Taylor v. Vilcheck

• Court: Nevada Supreme Court
• Writing for the Court: MOWBRAY; GUNDERSON
• Citation: Taylor v. Vilcheck, 745 P.2d 702, 103 Nev. 462 (Nev. 1987)
• Decision Date: 20 November 1987
• Docket Number: 17017,Nos. 16581,s. 16581
• Parties: , 56 USLW 2335 Gail Hurt TAYLOR, Appellant, v. Alan C. VILCHECK, Respondent. The COUNTY OF YOLO, on Behalf of Cheryl Ann DRAKE, Appellant, v. Robert Thomas DRAKE, Respondent.

Page 702

745 P.2d 702

103 Nev. 462, 56 USLW 2335

Gail Hurt TAYLOR, Appellant, v. Alan C. VILCHECK, Respondent.

The COUNTY OF YOLO, on Behalf of Cheryl Ann DRAKE, Appellant, v. Robert Thomas DRAKE, Respondent.

Nos. 16581, 17017.

Supreme Court of Nevada.

Nov. 20, 1987.

Brian McKay, Atty. Gen., and Nancy Ford Angres, Deputy Atty. Gen., Carson City, for appellant Gail Taylor.

Rex Bell, Dist. Atty. and John B. Squires, Deputy Dist. Atty. and V. Monet Woods, Deputy Dist. Atty., Las Vegas, for appellant Yolo County.

Rick Lawton, Fallon, for respondent Alan Vilcheck.

Brian H. Breedlove, Las Vegas, for respondent Robert Drake.

OPINION

MOWBRAY, Justice.

These are separate appeals from orders of the Fifth and Eighth Judicial District Courts enforcing the child support obligations of the individual respondents pursuant to the provisions of Nevada's Revised Uniform Reciprocal Enforcement of Support Act (RURESA). See NRS 130.010 et seq. Because of the similarity of the issues of law presented, we have consolidated these appeals for decision. See NRAP 3(b). Specifically, in both cases, the parties contest the jurisdiction of the district courts of this state, in accordance with Nevada's RURESA statutes, to enter child support orders which alter the amount of support payments due under prior child support decrees. In light of the arguments presented to this court by the parties to these appeals, we perceive a need to clarify the law of this state relating to the authority of our district courts to award child support payments in RURESA proceedings that differ from previous awards. Before discussing the specifics of these two cases, however, a brief overview of the law in this area is warranted.

The purpose of the Revised Uniform Reciprocal Enforcement of Support Act is to improve and extend by reciprocal legislation in separate jurisdictions the enforcement of existing duties of family support. See NRS 130.030; State ex rel. Welfare Div. v. Vine, 99 Nev. 278, 283, 662 P.2d 295, 298 (1983). Generally speaking, RURESA itself "creates no duties of family support, but is concerned solely with the enforcement of the already existing duties when the person to whom a duty is owed is in one state and the person owing the duty is in another." See Annotation, Construction and Effect of Provision of Uniform Reciprocal Enforcement of Support Act That No Support Order Shall Supercede or Nullify Any Other Order, 31 ALR 4th 347, 351 (1984) citing Uniform Reciprocal Enforcement of Support Act, Commissioner's Prefatory Note, 9B U.L.A. 382 (1968); see also NRS 130.280; Vix v. State of Wisconsin, 100 Nev. 495, 686 P.2d 226 (1984) (in RURESA proceedings, a court only has jurisdiction to order enforcement of pre-existing duties of support). Moreover, the remedies provided by the act are "in addition to and not in substitution for any other remedies." See NRS 130.050. The act further provides that it "shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it." See NRS 130.020.

As discussed below, the major issue in these appeals involves the construction and effect of NRS 130.280(1) which directs that:

A support order made by a court of this state pursuant to this chapter does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar law or any other law, regardless of priority of issuance.

Prior to 1981, this statute contained language which permitted a Nevada court in a RURESA proceeding to modify a previous support award but only if the modification was specifically provided for in the reciprocal support order. See, e.g., Peot v. Peot, 92 Nev. 388, 551 P.2d 242 (1976). The legislature, however, specifically deleted this modification provision from NRS 130.280 by amendments adopted in 1981. See 1981 Nev.Stats. ch. 418 § 5.

With the above policy considerations in mind, we turn to a discussion of the merits of the present appeals.

Taylor v. Vilcheck, No. 16581

In 1977, appellant Gail Hurt Taylor and respondent Alan Vilcheck obtained a divorce decree, pursuant to a settlement agreement, in Jefferson County, Kentucky. The agreement and the divorce decree awarded custody of the parties' minor child to appellant Taylor. In 1981, the Jefferson County Circuit Court entered an order modifying the original settlement agreement and divorce decree, pursuant to a further agreement between the parties, to provide, inter alia, that Vilcheck would pay Taylor $65.00 per week in child support until the child attained the age of eighteen years. Thereafter, appellant apparently remarried and moved with her child to Colorado, where in 1984 she sought enforcement of the Kentucky decree with respect to the award of weekly child support and $2,435 in alleged arrearages. The Colorado initiating court forwarded the action to the Nye County District Attorney, who, pursuant to Nevada's RURESA statutes, filed the instant action against respondent. A hearing was held before the district court on September 12, 1984. Respondent Vilcheck appeared in proper person and moved the district court to reduce his prospective child support payments. ¹ On May 14, 1985, the district court entered a written order reducing Vilcheck's prospective monthly child support payments to $150 per month. The district court specifically ruled that its "determination was made after an examination of [Vilcheck's] income, expenses, and ability to pay." Additionally, the district court ordered that a judgment for the amount of arrearages would be entered after it received "documentation of those arrearages from the initiating court." This appeal followed.

Appellant Taylor first contends that prior holdings of this court prohibit the district court from entering an order enforcing prospective monthly support payments against Vilcheck in a lesser amount than that provided in the prior Kentucky decree. Specifically, appellant observes that in Vix v. State of Wisconsin, 100 Nev. 495, 497, 686 P.2d 226, 227 (1984), this court stated that in a RURESA proceeding, "a district court only has jurisdiction to order the enforcement of a pre-existing duty of child support, and furthermore is prohibited from modifying or nullifying a pre-existing duty to any extent." (Emphasis in original.) See also NRS 130.280(1), supra.

Respondent correctly contends, however, that our holding in Vix is inapposite, and that the above-cited language in Vix should not be construed to prohibit the actions of the district court in the instant case. In Vix, the parties' initial divorce decree awarded custody of a minor child to the father. Thereafter, in violation of the custody award, the mother took the child to Wisconsin, and refused to return him to the father. In response to a RURESA action filed by the State of Wisconsin seeking reimbursement for child assistance payments, the Nevada district court entered an order directing the father to pay the mother prospective child support in the amount of $175 per month. As we noted in Vix, the Nevada RURESA court thereby altered the previously imposed obligations of the parties "in essence changing [the father's] status to that of a non-custodial parent owing partial child support in the specific sum of $175 a month...." See Vix, 100 Nev. at 497, 686 P.2d at 227. Thus, we concluded in Vix that "not only did the court's URESA order purport to alter [the father's] financial obligations ..., it essentially changed the custodial status of the parties." Id. Consequently, we held that "[s]uch changes in the custodial status and financial obligations of the parties were clearly outside the scope of a URESA proceeding." (Emphasis added.) Id. Moreover, we observed that "[s]uch changes may only be made in a proceeding in which a party has brought a motion to modify the original divorce decree or any subsequent custody or support orders." (Emphasis added.) Id. at 497-98, 686 P.2d at 227-28.

Unlike the situation in Vix, the district court's order in the present case did not modify or alter any previously-imposed custodial duties or obligations. The district court merely found that although respondent was under a previously-imposed child support obligation, his financial status at the time of the hearing below precluded him from paying the full amount set forth in the Kentucky decree. Such an order has no effect on the prior decree issued by the Kentucky court. See NRS 130.280; Foster v. Marshman, 96 Nev. 475, 478, 611 P.2d 197, 199 (1980) (a Nevada RURESA order setting support payments at $30 per month per child did not modify a prior California support obligation setting child support payments at $60 per month per child); Campbell v. Jenne, 172 Mont. 219, 563 P.2d 574 (1977) (Idaho and Montana RURESA orders setting child support at a lesser amount than provided in a prior Nevada divorce decree did not modify the Nevada decree; the Nevada decree was entitled to full faith and credit in a separate civil action for enforcement of that judgment). Moreover, we note that the full amount of support ordered by the Kentucky court will continue to accumulate under that prior order, and appellant may seek enforcement of any arrearages due under the Kentucky decree, subject to a credit for any payments made pursuant to the Nevada RURESA order, in an appropriate civil action. See Foster v. Marshman, supra. See also NRS 130.265(2) (court must conform its support order to the amount allowed in the prior proceeding unless the court is of the opinion for good cause shown that another amount would be proper); McEvily v. McEvily, 140 Vt. 279, 437 A.2d 1110 (1981) (the practical difficulties involved in enforcing an order that an obligor is unable to carry out mandate that a court must be able to alter the manner of payment to reflect the inability of the obligor to comply). As...