Alexander v. Tharp

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 GEORGE ALEXANDER, 8 Petitioner-Appellant, 9 v. NO. 28,555 10 GEORGIA THARP, 11 Respondent-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Jerald A. Valentine, District Judge

14 Melissa J. Reeves 15 Las Cruces, NM

16 for Appellee

17 Law Office of Kelly P. Albers, P.C. 18 Kelly P. Albers 19 Las Cruces, NM

20 for Appellant

21 MEMORANDUM OPINION 22 GARCIA, Judge. 23 Appellant (Father) appeals from the district court’s order denying the relief

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1 requested in his motion for an order to show cause. We affirm because the district 2 court lacked jurisdiction under the procedural posture of this case to grant Father the 3 relief he requested. 4 BACKGROUND 5 The proceedings came before the district court pursuant to Father’s motion for 6 an order to show cause why Appellee (Mother) should not be held in contempt of 7 court. In his motion, Father complained that Mother and Indiana authorities had 8 ignored the effect of the 1998 New Mexico summary judgment declaring Father no 9 longer owed Mother any child support because earlier New Mexico orders modified 10 the original Indiana child support decree. Father argued that Mother wrongfully 11 continued to pursue child support against him in Indiana based on the original Indiana 12 divorce decree. 13 Father alleged that Mother filed a petition in Indiana, which resulted in a new 14 Indiana judgment of $44,890.20 in arrearages against him. As a consequence of that 15 new judgment, Indiana apparently issued an August 16, 2006 amended final order in 16 garnishment (garnishment order), directing Father’s employer to withhold wages for 17 payment of the $44,890.20 in Indiana arrearages. In his motion for an order to show 18 cause, Father also requested that the district court, in addition to asking that Mother 19 be held in contempt, “enter an [o]rder [p]ermanently barring further actions brought

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1 by either [Mother] or the Indiana [a]uthorities charged with enforcement of the 2 [o]riginal [d]ecree.” 3 ANALYSIS 4 Father initially asked that the district court hold Mother in contempt of court for 5 her Indiana enforcement efforts. Through the course of the proceedings, it became 6 clear that Father specifically wanted the district court to halt any collection efforts in 7 New Mexico by Mother or the Indiana support enforcement authorities. In this regard, 8 Father’s pleadings only referenced the Indiana garnishment order. At this point, we 9 also note some ambiguity in the record regarding what Mother is trying to garnish 10 through the Indiana garnishment proceedings. While the New Mexico district court’s 11 order indicates that Father’s federal tax refunds are being garnished, Father’s motion 12 for an order to show cause and his motion to reconsider filed below mentioned the 13 effect of the Indiana garnishment order on both his wages and his tax refunds. 14 Nonetheless, whether Indiana is garnishing Father’s tax refunds, wages, or both, the 15 issues remain the same. Can a New Mexico court direct Indiana courts to take action 16 in Indiana regarding the judgment and garnishment order entered in Indiana? 17 Generally, we recognize that what Indiana courts do in Indiana is a matter for the 18 Indiana courts, unless New Mexico has some basis for asserting jurisdiction to 19 somehow bar or stop all further Indiana proceedings. See generally Sam v. Estate of

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1 Sam, 2006-NMSC-022, ¶ 20, 139 N.M. 474, 134 P.3d 761 (recognizing that “it is well 2 settled that another state court cannot compel a New Mexico court to dismiss a case 3 or refuse to hear one” because “[n]either the full-faith-and-credit principle nor the 4 concept of comity requires recognition of an attempt by one court to abate or stay 5 proceedings in a different court” (internal quotation marks and citation omitted)). 6 While New Mexico courts generally have no authority to overturn orders issued 7 by other states, the enforcement of income withholding orders issued by other states 8 is a matter that Father can address in New Mexico courts if certain statutory 9 requirements are met. To improve the interstate enforcement of child support 10 obligations, New Mexico, like most other states, has adopted a series of uniform laws 11 to address interstate disputes like the one presently before this Court. See Revised 12 Uniform Reciprocal Enforcement of Support Act (RURESA), NMSA 1978, §§ 40-6-1 13 to -41 (1969, as amended through 1994), superseded by Uniform Interstate Family 14 Support Act (UIFSA), NMSA 1978, §§ 40-6A-100 to -903 (1995, as amended through 15 2005). When the parties’ child support disputes initially began, RURESA was in 16 place. In the midst of their ongoing dispute, UIFSA became effective. 17 The 2006 garnishment order at issue in this case was issued by the Indiana court 18 as a result of a garnishment proceeding seeking to enforce the underlying Indiana 19 judgment and determination that Father owed $44,890.20 in arrearages. Therefore,

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1 any efforts to enforce or challenge the 2006 garnishment order are governed by 2 UIFSA, which was enacted prior to the initiation of the garnishment proceedings. See 3 § 40-6A-901 (stating that UIFSA “shall be applied and construed to effectuate its 4 general purpose to make uniform the law with respect to the subject of that act among 5 states enacting it”); see also Unif. Interstate Family Support Act § 207 comment, 9 6 U.L.A. 198 (2001) (noting that provisions in UIFSA for determining the controlling 7 order among conflicting orders from different states was “designed to span the gulf 8 between the one-order system created by UIFSA and the multiple-order system 9 previously in place under RURESA”). 10 Under UIFSA, there are at least three different ways that Mother could have 11 sought to enforce the Indiana garnishment order in New Mexico. See § 40-6A-301(b) 12 (authorizing a petitioner to initiate a UIFSA proceeding by filing a petition); § 40-6A- 13 501 (providing that “[a]n income-withholding order issued in another state may be 14 sent by or on behalf of the obligee, or by the support enforcement agency to the 15 obligor’s employer without first filing a petition or comparable pleading or registering 16 the order with a tribunal of this state”); § 40-6A-601 (registering a support order or 17 income-withholding order in this state for enforcement). In the present case, because 18 the record does not indicate that Mother registered or petitioned the New Mexico 19 courts to enforce the Indiana garnishment order, we are proceeding on the basis that

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1 Mother or the Indiana support enforcement authorities elected to send the garnishment 2 order directly to Father’s employer pursuant to Section 40-6A-501. Also, we are 3 proceeding on the basis that the garnishment order was received and complied with 4 since Father complains about it in his motion for an order to show cause. See § 40- 5 6A-502(a)-(b) (providing that “[u]pon receipt of an income-withholding order, the 6 obligor’s employer shall immediately provide a copy of the order to the obligor” and 7 “treat an income-withholding order issued in another state . . . as if it had been issued 8 by a tribunal of this state”); see also Murken v. Solv-Ex Corp., 2006-NMCA-064, 9 ¶ 27, 139 N.M. 625, 136 P.3d 1035 (recognizing “that where [the] record is unclear, 10 we presume regularity and correctness of the district court’s actions”). 11 UIFSA allows an obligor, in this case Father, to contest an unregistered income- 12 withholding order of another state that has been sent directly to an employer. 13 Specifically, Section 40-6A-506(a) provides:

14 An obligor may contest the validity or enforcement of an income- 15 withholding order issued in another state and received directly by an 16 employer in this state by registering the order in a tribunal of this state 17 and filing a contest to that order as provided in Sections 40-6A-601 18 through 40-6A-615 NMSA 1978, or otherwise contesting the order in 19 the same manner as if the order had been issued by a tribunal of this 20 state.

21 (Emphasis added.) In the present case, there is no indication in the record that Father 22 registered the garnishment order in order to pursue “a contest” of that order as

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1 provided in Sections 40-6A-601 through 40-6A-615. See § 40-6A-506(a); see also 2 § 40-6A-602 (providing the procedure for registering an out-of-state order for 3 enforcement). 4 We recognize that Section 40-6A-506(a) also provides that the obligor may 5 “otherwise contest[] the order in the same manner as if the order had been issued by 6 a tribunal of this state.” While an obligor may challenge the garnishment order by any 7 method that is available in the obligor’s state for challenging an intrastate income 8 withholding order, the district court must first obtain jurisdiction over the proceedings 9 to enforce the Indiana order. In the present case, Mother never domesticated the 10 Indiana garnishment order under the Foreign Judgments Act, see NMSA 1978, §§ 39- 11 4A-1 to -6 (1989), or otherwise invoked the jurisdiction of the New Mexico district 12 court regarding the garnishment order. As a result, Father had two options: (1) 13 register the garnishment order and pursue a contest under Sections 40-6A-601 to -615, 14 or (2) challenge the original garnishment order in Indiana. Allowing a New Mexico 15 court to entertain a challenge to a non-registered support order that it had not been 16 asked to enforce by Mother would be an affront to the full faith and credit of the state 17 that issued the garnishment order. See generally Corliss v. Corliss, 89 N.M. 235, 236- 18 37, 549 P.2d 1070, 1071-72 (1976) (stating that under Article IV, Section 1 of the 19 United States Constitution, a Missouri divorce decree was entitled to full faith and

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1 credit in New Mexico). For this reason, absent registration by Father of the 2 unregistered garnishment order that was sent directly to his employer, the New 3 Mexico district court had no jurisdiction or authority to consider Father’s objections 4 to the order, and the proper place to challenge the garnishment order remained in 5 Indiana. Finally, we recognize that because New Mexico presently lacks jurisdiction 6 to consider Father’s objections to the garnishment order, we need not address any 7 other matter at issue, specifically the matter of personal jurisdiction over Mother. 8 CONCLUSION 9 Because Father failed to properly invoke the district court’s subject matter 10 jurisdiction over this unregistered out-of-state support enforcement order, we hold that 11 the district court lacked authority under UIFSA to consider Father’s objections to the 12 garnishment of his wages. Without the authority to rule on the propriety of the 13 Indiana garnishment order, the district court also lacked the authority to determine 14 whether Mother’s efforts to secure the Indiana garnishment order amounted to 15 contempt of court. Accordingly, we affirm the district court’s ultimate denial of relief 16 to Father at this time. Our opinion should not be read to preclude Father from 17 registering the Indiana garnishment order as provided under UIFSA in order to assert 18 his further objections to the execution of the Indiana garnishment order in New 19 Mexico.

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1 IT IS SO ORDERED. 2 ______________________________ 3 TIMOTHY L. GARCIA, Judge

4 WE CONCUR:

5 _________________________________ 6 MICHAEL D. BUSTAMANTE, Judge

7 _________________________________ 8 MICHAEL E. VIGIL, Judge