State ex rel. George v. Bray

• Decision Date: 18 August 1998
• Docket Number: No. COA97-314.,COA97-314.
• Citation: 130 NC App. 552,503 S.E.2d 686
• Parties: STATE of North Carolina, By and Through the ALBEMARLE CHILD SUPPORT ENFORCEMENT AGENCY, ex rel. Sheryl Ann GEORGE, mother and natural guardian of Tiffany Nicole Bray, minor child, Plaintiff, v. Donald Jeffrey BRAY, Defendant.
• Court: North Carolina Court of Appeals

503 S.E.2d 686

130 NC App. 552

STATE of North Carolina, By and Through the ALBEMARLE CHILD SUPPORT ENFORCEMENT AGENCY, ex rel. Sheryl Ann GEORGE, mother and natural guardian of Tiffany Nicole Bray, minor child, Plaintiff, v. Donald Jeffrey BRAY, Defendant.

No. COA97-314.

Court of Appeals of North Carolina.

August 18, 1998.

Attorney General Michael F. Easley by Gerald K. Robbins, Assistant Attorney General, for plaintiff-appellant.

Gray & Lloyd, L.L.P. by Benita A. Lloyd, Kill Devil Hills, for defendant-appellee.

LEWIS, Judge.

The Albemarle Child Support Enforcement Agency brought this action on behalf of Sheryl George, a resident of Indiana, to register and enforce an Indiana child support order in North Carolina. Plaintiff sought to enforce defendant's ongoing support obligation of $40 per week and to recover arrears of $22,560.

Plaintiff Sheryl George and defendant Donald Bray were married in 1975 and had one child, Tiffany Nicole Bray, on 12 January 1979. The parties separated in 1980 and the Marion County, Indiana Circuit Court entered a Decree of Dissolution of Marriage in 1981. The Decree of Dissolution incorporated by reference a separation agreement which included provisions for child support.

After the divorce Mrs. George married Brian Holmes. At her request, defendant executed a consent form in 1983 which allowed Mr. Holmes to adopt Tiffany. The adoption was never finalized. Defendant assumed that the adoption had been finalized, however, and thus stopped making child support payments a short time after he signed the consent form.

When Defendant saw Tiffany in 1985 and in 1989, she was using "Holmes" as her family name. In 1991, defendant sent money to Mrs. George because she was having financial trouble and was in the process of divorcing Mr. Holmes. In August of 1993, Tiffany began living with defendant and attending North Carolina schools. It was at that time that defendant first learned his daughter had not been adopted by Mr. Holmes. Mrs. George wrote a note to the Gates County school board indicating that, although Tiffany was using the name Holmes, the adoption had never been finalized. Tiffany lived with defendant, and defendant supported her, from August 1993 until August 1995.

On 1 March 1996, plaintiff initiated the present action. Plaintiff sought enforcement of defendant's ongoing child support obligation of $40 per week and of arrears of $22,560, dating as far back as 1981. This arrearage amount includes a credit of $600 for direct payments made by defendant to Mrs. George and a credit of $4,160 which represents the amount of child support that accrued during the two years Tiffany was living with the defendant. Defendant was properly served and timely filed a Petition to Vacate Registration of Foreign Support Order and Other Relief. Tiffany was seventeen years old when the present action was brought.

On 13 November 1996, the Gates County District Court entered a confirmation order. The court ordered defendant to pay the sum of $40 per week into the office of the Clerk of Superior Court for Gates County beginning 13 September 1996 on his current child support obligation and to continue paying until the minor child turned eighteen, or as otherwise provided in the Indiana Decree. In addition, the court reduced the amount of arrears owed by defendant from $22,560 to $2,280, based on equitable and statute of limitations defenses raised by defendant.

On appeal, plaintiff argues that (1) the trial court's confirmation order includes unauthorized modifications of both ongoing and past-due support, (2) the trial court erred as a matter of law in reducing defendant's child support obligation based on certain equitable defenses not recognized by North Carolina law and (3) the trial court erred in its application of the statute of limitations. We reverse and remand. There are two statutes that govern this action. The first is the Uniform Interstate Family Support Act (UIFSA), which was drafted by The National Conference of Commissioners of Uniform State Laws and approved by the American Bar Association. Under federal law, all states were required to adopt UIFSA in its entirety by 1 January 1998 or risk losing federal Title IV-D aid for child support services. 42 U.S.C. § 666(f) (1998). North Carolina codified UIFSA in Chapter 52C of the General Statutes, which became effective 1 January 1996.

The second statute is a federal law, the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B (1994). FFCCSOA was first adopted on 20 October 1994 and was later revised effective 22 August 1996. Although the 1994 version of FFCCSOA applies to this action, we believe that the result would be the same under the current version of FFCCSOA.

UIFSA is state law designed to facilitate the collection of child support in interstate cases. FFCCSOA is a federal law with the purpose of ensuring that child support orders, although modifiable in some circumstances by the courts of the issuing state, receive full faith and credit in sister states. For the most part, these laws are complementary or duplicative and not contradictory.

I.

Plaintiff first argues that the trial court erred by modifying defendant's ongoing child support obligation.

Modification of a valid order by a responding state is allowable only if the court has jurisdiction to enter the order and (1) all parties have consented to the jurisdiction of the responding state to modify the order or (2) neither the child nor any of the parties remain in the issuing state. See 28 U.S.C. § 1738B(b) (1994). In this case, Mrs. George remains in the issuing state and she has not consented to have North Carolina exercise jurisdiction to modify the order. Therefore, Indiana retains continuing, exclusive jurisdiction over the action, see 28 U.S.C. § 1738B(d) (1994), and North Carolina does not have jurisdiction to modify the order. See also Hinton v. Hinton, 128 N.C.App. 637, 640, 496 S.E.2d 409, 411 (1998)

.

Modification is defined by FFCCSOA as "a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order." 28 U.S.C. § 1738B(b) (1994). Plaintiff does not explain in what way it contends that the North Carolina order constitutes a modification of the Indiana order. A comparison of the two orders, however, illuminates the inconsistency between the two.

The parties' separation agreement, incorporated by the Indiana Decree, provides that defendant is to pay $40 per week in child support to the plaintiff through the clerk of court. This subsection does not state when the support obligation is to end. However, under Indiana law, a parent's duty of support continues until the child reaches the age of twenty-one. Ind.Code Ann. § 31-6-6.1-13 (1983), amended by Ind.Code Ann. § 31-14-11-18 (1997).

The decretal portion of the trial court's confirmation order relevant to ongoing support provides:

The [defendant] shall pay the sum of $40.00 per week into the office of the Clerk of Superior Court for Gates County, North Carolina, beginning September 13, 1996, on his current child support obligation pursuant to the Indiana Decree of Dissolution of Marriage of March 9, 1981, and that said current child support [sic] continue until the minor child turns eighteen (18) on January 12, 1997, or as otherwise provided by the Indiana Decree of Dissolution of Marriage.

Under Indiana law, defendant's child support obligation continues until Tiffany reaches the age of twenty-one. Ind.Code Ann. § 31-6-6.1-13 (1983), amended by Ind.Code Ann. § 31-14-11-18 (1997). The North Carolina order provides that his obligation shall continue until she reaches the age of eighteen or "as otherwise provided by the Indiana Decree." Defendant argues that the trial court did not modify his obligation because the phrase "or as otherwise provided by the Indiana Decree" refers the parties back to the original order. While this argument is technically accurate, we believe that the trial court's order is insufficiently clear to put defendant on notice of the duration of his support obligation under the order. Thus, while the trial court's order in this case is not a modification, it must be amended to set out the duration of defendant's obligation clearly and unambiguously.

II.

Plaintiff next argues that the trial court erred by reducing the arrears due under the Indiana Decree based on defendant's equitable defenses of de facto adoption, equitable estoppel, laches, waiver and unclean hands. Plaintiff argues that such a reduction is a modification for which the trial court did not have jurisdiction, as discussed above, and an impermissible retroactive modification of arrears. See U.S.C. § 666(a)(9); but see N.C. Gen.Stat. § 50-13.10 (1995). Defendant argues that the trial court's actions were authorized under UIFSA, specifically General Statutes sections 52C-3-305 and 52C-6-607. We need not reach plaintiff's arguments because we hold that UIFSA does not permit an obligor to avoid enforcement of an out-of-state child support order by asserting equitable defenses under the law of the responding state. We address defendant's arguments under section 52C-6-607 first.

A party contesting the validity, enforcement or registration of a foreign support order must prove one of the seven defenses enumerated in section 52C-6-607(a):

(1) The issuing tribunal lacked personal jurisdiction over the contesting party;

(2) The order was obtained by fraud;

(3) The order has been vacated, suspended, or modified by a later order;

(4) The issuing tribunal has stayed the order pending appeal;

(5) There is a defense under the law of this State to the remedy sought;

(6) Full or partial payment has been made; or

(7) The statute of limitations under G.S. 52C-6-604 precludes enforcement of some or all of the arrears.

N.C. Gen.Stat. § 52C-6-607(a) (1995). This list of...