Medina v. Medina

Filed 4/17/09 Medina v. Medina CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

This appeal arises out of the Uniform Interstate Family Support Act (UIFSA), codified in this state at Family Code section 4900 et seq.[1] Under section 4911, in instances in which there are multi jurisdictional child support orders, a party may seek an order determining which of the orders is the controlling order. In this case, child support orders issued by California and Colorado obligated the father, defendant and respondent Jose Luis Medina (Jose), a California resident, to pay child support for his three minor children residing in Colorado. Intervenor and appellant Santa Cruz County Department of Child Support Services (Department) filed a motion under section 4911 seeking a determination, as between prior child support orders issued by California and Colorado, as to which order was the controlling order. The court held, inter alia, that a 1995 order entered in California modified a prior support order originating from Colorado and that the California support order was the controlling order.

On appeal, the Department argues that the court erred in concluding that the California support order was the controlling order. Additionally, the Department contends that the court erred by identifying different controlling orders for different time periods for purposes of reconciling arrears. We conclude that the court erred and that the Colorado child support order entered in 1994 is the controlling order. Further, we decline the Departments invitation to address the reconciliation of arrearages, an issue that was not a subject of the order from which the appeal is taken. We will reverse the order of the trial court.

PROCEDURAL BACKGROUND

In December 1990, the Department received a request from the Department of Social Services of Garfield County, Colorado, that California establish a child support order for the children of Jose and plaintiff and respondent Susan R. Medina (Susan). In March 1991, the Department sought an order in the Santa Cruz County Superior Court that Jose pay child support. On June 10, 1991, the court ordered Jose to pay child support of $242.67 per month for each of his three minor children (Aaron, Elizabeth, and Sean), for a total of $728 per month, effective March 1, 1991, and that all payments were to be made to the Garfield County Department of Social Services (1991 California order).

The marriage of Susan and Jose was dissolved by order of the district court of Garfield County, Colorado, on October 20, 1993. By that order of dissolution (1993 Colorado order), Jose was required to pay monthly child support of $834.04 (an amount that was not allocated between the children), commencing November 1, 1993. That child support order was modified in July 1994 when the Colorado court entered an order (1994 Colorado order) approving the parties marital settlement agreement. The 1994 Colorado order reduced the monthly child support obligation to the unallocated amount of $575, effective January 1994; established (pursuant to the parties stipulation) arrearages at $8,497.79 that would be repaid at the rate of $25 per month; and thus fixed Joses total monthly obligation at $600.

In November 1994, the Department sought an order in the Santa Cruz Superior Court modifying the 1991 California order to make the child support order consistent with the 1994 Colorado order. A minute order dated January 13, 1995, reflected that Jose was ordered to pay monthly child support of $575, effective July 1994, with arrearages determined (as of June 30, 1994) to be $8,497.79, payable at the rate of $25 per month. In the subsequent formal order, captioned Findings and Order after Hearing, entered on January 30, 1995 (1995 California order), the court allocated the monthly child support obligation equally between the three children at $191.66 per child. (No such allocation appeared in the minute order of January 13, 1995.)

In January 2007, the Department filed a proceeding in the court below seeking an order requiring Jose to seek employment. At a hearing in March 2007which Jose attended in pro per and at which he advised the court that he was unable to work full time because of health problems and was only working approximately half time the court, inter alia, and without modifying the support order, ordered Jose to pay $150 a month for ongoing support and $50 per month for arrearages. The court also addressed at the hearing the fact that the oldest child, Aaron, had emancipated, and the middle child, Elizabeth, had turned 18 but it was not known whether she was still attending high school. The court ordered the Department to ascertain whether Elizabeth was still in high school. The minute order from the hearing also stated [t]he previous order of $383.32 for two minors shall remain in effect.

The Department thereafter filed a motion for determination of controlling order under section 4911. The motion identified the 1991 California order, the 1994 Colorado order, and the 1995 California order. The motion was initially heard on October 26, 2007. The court found that the Colorado order was the controlling order from 1990 through January 1995, and that the California order providing for monthly child support of $575, allocated to $191.66 per child, controlled from January 1995 forward. The court reasoned at the time it announced its decision from the bench that the 1995 California order controlled from 1995 forward because it was based upon a Colorado request that California modify Colorados prior support order. In subsequent proceedings, after the Department noted that Colorado had not entered a support order until October 1993, the court modified its prior ruling to provide that the 1991 California order was the controlling order from its entry until October 19, 1993 (the date of the 1993 Colorado order). A formal order was entered April 9, 2008, in which the court found that (1) the 1991 California order was the controlling order from 1991 through October 1993, (2) the 1993 Colorado order and the 1994 Colorado order were the controlling orders from November 1, 1993 through January 29, 1995, and (3) the 1995 California order was the controlling order from January 30, 1995, forward.

The Department filed a timely notice of appeal. The matter is appealable. (Code Civ. Proc.,  904.1, subd. (a)(2) [order made after judgment], (a)(10) [order made expressly appealable under Family Code];  17407, subd. (a)(1) [Attorney General may perfect appeal challenging support order or support-related order claimed to be erroneous and presenting question of law].)

DISCUSSION

I. Issues On Appeal

1. Whether the court erred in determining that the 1995 California order was the controlling order.

2. Whether the court erred in identifying different controlling orders for different time periods for purposes of reconciling arrears.

II. Determination of Controlling Order

The Department argues that the court erred in concluding, inter alia, that the 1995 California order was the controlling order from January 30, 1995, forward. As a related issue, it contends that the court erred in finding that the 1995 California order constituted a modification of the prior 1994 Colorado order. Since these questions involve pure questions of law, we apply a de novo review. (In re Marriage of Crosby & Grooms (2004) 116 Cal.App.4th 201, 205; see also Lundahl v. Telford (2004) 116 Cal.App.4th 305, 312 [issue of whether California has continuing, exclusive jurisdiction over support order determined de novo].) Applying that standard, we agree with the Department on both points.[2] Before addressing these issues, however, we digress briefly to discuss UIFSA and its predecessor statutes.

A. Reciprocal Child Support Enforcement Statutes

The 1991 California order and the 1995 California order were issued under the statute preceding UIFSA, namely, the Revised Uniform Reciprocal Enforcement of Support Act of 1968 (RURESA). (See former Code Civ. Proc., 1650-1699.4, repealed by Stats.1992, ch. 162, 6, p. 464; former sections 4800 et seq., repealed by Stats.1997, ch. 194, 1, No. 4 Wests Cal. Legis. Service, p. 671].) Similarly, the 1993 Colorado order and the 1994 Colorado order were entered at the time that the states version of RURESA was in effect. (Schumacher, The Colorado Uniform Interstate Family Support Act (1994) 23 Colo. Law. 2535.) California adopted RURESA in 1968 [citation], and in 1994 recodified it under the Family Code without substantive change. [Citation.] In 1998, California repealed RURESA and UIFSA became effective. [Citation.] (Lundahl v. Telford, supra, 116 Cal.App.4th at p. 313, fn. 5.) Likewise, the state of Colorado enacted UIFSA, effective January 1, 1995. (People ex rel. Orange County, Cal. ex rel. T.M.S. v. M.A.S. (Colo.1998) 962 P.2d 339, 343.)

California enacted UIFSA as a requirement for the receipt of federal child support enforcement funds. (See 42 U.S.C.  666(f).) Together with the Federal Full Faith and Credit for Child Support Orders Act (FFCCSOA, 28 U.S.C.  1738B), the UIFSA ensures that only one state will have jurisdiction over support at any given point in time. (Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2008) 18:725, p. 18-187.) Under both FFCCSOA and UIFSA, sister state support orders are required to be given recognition and enforcement across state lines. (28 U.S.C.  1738B(a);  4909, subd. (d).)

RURESA explicitly recognized that sister states may issue independent support orders for differing amounts without having modified, superceded, or nullified each others orders. [Citations.] (Lundahl v. Telford, supra, 116 Cal.App.4th at p. 313; see also Henry v. Knight (Colo. 1987) 746 P.2d 1375, 1378 [once Colorado court determined obligor had duty of support, it was free to enter such orders as are consistent with the needs and requirements of the child or children and with the abilities of the obligor, without reference to any prior support orders].) Although this created the possibility of multiple and perhaps inconsistent [support] orders enforceable against [the obligor] . . . RURESA contemplate[d] and allow[ed] this result. (In re Marriage of Straeck (1984) 156 Cal.App.3d 617, 624.) Concisely stated, under RURESA: [N]ew support orders do not nullify, modify, or supersede the original support decree, but instead provide an additional, supplementary or cumulative remedy. [Citations.] Amounts paid under one support order are credited against amounts accruing or accrued for the same period under another support order. This latter language necessarily contemplates that two or more support orders may be outstanding and valid at the same time. [Citations.] Thus, the authority of the court originally ordering payment is not affected nor is its order modified by an order of the court of the responding state fixing another or different sum. [Citation.] [Citation.] (Lundahl v. Telford, supra, at p. 314.)

Section 4911 under the current statute, UIFSA, provides a mechanism for determining which child support order, among multijurisdictional orders, will be deemed the controlling order. If two or more child support orders have been issued for the same obligor and child and if the obligor or the individual obligee resides in this state, a party may request a tribunal of this state to determine which order controls and shall be so recognized under [section 4911,] subdivision (b). . . ( 4911, subd. (c).) The court resolves the matter by determining first which, if any, of the tribunals issuing the multiple orders would have continuing, exclusive jurisdiction (CEJ): (1) If only one of the tribunals would have [CEJ] under this chapter [commencing with  4700], the order of that tribunal controls and shall be so recognized. [] (2) If more than one of the tribunals would have [CEJ] under this chapter, an order issued by a tribunal in the current home state of the child controls and shall be so recognized, but if an order has not been issued in the current home state of the child, the order most recently issued controls and shall be so recognized. [] (3) If none of the tribunals would have [CEJ] under this chapter, the tribunal of this state having jurisdiction over the parties shall issue a child support order, which controls and shall be so recognized. ( 4911, subd. (b).)[3] The controlling order is prospective only. (Lundahl v. Telford, supra, 116 Cal.App.4th at p. 316.) Likewise, the federal statute, FFCCSOA, provides a mechanism under which the court determines under the same rules as section 4911 which child support order will be recognize[d] for purposes of continuing, exclusive jurisdiction and enforcement. (28 U.S.C.  1738B(f).)

B. The Order Establishing Controlling Order

The court below held that 1991 California order was the controlling order from its entry until October 19, 1993, the 1993 Colorado order and the 1994 Colorado order were the controlling orders from November 1, 1993 through January 29, 1995, and the 1995 California order controlled from January 30, 1995 forward. The court erred in its controlling order determination under section 4911.

Section 4909 reads in relevant part as follows: A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order: [] (1) As long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or [] (2) Until all of the parties who are individuals have filed written consents with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction. ( 4909, subd. (a); see also 28 U.S.C.  1738B(d) [state that has made support order has CEJ over that order if supported child resides in that state or state is the residence of any individual contestant].) And subdivision (d) of section 4909 provides, A tribunal of this state shall recognize the [CEJ] of a tribunal of another state which has issued a child support order pursuant to this chapter or a law substantially similar to this chapter.

In this instance, both the California and Colorado tribunals would have had CEJ over their respective orders pursuant to section 4909. Based on the undisputed facts, Colorado was the current home state of the child at the time the Department filed its motion. ( 4911, subd. (b)(2); see also  4901, subd. (d) [] defining home state as state in which a child lived with a parent . . . for at least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support. . . .]) Therefore, the 1994 Colorado order is the controlling order under section 4911. (See 4 Kirkland et al., Cal. Family Law Practice and Procedure (2d ed.2008)  151.54[1], p. 151-34 (rel.55-5/2008) [providing example in which North Carolina support order was deemed controlling order where that state was childs home and obligor had moved to California].)

Furthermore, the courts reasoning in support of its order was flawed. The court posited that the 1995 California order controlled from 1995 forward because it was based upon a Colorado request that California modify Colorados prior support order. This conclusion is legally unsound.

Under RURESAthe statute applicable at the time the 1994 Colorado order and the 1995 California order issueda new order issued by the state in which the obligor parent is residing, and which provides a different amount of support from that set in the initiating states original support order, does not modify or nullify the original support order unless it specifically states that it does. (In re Marriage of Gerkin (2008) 161 Cal.App.4th 604, 616; see also former Colo. Rev. Stats.,  14-5-132 [providing similarly that support order issued in Colorado is not nullified by support order issued by different state unless expressly provided by court].) Thus, a subsequent support order issued under RURESA does not constitute a modification of a prior sister-state support order unless expressly provided in the subsequent order. (In re Marriage of Ward (1994) 29 Cal.App.4th 1452, 1456-1457; In re Marriage of Popenhager (1979) 99 Cal.App.3d 514, 522-523.)

Here, neither the clerks minute order nor the courts findings and order after hearing stated that it intended to modify the 1994 Colorado order. Indeed, neither the minute order nor the findings and order contained any reference at all to the prior 1994 Colorado order. The court below therefore erred in finding that the 1995 California order was a modification of the 1994 Colorado order. The order made under section 4911 must be reversed.

III. Reconciling Arrears

The Department argues that the court erred by attempting to apply the controlling order mechanism under section 4911 for purposes of reconciling arrears. Specifically, the Department contends that the court improperly determined that the 1991 California order controlled from 1991 to October 1993, the 1993 Colorado order and the 1994 Colorado order controlled from November 1, 1993 through January 29, 1995, and the 1995 California order controlled from January 30, 1995 forward. It asserts that the matter must be remanded for an accurate reconciliation of arrears.

The April 9, 2008 order from which the appeal is taken makes no mention of reconciling arrearages. Likewise, our review of the record from the hearings which resulted in the April 9, 2008 order discloses that there was no mention of reconciling arrearages. Accordingly, while we may agree with the basic propositions urged by the Departmentthat reconciliation of child support arrearages is governed by section 4913,[4] and that the controlling order procedure of section 4911 concerns only the prospective application of the governing child support order (Lundahl v. Telford, supra, 116 Cal.App.4th at p. 316)we decline the invitation to render an advisory opinion concerning a matter apparently not addressed by the trial court. (Safai v. Safai (2008) 164 Cal.App.4th 233, 243.) If the courts order finding, inter alia, that the 1995 California order was the controlling order under section 4911 from January 30, 1995 forward may have had potential impact upon the reconciliation of arrearages, that is of no consequence, since we have concluded that that order must be reversed. Upon remand, the Department is free to seek an accurate reconciliation of arrearages.

DISPOSITION

The trial courts order is reversed. The matter is remanded with instructions that the court enter an order under section 4911 that the 1994 Colorado order is the controlling order.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

Mihara, J.

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[1] All statutory references are to the Family Code unless otherwise stated.

[2] No respondents brief was filed in this appeal, and the Department did not request oral argument. Accordingly, we decide the matter on the record, [and on] the opening brief . . . . (Cal. Rules of Court, rule 8.220(a)(2).)

[3] The drafters of UIFSA have explained that [ 4911] and [ 4913-4913.5] are designed to span the gulf between the one-order system created by UIFSA and the multiple-order system previously in place under RURESA and URESA. UIFSA necessarily must provide transitional procedures for the eventual elimination of existing multiple support orders in an expeditious and efficient manner. But, even though all U.S. jurisdictions enacted UIFSA by 1998, many years will pass before its one-order system will be completely in place. . . . To begin the journey toward a one-order system, however, this section provides a relatively simple procedure designed to identify a single viable order that will be entitled to prospective enforcement in every UIFSA State. (UIFSA Com., 29F Wests Ann. Fam. Code (2004) foll. 4911, p. 463.; cf. Lundahl v. Telford, supra, 116 Cal.App.4th at p. 317 [ 4911 resolves the multiple order systems of URESA and RURESA into a one-order system only for child support, not spousal support].)

[4] Amounts collected and credited for a particular period pursuant to a support order issued by a tribunal of another state shall be credited against the amounts accruing or accrued for the same period under a support order issued by the tribunal of this state. ( 4913.)