¶ 1. These consolidated cases present disputes over child support so stale that the parties’ children are now in and approaching their thirties. The basic questions are whether father can register and enforce a child support order obtained in Oklahoma against mother and, inversely, whether mother can register and enforce an earlier child support order obtained in Georgia against father. We conclude that mother’s various jurisdictional challenges to the Oklahoma order are without merit and are, in any event, precluded by the unappealed adjudication in Oklahoma. We further conclude that the Vermont court has personal jurisdiction over father with respect to mother’s child support claims against him and a statutory immunity provision in the Uniform Interstate Family Support Act (UIFSA) does not apply. As a result, we affirm the superior court’s dismissal of mother’s enforcement action (Supreme Court Docket Number 2011-165), we affirm the superior court’s jurisdictional holdings with regard to the Oklahoma order (Supreme Court Docket Number 2010-398), but we remand the adjudication of father’s enforcement action (Supreme Court Docket Number 2010-398) for consideration of counterclaims raised by mother.
¶ 2. Mother and father were married in Oklahoma in 1979. They had two sons, P.P. and A.P. The couple moved to New York in 1983, where they lived until they separated in 1985. The parties were divorced in Los Angeles County, California, in October 1986. Pursuant to the California divorce order, the parties were awarded joint legal custody of the children, then ages three and five. Primary physical custody was awarded to mother, and father was ordered to pay child support in the amount of $237 per month for each child. Eventually, father returned to Oklahoma,
¶ 3. Beginning in July 1998, the younger child, P.P., moved from his mother’s home in New York to his father’s home in Oklahoma. In November 1998, the older child, A.P., turned eighteen years of age. In April 1999, father filed documents to initiate a child custody proceeding in Oklahoma under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). 43 Okla. Stat. Ann. § 551-101 et seq. Father initially petitioned to have custody of P.P. transferred to him and to have his child support obligation for both children ended — for A.P. because he had attained the age of majority and for P.P. because he was residing with father. Mother moved to bifurcate the issues of custody and child support. A hearing was held in October 1999, at which mother attempted to make a limited appearance for the purposes of the child custody determination. During the hearing, father requested an order obligating mother to pay him child support for P.P. in addition to changing the child’s custody. The Oklahoma court awarded custody to father and retroactively relieved him of any child support obligation as of April 22, 1999, the date he moved for a change of custody. Furthermore, the court ordered mother to pay child support to father in the amount of $338.50 per month, retroactive to April 22, including an arrearage of $2724.00. Mother made two motions for new trials in the Oklahoma court raising jurisdictional concerns. The court denied the first, and mother withdrew the second, after P.P. returned to her custody. 1 She did not appeal either the initial Oklahoma order or the denial of her motion for a new trial.
¶ 4. In early July 2000, P.P. returned to live with mother in Georgia. At that time, father sought enforcement of the child support judgment for the time when P.P. had been in his custody. On July 18, 2000, an Oklahoma Administrative Law Judge issued an administrative order awarding judgment to father in the amount of $2369.50 for child support for the period from January through July of 2000. When this amount was added to the previous judgment, the total arrearage became $5093.50. That amount was reduced in June 2001 by an involuntary payment of $1366.46 made by an administrative offset. Under Oklahoma law, interest on arrears accumulated at a rate of 10% per year. Including the interest and principal, the total amount due through December 31, 2009 comes to $7611.30. The parties do not dispute this calculation.
¶ 5. Mother is now a resident of Vermont; father continues to reside in Oklahoma. In 2008, the Oklahoma Department of Human Services sought to collect the outstanding child support from mother. These enforcement efforts were transferred
¶ 6. Mother also responded to father’s enforcement action by pursuing her own enforcement. She filed three documents simultaneously on April 21, 2010, within thirty days from the date of the magistrate’s decision: (1) an appeal of the magistrate’s decision to the family court; (2) a request for a stay of the magistrate’s decision; and (3) an application to register and enforce the Georgia child support order to collect support owed by father to mother under that order. The stay request argued that father owed back child support to mother 2 and it would be inequitable for father to collect back child support owed to him, without paying the child support he owed to mother. The application to enforce the Georgia order was to have the Vermont court determine the amount of back support owed to mother. 3 She claimed that the amount due under the Georgia order, with interest, amounted to $34,093.50. On May 12, before the application was accepted as a separate case, the court denied the stay saying: “If [mother] is entitled to collect past due child support from [father], she may seek appropriate enforcement.”
¶ 7. Mother served father with the application, and, in addition, the court notified OCS of the filing. OCS intervened and moved to dismiss. On August 11, 2010, the magistrate granted OCS’s motion and dismissed mother’s petition, concluding that Vermont courts lacked personal jurisdiction over father under UIFSA. The magistrate added: “Proper forum more likely state of [fatherj’s residence. Case could have been initiated in this court but transferred to proper forum to be heard.” Mother appealed the magistrate’s order to the family division of the superior court, challenging both the determination that personal jurisdiction was absent and the participation of OCS. In an April 18, 2011 order, the family division affirmed the magistrate’s decision.
¶ 8. Mother appeals from both adverse decisions — one allowing registration of the Oklahoma order and one denying her attempt to register and enforce the Georgia order. We have consolidated these matters on appeal. In both cases, the primary
¶ 9. Before we address the legal issues, we make one observation to explain, in part, the length and coverage of this opinion. Although the facts may seem commonplace at first, they are not when understood in the context of the applicable law. The combination of three factual elements complicates the analysis of the legal issues: (1) at the time that father sought child support, neither he nor mother nor either of the children resided in the state in which the original child support order was created — California — or in the state in which it was domesticated and modified — Georgia; (2) one of the children moved from the custody of one parent to the custody of the other; and (3) each party alleges that the other party owes back child support. The first factual element has been the subject of a number of decisions from other jurisdictions as we discuss below. The second factual element is rarely present in the reported decisions, and its significance is largely unexplored. The same is true of the third factual element. We can find few reported child support decisions under the governing law where the first element is present with either of the other two, and the few that exist are distinguishable.
¶ 10. The three elements of factual complexity are combined with an element of particular legal complexity. There are two legal regimes governing interstate enforcement and modification of child
support orders and each, read in isolation from the other, would not likely produce the same result on some of the legal issues in this case. The two are UIFSA, 15B V.S.A. §§ 101-904, and the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B. We explored these legal regimes to some degree in
Cavallari,
¶ 11. In addressing the questions of law in this ease, we generally apply Vermont law. With limited exceptions that do not apply here, both UIFSA and FFCCSOA mandate that the law of the forum state governs child support enforcement actions. See 28 U.S.C. § 1738B(h)(l) (“In a proceeding to establish, modify, or enforce a child support order, the forum State’s law shall apply . . . .”); 15B V.S.A. § 303 (“Except as otherwise provided by this title, a responding tribunal of this state . . . shall apply the procedural and substantive law, including the rules of choice of law, generally applicable to similar proceedings originating in this state . . . .”); Official Comment, 15B V.S.A. § 303 (“To insure the efficient processing of the huge number of interstate support cases, it is vital that decision-makers apply familiar rules of local law to the maximum degree possible.”). Accordingly, insofar as there are differences between Vermont law and that of Oklahoma, our decision is based on Vermont law.
I.
¶ 12. We begin by considering the validity of the Oklahoma child support order,
¶ 13. Father, through OCS, responds that the Georgia order “terminated automatically” when custody was changed due to language in the order stating that “monthly payments shall be made on the first (1st) day of each consecutive month thereafter until . . . custody is changed by a Court of competent jurisdiction.” It is the position of father and OCS, therefore, that there was no longer anything to modify — that the Georgia order had expired. Mother responds, however, that even if father’s payment obligations terminated, this does not mean that the order itself ceased to exist so as to extinguish child support owed to her and to excuse an Oklahoma proceeding from UIFSA requirements. Insofar as the Georgia order continued to exist, mother argues, the Oklahoma court was required to abide by the UIFSA modification requirements. Because the court did not abide by these requirements, she concludes that the Oklahoma court lacked subject matter jurisdiction. 5
¶ 15. Nevertheless, we reject mother’s attempt to contest the validity of the Oklahoma order on the basis that the Oklahoma court lacked subject matter jurisdiction. Her argument fails for two reasons. First, we conclude that mother is precluded from challenging subject matter jurisdiction because she thoroughly litigated that issue in the Oklahoma proceeding. Second, mother’s argument fails on the merits insofar as we conclude that the Oklahoma court’s child support order was not a modification for the purposes of UIFSA.
A.
¶ 16. The superior court concluded that mother is collaterally estopped from raising subject matter jurisdiction.
6
We affirm
¶ 17. The conclusion that mother is precluded from collaterally challenging the Oklahoma court’s subject matter jurisdiction may appear to fly in the face of the traditional notion that subject matter jurisdiction can be raised at any time as a collateral challenge to a judgment. See, e.g.,
In re Taft Corners Assocs.,
¶ 18. The conception of subject matter jurisdiction as perpetually open to collateral attack is not entirely correct and is contrary to the modern understanding, particularly in this jurisdiction, and is incorrect in the context before us. When a court of another state has fully and fairly litigated an issue — including an issue of jurisdiction — and has reached a final judgment, we are required to give full effect to that state’s determination. See
Durfee v. Duke,
¶ 19. Notable among these decisions was a reversal of this Court in
Cook v. Cook,
That presumption [of jurisdiction] may of course be overcome by showing, forexample, that [the husband] never . . . made an appearance in the case either generally or specially to contest the jurisdictional issues. . . . [I]t is essential that the court know what transpired in Florida before this collateral attack on the Florida decree can be resolved. For until Florida’s jurisdiction is shown to be vulnerable, Vermont may not relitigate the issue of domicile on which the Florida decree rests.
Id.
at 128-29. On remand, we summarized, “It now appears to be the law that when the petitionee in a divorce case appears and has the opportunity to contest the jurisdiction . . . the Full Faith and Credit Clause precludes their attacking it in the courts of a sister state.”
Cook v. Cook,
¶20. Twelve years later, in Durfee, the Supreme Court reinforced the principle that even jurisdictional determinations are res judicata so long as they were adequately contested in the original state. The Court explained:
[W]hile it is established that a court in one State, when asked to give effect to the judgment of a court in another State, may constitutionally inquire into the foreign court’s jurisdiction to render that judgment, the modern decisions of this Court have carefully delineated the permis sible scope of such an inquiry. From these decisions there emerges the general rule that a judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which' rendered the original judgment.
¶ 21. The teachings of the United States Supreme Court precedents are well summarized in the Restatement (Second) of Judgments § 12. The Restatement provides the general rule that a judgment after an issue was litigated precludes parties challenging the issuing court’s subject matter jurisdiction in a subsequent action unless one of three exceptions is present:
(1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or (2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or (3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.
Restatement (Second) of Judgments § 12. Clearly neither the second nor the third alternative is present in this case. Enforcing
¶22. In this case, the issue of subject matter jurisdiction was sufficiently litigated that we must afford Oklahoma’s determination full faith and credit. Mother was a party in the Oklahoma action, and she raised the issue of subject matter jurisdiction in that proceeding. In particular, mother filed a written response to father’s petition in which she challenged the court’s authority to address child support issues in the context of a UCCJEA case. Before the hearing, in the context of a motion to continue the hearing or bifurcate the custody and child support issues, she reiterated her argument that “the UCCJEA is an improper jurisdictional vehicle for child support determinations of a foreign support Order, and that the Oklahoma District Court was not vested with the jurisdictional authority to make monetary rulings under the auspices of the UCCJEA.” In the Oklahoma hearing, mother, representing herself, and father’s lawyer both argued to the judge about the applicability and impact of UIFSA
with respect to the jurisdictional issues. After this briefing and argument, the Oklahoma court determined that it had subject matter jurisdiction.
8
After the court’s ruling, mother moved for a new trial and extensively briefed her jurisdictional arguments. The court denied the motion. She could have appealed the court’s underlying ruling or the court’s denial of her motion for a new trial, but she did not. We acknowledge that mother’s effort to challenge the
B.
¶ 23. Even if we were to conclude that mother could renew her jurisdictional challenge in this Court, we are not convinced that the UIFSA jurisdictional requirements were violated in this case. The UIFSA requirement that the petitioner not reside in the forum state applies only to modifications of prior custody orders. See 15B V.S.A. § 611(a)(1)(B). Thus, mother’s contention that the Oklahoma court lacked subject matter jurisdiction to issue its support order is premised on the notion that father was seeking a modification of the prior Georgia support order. We conclude that the Oklahoma order was not a modification of the preexisting Georgia order for the purposes of UIFSA.
¶24. As noted, the Georgia order explicitly stated that child support would cease if “custody is changed by a Court of competent jurisdiction.” Here, there is no dispute that custody was changed by a court of competent jurisdiction. As a result, father’s ongoing support obligation expired. This does not mean that the Georgia support order no longer exists or cannot form the basis for an arrearage or other claim. But though the Georgia order still governs the parties’ support obligations from before the change of custody, it has expired in the sense that it has no prospective effect with respect to support obligations. Once the Oklahoma court, a court of competent jurisdiction, entered an order transferring custody of the only remaining minor child from mother to father, father’s support obligation expired under the terms of the Georgia support order. Having modified custody, and with the Georgia support obligation no longer in effect by its own terms, the Oklahoma court had jurisdiction to address father’s new and independent request for child support.
¶ 25. In short, by its own terms, the Georgia order expired when father obtained custody of P.P., thereby ending both parents’ prospective child support obligations under the order. Absent the automatic termination provision of the Georgia order, father’s obligation to pay mother child support would have continued — even after he was awarded custody of the child — until the Georgia order was modified by court decision. Thus, without a provision automatically terminating child support upon change of custody, an award of child support to the new custodian would have been a modified order necessarily terminating the former custodian’s right to child support under the preexisting order and would therefore have been subject to the jurisdictional requirements for modification under UIFSA. This case is different, however, because, for the reasons stated above, the Georgia support order expired when the Oklahoma court transferred custody to father. 9
¶27. The “only issue” in
Spencer,
however, was whether the New York child support petitions that were filed after the termination of the initial out-of-state child support obligation “because the child reached the issuing state’s age of majority [sought] a ‘modification’ of the issuing state’s order.”
¶ 28. This case is plainly distinguishable. In the cases governed by
Spencer,
the New York orders were inconsistent with, and therefore a modification of, the original issuing courts’ support orders. In contrast, the Oklahoma order in this case was entirely consistent with the expired Georgia order, which, by its own terms, ended father’s ongoing child support obligations upon a change of custody, which occurred before the Oklahoma court issued its support order. This is not a situation in which one court extended the duration of the original child support obligation. In this case, the support obligation no longer had any prospective effect based on the original order’s own terms following a change of custody. Thus, as explained above, the Oklahoma court’s order was a new and independent order rather than a modification of the expired Georgia order. Cf.
Andree G.,
¶ 29. We do not consider this result to be at odds with UIFSA’s one-order philosophy. The primary aim of UIFSA is to ensure that states do not second-guess the support orders of other states, thereby opening the door to forum shopping and the proliferation of conflicting orders. See generally K. Kemper, Annotation,
Construction and Application of Uniform Interstate Family Support Act,
¶ 30. Allowing father to proceed in Oklahoma also makes practical sense. Having obtained custody of P.P., father was in no different position than a custodial parent who was seeking a support order for the first time against the other parent residing in another state. In general, if there is no child support order in place, then the custodial parent can initiate a proceeding in his or her state of residence — assuming the custodian has personal jurisdiction over the noncustodial parent under UIFSA’s liberal personal jurisdiction rules — and then seek an enforcement order in the state of the noncustodial parent. See 15B V.S.A. § 201. In the present case, when father obtained custody of P.P., there was no order in effect providing child support for the ongoing costs of P.P.’s living expenses. If we define the Oklahoma court’s action as a modification of the Georgia order in this case, father is denied the normal UIFSA avenue to obtain child support through the courts of his home state. Father would have fewer options for obtaining child support essentially because he was previously a noncustodial parent.
¶ 31. This additional hurdle may have practical significance for parents like father. Given the age of the child and the temporary nature of father’s custody, the cost of pursuing establishment and enforcement of a support order in Vermont, or Georgia if jurisdiction there is still available, is likely prohibitive in relation to the amount of support to be obtained. Thus, the consequence of accepting mother’s argument is very likely no support order at all for a period in which the child is undeniably entitled to support from the noncustodial
II.
¶ 32. Mother’s second argument is that the Oklahoma court lacked personal jurisdiction over her for the purposes of deter mining child support. 11 Unlike subject matter jurisdiction, a lack of personal jurisdiction is one of the listed defenses under UIFSA. 15B V.S.A. § 607(a)(1). In this case, mother contends that her participation was strictly for the purposes of the UCCJEA proceeding to determine custody and that she consistently denied the personal jurisdiction of the Oklahoma court to determine child support. Father, through OCS, argues that mother’s participation in the Oklahoma proceedings, availing herself of the benefits and laws of Oklahoma, established personal jurisdiction over mother. Father also contends that the issue of personal jurisdiction was litigated already and is res judicata. The superior court agreed, explaining:
[Mother] was physically present in Oklahoma for the purpose of attending and participating in hearings. She filed pleadings, testified in court, and otherwise availed herself of the benefits and laws of Oklahoma. In December of 2000, [mother] filed a motion in the Oklahoma court to transfer custody of the parties’ younger son back to her, thereby purposefully taking advantage of services in that state. The Oklahoma court made a finding that it had personal jurisdiction over [mother], and [mother] did not appeal this order.
Taking these findings to be true, the central question is whether any of these facts
¶ 33. Contrary to father’s primary argument, physical presence and active participation at a UCCJEA proceeding does not establish personal jurisdiction for the purposes of ordering child support. The UCCJEA — and thus Oklahoma law — contains a specific immunity provision, which states:
A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or having been physically present for the purpose of participating, in the proceeding.
43 Okla. Stat. Ann. § 551-109A. This immunity provision means that a party may make a limited appearance for the purposes of determining custody without acquiescing to personal jurisdiction with regard to child support. See
Hollowell v. Tamburro,
¶ 34. Father, through OCS, argues in the alternative that mother waived her limited appearance by requesting substantive relief and not cabining herself to contesting jurisdiction. After examining mother’s filings, we find nothing to support the suggestion that she ever deviated from arguing that the Oklahoma court lacked jurisdiction. 12
¶ 35. Finally, father argues that the Oklahoma court had personal jurisdiction on the grounds that mother and father had sexual intercourse in Oklahoma and P.P. may have been conceived as a result of that intercourse. Under UIFSA, this is a valid basis for personal jurisdiction. 43 Okla. Stat. Ann. § 601-2016. Mother responds, however, that UIFSA was not in effect at the time of her pregnancy and cannot be applied retroactively. Whether or not this argument is correct as a matter
¶ 36. We reject mother’s attempt to contest the Oklahoma order for lack of personal jurisdiction for a more basic reason: she thoroughly litigated the issue of personal jurisdiction in Oklahoma and cannot, whatever the merits, relitigate it here. As noted
above, see
supra
I.A., ¶¶ 16-22, even on jurisdictional questions, another state’s judgments may have preclusive effect under the Full Faith and Credit Clause. See
Durfee,
¶ 37. In this case, mother extensively argued a lack of personal jurisdiction in multiple and lengthy court filings, the Oklahoma court concluded that it had personal jurisdiction, and mother did not appeal. There is nothing so unique about personal jurisdiction as to allow mother to relitigate the issue here in Vermont. See
Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee,
III.
¶ 38. Mother’s final collateral challenge to the Oklahoma child support order is that she did not receive proper notice. She makes two separate arguments in this regard. First, she contends that, because father’s initial petition in the Oklahoma court did not include a prayer for child support, she was not on notice that child support would be addressed in the Oklahoma child custody hearing. Second, she argues that she was not given notice of a July 2000 administrative hearing at which
¶ 89. In her first argument, she claims that the failure of father or the court to notify her that child support was in issue denied her due process of law under the Fourteenth Amendment. Where a lack of notice violates the due process rights of a party, a judgment may be unenforceable for that reason. See
Mulleme v. Cent. Hanover Bank & Trust Co.,
¶ 40. The short answer to this argument, as with the arguments that the Oklahoma court lacked subject matter and personal jurisdiction, is that the Oklahoma judgment cannot be collaterally attacked on this basis where mother litigated the issue in Oklahoma, the Oklahoma court rejected her position, and she failed to appeal. See, e.g.,
Nacorra v. INS,
¶ 41. Even if mother’s argument were not precluded, we would reject it on the merits. Father raises two persuasive responses: (1) the Oklahoma court was required to enter a child support order against mother, when it changed custody of P.P., and no specific notice was required under those circumstances; and (2) mother had adequate notice to allow her to meaningfully participate in the proceedings that resulted in the Oklahoma child support order. According to father, mother had sufficient notice both as a matter of law and as a matter of fact.
¶ 42. The first response claims that the omission is not consequential because mother is charged with the knowledge of the law. This argument relies upon
State ex rel. Huffman v. Robertson,
[T]he crux of the matter is that upon receiving notice of the father’s motion to modify custody, the mother was charged with notice that if the motion was granted the court had a statutory duty to make appropriate provisions for the child’s support as a necessary incident to the new custodial arrangement. And she also knew, or should have known from her earlier experience in court, that both parents are responsible for the support of their child and that as a non-custodial parent she could expect to have to contribute to its support.
. . . [0]nce jurisdiction of a court is invoked with respect to child custody matters, the statutes kick in and prescribe what issues the court shall decide.
We take the applicable Oklahoma law from Huffman and agree that based upon that law there is no due process violation.
¶ 43. We also agree with father’s second response that mother had actual notice, which,' even if legally inadequate, was sufficient to avoid a violation of due process. As the superior court points out, mother was able to file a nine-page motion requesting that issues of custody and child support be bifurcated. She was, therefore, clearly on notice that child support would be discussed. In fact, at the hearing, mother explained, “In that Mr. Pappas raised the issue of support, I had no choice but to address it.”
Although this demonstrates only notice that the court would address child support owed
to
her — not child support owed
by
her — we conclude that owing and being owed child support are sufficiently related that the lack of notice concerning the potential imposition of child support does not rise to the level of a due process violation. See
In re Vt. Health Serv. Corp.,
¶ 44. We also reject mother’s second argument — that she received inadequate notice of the July 2000 administrative hearing — as irrelevant to the issues before the court. Oklahoma has an administrative process through which a child support arrearage under a court order can be entered into a judgment, and in this case the father through OCS registered both the court order and the administrative order. The administrative order determined the amount owed from January 2000 through July 2000, and rendered a judgment for that amount combined with the amount of arrearage specified in the
¶ 45. In view of the lack of a contest of the amount of the arrearage, the administrative order is irrelevant to any issue before the superior court or this Court. Even if we assume that the notice of the administrative hearing was inadequate, the order of the administrative agency has no effect on the registration order and child support arrearage judgment issued by the magistrate and affirmed by the superior court judge.
¶ 46. Because we conclude that mother does not have a defense to the registration and enforcement of the Oklahoma child support order, we affirm the decision of the superior court in docket number 2010-398. We remand, however, for proceedings consistent with the final section of this opinion.
IV.
¶ 47. We turn now to mother’s appeal from the superior court’s denial of her separate attempt to register and enforce the Georgia child support order. 14 Mother contends that, if father is able to register and enforce the Oklahoma order against her in Vermont, then she should be able to register and enforce the Georgia order against him in Vermont. OCS responded on father’s behalf, arguing that Vermont lacks personal jurisdiction over father for the purposes of collecting child support. 15 The magistrate accepted this assessment, and the superior court affirmed the magistrate.
¶ 48. As we understand mother’s petition, there are three components to her child support claim.
16
First, mother alleges
¶ 49. Mother’s central argument is that, by choosing to register the Oklahoma order in Vermont, father thereby subjected himself to the personal jurisdiction of Vermont. She contends that the Oklahoma order incorporates the Georgia order, that father therefore necessarily registered the Georgia order alongside the Oklahoma order, and that he has therefore waived any objection to personal jurisdiction. Father’s argument is that, under UIFSA, mother is required to bring an enforcement action not in her home state but in his home state. The superior court concluded that father was entitled to a limited immunity under UIFSA affording him the ability to petition to enforce child support without submitting to personal jurisdiction “in another proceeding.” 15B V.S.A. § 314. Both these arguments are somewhat ironic, of course, insofar as they rely on essentially the same statutory requirements that mother unsuccessfully attempted to avail herself of in Oklahoma.
¶ 50. We conclude the trial court erred in ruling that mother’s application could not go further because of lack of personal jurisdiction over father. Two provisions of Vermont’s UIFSA potentially establish personal jurisdiction. Section 201 grants personal jurisdiction over a nonresident where “the individual submits to the jurisdiction of this state by consent or by filing with the tribunal a responsive document having the effect of waiving any contest to personal jurisdiction,” and also where “there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.” 15B V.S.A. § 201(2), (7). It is
¶ 51. The waiver of personal jurisdiction here is somewhat complicated by the fact that Vermont OCS has been litigating this case on father’s behalf. It was OCS, not father, who filed the request to register the Oklahoma order. UIFSA explicitly fails to resolve whether the relationship between a state enforcement agency and a petitioner constitutes legal representation. See 15B V.S.A. § 307(c) (“This title does not create or negate a relationship of attorney and client or other fiduciary relationship between a support enforcement agency or the attorney for the agency and the individual being assisted by the agency.”); see also Official Comment, 15B V.S.A. § 307(c) (“This highly controversial issue is left to otherwise applicable state law.”); cf.
McSweeney v. McSweeney,
¶ 52. We need not decide this question. Irrespective of whether the relationship between OCS and a nonresident obligee is one of attorney and client, we hold that father’s initiation of the present enforcement action is sufficient to constitute a waiver of personal jurisdiction. Technically, father is the plaintiff in the present action. Furthermore, UIFSA authorizes OCS involvement only “upon request.” 15B V.S.A. § 307(a). In this sense, the rationale for finding waiver in the traditional context — namely, that a petitioner has deliberately availed himself of the forum state’s courts — applies just as well when litigation is carried out by an enforcement agency that is acting at the request of the petitioner. Finally, UIFSA’s limited immunity provision grants immunity for “[participation by a petitioner in a proceeding before a responding tribunal, whether in person, by private attorney, or
through services provided by the support enforcement
agency,” presupposing that participation through OCS would waive personal jurisdiction normally. 15B V.S.A. § 314(a); see
Hall v. Tucker,
¶ 53. Implicitly accepting that there would otherwise be personal jurisdiction over father, the superior court held that the UIFSA immunity provision prevented finding personal jurisdiction in this case. UIFSA’s immunity provision entitles father to appear specially for the purpose of enforcing child support without submitting to personal jurisdiction “in another proceeding.” 15B V.S.A. § 314. Father’s initiation of this UIFSA proceeding
¶ 54. We conclude that this determination was incorrect. We hold that the UIFSA immunity provision does not operate to prevent personal jurisdiction over a claim of outstanding child support between the same parties. See
In re Marriage of Haddad,
¶ 56. In this light, father’s obligations under the Georgia order and mother’s obligations under the Oklahoma order both relate to the parents’ joint duty to ensure that the needs of their children are met. That is, both orders established ways to discharge partially the overarching shared duty to the children. Mother has not paid her share of what was allocated under the Oklahoma order. Mother is entitled to have this failure balanced against previous or later stretches during which father allegedly failed to pay his share and she was forced to pick up the financial slack. Cf.
Louko v. McDonald,
¶ 57. Second, at least in a case where the only amounts in issue are arrearages, it is in everyone’s interest to resolve all related claims in one proceeding in one location.
21
The underlying
purpose
¶ 58. The discussion above answers the specific holding of the trial court dismissing mother’s petition for lack of personal jurisdiction over father. The case must be remanded for consideration of the merits of mother’s claims and any other defenses father may have. Since the petition was denied on the very initial issue of personal jurisdiction, there is no record yet for this Court or the trial court to address the strength of mother’s claims.
¶ 59. Because the issue will arise on remand, we do address the procedural posture of this case. Mother never raised her claims that father owed her child support until the magistrate issued a decision concluding that the Oklahoma child support judgment against her was valid and enforceable. She first filed her child support petition and her registration of the Georgia order in connection with her request for a stay of the magistrate’s order and her notice of appeal of that order to the superior court. Apparently, the magistrate directed that mother’s petition be treated as a separate case.
¶ 60. As our discussion above suggests, it is highly desirable that father’s claims against mother be involved in the same proceeding as mother’s claims against father. It would make no sense to proceed to coercive collection of father’s arrearage judgment while mother’s claims are in adjudication and may result in an offsetting or even larger arrearage judgment.
¶ 61. Rather than treating mother’s petition as opening a separate case, the more desirable course of action for the magistrate was to treat mother’s petition as a counterclaim to father’s action to register and enforce the Oklahoma order. Although permissive, counterclaims are authorized in family division proceedings. See V.R.F.R 4(f). By cross-reference, they are allowed in magistrate child support proceedings.
Id.
8(b). Although raised late, mother’s claims could have been allowed as counterclaims by the magistrate and the superior court. See
id.
4(f); V.R.C.P. 13(f) (“[W]hen justice requires, the pleader may by leave of court set up the counterclaim by amendment.”). In these circumstances, we hold that the magistrate should have allowed the claims as counterclaims in father’s action. On remand, they should be treated in this way procedurally. Thus, we affirm the dismissal of mother’s separate petition, but with the condition that mother can resubmit her claims as counterclaims to. father’s
The superior court decision in docket number 2011-165 is affirmed. The decision in docket number 2010-398 is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
Notes
Mother contends that her motions were not considered in an adequate or timely fashion. We do not assess these arguments except insofar as they might suggest that mother was denied a full and fair opportunity to litigate the issues of jurisdiction and notice. In this regard, it is significant that, although mother filed these motions for new trials, she did not appeal the initial Oklahoma order.
Mother alleges that she raised the issue of the support owed her to the magistrate, but the magistrate indicated that she had to file a separate request. We can find no record that she raised the issue before the magistrate entered the judgment against her. The first time her claim for support owed her appears is in the request for a stay.
Mother alleges that she filed the application, and the clerk decided, after consulting the magistrate, that the filing had to be treated as a separate action.
There is a significant question concerning whether FFCCSOA preempts UIFSA, which we note here, but do not decide. FFCCSOA has many of the same purposes as UIFSA, particularly “to establish national standards under which the courts of the various States shall determine their jurisdiction to issue a child support order and the effect to be given by each State to child support orders issued by the courts of other States,” FFCCSOA, Pub. L. No. 103-383, § 2(b), 108 Stat. 4064
(1994), and “to avoid jurisdictional competition and conflict among State courts in the establishment. of child support orders.”
Id.
§ 2(c)(3). FFCCSOA and UIFSA “are for the most part ‘complementary or duplicative and not contradictory.’ ”
Cavallari,
In this case, the UIFSA prohibition on modifying the Georgia child support order on motion of a resident of Oklahoma, see 43 Okla. Stat. Ann. § 601-611A (describing requirements for modifying child support order from another state including either nonresidence of the petitioner or residence of the child and consent of all parties); see also U.L.A. Unif. Interstate Family Support Act, Refs & Annos, Prefatory Note II.D.2 (1996) (“Except for modification by agreement or when the parties have all moved to the same new state, the party petitioning for modification must submit himself or herself to the forum state where the respondent resides.”), is arguably in tension with FFCCSOA, 28 U.S.C. '§ 1738B. The UIFSA section provides that the forum court “may modify” the foreign order only if the petitioner is a nonresident of the forum state or obtains written consent. 15B V.S.A. § 611(a)(l)(A)-(C), (2). FFCCSOA has a provision that covers the same subject, listing three requirements for when “a State may modify” a child support order from another state, none of which require nonresidency of the petitioner. See 28 U.S.C. § 1738B(e). In short, FFCCSOA does not require the same preconditions for modification as UIFSA —■ in particular, it does not include the nonresidency requirement that mother argues father failed to meet in the Oklahoma court.
A number of courts have addressed this tension and have split on its consequence. Some courts have refused to find preemption on the grounds that Congress almost certainly did not intend that FFCCSOA preempt UIFSA. See
Hamilton v. Hamilton,
The fact that the UIFSA requirements were not followed does not necessarily mean that the court lacked subject matter jurisdiction. See
In re B.C.,
The superior court rested its conclusion on the fact that the traditional elements of issue preclusion were satisfied in this case. The five elements of issue preclusion are set out in
Trepanier v. Getting Organized, Inc.,
(1) preclusion is asserted against one who was a party or in privity with a party in the earlier action; (2) the issue was resolved by a final judgment on the merits; (3) the issue is the same as the one raised in the later action; (4) there was a full and fair opportunity to litigate the issue in the earlier action; and (5) applying preclusion in the later action is fair.
As discussed in the main text,
infra,
¶¶ 17-21, these conditions, especially condition (4), may not be sufficient conditions in the context of subject matter jurisdiction, but they are still necessary conditions. And we accept the superior court’s conclusion that they were satisfied in this case. Mother was a party in the Oklahoma action, she raised the issue of subject matter jurisdiction at the Oklahoma proceedings, and the Oklahoma court determined that it had subject matter jurisdiction. This was a final judgment on the same issue raised in this case. After the court denied her motion to dismiss for lack of jurisdiction, mother moved for a new trial raising again her jurisdictional concerns, and the court denied this motion. She could have appealed either of these rulings. Although mother did unsuccessfully seek a new trial, raising a number of these alleged errors, this is not equivalent to bringing an appeal. We see no error in the superior court’s conclusion that mother had a full and fair opportunity to litigate the jurisdictional issues in Oklahoma. Finally, applying collateral estoppel is arguably fair in this ease. Father had custody of PP. for a period of time during which it was appropriate for mother to pay child support. Cf.
McCormick v. McCormick,
We note a contrast with our decision in
Lewis,
The Oklahoma court’s decision in this regard is somewhat puzzling. The court’s order stated that the court “ha[d] personal jurisdiction over each of the parties pursuant to [UIFSA] and subject matter jurisdiction pursuant to the [UCCJEA], in [that] this state is the ‘home state’ of the minor child.” As mother rightly pointed out at the time and reiterated now, what is not stated is that the court had subject matter jurisdiction pursuant to UIFSA, which is precisely what mother denies. This language aside, given the briefing and argument noted above, we conclude that the Oklahoma court clearly intended to address all arguments, including those involving UIFSA, and render a decision on them. Thus, it necessarily determined that it had subject matter jurisdiction in reaching the order that it did and denying mother’s motion to dismiss for lack of jurisdiction.
Mother notes that the Georgia order had not expired as to coverage of health expenses because those expenses were covered by a different paragraph of the order with a different expiration trigger. Under Part 4 of the Georgia order, mother was required to provide health insurance for the children until a child “attains his majority, becomes emancipated, dies, marries or until further Order from a Court of competent jurisdiction.” It goes on to provide that for “reasonable and necessary medical, dental and orthodontic costs not covered by insurance [father] shall be responsible to reimburse [mother] for two-thirds (2/3) of said uncovered expenses.” The reimbursement is to occur after mother sends father “proper supporting documents indicating the amount to be reimbursed.” The language contains no explicit expiration trigger by changed custody.
Although not mentioned by mother, the Oklahoma order contains a new medical expense payment requirement making father responsible for obtaining health insurance for the child, and further making both father and mother responsible on a 50/50 basis for uncovered health-related expenses. There is no indication that father failed to comply with the Oklahoma order, that mother continued to purchase health insurance for P.P., or that the parties shared any uncovered health expenditures. The amount of back-due support father seeks contains no amount for health expenses, nor does the amount mother seeks contain any claim for health expenses. In general, the Oklahoma order is more favorable to mother than the Georgia order, and we may presume that mother benefitted from that advantage. Thus, there is no necessity for us to construe the Georgia provision.
If we were to reach the issue of the health expenses, we note that the term “Court of competent jurisdiction” is ambiguous in the Georgia order. The ambiguity particularly comes from the language on uncovered expenses, which assumes that mother as custodian is arranging for the uncovered medical care and is initially paying for it, subject to her right to bill father for a share of those expenses. The language does not make sense if father is custodian. Sense can be restored if “Court of competent jurisdiction” in Part 4 governing health expenses means the same as it does in Part 5 on child support — that is, a court with jurisdiction to change custody. That meaning makes Part 4 internally consistent. Under that meaning, the Oklahoma order on health expenses is specifically provided for in the Georgia order and is not a modification of the Georgia order.
Indeed, to the extent we can determine why this conflict has escalated over a relatively small amount of money, it is because mother believes she is owed child support in an amount at least as great as the amount claimed by father. As we hold infra, the reasonable response is to allow mother to litigate all her claims against father at the same time his are litigated against her in the hope that the whole dispute can finally be resolved.
Although the Oklahoma court clearly determined that it had personal jurisdiction to order child support, the record is not altogether transparent on the court’s reasoning. The minute book from the Oklahoma court includes the following entry: “Court finds it has jurisdiction to modify child custody and child support follows under the law.” The transcript of the hearing provides little further clue, with the court stating: “Well, let me just say that we have resolved the issue of jurisdiction for this Court to consider the motion to modify custody. And I believe that with that determination, the Court clearly has the authority to assess child support as part of a prospective child support — or a child custody order.” And further: “I believe that this Court has jurisdiction to modify custody and to levy an award of child support. I have the right to do that under Oklahoma law.” These formulations seem to imply that jurisdiction to order child support follows from jurisdiction to alter custody without an additional finding of personal jurisdiction — a proposition that is incorrect. See, e.g.,
In re Paternity of Carlin L.S.,
Both father and the superior court suggest that personal jurisdiction was established, in part, when mother filed a custody motion in December 2000. This motion was filed after the original custody hearing took place — October 1999 — and the order had issued — April 2000. It therefore could not have established personal jurisdiction for that order, and the superior court’s reference to that filing in this case does not persuade us that it established personal jurisdiction for the order in issue.
The Massachusetts Supreme Judicial Court addressed this question in
Child Support Enforcement Div. of Alaska v. Brenckle,
We recognize that the Oklahoma order purported to find that father was current with his child support obligations. Insofar as we are accepting the validity of that order, it might be thought that the order necessarily eliminated any arrearages potentially owed under the Georgia order. Even if the Oklahoma order were a modification of the Georgia order, but see, supra, part I.B., the Oklahoma order could not have removed Georgia’s authority to enforce “amounts accruing before the modification.” See Ga. Code Ann. §§ 19-11-114, 19-11-171 (1997). We note that this understanding was clearly advanced by father’s attorney during the Oklahoma proceeding. On remand, the court is not bound by the alleged findings of the Oklahoma court concerning any arrearages under the Georgia order.
Mother argued below that OCS is acting outside its statutory authority in making an appearance to argue against jurisdiction over father. The superior court observed that, under 15B V.S.A. § 307(b)(6), OCS has a duty to “notify the petitioner if jurisdiction over the respondent cannot be obtained.” We note that OCS has this duty only “upon request,” and that the superior court’s reading of the statute would imply that OCS is “providfing] services to [the] petitioner” in this case by litigating against her. See id. We need not decide this question, however, because mother has not pursued it on appeal.
There is actually a fourth component because she alleges that father was supposed to pay as child support a share of any bonuses he paid himself from his business, as shown on his tax return. She claimed that he failed to provide his annual tax return, as required by the Georgia order, so she could not specify how much additional support was due for the bonuses, if any. She sought disclosure of the bonus amounts and further payments based on those amounts.
Mother alleges that father continued to be obligated to pay child support to her for P.P. up until April 2000, the date of the Oklahoma order. Her position appears to be that the Oklahoma court could not make the custody modification, and the extinguishment of father’s prospective child support obligation, retroactive to the date of the modification motion. Mother alleges that father failed to pay her child support for P.P. from the date that P.P. moved to Oklahoma in July 1998, up until father moved for modification of custody in April 1999. The Oklahoma court decision found that father was current in payment of child support through July 1998. Mother disputes that father fully paid for July. On remand, the court will have to determine whether the preclusive effect of the 2000 Oklahoma order prevents mother’s claim in whole or in part.
She alleges that P.P. moved back to live with her in July 2000 and reached majority fourteen months later. Apparently, custody remained with father under the Oklahoma order. Mother alleges that father paid her no child support for this period. We have generally stated that mother’s claims are based upon the Georgia order. It is arguable whether this claim is based on the Georgia order. We also note that part of her first claim involves child support for the period P.P. resided in Oklahoma with father but before custody was changed. Her claim that father owes her child support for this period appears to be inconsistent with her claim that he owes child support for the period in which P.P. returned to live with her.
A.P. reached the age of majority in 1998.
This is the reasoning of the Colorado Court of Appeals in
Haddad,
which we develop more fully. We do note one court that has apparently come to an opposite conclusion. See
In re Marriage of Grant,
Perhaps making our hope illusory, we recognize that mother alleges that there is pending in Georgia a separate proceeding initiated by her to obtain an order based on some of the same claims she makes here. As sometimes occurs in appellate review, we are acting based on a record that may have become incomplete by the occurrence of events after judgment was reached in the trial court. Thus, the record does not tell us what occurred, or what is likely to occur, in the Georgia case, and mother raised no specific issue on appeal about the effect of action of that court. Since we are remanding, either party is free to show further events in Georgia, and argue the significance of those events, in the remand proceeding.