State of Minn., Clay County, on Behalf of Licha v. Doty

• Decision Date: 10 November 1982
• Docket Number: No. 10217,10217
• Citation: 326 N.W.2d 74
• Parties: STATE OF MINNESOTA, COUNTY OF CLAY, on Behalf of Elizabeth A. LICHA, Appellee, v. Douglas L. DOTY, Appellant. Civ.
• Court: North Dakota Supreme Court

Page 74

326 N.W.2d 74

STATE OF MINNESOTA, COUNTY OF CLAY, on Behalf of Elizabeth

A. LICHA, Appellee, v. Douglas L. DOTY, Appellant.

Civ. No. 10217.

Supreme Court of North Dakota.

Nov. 10, 1982.

Garaas Law Firm, Fargo, for appellant; argued by Jonathan T. Garaas, fargo.

Deborah A. Lewis, Asst. State's Atty., Fargo, for appellee.

PAULSON, Justice.

This is an appeal by the respondent, Douglas L. Doty, from an order of the District Court of Cass County dated March 23, 1982, affirming a referee's findings of fact and conclusions of law dated February 1, 1982, wherein Doty was ordered to make temporary child support payments of $75 per month for his minor child. We affirm.

On February 10, 1981, the Clay County Court in Minnesota determined that Doty was the father of Elizabeth A. Licha's minor child and ordered that he pay current child support in the sum of $125 per month and reimburse Clay County in the amount of $2,750 for past support expended by Clay County Social Services from January 1, 1979, to September 30, 1980. Licha resides in Moorhead, Minnesota, and Doty lives in West Fargo, North Dakota.

On June 9, 1981, Clay County Social Services filed a Uniform Reciprocal Enforcement of Support Act ¹ petition, certificate, and order in Clay County Court, which was subsequently forwarded to the District Court of Cass County, North Dakota, for further action. The documents indicated that Doty had made no child support payments and that he was $3,500 in arrears in his child support obligation through April 1981.

On July 23, 1981, a hearing was commenced before the referee of the District Court of Cass County. The referee found that Doty had a child support obligation in the amount of $125 per month and a child support arrearage of $3,875 through July 1981. In his findings of fact and conclusions of law dated August 6, 1981, the referee also found, in Finding of Fact V which was incorporated by reference into his conclusions of law (and later into the order of the court) as follows:

"That the Respondent acknowledges the foregoing obligation both current and arrearages;

"that this hearing shall be continued to the 21st day of January, 1982, at 9:00 A.M.;

"that in the interim, the Respondent shall make child support payments to the limit of his financial ability;

"that if in the interim, there is any significant change in the Respondent's employment or financial circumstances, he will immediately so notify Miss Lewis of the Cass County State's Attorneys Office;

"that at the continued hearing, the Respondent will produce in written form a record of his income and expenses for the preceding Six (6) months." [Emphasis in original.]

At the second hearing, held on January 21, 1982, Licha was present but was not called upon to testify. The referee issued his findings of fact and conclusions of law on February 1, 1982. He noted that Doty had never made a payment on his child support obligation, and the referee found that although

"it is obvious that the Respondent's income is more than accounted for in providing basic subsistence for his wife and two (2) sons at home; this does not, however, provide the Respondent with a legally-sufficient reason for not supporting his third (3rd) child, simply because that child does not reside in the Respondent's household."

The referee proceeded to reduce temporarily the rate of enforcement of Doty's child support obligation from $125 to $75 per month.

On February 10, 1982, Doty requested the District Court of Cass County to review the referee's findings of fact and conclusions of law. The district court issued its order of confirmation on review on March 23, 1982, thereby approving the referee's findings of fact and conclusions of law.

Doty appeals from the district court's order of confirmation on review and contends that the district court's order "cannot be supported by the evidence nor law". More specifically, Doty's arguments may be summarized as follows: (1) that the district court erred in affirming the referee's order temporarily enforcing Doty's child support obligation in the sum of $75 per month because the assistant state's attorney of Cass County did not present any evidence to support a finding of the present needs and circumstances of the petitioner; and, (2) that the district court's affirmance of the referee's finding of Doty's present ability to pay is clearly erroneous because the referee also found that Doty's income is "more than accounted for in providing basic subsistence" for his wife and two sons at home.

I

Chapter 14-12.1 of the North Dakota Century Code [Revised Uniform Reciprocal Enforcement of Support Act (RURESA) ] governs this type of proceeding. Doty's argument is premised on Sec. 14-12.1-24 thereof which provides, in relevant part:

"14-12.1-24. Order of support. If the responding court finds a duty of support it may order the obligor to furnish support or reimbursement therefor in accordance with the present needs and circumstances of the obligee and the present ability of the obligor to pay and subject the property of the obligor to the order. The court, upon a finding of a material change in circumstances relative to the obligor's discharge of obligations under any existing order for child support or decree of divorce, may modify the order for child support or alimony combined with child support, and order the obligor to furnish support or reimbursement therefor and subject the property of the obligor to the order...." [Emphasis added.]

Doty contends that because the Cass County assistant state's attorney offered "no evidence" of the present needs and circumstances of the obligee, ² the assistant state's attorney failed to establish a prima facie case and, thus, the district court erred in temporarily enforcing Doty's child support obligation in the amount of $75 per month.

We disagree. This court has stated in Craft v. Hertz, 182 N.W.2d 293, 297 (N.D.1970) [quoting Lambrou v. Berna, 154 Me. 352, 148 A.2d 697, 700 (1959) ] that RURESA

" '... is remedial in nature and is to be construed liberally with reference to the object to be obtained, and every endeavor should be made by the courts to render the act operable.' "

In O'Halloran v. O'Halloran, 580 S.W.2d 870, 871-872 (Tex.Civ.App.1979), the Texas Court of Civil Appeals stated:

"The purpose of the Uniform Reciprocal Enforcement of Support Act was to provide a simplified, consistent and effective mechanism for the interstate enforcement of support obligations. Conventional judicial proceedings had proved unsatisfactory, largely because the defaulting spouse-obligor was frequently outside the jurisdiction, and the obligee could rarely afford to travel to distant states and litigate the question of support obligations. See Annot., 42 A.L.R.2d 768; Fox, The Uniform Reciprocal Enforcement of Support Act, XII Family Law Quarterly 114 (1978). URESA was designed to avoid those disadvantages by allowing the obligation of support to be established in the obligee's home state, and then allow that right to be enforced in a foreign state by a simplified procedure without having to bring an independent action in the foreign state. Fox, supra, p. 114."

See also Sec. 14-12.1-01, N.D.C.C.

The specific statutory language relied upon by Doty was added to Sec. 14-12.1-24, N.D.C.C., by our Legislature in 1979. Ch. 197, 1979 S.L. However, we do not believe the Legislature by amending Sec. 14-12.1-24 intended its action to detrimentally affect the underlying purposes of RURESA. See Minutes of the House Judiciary Committee, 46th Legislative Assembly, January 23, 1979 (H.B. 1184). Requiring an assistant state's attorney to introduce in a responding court ³ independent evidence of a child's "present needs and circumstances" in a RURESA proceeding would, in all practicality, render the Act inoperable because such a procedure would require, more often than not, that the obligee "travel to distant states and litigate the question of support obligations". O'Halloran, supra 580 S.W.2d at 871. This would be in direct contravention of the express purpose of RURESA.

We therefore hold that an initiating court's ⁴ certification of a Reciprocal Enforcement of Support Act petition, which sets forth the needs of the child and the amount of that need, is to be considered prima facie evidence in the courts of North Dakota of the "present needs and circumstances of the obligee". We also note, however, that the initiating court's certification of need is not necessarily conclusive on the courts of this State. An obligor ⁵ may introduce evidence to rebut an initiating court's certification of need. If no such evidence is introduced, the initiating court's certification of need shall stand as sufficient to establish the "present needs and circumstances of the obligee".

Most courts which have addressed similar issues also appear to give prima facie effect to the initiating court's certification. See Prager v. Smith, 195 A.2d 257, 258 (D.C.1963); Clark v. Clark, 139 So.2d 195, 197 (Fla.Dist.Ct.App.1962); Martin v. Coffey, 83 Mich.App. 113, 268 N.W.2d 307, 308 (1978); Barringer v. Barringer, 24 N.C.App. 142, 210 S.E.2d 90 (1974); State ex rel. Fulton v. Fulton, 31 Or.App. 669, 571 P.2d 179, 180 (1977). Cf. Kline v. Kline, 260 Ark. 550, 542 S.W.2d 499, 500 (1976); Harris v. Kinard, 443 A.2d 25, 26-27 (D.C.App.1982). But see O'Hara v. Floyd, 47 Ala.App. 619, 259 So.2d 673, 675 (1972); Neff v. Johnson, 391 S.W.2d 760, 764 (Tex.Civ.App.1965).

In the instant case, the initiating court certified the child's support needs to be $125 per month based on the findings and order of the Clay County Court dated February 10, 1981. The certified petition also states that "Elizabeth Licha has neither funds nor assets of any kind or character for support of her dependents ...". As we have stated, this was sufficient to establish a prima facie showing of the "present needs and circumstances of the obligee".

Although a petitioner would...