Cordie v. Tank

538 N.W.2d 214, 1995 N.D. LEXIS 169, 1995 WL 560117

• Court: North Dakota Supreme Court
• Decided: September 22, 1995
• Docket: Civ. 940298
• Status: Published

Opinions

LEVINE, Justice.

Gary DuWayne Cordie appeals from a judgment of the district court for McKenzie County modifying a Minnesota judgment for child support and awarding Renae Tank $19,-674 in child support arrearages. We vacate the judgment because the district court for McKenzie County lacked subject-matter jurisdiction to modify or enforce the Minnesota judgment.

Cordie and Tank were divorced in May 1978 by judgment of the district court for Cass County (Cass County judgment). Cor-die was awarded custody of the parties’ one child, LeAnn, who was born February 5, 1976. Tank was ordered to pay $50 per month for child support. In 1979, Cordie moved to Fergus Falls, Otter Tail County, Minnesota. In 1980, Tank was relieved of her child support obligation by modified judgment of the district court for Cass County (modified Cass County judgment). Subsequently, Cordie and his second wife, Judy, were committed to the Fergus Falls Hospital for mental health care and LeAnn was placed in foster care in Minnesota. In June 1986, the district court for Otter Tail County, Minnesota, awarded custody of LeAnn to Tank (Minnesota judgment). Exercising jurisdiction under the Uniform Child Custody Jurisdiction Act, Chapter 518A, Minn.Stat., the Minnesota court also ordered:

Gary Cordie should pay child support to Renae [Tank] in accordance with the guidelines set forth by Minnesota statutes from his net income, (income after deductions of withholding and social security taxes).

No monthly child support amount was set at that time, but, the Minnesota court reserved the amount of support for future calculation:

It is ordered: ... Gary Cordie shall furnish reasonable child support to the petitioner to be determined by future order of the court.

From the record, it is unclear whether a subsequent hearing on child support was held in Minnesota.¹

In November 1993, Tank began proceedings to register the Minnesota judgment in McKenzie County as a foreign support order. See NDCC § 14-12.1-30. Tank, however, never completed the registration process. In December 1993, Tank filed a motion to change the venue of her divorce action from Cass County, North Dakota, to McKenzie County, North Dakota, where she and LeAnn resided. The district court for Cass County granted the change of venue in January 1994. In June 1994, Tank started this action by moving to modify the Cass County judgment, the modified Cass County judgment, and the Minnesota judgment. At that time, LeAnn was eighteen years old and had graduated from high school. Tank requested that the court require Cordie pay $282 per month for child support, retroactive to February 1986, the month Tank assumed custody of LeAnn, and continuing until May 1994, the month LeAnn graduated from high school. Tank introduced a copy of the 1986 Minnesota judgment into evidence. The district court for McKenzie County, relying on the Minnesota judgment, calculated a support obligation for Cordie by applying the North Dakota child support guidelines to Cordie’s net income for each year from 1986 through 1994. The district court awarded Tank judgment against Cordie for $19,674 in accrued, but unpaid, child support.

Cordie appealed, arguing that the district court for McKenzie County erred by retroactively modifying his child support obligation. We agree that retroactive modification of an accrued child support obligation is impermissible under our law. NDCC § 14-08.1-05. See Coogan v. Fennell, 379 N.W.2d 791 (N.D.1985). However, we need not decide whether there was a retroactive modification, because we conclude the district court for McKenzie County lacked subject-matter jurisdiction to modify or enforce the Minnesota child support order in any respect.

Although Cordie does not challenge the district court’s subject-matter jurisdiction, we consider the issue sua sponte. E.g. Larson v. Dunn, 474 N.W.2d 34 (N.D.1991). In order to issue a valid order or judgment, a court must have jurisdiction over both the subject matter of the action and the parties. Id. Subject-matter jurisdiction is the court’s power to hear and determine the general subject involved in the action. Id.; see also Reliable, Inc. v. Stutsman County Comm’n, 409 N.W.2d 632 (N.D.1987). While a party may voluntarily submit to the personal jurisdiction of the court, “subject-matter jurisdiction is derived from the constitution and the laws, and cannot be conferred by agreement, consent or waiver.” Long v. Long, 439 N.W.2d 523, 525 (N.D.1989). The absence of subject-matter jurisdiction may be raised by the court at any stage of the proceedings. Hayden v. Workers’ Compensation Bureau, 447 N.W.2d 489 (N.D.1989); see also James & Hazard, Civil Procedure, § 2.1 (3d ed. 1985).

Trial courts have continuing jurisdiction over child support matters. NDCC § 14-05-22(1); State of Minnesota v. Snell, 493 N.W.2d 656 (N.D.1992) [“Courts which award periodic child support retain the authority to modify the amount to be paid when there has been a showing that the circumstances of the parties have materially changed.”]. Continuing jurisdiction, however, is neither permanent nor constant. See Malaterre v. Malaterre, 293 N.W.2d 139 (N.D.1980) [stating that continuing jurisdiction does not continue when “the district court loses jurisdiction over one or more of the parties to the action.”]; Thomas v. Thomas, 382 N.W.2d 639 (N.D.1986) [indicating that each proceeding which takes place based on a court’s continuing jurisdiction is akin to a new proceeding]; DeForest v. DeForest, 228 N.W.2d 919 (N.D.1975) [stating that, when there is continuing jurisdiction, either party can move for a modification “after jurisdiction in the trial court has been re-established.”] Here, the Minnesota court interrupted the trial court’s continuing jurisdiction in 1986 when it took jurisdiction over LeAnn and rendered judgment establishing continuing jurisdiction in itself. The McKenzie County trial court recognized the Minnesota judgment, and based its own order upon it. The Constitution does not require that we give full faith and credit to foreign child support judgments. See Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1910). We respect them, however, based on principles of comity. See Gruber v. Wallner, 198 Colo. 235, 598 P.2d 135, 137 (1979); Worthley v. Worthley, 44 Cal.2d 465, 283 P.2d 19 (1955); see also Eugene F. Scoles and Peter Hay, Conflict of Laws 537 (2d ed. 1992) [“[T]he clear practice of state courts is to recognize the foreign support order, when rendered by a court with competent jurisdiction ...”]. Our state has recognized the need to respect out-of-state child support judgments since 1951, when the legislature first passed the Uniform Reciprocal Enforcement of Support Act. See 1951 N.D. Laws ch. 122. Therefore, we hold that the 1986 Minnesota judgment terminates the continuing jurisdiction of North Dakota courts under the original Cass County divorce decree. Our analysis now turns to whether the trial court had subject-matter jurisdiction to enforce or modify the Minnesota judgment.

A district court’s subject-matter jurisdiction to enforce or modify a foreign support order is governed by the provisions of the Revised Uniform Reciprocal Enforcement of Support Act, chapter 14-12.1, NDCC (RURESA).² The purpose of RURESA is to provide a mechanism, by reciprocal legislation, for interstate enforcement of support obligations. See NDCC § 14-12.1-01. We construe uniform acts in the same manner as other jurisdictions to provide consistent and uniform application, and therefore, we look for guidance to the decisions of other states interpreting those statutes. Zuger v. N.D. Ins. Guaranty Ass’n, 494 N.W.2d 135 (N.D. 1992).

An obligee seeking enforcement or modification, or both, of a foreign support order³ that has not been reduced to a money judgment has two choices of civil remedies under the provisions of RURESA. The first, the standard RURESA action, is appropriate for an obligee who wishes to establish, modify or enforce an ongoing duty of support. NDCC § 14-12.1-24. See Coogan, 379 N.W.2d at 796. The obligee initiates the action by filing a petition alleging that a nonresident obligor owes a duty of support. NDCC § 14-12.1-11. The court in which the petition is filed, usually in the obligee’s state of residence, is the “initiating court.” NDCC § 14-12.1-02(4); Formanack v. Formanack, 234 Neb. 325, 451 N.W.2d 250 (1990). If the petition sets forth facts showing a duty of support, and there is a “responding court” which can exercise personal jurisdiction over the obligor, the initiating court transmits three certified copies of the obligee’s petition and a copy of its chapter on RURESA to the responding court in the appropriate state. NDCC § 14-12.1-14. The initiating court does not enforce or modify the order, as that is the duty of the responding court. NDCC § 14-12.1-18. See Formanack, 451 N.W.2d at 255; In re Marriage of Gifford, 152 Ill.App.3d 422, 105 Ill.Dec. 527, 504 N.E.2d 812 (1987). See, e.g., Coogan, 379 N.W.2d at 796. The responding court turns the RURESA petition over to the prosecuting attorney who represents the interests of the responding state and the obligee in enforcing the alleged duty of support. See NDCC § 14-12.1-18. If the responding court, after an evidentiary hearing, finds a duty of support on the part of the obligor, it may order the obligor to furnish “support or reimbursement therefor” in accordance with the law. See NDCC § 14-12.1-24; Formanack, 451 N.W.2d at 255.

In a standard RURESA action, the duty of support is to be determined under the law of the responding state. NDCC § 14-12.1-07; State ex rel. McDonnell v. McCutcheon, 337 N.W.2d 645 (Minn.1983). The responding court may rely on a court order for support or any other legal duty of support imposable under its laws. NDCC § 14-12.1-02(2); In re Marriage of Lurie, 33 Cal.App.4th 658, 39 Cal.Rptr.2d 835 (1995). The responding court may order an entirely different support amount than has been previously awarded or may prospectively modify an existing support obligation. NDCC § 14-12.1-24(2); see also Rimsans v. Rimsans, 261 N.J.Super. 214, 618 A.2d 854, (A.D.1992). It may also determine arrearages under a duty of support and enter judgment for their payment. Coogan, 379 N.W.2d at 796; see Rimsans, 618 A.2d at 858.

If Tank wanted ongoing child support for LeAnn, or arrearages under the Minnesota support order, she could have filed a standard RURESA petition under NDCC § 14-12.1-11, and the duty of the district court for McKenzie County, as the initiating court, would have been to review Tank’s petition alleging a duty of support and, if it found facts alleging a duty of support, to transmit the petition to Minnesota for enforcement. Instead, Tank attempted to enforce the Minnesota support order in North Dakota. But, RURESA does not authorize the North Dakota court, as the initiating court, to make a determination of Cor-die’s duty of support. See NDCC § 14-12.1-18. Rimsans, 618 A.2d at 860; Formanack, 451 N.W.2d at 255; Gifford, 105 Ill.Dec. 527, 504 N.E.2d at 814; City and County of San Francisco v. Juergens, 425 So.2d 992 (La.App.1983). Determining an obligor’s duty of support and awarding arrearages under the support order in a standard RURESA action is purely the province of the responding court, based on its law and policy, and the district court for McKenzie County could not, as an initiating court, determine, modify or enforce Cordie’s alleged duty of support. Rimsans, 618 A.2d at 860; Juergens, 425 So.2d at 995-96.

The second option available to Tank under our RURESA law was to register the Minnesota support order according to NDCC § 14-12.1-39. A foreign support order registered in North Dakota is treated the same as an original child support order entered by a North Dakota court. NDCC § 14-12.1-40(1). Consequently, a registered order is governed by North Dakota law in regard to both modification and enforcement. See Pinner v. Pinner, 33 N.C.App. 204, 234 S.E.2d 633 (1977). See also Wilson v. Ransom, 233 Neb. 427, 446 N.W.2d 6 (1989); Davanis v. Davanis, 132 Wis.2d 318, 392 N.W.2d 108 (1986).

Registration would have conferred subject-matter jurisdiction upon North Dakota, the enforcing state, to modify or enforce that order. NDCC § 14-12.1-40(1); see In re Marriage of Straeck, 156 Cal.App.3d 617, 203 Cal.Rptr. 69 (1984); In re Marriage of Aron, 224 Cal.App.3d 1086, 274 Cal.Rptr. 357 (1990); Hartley v. Hartley, 465 So.2d 592 (Fla.App. 2 Dist.1985); Hudgins v. Hudgins, 80 Ohio App.3d 707, 610 N.E.2d 582 (1992); McGee v. McGee, 118 N.C.App. 19, 453 S.E.2d 531 (1995); Hammill v. Cusack, 118 N.C.App. 82, 453 S.E.2d 539 (1995); Jaworowski v. Kube, 276 N.J.Super. 474, 648 A.2d 261 (A.D.1994); Martin v. Martin, 127 A.D.2d 266, 514 N.Y.S.2d 413 (1987). As the appellate court of North Carolina aptly explained in Pinner v. Pinner, supra 234 S.E.2d at 636, registration under RURESA, “changes the status of the foreign support order by allowing it to be treated the same as a support order issued by a court of North Carolina. Once the order is so treated, the obligee or the obligor may request modifications in the order, and when the obligee attempts to enforce the order, the court must determine whether jurisdiction exists over the person or property of the obligor and what amount, if any, is in arrears.” See also Wilson v. Ransom, 233 Neb. 427, 446 N.W.2d 6 (1989); Davanis v. Davanis, 132 Wis.2d 318, 392 N.W.2d 108 (1986); NDCC § 14-12.1-40(1).

However, Tank did not register the Minnesota support order as a foreign support order in McKenzie County. Absent registration of the Minnesota judgment as a foreign support order under RURESA, the judgment could not be modified or enforced in North Dakota.⁴ See Wilson, 446 N.W.2d at 9; Hartley, 465 So.2d at 593-94; McCutcheon, 337 N.W.2d at 651; Martin, 514 N.Y.S.2d at 417; Putnam Co. Atty ex rel. Ward v. Ward, 130 A.D.2d 580, 515 N.Y.S.2d 519 (1987); Smith v. City of New York, 118 Misc.2d 227, 459 N.Y.S.2d 1007 (1983). See also Reliable, Inc., 409 N.W.2d at 634 [“in order for subject matter jurisdiction to attach, the particular issue to be determined must be properly brought before the court in the particular proceeding.”]. Cf. Price v. Price, 17 Va.App. , 435 S.E.2d 652 (1993) [when obligor complied with registration requirements, trial court should have registered foreign support order].

We conclude the district court was without subject-matter jurisdiction to modify or enforce the Minnesota judgment. Accordingly, we vacate the judgment of the district court for McKenzie County.

VANDE WALLE, C.J., and SANDSTROM, J., concur.

1 . Cordie testified he appeared at a subsequent hearing in Otter Tail County district court to set the amount of child support. He states that because he was unemployed at the time, the Minnesota district court did not set a support amount. However, he could not remember if the district court relieved him of ¿he support obligation or simply continued to reserve the issue for future determination.

2 . The Revised Uniform Reciprocal Enforcement of Support Act, NDCC ch. 14-12.1, was repealed by the 1995 legislature and replaced by the Uniform Interstate Family Support Act (UIFSA), NDCC ch. 14-12.2, 1995 N.D. Laws, ch. 157 (S.B.2069) (effective August 1, 1995). Under UIFSA, ch. 14-12.2, a party may only request modification of an order registered as a foreign support order if the party also meets the requirements of NDCC §§ 14-12.2-45:

"1. After a child support order issued in another state has been registered in this state, the responding tribunal of this state may modify that order only if, after notice and hearing, if finds that:

a. The following requirements are met:

(1)The child, the individual obligee, and the obligor do not reside in the issuing state:

(2) A petitioner who is a nonresident of this state seeks modification; and

(3) The respondent is subject to the personal jurisdiction of the tribunal of this state; or

h. An individual party or the child is subject to the personal jurisdiction of the tribunal and all of the individual parties have filed a written consent in the issuing tribunal providing that a tribunal of this state may modify the support order and assume continuing, exclusive jurisdiction over the order.”

3 . A support order is "any judgment, decree, or order of support in favor of an obligee whether temporary or final, or subject to modification, revocation, or remission, regardless of the kind of action or proceeding in which it is entered.” NDCC § 14-12.1-02(14).

4 . Had there been no subsisting support order in this case, Tank could have sought reimbursement from Cordie for the support Tank furnished to LeAnn. NDCC § 14-08.1-01.