*1 Marilyn Kingsley Cavallari v. Martin
[732 739] A.2d No. 97-278 J., Amestoy, Dooley, Morse, Skoglund, Present: C Johnson and JJ.
Opinion May Filed *2 York, Plaintiff-Appel- Cavallari, Se, New Marilyn Cambridge, Pro lee. sones, Rutland, for Defendant- & Cor
Adele V. Pastor of Corsones Appellant. requires this case by raised
Dooley, question The simple J. and federal statutes of state legal jigsaw puzzle confront the to Court At orders. support of child interstate enforcement to the applicable to pursuant York court decree, by a New originally entered issue is be- law, responsibilities and allocating parental rights that state’s to subsequently moved a mother who each a father and tween issue, York law on the New decree is silent Although the Vermont. the child’s child to parent the noncustodial requires court was family whether our birthday. We must decide twenty-first the decree to modify and therefore to Vermont law required apply We eighteen. when the child turned terminate the family was, judgment reverse the that it and therefore hold yield amendments would court, subsequent statutory that but stress presented first request in a modification a different result today. court family never married not in dispute.1 facts are
The relevant of New child, were residents they born in 1978 when but had one ground it makes portions on the of mother’s brief Father has moved to strike proceedings in the allegations record of the that are not contained factual certain objects allegations are relevant to to which father Because none of the court. deny appeal, moot. disposition we his motion as of his year, an York. In the same a New York court entered order establish- parent. child as the ing support obligation father noncustodial obligation. specify The order does duration issued, Shortly Pennsyl- after order mother and moved to vania. a New York modified the to increase time, payments. At that still in New York. father’s father resided later, however, years he Several moved Vermont. The child turned 22,1996 eighteen January graduated high school on June 12, 1996, On father petitioned Bennington Family June alleged Court the 1990 York order.2 He mother and, therefore, residing and child were then also court should Vermont law to duty determine that his his minor had eighteen ended because then she had turned 658(c) graduated from high (provid- had school. See 15 V.S.A. “may that court ing to be continued until the child attains age majority or terminates education later”); whichever (fixing majority V.S.A. that, eighteen). although obligated Father contended New York law him his twenty-one, child until she was Vermont’s earlier age majority applied. *3 a family a court hearing, magistrate
After found that mother and child were residents of at Vermont the time father’s motion was filed and of at the time the hearing. magistrate The concluded Vermont law applied because the forum state not to “need accede the of a judgment continuing sister state a concerning matter that has become a internal purely Accordingly, affair.” termi- magistrate the nated father’s support obligation. Mother appealed to the family court. family
The adopted magistrate’s court the factual determinations but opposite “real, reached the result. court The reasoned that a circumstances,” substantial and unanticipated change required of as for of modification a support obligation pursuant to V.S.A. 660(a), § is not simply established because a with jurisdiction new a law of governing acquired different duration child orders has personal jurisdiction Thus, parties over the to the although decree. family agreed the court subject that the were to laws the of the court that it generally, determined was without authority petition May 9,1996, 2 Although delayed filing the was dated father it until after the graduated high child from school. meet the father failed to obligation because modify to the Father appeals. jurisdictional prerequisite.3 specific avoiding the of rationale, having virtue while The court’s prece- applicable with is inconsistent problem, difficult choice-of-law (1973), a case Beaudry, 312 A.2d Beaudry 132 Vt. dent. In majority age of lowered the Legislature arose after the soon validity of a the Court considered eighteen, to this twenty-one the father requiring a 1959 decree support order that modified during the per week to of of three children $35 order, entered superior of the children. new minority to the of limited father’s age majority, of the lowered light argued children. Wife eighteenth birthday of the before the period age of because the solely order could not be modified appeal rejected changed. argument: this majority had We alimony other annual for or this state a divorce decree a final judgment. or children is not allowance for the wife decree, has the entry original Court After the make, or its modify revise under V.S.A. power minor chil- custody and of concerning orders of either changes party, dren. the situation Circumstantial and amount of or necessity either the affecting it, be ability, handicapped provide improved petition brought by of the court properly attention minority the children. during at time and maintenance minor Judgments in no necessarily temporary; children are and provisional they adjudication rights a final and sense are duties therefore, rights, by No vested virtue of parent and child. by were virtue of the rights divested 1973 order. Beaudry by
The status children defined 1 V.S.A. decretal order of but terms eighteen, attain They majority will their power provision the court is without proper *4 education, beyond age. that including their support, 3 family questioned magistrate determined domicile at The court also whether had time, point a it had in have clarification if the correct and would remanded ground change As could not a for modification. we decided of domicile be opinion, characterization of the at of this we believe the court’s address the end magistrate’s determination was erroneous. 214 (citations 57-58, 312 omitted); Forte, at
Id. A.2d 925 see also Forte v. (1983)(error 518, 520-21, 468 561, 562 143Vt. A.2d pre-1971 enforce beyond age majority).4 order new in ground exactly for modification this case is the same as — effective, present Beaudry age majority in a new and the Indeed, court must apply preexisting this order. as holds, Beaudry family jurisdiction court has no a enforce child against beyond birthday defendant the eighteenth child or the child’s graduation school. Since requires father, Vermont law requested by result arewe forced to confront the issue avoided court and decide whether the principles choice-of-law set forth in the applicable governing statutes interstate of support obligations enforcement requires New York law this govern case. begin that,
We
our
inquiry by
choice-of-law
far
noting
as we can
determine, every court that has faced the situation
us
before
has
preexisting support
modified the
order to reflect the duration-of-
state,
support rule of the forum
of residency
new state
(Ala.
816, 819
See
v.
parties.
Finney Eagly,
1990);
568 So. 2d
App.
Ct.
(Ark.
James,
v.
58,
Elkins
62
1992);
S.W.2d
Ct.
In
App.
re
McCabe,
(Colo.
Marriage
1116,
819 P.2d
1991);
Ct. App.
(Minn.
Hodges Hodges,
v.
1987);
N.W.2d
App.
Ct.
Lewis v.
(Mo.
Roskin,
1995).
895 S.W.2d
cases,
some
modification
twenty-two
extends the duration to
in
years, the rule
Lewis,
forum state. See
others,
To availability reinforce the parties modification when the move to a a rule, state with different durational the New York courts have held that a foreign support order that on the eighteenth terminates birthday the child must be modified to reflect New twenty- York’s year one duration when move Ryan New York. See Ryan, 1987).Thus, 513 N.Y.S.2d 25-26 (App. Div. if the situation reversed, had been parties governed by a Vermont support order York, moved to New the New York courts would have routinely involving The Court reached a different preexisting result a case order that was stipulation continuing explicitly based on a until the child reached twenty-one years age. Burke, 400, 401, 360 574, 575 (1976). See Burke Vt. A.2d Although we do not know whether the York this case was based stipulation, specify we do know that it did not the duration of father’s support. Thus, present the Burke situation is not here.
215 the child reached it that order so continued modified to hold that incongruous It would be twenty-one years age. of action. equivalent not take may courts Vermont § course, 1 of the United aware, that Article are of We IV full of state accord the courts each requires States Constitution other states. also of We judicial proceedings and faith credit circumstances, comity of that, principles in acknowledge appropriate aby Vermont an basis for nonintervention provide can additional some other forum. come before dispute already in a that has however, why illustrates jurisdictions, case law from other of full faith and credit constitutional comity principles nor neither here. As the California stay court to its hand required the stressed, after the full-faith- reviewing applicable has Supreme Court espouses now the jurisprudence, system “the federal and-eredit flowing from no the the principle may obligations state freeze Byck, Elkind v. 439 P.2d relationship parent and child.” continuing (Cal. child, 1968). all move to parties, including the When for state, courts are the welfare responsible this Vermont’s in child, longer legitimate has a interest and New York 79, (Mo. Thompson Thompson, S.W.2d 88 See 645 relationship. 1982). an internal The duration of child “become[s] Elkins, must honor 842 S.W.2d at We affair this state.” decision that a child Legislature’s or beyond birthday the child’s eighteenth not continue from school. graduation Legislature has question confront is whether the
The next we of the statutes it has any qualified by in that choice virtue sense obli of child-support enacted in area interstate enforcement Reciprocal Support Revised Uniform Enforcement gations. The 1997, 11, 3,§ (RURESA), 385-428,repealed by No. §§ 15 V.S.A. Act school, high and daughter graduated effective when was not for two family court ruled. applicable when the RURESA First, situations in which the child only the statute covers reasons. states, in are in different obligor obligee different Riendeau, Bushway 455, 137 Vt. of the same state. See counties 178, (1979); (explicitly providing 407 A.2d V.S.A. obligee only obligor within Vermont where applies that RURESA counties). Where, here, reside in different are Gonzales v. District county, apply. RURESA does See same (Colo. 1981) (identical Court, language P.2d n.2 Colorado RURESA does not where obligor and obligee are state). county residents of same same Secondly,the choice-of-law rule created RURESA is not an impediment modifying duration of order at issue provides here. Section 395 of support applicable “[d]uties under chapter imposed this are those laws under the state where the obligor present was for the period during which is sought.” 15 V.S.A. 395. For the daughter’s post-graduate period, period *6 issue, duty which the of is in support the father-obligor present was Vermont, in law terminates father’s on duty daugh his (Del. graduation. ter’s See v. Jennings 707 DeBussy, A.2d Fam. 1997) (under RURESA, Ct. court would not register Massachusetts order that child extended until child support reached twenty-three years of age because in obligor lived Delaware and Delaware law terminates child support eighteen); Pieper Pieper, 368 S.E.2d (N.C. 422, 275, (N.C. 424 1988) Ct. 374 App.), aff’d, S.E.2d (out-of-state order providing support until twenty-two child reaches years of age can not be enforced under RURESA beyond age law). eighteen cut-off applicable under North Carolina The RURESA provision on a foreign Vermont, support registered in 15V.S.A. 428(a), § event, not is In contrary. where, it inapplicable is here, the obligee registered never in the order Vermont. 1, 1998,
ofAs January RURESA has been replaced by Uniform (UIFSA). Family Interstate Act Support 1997, 11, § See No. 3. Unlike RURESA, the new uniform general statute does have intrastate applicability.5 § 15B V.S.A. governs when a Vermont court may modify a child support order from another if parties state the to that in order now live Vermont. Generally, Vermont court may modify order, 613(a), § see 15B V.S.A. but of certain the substantive original UIFSA, adopted by The version of the National Conference Commission 1992, ers of applied only Uniform State in Laws to interstate child enforcement modifying cases. official comment section on child orders issued in speaks another state exact before us: issue Finally, parties issuing note that if the left have state and now reside in the state, applicable. same this is section not Such a fact situation does
present an apply. interstate matter and UIFSA does not 1999). § (Supp. 15B VS.A. 613 cmt. version, jurisdiction § the 1996 the commissioners added 613 to extend the state, dispute UIFSA where the are in foreign support one but the is about a §
order. The comment to new change 613 states that the section was added to the law from above-quoted in id. stated See comment. For our decision. to that modification restrictions of UIFSA in contained is restriction important applicable purposes, “may not 611(c). the Vermont That provides § section may not be modified order that of a child modify any aspect 611(c). § Because 15B V.S.A. state.” issuing the law of under its us to reduce modify the order before could not York court child, a Vermont court birthday eighteenth duration to 611(c). See Welsher that modification under not make could (N.C. 1997); Marriage In re 661, App. 491 S.E.2d Ct. Rager, (Ore. 1997).6 946 P.2d Cooney, to this be, however, applies claim that UIFSA serious There can daughter in 1996. His filed his motion case. Defendant 6,1996, eighteen having reached on June graduated high school law, year. of that Under Vermont defendant’s January years age on have ended the date would (child 658(c) be ordered 15 V.S.A. graduation. See or terminates majority, attains the later). education, whichever is 1, 1998, 1997,No. January see was effective
UIFSA that it Legislature intended 5,§ and there is no indication that Indeed, decision in 1997 retroactively.7 Legislature’s operate 1,1998 January strong evidence that RURESA effect until keep *7 to matters the intended interstate enforcement Legislature Cowan, until Cf. 903 S.W.2d governed by remain RURESA that date. of decision as evidence (citing legislature’s opposite at 121 Texas 6 Welsher, support disputes. Cooney In both involve interstate child Welsher and Carolina, only obligor to orders extend until the moved North where child York, eighteen years, they obligee extend to and the remained in New where reaches Nevada, Cooney, twenty-one years. issued in where order was only years, obligor obligee eighteen had moved orders extend until and the states, obligee sought advantage Oregon’s Oregon and Tennessee. The of different twenty-one years. support obligations law that child extend the child reaches UIFSA, holdings equally applicable to their would be After 1996 amendments dispute purely intrastate before us. operates retrospectively govern proceedings 7 Some courts have held that UIFSA See, Support begun e.g., Div. v. Alaska under RURESA. Child Enforcement of (Mass. 390, 1997); Welsher, 664-65; Brenckle, 491 Cowan v. N.E.2d 393 S.E.2d 675 1995). (Tex. noted, Moreno, App. As court none the Massachusetts 903 S.W.2d obligor’s rights” impaired by holding is are that because “substantive only rights. applying procedural preexisting See a new framework substantive Brenckle, retrospective application type than N.E.2d at 393. This is a different of 675 Here, preexisting apply RURESA we would have to in this case. there is one deny Applying retroactively proceeding, apply. UIFSA would does not RURESA right previously existed. a substantive to modification intent to to all pending UIFSA proceedings). Under V.S.A. 213, § pending suits are unaffected by legislative new acts except court, “acts regulating practice relating competency witnesses or to amendments or process pleadings.” A decision whether a foreign divorce order be modified is one of substantive law and not within very exceptions Therefore, § limited the enactment UIFSA cannot affect the outcome of this case. See McMullen, 742, (S.C. v. 1996) Deltoro 471 S.E.2d App. Ct. (reaching same result based savings clause specifically appended UIFSA). legislation enacting
UIFSA has a federal counterpart, Full Faith and Credit for (Full Support Child Act), Orders Act Faith and Credit 28 U.S.C. 1738B, § and we must also therefore consider whether federal legislation any way alters the outcome under Vermont law. The purpose of the Full Faith and Credit Act “ensuring that child orders, although modifiable in some circumstances state, courts of issuing receive full faith and credit in sister states.” State ex rel. George Bray, (N.C. 503 S.E.2d 1998). UIFSA and the Full Faith and Credit Act are for the most part “complementary duplicative contradictory.” and not Id. To the extent it applies, the Full Faith and Act preempts Credit inconsistent provisions Silva, of state law. See Wilkie 685A.2d . (N.H. 1996)
There are provisions two of the federal that are particularly statute First, 1738B(h) relevant here. establishes choice-of-law rules for orders, child support specifying that interpreting “[i]n including the duration current payments and obliga- other tions of support, a court shall apply the law of the State the court 1738B(h)(2) issued the added). order.” U.S.C. (emphasis This requires us to view the order as if it explicitly provided that the payment obligation continues until the child twenty-one years reaches because New York court would have to enforce it for that duration. This rule does no more than make explicit what was case, formerly implicit. In this defendant amade motion to modify the New York though order even it had no stated duration. In Beaudry and the comparable various above, out-of-state cases cited the courts recognized they had to the preexisting support *8 whether explicit. its duration was The second provision relevant is the one governing modifica tion of orders of another state: — A a
(e) modify court of State Authority orders. by a court order issued a child —if another State a child (1) to make such jurisdiction has the court (i); pursuant subsection order continu- (2)(A) no has longer the other State the court of because jurisdiction of the exclusive ing, State or residence longer no is the child’s that State contestant; or individual consent (B) written contestant has filed individual each 1738B(e). are to modification the prerequisites Here 28 U.S.C. parties. jurisdiction court has over The Vermont present. jurisdiction continuing have exclusive longer New York courts in that state. nor the child reside parties because neither the its York order to shorten modify the New court could birthday or the child’s eighteenth of the child’s duration the later Lewis, school. See Lewis 1997 WL graduation 1997) (Ohio (so 1738B(e) in similar App. applying at *6 Ct. circumstances). Act often the Full Faith and Credit
Although provisions UIFSA, prohibition lacks a those of the federal statute duplicate in the that is nonmodifiable a of a modifying provision Thus, impedi- Act is not an Full Faith and Credit issuing state. modification in this case. sought ment to the relatively Act recent the Full Faith and Credit is Because enactment, its provisions. only interpreting there are few decisions Otte, Kelly S.E.2d The case most to this one comparable (N.C. 1996), subject Jersey to a parties where who were children all moved North Carolina. divorce decree and their provision the child underlying agreement, Pursuant to an for an annual an escalation clause called the order contained When the adjustment price in accordance with consumer index. obligor’s obligee nonpay- order because of sought enforce the under North ment, obligor challenged the escalation clause the forum law, it was void under agreed and the trial court Carolina Act Full Faith and Credit that the Appeals agreed law. The Court over jurisdiction court had modification because the trial allowed the left the their had children parties and because id. at 135. Since North Carolina law considered issuing state. See *9 void, such escalation clauses to it be was proper the New Jersey order prospectively to strike the clause. See id. in Kelly,
As held the Full Faith presents and Credit Act no barrier to modification of the New York order. is not RURESA applicable by successor, UIFSA, its terms and its has no effect on this proceeding. Therefore, as expressed family Beaudry, court is without power order father to post-majority support and must modify the inconsistent order.
Finally, we the point address made in the dissent that the family power modify court has the the New York order under the Full Faith only and Credit Act if mother and child were residents of Vermont on the date hearing and magistrate of modification to find residency failed on that date. The dissent notes that the family not could determine magistrate whether the found residency on that date. The dissent characterizes mother’s presence in Vermont as “between of residency” states and argues the decision is on based “a event,” is, mere fortuitous presence mother’s in Vermont on the day she was served.
These characterizations are an description accurate of either undisputed magistrate’s facts findings. only The real issue magistrate before the was whether mother and the child were residents of magistrate Vermont. The noted that both the father and mother had been residents of Vermont for about years two when mother Dorset, was served at her Vermont, home in with the motion modify. It undisputed was that mother and the child were residents of Vermont on the date of the graduation school, child’s from high filing the petition to modify and the service the petition. Mother however, argued, that she had moved back to New York before the 9,1996. motion hearing, which occurred on October After considering all mother’s York, contacts with Vermont and New and making contacts, extensive findings on those magistrate found that on the date the hearing mother “is a resident of the State of Vermont.” The magistrate was most by influenced the facts that mother Vermont, maintained two businesses in a ballet school and home decorating company, and the child a college retained scholarship based residency Vermont.
We therefore do not need to address the argument dissent’s that the federal law allows modification only when both parents are residents of this state on the date of hearing. magistrate found residency, such and because the findings are not clearly erroneous, and the conclusions are supported the findings, we must accept magistrate’s Coon, determination. See Tetreault v. (1998). 399-400, 167 Vt. 708 A.2d Reversed.
Morse, J., child, Demetria, dissenting. This is an case. The odd whose benefit child support provided by court, was a New York has scant connections to Vermont.
While the magistrate concluded that Vermont was plaintiff’s resi- dence because resided filed, she here when the motion to modify was court stated in its opinion:
This clearly conclusion is it supported applies Magistrate’s determination of residency when the Petition However, to Modify was filed. under the Full Faith and Act, Credit for Child Support 1738B, Orders 18 U.S.C. analyzed by Magistrate, Vermont would have had no jurisdiction to modify the New York order unless it could have been found at time the hearing that neither child, parent, nor the continued to a York be New resident. It is not clear from her order Magistrate whether the made such a finding, especially that, since she determined at the time of the hearing, was in Appellant living York, New had license, obtained a New York driver’s had car registered her there and had registered Furthermore, to vote there. inwas New York attending college. A for a remand clarification of findings warranted, would be except for that, the Court’s conclusion even assuming Vermont had jurisdiction to consider a petition modify, no sufficient showing to justify modification has been made.
Even if we were to conclude that the family court was mistaken on the law,*this record hardly supports a conclusion that New York was “no longer . . . the child’s State or the residence of individual 1738B(e)(2)(A). contestant.” 28 U.S.C.
Plaintiff lived rather nomadic life to a moving house to redecorate and, it job finished, once the was moving on to another. Plaintiff had moved from Massachusetts, New York to York, back to New then to Georgia, Vermont, then to back finally to New York. Demetria * point application Beaudry wholly I wish to out Beaudry, that the intrastate 53, 312 (1973), ease, distinguishable Vt. A.2d 922 holding from this and the there does family temporarily to a situated in Vermont. in school at Miss Porter’s Connecticut attended apparently Plaintiff she would live in New York. testified going college before York if she was ever between daughter’s godmother with her York. The fact post maintained a office box New always houses. She while in Vermont in with a motion was served plaintiff event, hardly is a mere fortuitous residency states of between many years before expectation established upsetting rationale for age twenty-one. from child that Demetria would benefit I dissent. respectfully of Vermont v. Ronald G. Couture
State
[734 524] A.2d No. 97-426 Amestoy, J., Dooley, Morse, Skoglund, Present: C Johnson JJ. May
Opinion Filed