Lacarrubba v. Lacarrubba

• Decision Date: 16 February 2010
• Docket Number: No. COA09-612.,COA09-612.
• Citation: 688 S.E.2d 769
• Parties: Mona J. LACARRUBBA, Plaintiff, v. Michael LACARRUBBA, Defendant.
• Court: North Carolina Court of Appeals

688 S.E.2d 769

Mona J. LACARRUBBA, Plaintiff, v. Michael LACARRUBBA, Defendant.

No. COA09-612.

Court of Appeals of North Carolina.

February 16, 2010.

Appeal by Plaintiff from order entered 13 November 2008 by Judge Paul M. Quinn in Carteret County District Court. Heard in the Court of Appeals 17 November 2009.

Attorney General Roy Cooper, by Assistant Attorney General Lisa Bradley Dawson, for the State.

Michael Lincoln, P.A., for Defendant-Appellee.

BEASLEY, Judge.

Plaintiff (State of North Carolina, on behalf of Mona Lacarrubba) appeals from orders holding that the trial court had jurisdiction to modify a foreign child support order, and modifying Defendant's (Michael Lacarrubba) child support obligations under the order. We reverse.

The parties were married in 1984 and divorced in 1995. Two children were born of the marriage: Nicole, born 31 May 1985; and Marissa, born 17 March 1990. On 21 April 1995 a divorce decree was entered in Suffolk County, New York, obligating Defendant to pay $1040 per month in child support. At the time the divorce decree was entered, the parties lived in New York. In 1999 Plaintiff moved to Florida with both children, and registered the support judgment in Lee County, Florida. In 2001, the parties' older child, Nicole, moved from Florida to New York and began living with Defendant. Thereafter, Defendant unilaterally reduced his child support payments by half, paying only $520 a month.

In 2006 Defendant and Nicole moved to North Carolina. On 26 September 2007 Plaintiff filed a Notice of Registration of Foreign Support Order, specifically registering the order "for enforcement only," and seeking more than $30,000 in past due child support payments. The order was registered in Carteret County North Carolina on 26 September 2007. On 26 October 2007 Defendant filed a request for a hearing to contest the validity and enforcement of the order. However, on 6 March 2008 Defendant consented to entry of an order confirming registration of the child support order. The order stated that the "issue of the arrears owed under the terms of the child support order is held open and is to be addressed at a later time."

On 24 April 2008 Defendant filed a Motion to Contest and Reduce Arrearages. Defendant's motion conceded that the order was registered in Lee County, Florida, but asserted that North Carolina and Florida had "concurrent jurisdiction" to modify the amount of arrearages. Following a hearing conducted on 15 May 2008 Judge Paul M. Quinn entered an order on 13 November 2008, modifying Defendant's child support obligation and reducing the amount of arrearages he owed. Also on 13 November 2008, Judge Peter Mack entered an order requiring Defendant to pay specified monthly amounts in child support and arrearages, and finding that the trial court had jurisdiction to modify the child support order. From these orders, Plaintiff appeals.

Plaintiff argues that the trial court lacked authority to modify the foreign order for child support. We agree, and find this dispositive of Plaintiff's appeal.

"Because of the complexity and multiplicity of pertinent state and federal child support legislation, a summary of the law regarding review of multi-state child support orders is critical in order to define the proper analytical framework for cases such as this one." New Hanover Cty. ex rel. Mannthey v. Kilbourne, 157 N.C.App. 239, 241, 578 S.E.2d 610, 612 (2003). Kilbourne noted that:

[f]rom 1951 until 1996, URESA provided the procedural mechanism in North Carolina for establishing, modifying, and enforcing child support across state lines. Under URESA, a state was not bound to adopt a child support order entered in another state. Instead, "a state had jurisdiction to establish, vacate, or modify an obligor's support obligation even when that obligation had been created in another jurisdiction." . . . In 1986, in an effort to improve the collection of child support, Congress amended Title IV-D of the Social Security Act ("the Bradley amendment").

(quoting Welsher v. Rager, 127 N.C.App. 521, 524, 491 S.E.2d 661, 663 (1997)).

As a general rule, the Uniform Interstate Family Support Act (UIFSA) "requires that a support order be interpreted according to the law of the state in which it is issued." Welsher, 127 N.C.App. at 524, 491 S.E.2d at 663.

Together, UIFSA and the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B (2007), have severely limited the circumstances under which a state may modify a child support order issued by another state. FFCCSOA provides in pertinent part that:

(a) The appropriate authorities of each State —

(1) shall enforce according to its terms a child support order made consistently with this section by a court of another State; and

(2) shall not seek or make a modification of such an order except in accordance with subsections (e), (f), and (i).

. . . .

(e) A court of a State may modify a child support order issued by a court of another State 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 (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.

. . . .

(i) If there is no individual contestant or child residing in the issuing State, the party or support enforcement agency seeking to modify, or to modify and enforce, 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.

28 U.S.C. § 1738B(a), (e), and (i) (emphasis added).

Further:

"Under the supremacy clause of the United States Constitution, the provisions of FFCCSOA are binding on all states and supersede any inconsistent provisions of state law, including any inconsistent provisions of uniform state laws[.] . . . Modification of a valid order is permitted only when: (1) all parties have consented to the jurisdiction of the forum state to modify the order; or (2) neither the child nor any of the parties remains in the issuing state and the forum state has personal jurisdiction over the parties."

State ex rel. Harnes v. Lawrence, 140 N.C.App. 707, 710, 538 S.E.2d 223, 226 (2000) (quoting Kelly v. Otte, 123 N.C.App. 585, 589, 474 S.E.2d 131, 134 (1996); and citing Welsher, 127 N.C.App. at 528, 491 S.E.2d at 665) (emphasis added). The relevant provisions of N.C. Gen.Stat. § Chapter 52C echo the limitations expressed in FFCCSOA. The official comment to these statutes further articulates the legislature's intent to restrict the authority of a state court to modify either ongoing child support payments or arrearages due under a foreign child support order. In Tepper v. Hoch, 140 N.C.App. 354, 359, n. 1, 536 S.E.2d 654, 658, n. 1 (2000), this Court noted that:

The official comment to [§ 52C-6-608] provides the confirmation "validates both the terms of the order and the asserted arrearages." . . . This comment correctly reflects the intent of the legislature[.] . . . 1. Although the commentary is not binding authority, it must be given "substantial weight" in this Court's "efforts to comprehend legislative intent."

(quoting State v. Hosey, 318 N.C. 330, 337-38, n. 2, 348 S.E.2d 805, 810, n. 2 (1986)). In this regard, we note that the the Official Comment to N.C. Gen.Stat. § 52C-2-205 (2009) states that

the issuing tribunal retains continuing, exclusive jurisdiction over a child support order, . . . [a]s long as one of the individual parties or the child continues to reside in the issuing State[,] . . . which in practical terms means that it may modify its order. . . . [I]f all the relevant persons . . . have permanently left the issuing State, the issuing State no longer has . . . jurisdiction to modify. . . . [but] the original order of the issuing tribunal remains valid and enforceable. . . . The original order remains in effect until it is properly modified in accordance with the narrow terms of [N.C. Gen.Stat. § 52C-6-] 609-612[.]

N.C. Gen.Stat. § 52C-6-603(c) (2009), expressly states:

(c) Except as otherwise provided in this Article, a tribunal of this State shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction.

The Official Comment to § 52C-6-603 notes that:

. . . An interstate support order is to be enforced . . . as if it had been issued by a tribunal of the registering State, although it remains an order of the issuing State. Conceptually, the responding State is enforcing the order of another State, not its own order.

Subsection (c) mandates enforcement of the registered order. . . . This is at sharp variance with the common interpretation of [former] RURESA § 40, which . . . was generally construed as converting the foreign order into an order of the registering State. Once the registering court concluded that it was enforcing its own order, the next logical step was to modify the order as the court deemed appropriate. . . . UIFSA mandates an end to this process, except as modification is authorized in this article.

N.C. Gen.Stat. § 52C-6-611 (2009) provides in relevant part that:

(a) After a child support order issued in another state has been registered in this State, . . . this State may modify that order only if G.S. 52C-6-613 does not apply and after notice and hearing it finds that: (1) The following requirements are met:

a. The child, the individual obligee, and the obligor do not reside in the issuing state;

b. A petitioner who is a nonresident of this State seeks modification; and

c. The respondent is subject to the personal jurisdiction of the tribunal of this State[.]

The Official Comment...