Charlesworth v. State of Cal.

793 P.2d 411, 135 Utah Adv. Rep. 36, 1990 Utah App. LEXIS 95, 1990 WL 69051

• Court: Court of Appeals of Utah
• Decided: May 18, 1990
• Docket: 890297-CA
• Status: Published

Opinions

OPINION

GREENWOOD, Judge:

Defendants Blanca Charlesworth and the State of California appeal from an order entered in an action brought pursuant to Utah’s version of the Uniform Reciprocal Enforcement of Support Act (URESA). Laurian and Blanca Charlesworth were divorced in 1983, pursuant to a Utah decree. Blanca then moved to California with the parties’ two children, and shortly thereafter gave birth to a third child conceived during the parties’ marriage. The divorce decree provided for reasonable visitation and also that child support be held in abeyance until further order of the court.

In 1988, a “Petition for Support (URESA Case)” was filed in Utah, under the same caption and case number as the divorce action, with the State of California designated as an additional defendant. The petition had attached to it an affidavit and California complaint for support, stating that Blanca and her three children were receiving public support from California. The petition sought an order to show cause and reasonable child support, both past and prospectively.

Laurian had attempted to locate Blanca and his children during the intervening years since the divorce, but had been unable to find them. As a result, he had not seen his children at all during that time period.

After several hearings, the trial court ordered Laurian to pay prospectively $76 per child per month to the clerk of the court, with the clerk to hold those funds until such time as Laurian was able to exercise visitation with his children. During the course of the proceedings, Blanca and her children moved from the address noted in the petition exhibits and could not be located. Counsel appearing for both Blanca and California¹ was unable to provide a current address for Blanca, and further represented at oral argument that she was no longer receiving public assistance.

Defendants appeal, claiming the court lacked authority under URESA to enter an order regarding visitation and that the support order could not be contingent upon visitation. Laurian argues, however, that the court’s continuing jurisdiction in domestic cases and equitable considerations validate the court’s order.

URESA has been adopted by Utah in Utah Code Ann. § 77-31-1 to -39 (1982). Sections of URESA pertinent to this case provide as follows:

77-31-8. Whenever the state or a political subdivision thereof furnishes support to an obligee, or whenever an individual not receiving support from the state or a political subdivision makes an application for child support collection ... the state or political subdivision has the same right to invoke the provisions hereof as the obligee for the purposes of securing reimbursement of support expenditures, collecting child support, and establishing paternity.

77-31-9. All duties of support, including arrearages, and arrearages reimbursable to the state or a political subdivision thereof are enforceable by action irrespective of the relationship between the obligor and the obligee. (Emphasis added).

77-31-18(1). After the court of this state acting as a responding state has received from the court of the initiating state the aforesaid copies, the clerk of the court shall docket the case and notify the county attorney of his action.

77-31-27. The courts of this state, when acting as a responding state, shall have the following duties which may be carried out through the clerk of the court:

(1) Upon the receipt of a payment made by the respondent pursuant to any order of the court or otherwise, to transmit the same forthwith to the department if the obligee is receiving child support enforcement services under Title IV-D of the Social Security Act or otherwise to the court of the initiating state;

77-31-31. Participation in any proceedings under this act shall not confer upon any court jurisdiction of any of the parties thereto in any other proceeding.

The purpose of URESA “is to improve and extend by reciprocal legislation the enforcement of duties of support. The goal sought by this legislation is to provide a prompt, expeditious way of enforcing the duty to support minor children without getting the parties involved in other complex, collateral issues.” Patterson v. Patterson, 2 Kan.App.2d 447, 581 P.2d 824, 825 (1978) (citation omitted).

In conformity with section 77-31-31, most courts hold that no issues other than support may be considered in a URE-SA action. Id. While no Utah cases have addressed the issue, most jurisdictions hold that visitation interference is not a defense in a URESA action, State ex rel State of Washington v. Bozarth, 80 Or.App. 397, 722 P.2d 48, 49-50 (1986); Cuccia v. Cuc-cia, 773 S.W.2d 928, 930 (Tenn.Ct.App. 1989), because courts lack subject matter jurisdiction under URESA to terminate or modify child support due to interference with visitation. In re Marriage of Truax, 522 N.E.2d 402, 405 (Ind.Ct.App.1988). URESA, therefore, limits the court’s jurisdiction to “the single issue of enforcement of support.” Id.

The rationale for the limited subject matter jurisdiction is the need for a streamlined mechanism to enforce support obligations without consideration of other issues which would cripple those enforcement efforts. Id. In Truax, the court further observed that URESA proceedings are usually ex parte and do not contemplate a custodial/obligee parent traveling to the responding state to defend against claims arising from other related matters involving the divorce decree between the parties. Id; see also Hoover v. Hoover, 246 S.E.2d 179, 181 (S.C.1978). Further, because URESA provides that state attorneys represent the interests of other states which have provided support, the act does not contemplate that those attorneys “be transformed into a private attorney representing a client in a divorce proceeding in which visitation and custody issues are in dispute.” Cuccia, 773 S.W.2d at 930. A minority position was taken in Hoyle v. Wilson, 746 S.W.2d 665 (Tenn.1988), where the court found that if the responding and the rendering (decree) state are identical, the court may exercise its continuing jurisdiction existing after its entry of the original decree establishing a support obligation. Id. at 671. However, the court limited that expanded jurisdiction by stating: “Of course, any order that changes custody- or substantially alters the former decree should be entered only after a hearing at which both parties have notice and the opportunity to appear_” Id. at 673. Most courts, however, limit consideration in URESA actions to support, excluding other issues, because “[t]he welfare of the child is the controlling factor in a proceeding involving support; not the conduct of the parents.” State ex rel. Hubbard v. Hubbard, 110 Wis.2d 683, 329 N.W.2d 202, 205 (1983).

In light of the foregoing authority, we hold that the court lacked subject matter jurisdiction to enter an order regarding any matters other than Laurian’s support obligation.² Therefore, the court erred in its order conditioning child support upon the affording of visitation rights.³ In so holding, we in no respect condone the actions of Blanca in denying visitation and secreting herself and the children from Laurian. However, there are other remedies available to Laurian, the efficacy of which are realistically dependent on his ability to locate his ex-wife and children.

There is a further consideration which we address. Blanca evidently received assistance from California for a limited period of time and ceased receiving assistance prior to entry of the trial court’s order. Section 77-31-8 allows a state or political subdivision to bring an action for support arrearages owed to the governmental entity. Thus, agencies which “have furnished public assistance to minor children have an independent right to seek reimbursement and continuing support from parents.” State ex rel State of Alaska v. Hargrove, 89 Or.Ct.App. 17, 747 P.2d 366, 367 (1987). Therefore, we find that while the support order itself is valid, California’s right to payment is limited to the amount of support it actually provided to Blanca and the children subsequent to the entry of the award by the Utah court. Therefore, after California has received its rightful reimbursement, it is appropriate that future support payments be made as ordered by the trial court. We reverse and remand for a determination of the support to which California is entitled.

GARFP, J., concurs.

1 . Utah Code Ann. § 77-31-18 (1982) provides that the county attorney shall prosecute actions wherein Utah is the responding state.

2 . While we agree with the dissent that it might be clearer if the action had been brought separately instead of under the existing divorce case number, nothing in URESA precludes filing a URESA petition as was done here. Furthermore, we are informed that this is the standard practice in Utah, we have found no cases from other jurisdictions which prohibit the practice, and, in fact, many seem to follow the same procedure. The dissenting opinion also states that no leave was obtained to add California as a party defendant. However, that issue was not raised below and, therefore, cannot he considered on appeal. See Zions First Nat'l. Bank v. National Am. Title Ins. Co., 7A9 P.2d 651, 655 (Utah 1988). The rationale advanced in the dissenting opinion concerning lack of full inquiry concerning the children’s circumstances and appropriateness of the visitation order, would' have equal application in a separate URESA action, but because of the limited jurisdiction under that act, would clearly be irrelevant.

3 . See Race v. Race, 740 P.2d 253, 256 (Utah 1987), where the supreme court held that child support payment could not be conditioned upon the noncustodial parent’s obtaining visitation. See also McReynolds v. McReynolds, 787 P.2d 530 (Utah Ct.App.1990) (per curiam).