NEVAREZ v. NEVAREZ

• Decision Date: 03 June 1993
• Docket Number: No. 91-FM-878,91-FM-878
• Citation: 626 A.2d 867
• Parties: Michael R. NEVAREZ, Appellant, v. Rebecca M. NEVAREZ, Appellee.
• Court: D.C. Court of Appeals

626 A.2d 867

Michael R. NEVAREZ, Appellant, v. Rebecca M. NEVAREZ, Appellee.

No. 91-FM-878.

District of Columbia Court of Appeals.

Submitted April 8, 1993.

Decided June 3, 1993.

APPEAL FROM THE SUPERIOR COURT, ARTHUR L. BURNETT, SR., J.

Brian Booth, Portland, OR, filed a brief for appellant.

Leslie Fein and Patrick T. Hand, Washington, DC, filed a brief for appellee.

Before FERREN, SCHWELB and FARRELL, Associate Judges.

SCHWELB, Associate Judge:

Michael R. Nevarez (the father) appeals from an order of the trial court, dated July 19, 1991, substantially increasing his child support obligation over the amount required by an order issued in 1984 by the District Court of El Paso County, Texas (the Texas court). In a comprehensive opinion, see R.M.N. v. M.R.N., 119 Daily Wash.L.Rptr. 1985 (Super.Ct.D.C. 1991), the judge required the father to pay Rebecca M. Nevarez (the mother) $1,000 per month during the first year and $1,210 per month thereafter, in comparison to $450 per month as ordered by the Texas court. The judge also ordered the father to pay accumulated arrearages, as well as the mother'scounsel fees, litigation costs, and certain travel expenses. The father appealed to this court on numerous grounds, set forth in an eighty-page brief. We are not persuaded by any of the father's contentions. Accordingly, we affirm.

I.

Michael Nevarez and Rebecca Nevarez were married in 1972. Their first child was born during that year. The parties were divorced in Texas in 1974. In the divorce decree, the Texas court required the father to pay the mother $50 per month in child support.

In 1979, five years after the divorce, a second child was born to the couple. The father, after initially denying that the child was his, ultimately acknowledged paternity. In 1984, upon motion of the mother, the Texas court modified its decree. The court required the father to support the second child as well as the first and raised the father's monthly obligation to $212.50 per month per child, for a total of $425.

The father initially contemplated an appeal from the new order, but the parties resolved their differences. In return for the father's agreement not to appeal, the mother consented to a reduction in the amount which the father would be obliged to pay during the two months of the year when the children were to be with their father. She also agreed that the father would be permitted to claim the children as exemptions on his income tax return. These revisions were incorporated into an amended consent order. The basic amount which the father was required to pay each month during the part of each year when the children were to be with the mother was unaffected by the negotiated changes.

The mother and the two children continue to live in Texas; the father now resides in the District of Columbia.¹ By December 20, 1988, the father was substantially in arrears, and the mother registered the Texas order in the Superior Court pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), D.C.Code §§ 30-325, -326 (1988). The father interposed no objection to the registration and, by operation of law, the registered Texas order became enforceable as if it were an order of the Superior Court. Id. § 30-326(a).² In February 1989, the father's salary was attached to enforce his support obligations.

On June 13, 1990, the mother filed a motion in the Superior Court requesting an increase in the father's child support payments. She contended that the needs of the children, as well as the father's ability to pay,³ had substantially and materially changed since the 1984 modification of the Texas court's order. The mother asked the court to order the father to pay child support in the amount required by the District's Child Support Guideline. D.C.Code § 16-916.1 (1992). The father opposed the motion, contending that the Superior Court lacked jurisdiction to modify the Texas court's order, that Texas law should apply, and that modification of the Texas court's order would violate the Full Faith and Credit Clause of the Constitution. The father further claimed that he had accumulated substantial debts and expenses, in reliance on the Texas court's order, and that it would be unfair to increase his support obligation. Finally, the father disputed the mother's assertion that the needs of the children had increased.

Following a contested evidentiary hearing, the trial judge ruled, inter alia, that as a result of the registration of the Texas order in the District, the Superior Court had jurisdiction over the subject matter and personal jurisdiction over the father, a District of Columbia resident. The judge held that application of District of Columbia lawwas proper pursuant to URESA's choice of law provision, D.C.Code § 30-304 (1988).⁴ Rejecting the father's constitutional claims, the judge held that the Full Faith and Credit Clause does not apply to future child support obligations, because such obligations are subject to modification as circumstances change. Acknowledging that the father had accumulated substantial debts, the judge found that the father had accorded very low priority to his child support responsibilities, and had elected instead to accommodate his own personal desires and purported needs.⁵ The judge concluded, on the basis of the District's guideline and the father's gross annual salary of $57,054, that the father's obligation should be to pay child support in the amount of $1,176 per month. In light of the father's professed financial plight, however, the judge ordered that the father would be required to pay only $1,000 per month during the first year, but that this amount would be increased to $1,210 per month thereafter, to pick up accrued arrearages from the Texas order and to account, retroactively, for the amount due under District of Columbia law from the date he was first served with the motion for an increase. The judge also awarded the mother her costs, counsel fees and certain travel expenses. This appeal followed.

II.

On appeal, the father presents numerous issues, most of which were fully and correctly addressed in the trial judge's opinion; we deal with them summarily.⁶The father does, however, raise one question of first impression under the District's guideline. He contends that, in reasonable reliance upon the 1984 order of the Texas court (from which he agreed, for a consideration, not to appeal) he assumed obligations and made expenditures which significantly affected his financial condition. He maintains that it is therefore unfair to compel him to pay the amount ordered by the trial court.

The father relies in substantial part on Cooper v. Cooper, 472 A.2d 878 (D.C. 1984) (per curiam). In that case, the parties had negotiated a Separation and Property Settlement Agreement, which included provisions for spousal and child support. The court then entered a judgment of divorce which "ratified, confirmed and incorporated, but did not merge the Agreement." Id. at 879. The wife subsequently asked the court for an increase in the level of support. The trial judge framed the question presented as being whether "there has been a material change in the needs of the child or the ability of the parents to pay," and held that the wife had proved that such a change had in fact occurred. Id. This court reversed, holding that the judge had applied an incorrect standard. We stated that since the level of support had been negotiated as part of a separation agreement, the court was free to modify it only

if the party seeking modification shows (1) a change in circumstances which was unforeseen at the time the agreement was entered and (2) that the change is both substantial and material to the welfare and best interests of the children. . . . Presumably, at the time of a separation agreement the best interests of the children are a paramount consideration. If, thereafter, the best interests of the children are threatened in a material way by circumstances unforeseen at the time of the agreement it is reasonable for a court to entertain a request for modification of either custody or support provisions. . . . However, a change in the parents' financial circumstances alone cannot provide the basis for modifying a contract between the parties.

Id. at 880-81 (emphasis added; citations and internal quotation marks omitted).⁷

In addressing the father's argument based on Cooper, the trial judge raised the question whether that decision has been legislatively overruled by the subsequent enactment in 1987, three years after Cooper, of D.C.Code § 30-504(a) (1988). R.M.N., supra, 119 Daily Wash.L.Rptr. at 1990 n. 9. That section of the URESA statute, which is also discussed briefly innote 6, supra, provides that "[a]ny order requiring payment of an amount of child support, regardless of whether the amount of the child support was the subject of a voluntary agreement of the parties, may be modified upon a showing that there has been a substantial and material change in the needs of the child or the ability of the responsible relative to pay since the day on which the order was issued." (Emphasis added). We do not here question the Council's authority to change the standards announced in Cooper, for "the obligation of child support is, admittedly, statutory, so that the level of child support can always be modified to assure compliance with the statute." Hamel v. Hamel, 539 A.2d 195, 200 (D.C. 1988). We need not decide whether Cooper has been legislatively superseded, however, for the agreement on which the father relies is not one to which the logic of that decision extends or should extend.

Cooper was decided in the context of a comprehensive separation agreement which was negotiated in order to resolve, if possible with some finality, the numerous issues which inevitably arise upon the dissolution of a marriage. The agreement between the Coopers was intended to provide the definitive resolution of any...