents of Georgia. By contrast, Mr. Kilroy was a California resident. Mr. Kilroy argued that California did not have subject matter jurisdiction because of the provisions of the Full Faith and Credit for Child Support Orders Act codified in 28 United States Code section 1738B. The respondent court denied the motion to quash. The respondent court concluded that California had jurisdiction over Mr. Kilroy and the Full Faith and Credit for Child Support Orders Act was an unconstitutional violation of the Tenth Amendment of the United States Constitution. Mr. Kilroy then filed the present prohibition petition. We issued our alternative writ of prohibition.

III. DISCUSSION

A. Summary of Holding and Standard of Statutory Review

We now determine for the following reasons that California courts at present have no jurisdiction to modify the Forsyth County Georgia support order. We conclude: under the terms of the Full Faith and Credit for Child Support Orders Act, California courts have no jurisdiction at present to modify the Georgia support order; the Georgia order is one that is subject to Full Faith and Credit for Child Support Orders Act; the Full Faith and Credit for Child Support Orders Act is not violative of the holding of United States v. Lopez (1995) 514 U.S. 549, 557-564, 115 S.Ct. 1624, 1629-1632, 131 L.Ed.2d 626, 636-641; and the requirements imposed by the Full Faith and Credit for Child Support Orders Act is not violative in the present case of the Tenth Amendment of the United States Constitution.

In terms of the application of 28 United States Code section 1738B to the present case, we are presented with an issue of statutory interpretation. Because we are applying a federal statute, we follow rules of statutory construction enunciated by the United States Supreme Court. In Kaiser Aluminum & Chemical Corp. v. Bonjorno (1990) 494 U.S. 827, 835, 110 S.Ct. 1570, 1575-1576, 108 L.Ed.2d 842, quoting from Consumer Product Safety Comm'n v. GTE Sylvania (1980) 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766, the United States Supreme Court held: "The starting point for interpretation of a statute 'is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.' " The United States Supreme Court has noted that "the statutory language controls its construction" (Ford Motor Credit Co. v. Cenance (1981) 452 U.S. 155, 158, fn. 3, 101 S.Ct. 2239, 2241, fn. 3, 68 L.Ed.2d 744) and " '[t]here is, of course, no more persuasive evidence of the purpose of a statute than the words by which the [L]egislature undertook to give expression to its wishes.' " (Griffin v. Oceanic Contractors, Inc. (1982) 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973.) In interpreting a statute, the United States Supreme Court has noted: " 'In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' [Citations.] Our objective in a case such as this is to ascertain the congressional intent and give effect to the legislative will." (Philbrook v. Glodgett (1975) 421 U.S. 707, 713, 95 S.Ct. 1893 1898, 44 L.Ed.2d 525.) On another occasion, the court stated, "We do not, however, construe statutory phrases in isolation; we read statutes as a whole." (United States v. Morton (1984) 467 U.S. 822, 828, 104 S.Ct. 2769, 2773, 81 L.Ed.2d 680, fn. omitted.) Further, in interpreting a statute, the Supreme Court has emphasized the importance of avoiding: "absurd results" (United States v. Turkette (1...