Marriage of Lurie, In re

• Court: California Court of Appeals
• Writing for the Court: GODOY PEREZ; GRIGNON, Acting P.J., and ARMSTRONG
• Citation: Marriage of Lurie, In re, 39 Cal.Rptr.2d 835, 33 Cal.App.4th 658 (Cal. App. 1995)
• Decision Date: 28 February 1995
• Docket Number: No. B079163,B079163
• Parties: , 63 USLW 2656 In re the MARRIAGE OF Barbara and Larry LURIE. Barbara Lurie MARINO, Petitioner and Appellant, v. Larry LURIE, Respondent and Respondent.

Page 835

39 Cal.Rptr.2d 835

33 Cal.App.4th 658, 63 USLW 2656

In re the MARRIAGE OF Barbara and Larry LURIE Barbara Lurie MARINO, Petitioner and Appellant, v. Larry LURIE, Respondent and Respondent.

No. B079163.

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

Feb. 28, 1995.

As Modified March 28, 1995.

Trope and Trope and Thomas Paine Dunlap, for appellant.

Avery M. Cooper, for respondent.

GODOY PEREZ, Associate Justice.

Appellant Barbara Lurie Marino sought to enforce and modify a New York child support order in California pursuant to the Uniform Reciprocal Enforcement of Support Act, Family Code section 4800 et seq. Under New York law, parents must support their children until the children turn 21, while in California the obligation ends at age 18. The family law court ruled that California's age of majority applied and declined to increase support for appellant's 20-year-old son. Appellant challenges that order, along with the denial of her request for attorney's fees. For the reasons set forth below, we affirm the order as to child support but reverse and remand for a determination as to the issue of attorney's fees.

FACTS AND PROCEDURAL HISTORY

Barbara and Larry Lurie were married October 23, 1970, in New York. They had two sons--Eric born in May 1972 and Aaron born in November 1978. ¹ On November 28, 1984, a New York state court entered a judgment dissolving the marriage. The judgment arose from and incorporated a wide-ranging stipulation between Larry and Barbara concerning custody of the children, visitation, disposition of property and other matters. Barbara was granted sole custody of Eric and Aaron.

Relevant here is that part of the stipulation by which Larry agreed to pay $375 per child each month as child support "until each child is 21, emancipated, or sooner dies." Under New York Family Court Act section 413, a parent is obliged to support a child until he or she turns 21 or is emancipated. While the stipulation was incorporated into the divorce judgment, it did not merge with it and would "survive the effect of" the judgment.

Larry was laid-off from his job in July 1985 and obtained a New York court-ordered suspension of his child support obligations until he got another job. He moved to California in November 1985 and became employed in Torrance sometime in 1986. Barbara moved to Pennsylvania and remarried.

On September 9, 1992, Barbara registered her New York divorce judgment in the Los Angeles County Superior Court pursuant to the provisions of the Revised Uniform Reciprocal Enforcement Of Support Act Of 1968, Code of Civil Procedure former section 1650 et seq. ("RURESA"). ² As part of her registration statement, Barbara declared that Larry's child support payments were not in arrears.

On December 9, 1992, Barbara filed an order to show cause seeking to modify Larry's child support obligations. She sought: reimbursement of certain medical expenses for Aaron, who had cystic fibrosis and diabetes; asked that Larry keep both children covered under his medical insurance policy; that he pay for all future uninsured medical expenses; pay the college expenses of both children; and pay an increased amount of child support for both children.

In response, Larry agreed to an increase in Aaron's support payments. He also agreed to abide by the divorce judgment and his incorporated stipulation to pay college expenses as he was able. In accordance with California law, however, he rejected any obligation to pay child support beyond the age of 18. (§§ 3900-3901, 6500.) On March 24, 1993, Barbara filed an order to show cause seeking child support arrearages from Larry. The basis of this request was her allegation that Larry was working for six of the eleven months that his child support obligations were suspended based on his 1985 job layoff. As part of this application, Barbara also sought attorney's fees and costs.

On June 15, 1993, the court increased Aaron's child support to $949 each month, found that Larry was able to pay certain of Eric's college expenses and ordered him to do so and also ordered Larry to reimburse Barbara for certain medical expenses which were not covered by insurance. The court took under submission the issues of attorney's fees and whether the duration of Larry's child support obligations should be determined by New York or California law. On July 30, 1993, the court ruled that under URESA's choice of law principles, it was obligated to apply California law and terminate child support when each child turned 18. As a result, no increase in support was permitted for the 20-year-old Eric. The court also held that even though it would like to award attorney's fees to Barbara, such an award was prohibited by URESA. ³

Barbara contends on appeal that the federal constitutional principle of full faith and credit required adherence to New York law under the New York judgment, supplanting California's earlier age of majority, and thus requiring the family law court to at least exercise its discretion and determine whether Eric was entitled to any increase in his child support. She also argues that while attorney's fees were not allowed in connection with her initial registration of the New York judgment, they are allowed by California law in all subsequent proceedings to enforce or modify the judgment.

DISCUSSION

1. URESA's Choice of Law Principles Require Application Of California's Age of Majority

The purposes of URESA "are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto." (§ 4801.) URESA itself "creates no duties of family support but leaves this to the legislatures of the several states. The Act is concerned solely with the enforcement of the already existing duties when the person to whom a duty is owed is in one state and the person owing the duty is in another state...." (9B West's U.Laws Ann. (1987) RURESA, prefatory note, p. 382.) URESA's scope is therefore limited to determining entitlement to support already established and enforcing such duties of support. (In re Marriage of Angoco & San Nicolas (1994) 27 Cal.App.4th 1527, 1533, 33 Cal.Rptr.2d 305.) ⁴

A duty of support can be one imposed or imposable either by law or by order, decree or judgment of a court in another state with a substantially similar reciprocal law. (§ 4802, subds. (a), (b).) This includes duties existing under statutory law even if it has never been litigated in court or reduced to an order or judgment but is instead litigated for the first time under URESA. (Scott v. Superior Court, supra, 156 Cal.App.3d at p. 584, 202 Cal.Rptr. 920.)

URESA may be enforced both criminally (§§ 4810-4811) or civilly. Civil enforcement may be obtained by two methods. The first is enforcement by an action, which is commenced with the filing of a complaint in the state where the person owed support (the obligee) lives. (§ 4824.) That state (the initiating state) then determines whether the obligee is owed a duty of support. If so, the finding is certified to the responding state, where the duty is sought to be enforced. (§ 4827.) The obligor is then served with the complaint and the court of the responding state will determine whether a duty of support is owed and if so, how much. The responding court may order the obligor to furnish or reimburse support and subject his or her property to the order. (§§ 4831-4833, 4836.)

The second method of civil enforcement applies only if the duty of support is based on a foreign support order. In that case, the other state's order may be registered in a California superior court "in the manner, with the effect, and for the purposes provided in this article." (§§ 4848-4849.) The obligor must send certified copies of the foreign support order and other supporting information to the court clerk. When these are received, the clerk is to file them in a registry of foreign support orders. That filing constitutes registration of the foreign support order. (§ 4852.) ⁵

Once registered, the 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." (§ 4853, subd. (a).) The obligor has 20 days after notice of registration has been served to file a noticed motion requesting the court to vacate the registration or for other relief. No joinder or coordination of actions or cross-complaints are allowed and the claims or defenses are strictly limited to the obligor's identity, the validity of the underlying foreign support order, or the accuracy of the obligee's statement of unpaid support. If the obligor does not file such a motion within 20 days, the registered foreign support order is confirmed. (§ 4853, subd. (b).) The purpose of this alternate registration procedure is to provide a more efficient method of enforcing foreign support orders. (In re Marriage of Aron (1990) 224 Cal.App.3d 1086, 1090, 274 Cal.Rptr. 357.)

Larry did not seek to vacate the registration order. Because only the order itself and not the statement of arrears is confirmed, he was free to contest any claimed arrears after the 20-day period elapsed. (In re Marriage of Aron, supra, 224 Cal.App.3d at p. 1091, 274 Cal.Rptr. 357.) Once the order is registered, the obligor and the obligee are both free to seek modification of the support order. As to the obligor, modification is considered one of the "normal defenses" to a support order permitted by section 4853, subdivision (a). (Id. at pp. 1090, 1091, 274 Cal.Rptr. 357, fn. 4; In re Marriage of Straeck (1984) 156 Cal.App.3d 617, 622, 203 Cal.Rptr. 69.)

URESA has it own choice of law provision, section 4820, which provides: "Duties of support applicable under this chapter are those imposed under the laws...