Schlecht v. Schlecht

• Decision Date: 08 May 1978
• Docket Number: No. 10675.,10675.
• Citation: 387 A.2d 575
• Parties: Virginia Norton SCHLECHT, Appellant, v. Richard William SCHLECHT, Appellee.
• Court: D.C. Court of Appeals

Page 575

387 A.2d 575

Virginia Norton SCHLECHT, Appellant, v. Richard William SCHLECHT, Appellee.

No. 10675.

District of Columbia Court of Appeals.

Submitted May 19, 1977.

Decided May 8, 1978.

John R. Risher, Jr., Corp. Counsel, Louis P. Robbins, Principal Deputy Corp. Counsel, Richard W. Barton, Deputy Corp. Counsel, and Leo N. Gorman, Asst. Corp. Counsel at the time the brief was filed, Washington, D.C., were on the brief for appellant. S. Perry Jones, Asst. Corp. Counsel, Washington, D.C., also entered an appearance for appellant.

John W. Karr, Washington, D.C., for appellee.

Before KERN and HARRIS, Associate Judges, and PAIR, Associate Judge, Retired.

KERN, Associate Judge:

This appeal presents for our determination the propriety of the trial court's refusal on jurisdictional grounds to entertain a petition for support first filed by appellant (the wife) in her place of residence, Maryland, and then certified and transmitted in accordance with the provisions of the Uniform Reciprocal Enforcement of Support Act (URESA)¹ to the Family Division of the Superior Court of the District of Columbia — the place of residence of appellee (the husband).

The parties to this appeal were divorced in Colorado in 1971. The Colorado court awarded custody of the two children to the wife and ordered the husband to pay each month to the wife both alimony and child support.² Each of the parties subsequently took up residence, separately, in Maryland. The wife then filed a petition in the Circuit Court of Anne Arundel County for the "Adoption of a Foreign Decree and Enforcement Thereof," viz., the Colorado decree ordering the husband to pay alimony and child support. The Maryland court, after a hearing at which attorneys for both parties appeared, issued on June 8, 1972, a Memorandum Opinion and Decree which "adopted" the Colorado court's order and provided that commencing in July 1972, the husband's alimony and support payments should be made "through the [court's] Domestic Relations Division."³ The husband later moved from Maryland to the District.

In October 1974, the wife filed in the same Maryland court a so-called URESA petition under Md.Ann.Code, art. 89C.⁴ She alleged in her petition, among other things, that the husband has refused to make his child support and alimony payments since on or before January 1, 1974, and was $5,354 in arrears, and petitioned that the husband should henceforth pay her a total of $600 a month in alimony and child support.⁵ The Maryland court, in accordance with the provisions of URESA, certified "that . . . the respondent [husband] should be compelled to answer such petition and be dealt with according to law," and transmitted to the Superior Court of the District of Columbia the wife's petition and supporting papers, including its 1972 Opinion and Decree which had "adopted" the 1971 Colorado decree directing the husband to pay the wife alimony and support for their children.

The trial court here concluded in an opinion entered in 1976 that it was "without jurisdiction either to determine arrears or to enter judgment for any sums which petitioner [the wife] claims to be due [from the husband] under the Maryland court's order of June 8, 1972." The court, citing Gamble v. Gamble, D.C.App., 258 A.2d 261 (1969), opined that the Maryland court order of 1972 upon which the wife's URESA petition was based "is not entitled to full faith and credit because under the law of Maryland its order is subject to a retroactive modification or cancellation and therefore is not a final decree."⁶ The court went on to order the husband to pay $400 per month for the support of the two children.

The wife on appeal challenges the trial court's refusal to entertain her URESA petition as it sought to enforce the husband's duty to support her and to collect arrearages in his payment of alimony and child support. She also contends that upon the evidence adduced at the hearing concerning the children's needs and the husband's ability to pay child support, the payment ordered by the trial court, viz., $150 and $250 per month to the older and younger child, respectively, was insufficient. We reject the wife's challenge to the sufficiency of the amount the husband was ordered to pay monthly for the support of their children; the record in our view supports such award.

We turn now to the issue whether the trial court was correct in concluding upon the strength of Gamble that it lacked jurisdiction even to entertain the wife's URESA petition as it sought alimony from him and amounts he had allegedly failed in the past to pay for support of her and the children. We are of the view that Gamble is not applicable to the instant case. There, the plaintiff sought to obtain in the District full faith and credit for a prior Maryland judgment directing payment of alimony and child support. The action was not brought under URESA and the Maryland judgment was the only basis for such action. We reasoned that since by the law of Maryland its courts could at any time modify or cancel, even retroactively, orders of alimony and support, such an order had a "potentially fluid character" thereby rendering it unenforcible in this jurisdiction under the full faith and credit clause of the Constitution.

Here, in contrast, we deal with a URESA petition which Congress has deemed a remedy for obtaining support and alimony wholly separate from and additional to any other remedies⁷ a wife may have to recover alimony and support. D.C.Code 1973, § 30-303. Indeed, the basis for a URESA petition is not a prior judgment, as was the case in Gamble, but rather the existence of a duty to support on the part of the respondent.⁸

The trial court appeared to advance an alternate ground for its refusal to entertain the wife's URESA petition. As we read the trial court's opinion, it reasoned that the 1972 Maryland decree merely "adopted" the 1971 Colorado decree ordering the husband to pay the wife alimony and child support. The court went back to that 1971 decree and noted that it had not been entered incident to a divorce because there were two separate and distinct orders entered by the Colorado court. The first, entered in August 1971, ordered the divorce of the parties; and the second, entered in December 1971, denominated a "permanent decree," ordered the husband to make monthly child support and alimony payments to the wife. The result, in the trial court's view, was that the parties were divorced by the Colorado court before it decreed a settlement of their joint property rights and obligations. Hence, from August 1971, the court apparently reasoned, the parties were no longer married and the husband accordingly had no obligation at any time from August 1971 to the date of the URESA petition in 1974 to support his ex-wife.

With all deference, we believe the trial court misread both Colorado law and the provisions of URESA. The Colorado court's dissolution of the parties' marriage in one decree, i. e., August 1971, and its disposition of their marital interests in a subsequent decree, i. e., December 1971, is a well-established procedure under Colorado law. Alimony awarded in a decree subsequent to the divorce decree is deemed by the Colorado courts to have been entered incident to the divorce. Alexander v. Alexander, 156 Colo. 85, 396 P.2d 966 (1964); Rodgers v. Rodgers, 137 Colo. 74, 323 P.2d 892 (1958). In addition, URESA expressly defines "a duty of support" to include "any duty of support imposed . . . by any court order . . . whether incidental to a proceeding for divorce . . . or otherwise." D.C.Code 1973, § 30-302(e)(1) (emphasis added).

In sum, we conclude the court should have entertained the wife's URESA petition because Gamble is not applicable and the husband had a duty to support the wife as that term is defined in URESA.

We turn now to a determination of the responsibility of the trial court on remand. The wife, since noting this appeal, has remarried. She does not urge that she is entitled to any alimony from the husband from the date of her remarriage. In addition, one of the two children has, since the hearing before the trial court, reached 21 years of age and the wife concedes that the amount of child support presently required of the husband under the terms of the trial court's order, viz., $400 monthly, is "reasonably approximate of the [remaining] child's needs." (Reply Brief at 2.)⁹ Rather, the wife urges that on remand the trial court should determine (1) the amount of alimony to which she was entitled pursuant to the husband's duty to support her from (a) the date she filed her URESA petition in Maryland to (b) the date of her remarriage, and (2) the amount of arrearage, if any, in the husband's payments of alimony and child support at the time she filed her URESA petition.¹⁰

URESA fixes the responsibility of the court of the "responding state," the District of Columbia here, to determine the amount of the obligor's duty to support and, accordingly, the trial court on remand should determine the amount the husband should have paid the wife from the date she filed her URESA petition to the time of her remarriage.

As to any arrearage in the husband's alimony and child support payments at the time the wife filed her URESA petition, we note that the 1968 Model Act for URESA expressly provides that a duty of support "includes the duty to pay arrearages." See 9 U.L.A. § 2(b). The District of Columbia has never adopted this 1968 revision, however, and we find nothing in this jurisdiction's definition of the "duty of support" encompassing arrearages.¹¹ Accordingly, we are unable to extend the reach of URESA until the legislature takes action.

To summarize, we conclude that the trial court's order directing the husband to pay child support in the amount of $400 per month is correct upon the record before us and must stand. We further conclude that the court did have jurisdiction to entertain the wife's URESA...