State ex rel. Harnes v. Lawrence, No. COA99-1254.

• Decision Date: 05 December 2000
• Docket Number: No. COA99-1254.
• Citation: 140 NC App. 707,538 S.E.2d 223
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina on behalf of Barbara M. HARNES, Plaintiff-Appellant, v. Paul A. LAWRENCE, Defendant-Appellee.

538 S.E.2d 223

140 NC App. 707

STATE of North Carolina on behalf of Barbara M. HARNES, Plaintiff-Appellant, v. Paul A. LAWRENCE, Defendant-Appellee.

No. COA99-1254.

Court of Appeals of North Carolina.

December 5, 2000.

Attorney General Michael F. Easley, by Assistant Attorneys General Gerald K. Robbins, Kathleen U. Baldwin and Susana E. Honeywell, for plaintiff-appellant.

No brief filed for defendant-appellee.

McGEE, Judge.

This action arises out of plaintiff Barbara M. Harnes' attempt to enforce a New Jersey child support order. Plaintiff and defendant Paul A. Lawrence were married to each other on 17 September 1977 and their daughter was born 3 December 1979. The parties were divorced in Ocean County, New Jersey Superior Court on 29 January 1982. The Final Judgment of Divorce ordered the defendant to provide support for the couple's daughter "until the infant child reaches the age of twenty-two (22) years, or is emancipated whichever event will occur first." The order required defendant to pay child support in the amount of $65.00 per week. Attorneys for plaintiff and defendant signed the judgment consenting to its form.

Plaintiff, who still resides in New Jersey, initiated this action on 13 January 1995 by transmitting a Certificate and Order and a Uniform Support Petition from the Chancery Division, Family Part, Ocean County Probation Division, Superior Court of New Jersey to the North Carolina Division of Social Services and its department of Child Support Enforcement. Plaintiff's petition requested entry of an order for child support of $65.00 per week and collection of an arrearage of $2805.00 as of 9 December 1994. Plaintiff included copies of the New Jersey reciprocal child support statute pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA) and the original New Jersey child support order. She alleged in her petition that defendant was residing in Morehead City, North Carolina.

Defendant responded to plaintiff's petition by signing a voluntary support agreement and order entered in Carteret County District Court by Judge Kenneth Crow on 30 August 1995. Pursuant to this order, defendant agreed to pay an arrearage of $5945.00 at a monthly rate of $50.00 per month, in addition to ongoing child support of $282.00 per month beginning 1 September 1995. However, plaintiff neither consented to a modification of the New Jersey child support order nor did she authorize any approval of the voluntary support agreement and order. The IV-D Attorney signed the voluntary order as a representative of the Carteret County Child Support Enforcement Division. See N.C. Gen.Stat. § 110-130.1(c) (1995) (no attorney client relationship shall be considered to have been created between the attorney who represents the child support enforcement agency and any person by virtue of the action of the attorney in providing the services required.) The New Jersey order was not registered in Carteret County District Court as requested by plaintiff.

Defendant again failed to pay child support for his daughter in compliance with the 1995 North Carolina Voluntary Support Agreement and Order and an order of willful contempt of court was entered against him in Carteret County District Court on 24 July 1998. The court ordered defendant to pay $200.00 per month in arrearage but terminated defendant's ongoing child support obligation "as of 30 June 1998 as the child is 18 and graduated from high school." The provision of the order terminating child support at age eighteen directly controverted the 1982 New Jersey child support order to continue child support until the daughter attained the age of twenty-two.

Plaintiff forwarded another New Jersey child support enforcement transmittal to Carteret County on 24 July 1998, requesting registration of the New Jersey child support order in accordance with the 1982 New Jersey judgment and included a copy of the original order. The URESA transmittal also noted that the New Jersey court-ordered child support was to continue until the child reached the age of twenty-two and that the child was attending college and not emancipated. The 1982 New Jersey order was finally registered in Carteret County on 28 April 1999 and a notice of Registration of Foreign Support Order was served on defendant on 13 May 1999.

Carteret County Support Enforcement Agency, through its IV-D agency attorney, filed a motion in the cause on 11 May 1999 requesting that the court determine whether the 1982 New Jersey support order or the 1995 North Carolina support order was controlling and to determine the amount of child support arrearage based on the controlling order. The matter was heard in Carteret County District Court on 29 June 1999. The trial court determined that the 1995 North Carolina order was controlling "due to the fact that the North Carolina order is newer and due to the lapse of time considering that the New Jersey order dates from 1982." Plaintiff appeals.

Plaintiff argues the trial court erred in finding the 1995 North Carolina order is controlling because: (I) the North Carolina court did not have subject matter jurisdiction under the federal Full Faith and Credit for Child Support Orders Act, 28 U.S.C. 1738B (1994) and (II), the 1982 New Jersey order was the controlling order pursuant to the Uniform Interstate Family Support Act (UIFSA), Chapter 52C of the North Carolina General Statutes.

I.

Plaintiff first argues that the trial court erred in finding the 1995 North Carolina order controlling because the court in 1995 was without subject matter jurisdiction. Plaintiff contends that the federal Full Faith and Credit for Child Support Orders Act provides that the state in which a child support order is issued has continuing, exclusive jurisdiction over the order and therefore the 1995 North Carolina child support order and the 1998 North Carolina order of contempt are void. We agree.

The United States Congress enacted the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. 1738B (1994) on 20 October 1994. The FFCCSOA requires that state courts afford "full faith and credit" to child support orders issued in other states and refrain from modifying or issuing contrary orders except in limited circumstances. The purpose of FFCCSOA is

(1) to facilitate the enforcement of child support orders among the States; (2) to discourage continuing interstate controversies over child support in the interest of greater financial stability and secure family relationships for the child; and (3) to avoid jurisdictional competition and conflict among State courts in the establishment of child support orders.

Pub.L. No. 103-383, § 2(c), 108 U.S. Stat. 4064 (to be codified at 28 U.S.C. § 1738B (1994)). Section 1738B(a) provides that "[t]he 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 subsection (e)."

"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 such as URESA[.]" Kelly v. Otte, 123 N.C.App. 585, 589, 474 S.E.2d 131, 134, disc. review denied, 345 N.C. 180, 479 S.E.2d 204 (1996). FFCCSOA "obligates states to enforce, according to its terms, a child support order issued by another state which is made consistent with the Act's jurisdiction and due process standards." Welsher v. Rager, 127 N.C.App. 521, 528, 491 S.E.2d 661, 665 (1997); see also Kelly, 123 N.C.App. at 589,

474 S.E.2d at 134. 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. Id. Our Court held in Kelly that while the law of the forum state may apply to the enforcement and remedy applied to a registered foreign support order, under URESA and FFCCSOA the law of the rendering state (the state that issued the order) must govern the order's interpretation. Id.

In the case before us, consistent with this definition and the statute's intended purpose to prevent the issuance of conflicting child support orders among different states, New Jersey had continuing exclusive jurisdiction over the child support order in 1995. Plaintiff and the child continued to reside in the issuing state of New Jersey. Plaintiff did not sign nor consent to the State of North Carolina exercising jurisdiction to modify the New Jersey order. Therefore, New Jersey retained continuing, exclusive jurisdiction over the action. See 28 U.S.C. 1738B(d).

In addition, New Jersey had continuing exclusive jurisdiction over the child support action when the trial court in North Carolina entered a contempt order in 1998 for defendant's failure to pay support. It was error for the trial court to terminate defendant's ongoing child support in 1998 based on the finding that the child was eighteen and graduated from high school. This 1998 order arose from the invalid 1995 child support proceedings and is also governed by FFCCOSA. Therefore, the law of New Jersey must be applied and the New Jersey support order requiring payments to the child until the age of twenty-two years must be upheld. The North Carolina court did not have jurisdiction to modify the 1982 New Jersey order in 1995 nor in 1998. N.C. Gen.Stat. § 52C-2-205 (1995). We also note that the court in Carteret County failed to register plaintiff's 1995 URESA transmittal and instead defendant signed a voluntary support agreement that was entered as an order of the court. Our Court in Williams v. Williams, 97 N.C.App. 118, 121, 387 S.E.2d 217, 219 (1990) held that "N.C.G.S. § 52A-29 ...