CASE NOTES

As to the history of the uniform act, see Mahan v. Read, 240 N.C. 641, 83 S.E.2d 706 (1954).

A proceeding under former Chapter 52A was a civil proceeding as in actions for alimony without divorce. Brondum v. Cox, 30 N.C. App. 35, 226 S.E.2d 193 (1976), aff'd, 292 N.C. 192, 232 S.E.2d 687 (1977).

A primary function of the former Uniform Reciprocal Enforcement of Support Act (URESA) was to simplify and streamline the procedure by which an action to enforce a court order rendered in another jurisdiction could be instituted. Williams v. Williams, 97 N.C. App. 118, 387 S.E.2d 217 (1990).

Conflict Between UIFSA and Prior Law. - Since the Uniform Interstate Family Support Act (UIFSA), G.S. 52C-1-100 et seq. is a more specific and more recent statute than G.S. 50-16.9(c), any conflict between UIFSA and G.S. 50-16.9(c) must be resolved in accordance with the provisions of UIFSA. Hook v. Hook, 170 N.C. App. 138, 611 S.E.2d 869 (2005).

Former Chapter 52A did not establish additional grounds for support; it produced additional means of enforcing support obligations already established. Stevens v. Stevens, 68 N.C. App. 234, 314 S.E.2d 786, cert. denied, 312 N.C. 89, 321 S.E.2d 908 (1984).

Foreign Order. - The effect of a 1986 North Carolina URESA order on a 1981 California child support order was determined in accordance with URESA, not UIFSA; and where no North Carolina order made findings pertaining to the nullification of the California order or to exclusive jurisdiction, the trial court erred in finding that the California order was superseded and effectively voided. Twaddell v. Anderson, 136 N.C. App. 56, 523 S.E.2d 710 (1999), cert. denied, 351 N.C. 480, 543 S.E.2d 510 (2000).

Where a Washington court issued the original divorce decree but, within two years, neither party nor their children were living there, Washington lost jurisdiction over the child support order; because Tennessee acquired continuing, exclusive jurisdiction over the child support order since the father and the children lived there and the parties consented to Tennessee's jurisdiction over the order, the trial court did not err in finding that the Tennessee child support order was controlling. Uhrig v. Madaras, 174 N.C. App. 357, 620 S.E.2d 730 (2005), cert. denied, - N.C. - , 630 S.E.2d 455 (2006).

Nonparentage Not a Defense. - Pursuant to G.S. 52C-3-314, a party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this chapter. Reid v. Dixon, 136 N.C. App. 438, 524 S.E.2d 576 (2000).

Cited in Hinton v. Hinton, 128 N.C. App. 637, 496 S.E.2d 409 (1998); Haker-Volkening v. Haker, 143 N.C. App. 688, 547 S.E.2d 127 (2001); State ex rel. Benford v. Bryant, 208 N.C. App. 165, 701 S.E.2d 387 (2010).

OFFICIAL COMMENT (2015)

The terms defined in UIFSA receive a major makeover in the now-realized expectation that the Convention will enter into force in the United States at a future time. Six definitions of terms are completely new, sixteen existing definitions are amended to a greater or lesser degree, seven definitions remain basically untouched albeit six of these are renumbered, and one term is deleted because it no longer appears in the act.

Many crucial definitions continue to be left to local law. For example, the definitions provided by subsections (1) "child," and (2) "child-support order," refer to "the age of majority" without further elaboration. The exact age at which a child becomes an adult for different purposes is a matter for the law of each state or foreign country as is the age at which a parent's duty to furnish child support terminates. Similarly, a wide variety of other terms of art are implicitly left to state law. The new Convention provides a more explicit definition of "child" that is entirely consistent with the laws of all states.

There is a divergence of opinion among the several states regarding the appropriate age for termination of child support. The overwhelming number of states set ages 18 (legal adulthood for most purposes), or 19, or one of those two ages and high-school graduation, whichever comes later. Relatively few states have retained the formerly popular age of 21. And, some states extend the support obligation past age 21 if the person to be supported is engaged in higher education. Allegedly some support enforcement agencies and some tribunals have been reluctant to enforce an ongoing child support obligation past age 21, but under UIFSA it is the law of the issuing state or foreign country that makes the determination of the appropriate age for termination of support from an obligor. Because the order has been established with personal jurisdiction over the parties, it is fully enforceable under the terms of the act.

Under the terms of the Convention, the standard obligation of a responding tribunal to enforce a child-support order is for a person "under the age of 21 years." See Convention art. 2. Scope. However, a contracting nation may make a reservation to limit enforcement of a child-support order to "persons who have not attained the age of 18 years." Id. This possibility will not affect this act domestically because the United States does not intend to make such a reservation. Currently states will enforce another jurisdiction's order even if such an order could not have been obtained in the responding state because the child was over 18. There is no requirement to establish an order for a child over the age of 18 if that cannot be done under the local jurisdiction's law.

Subsection (3) "Convention," identifies the Hague Maintenance Convention, the basis on which UIFSA (2008) was drafted. The text of the Convention may be accessed on the website of the Hague Convention on Private International Law, www.hcch.net/index. As noted above, the Convention was the result of negotiations involving more than 70 foreign nations or, in some instances political subdivisions of a foreign nation, conducted in a series of meetings from May 2003 to November 2007.

Subsection (4) "Duty of support," means the legal obligation to provide support, whether or not that duty has been the subject of an order by a tribunal. This broad definition includes both prospective and retrospective obligations to the extent they are imposed by the relevant state law.

The definitions in subsections (5) "foreign country," (6) "foreign support order," and (7) "foreign tribunal," are all new to UIFSA, and must be read in conjunction with the prior and the new definition of "state," now in subsection (26). Formerly, under certain circumstances a foreign country or political subdivision was declared to be a "state." Defining a foreign country or a political subdivision thereof, e.g., a Canadian province, as a "state" may be traced back to 1968, where this approach first appeared in the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). That fiction created confusion because a foreign support order is not entitled to full faith and credit. Indeed, such orders of the sister states of the United States were only relatively recently accorded that treatment after congressional action in 1994 with the advent of the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738 B. Thus, constitutional analysis is not required for enforcement of foreign support orders; only state statutory issues are involved.

The term "foreign judgment" is used only once in UIFSA (1996) and (2001) in a context that clearly intends to mean "from a sister state." If an international construction is intended, the text in UIFSA (2001) is uniformly "foreign country or political subdivision." The new definitions in UIFSA (2008) are fine-tuned to avoid ambiguity in order to ensure that "foreign" is used strictly to identify international proceedings and orders.

Subsection (5) requires additional careful reading; under the act "foreign country" by no means includes all foreign nations. See Section 102(5)(A)-(D). Countries identified by three of the four subdivisions are reasonably ascertainable. The list of reciprocating countries that have negotiated an executive agreement with the United States as described in subdivision (5)(A), known as bilateral agreements, is found on the website of the federal Office of Child Support Enforcement (OCSE) at http://www. acf.hhs.gov/programs/cse/international/index.html.

The countries described in Section 102(5)(B) have entered into an agreement with the forum state, which presumptively is known to officials of that state. A combined list of all such agreements of all states is not readily available.

Countries subject to Section 102(5)(C) theoretically could require individualized determinations on a case-by-case basis. An alternative might be for each state to create an efficient method for identifying foreign countries whose laws are "substantially similar" to UIFSA. On the other hand, the "substantially similar" test to measure the laws of foreign nations has been around since 1968 without eliciting much controversy.

In the future, assuming that there will be a number of countries with the Convention in force with the United States under Section 102(5)(D), the list of those countries will be well publicized.

Finally, there are very many foreign nations that do not, and will not, fit any of the definitions of "foreign country" established in the act. At present, there are 192 member states in the United Nations. Recognition and enforcement of support orders from nations that do not meet the definition of "foreign country" may be enforceable under the doctrine of comity. See Section 104.

Subsections (6) "foreign support order," (7) "foreign tribunal," and (12) "issuing foreign country" set down parallel tracks for a foreign support order, foreign tribunal, and foreign issuing country throughout the act.

Subsection (17) "obligor," and subsection (16) "obligee," are denominated in the Convention as "debtor" and "creditor." The terms inherently contain the legal obligation to pay or receive support, and implicitly refer to the individuals with a duty to support a child. "Obligor" includes an individual who is alleged to owe a duty of support as well as a person whose obligation has previously been determined. The one-order system of UIFSA can succeed only if the respective obligations of support are adjusted as the physical possession of a child changes between parents or involves a third-party caretaker. This must be accomplished in the context of modification, and not by the creation of multiple orders attempting to reflect each changing custody scenario. Obviously this issue is of concern not only to interstate and international child-support orders, but applies to intrastate orders as well.

Subsection (18) "outside this state," requires careful reading. This phrase is used in the act when the application of the provision is to be as broad as possible. Rather than limit the application of certain provisions of the act to other states, foreign countries as defined in subsection (5), or even countries whose orders are entitled to comity under Section 104, all nations and political subdivisions are truly "outside this state." For example, that term is found in Sections 316 through 18, which allow a tribunal of this state to accept information or assistance from everywhere in the world (in the court's discretion as to its effect).

The definitions in subsections (23) "responding state," and (24) "responding tribunal," accommodate the direct filing of a petition under UIFSA without the intervention of an initiating tribunal. Both definitions acknowledge the possibility that there may be a responding state and a responding tribunal in a situation where there is no initiating tribunal. Under current practice, the initial application for services most often will be generated by a support enforcement agency or a central authority of a foreign country and sent to the appropriate support enforcement agency in the responding state.

As discussed above in connection with subsections (5) through (7), the amended definition in subsection (26) "state," eliminates the legal fiction that a foreign country can be a state of the United States, and clarifies and implements the purpose of the act to enforce an international support order under state law. In UIFSA (2008), the term clearly is intended to refer only to a state of the United States or to other designated political entities subject to federal law.

The vast bulk of child support establishment, enforcement, and modification in the United States is performed by the state Title IV-D agencies. See Part IV-D, Social Security Act, 42 U.S.C. § 651 et seq. Subsection (27) "support enforcement agency," includes not only those entities, but also any other state or local governmental entities, or private agencies acting under contract with such agencies, charged with establishing or enforcing child support. A private agency falls within the definition of a support enforcement agency only as an outsource of a Title IV-D agency or specifically identified as such under Section 103.

Subsection (28) "support order" is another definition that requires more careful reading than might be immediately clear. Virtually every financial aspect of a support order regarding child support or spousal support is covered. Throughout the act "support order" means both "child support" and "spousal support." "Child support" is used when the provision applies only to support for a child. The single provision applicable solely to spousal support is Section 211. Other forms of support that might be classified as "family support," are not dealt with by UIFSA.

Subsection (29) "tribunal," takes into account that a number of states have delegated various aspects of child-support establishment and enforcement to quasi-judicial bodies and administrative agencies. The term accounts for the breadth of state variations in dealing with support orders. This usage is standard in the child-support enforcement community; private practitioners who, only rarely, are involved in such cases may still find the term unfamiliar.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section.

CASE NOTES

Applicability. - UIFSA governs the proceedings over any foreign support order which is registered in North Carolina after January 1, 1996; URESA laws remain in effect only for (1) pending actions, rights, duties, or liabilities based on URESA, (2) any penalty, forfeiture, or liability incurred under URESA, and (3) for the purpose of sustaining any pending or vested right as of January 1, 1996 and for the enforcement of rights, duties, penalties, forfeitures, and liabilities under the repealed laws. Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997).

Support Order. - The language "all duties of support" in former G.S. 52A-9 included all common law duties of support, all statutory duties of support, and duties growing out of judgments or decrees for alimony or child support, both as to amounts in arrears and as to amounts owed currently or in the future. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Former Chapter 52A, North Carolina's version of the Uniform Reciprocal Enforcement of Support Act (URESA), clearly embraced alimony orders. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Enforcement. - In terms of choice of law, former URESA generally required that the law applied in interpreting and/or enforcing the support order be that of the state in which enforcement was sought; however, UIFSA provides that the law of the issuing state governs the current payments and other obligations of support and the payment of arrears under the order, and any order for the support of a child until age 21 must be recognized and enforced in that manner in a state in which the duty of support of a child ends at age 18. Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997).

"State" Not Shown. - The record failed to establish that Switzerland was a "state" as that term is defined by this section where the record contained no evidence that Switzerland had enacted a law for the issuance and enforcement of support orders that was "substantially similar to the procedures under [UIFSA]" and (2) although the Swiss order itself was arguably some evidence that legal procedures had been established in Switzerland for the issuance and enforcement of support orders. Haker-Volkening v. Haker, 143 N.C. App. 688, 547 S.E.2d 127 (2001).

Applied in Hook v. Hook, 170 N.C. App. 138, 611 S.E.2d 869 (2005); Crenshaw v. Williams, 211 N.C. App. 136, 710 S.E.2d 227 (2011).

OFFICIAL COMMENT (2015)

Subsection (a) provides for the identification of the tribunal or tribunals to be charged with the application of this act.

Subsection (b) performs the same function for the support enforcement agency or agencies. By its terms it indicates the legislature may designate more than one entity as authorized to enforce a support order, including a private agency. To clarify, federal law and regulations require that each state designate a "single and separate organizational unit" as the state agency that is charged with administration of the state plan and is authorized, and funded under Title IV-D of the Social Security Act. Known throughout the United States as the as the "IV-D agency," it may delegate any of its functions to another state or local agency or may purchase services from any person or private agency. The IV-D agency, however, retains responsibility for ensuring compliance with the Title IV-D state plan. Moreover, by virtue of the receipt of a federal subsidy, the agency is subject to federal regulations. The legislature may also decide to provide services unrelated to, or not funded by the Title IV-D system. For example, the state legislature could identify (and fund) a private agency authorized to enforce a spousal-support order not involving child support, or could fund a public defender system to provide counsel for indigent defendants in IV-D cases.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section.

CASE NOTES

Cited in Haker-Volkening v. Haker, 143 N.C. App. 688, 547 S.E.2d 127 (2001).

OFFICIAL COMMENT (2015)

The existence of procedures for interstate establishment, enforcement, or modification of support or a determination of parentage in UIFSA does not preclude the application of the general law of the forum. Even if the parents live in different states, for example, a petitioner may decide to file an original proceeding for child support (and most likely for other relief as well) directly in the state of residence of the respondent and proceed under that forum's generally applicable support law. In so doing, the out-of-state petitioner submits to the personal jurisdiction of the forum and, for the most part, is unaffected by UIFSA. Once a child-support order has been issued, this option is no longer available to interstate parties. Under UIFSA, a state may not permit a party to proceed to obtain a second support order; rather, in further litigation the tribunal must apply the act's provisions for enforcement of an existing order and limit modification to the strict standards of UIFSA.

This section facilitates the recognition and enforcement of a support order from a nation state that is entitled to have its orders recognized by comity, but is not a "foreign country" under Section 102(5). The insertion of the term "foreign support order" to replace "support order of a foreign country or political subdivision" in subsection (a) helps clarify application of "comity" for support enforcement cases. In UIFSA, four types of nation states are defined as "foreign countries": (1) Convention countries; (2) countries with bilateral agreements with the federal government; (3) countries with bilateral agreements with particular states; and (4) countries with similar support laws. However, orders of countries that do not fall within this definition may nevertheless be enforced under "comity". Applying comity to enforce a support order of a tribunal of another nation state intends courtesy and good will, and extends due regard for the legislative, executive, and judicial acts of another nation which is not a "foreign country" as defined in Section 102.

Although the determination by the United States Department of State that a foreign nation is a reciprocating country is binding on all states, recognition of a support order through comity is dependent on the law of each state. The reference to "remedies under other law" is intended to recognize the principle of comity as developed in the forum state by statutory or common law, rather than to create a substantive right independent of that law.

Subsection (b)(1) gives notice that UIFSA is not the only means for establishing or enforcing a support order with an interstate aspect. A potential child-support obligee may voluntarily submit to the jurisdiction of another state to seek the full range of desired relief under the law of that state using intrastate procedures, rather than resorting to the interstate procedure provided by UIFSA. A nonresident married parent may choose to file a proceeding in the forum state for dissolution of the marriage, including property division and spousal support, and in conjunction seek an order regarding child custody and visitation and child support. A parent may submit to the jurisdiction of another state for a determination of parentage and child support. A support order resulting from each of these scenarios implicates UIFSA. Invariably the issuing tribunal will have continuing, exclusive jurisdiction over its controlling child support or spousal-support order as provided by Sections 205, 207, and 211, infra , with all of the attendant application of the act to those orders. Likewise, the order or judgment of another state can be enforced without the necessity of registration under UIFSA by resort to other post-judgment enforcement remedies, such as lien, levy, execution, and filing claims in probate or bankruptcy actions.

On the other hand, subsection (b)(2) makes clear that jurisdiction to establish child custody and visitation orders is distinct from jurisdiction for child-support orders. For the former, jurisdiction generally rests on the child's connection with the state rather than personal jurisdiction over the respondent. See UCCJEA § 201; May v. Anderson, 345 U.S. 528 (1953) (Frankfurter, J., concurring). Under the Supreme Court's case law, jurisdiction to establish a child-support order requires personal jurisdiction over the respondent. See Kulko v. Superior Court, 436 U.S. 84 (1978). If the child-support order is sought under the authority of UIFSA, the most important aspect of this rule is that a child-support obligee utilizing the provisions of UIFSA to establish child support across state lines submits to jurisdiction for child support only, and does not submit to the jurisdiction of the responding state with regard to child custody or visitation.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, added "cumulative" in the section heading; in subsection (a), substituted "Chapter" for "Act" and added "or the recognition of a foreign support order on the basis of comity"; and added subsection (b).

Legal Periodicals. - For survey of 1977 law on domestic relations, see 56 N.C.L. Rev. 1045 (1978).

CASE NOTES

Former Chapter 52A did not establish additional grounds for support. It provided additional means of enforcing support obligations. Blake v. Blake, 34 N.C. App. 160, 237 S.E.2d 310 (1977).

The doctrine of res judicata applied to civil actions brought under former Chapter 52A. Blake v. Blake, 34 N.C. App. 160, 237 S.E.2d 310 (1977).

Scope of Act. - The duty of support was the only subject matter covered by the former Uniform Reciprocal Enforcement of Support Act (URESA); nothing in that act allowed the adjudication of child custody or visitation privileges or other matters commonly determined in domestic relation cases. Vanburen County Dep't of Social Servs. ex rel. Swearengin v. Swearengin, 118 N.C. App. 324, 455 S.E.2d 161 (1995).

Jurisdiction Found - North Carolina trial court properly exercised jurisdiction over a father's action seeking modification of a New Jersey trial court's order requiring the father to pay child support for a mentally retarded child who was born in 1964, after the child and her mother moved to North Carolina and the father moved to Maryland, and the trial court's judgment that the father's request for an order terminating his obligation to pay child support had to be granted, pursuant to G.S. 50-13.4(c), was affirmed on appeal. Lombardi v. Lombardi, 157 N.C. App. 540, 579 S.E.2d 419 (2003).

Cited in Lombardi v. Lombardi, 157 N.C. App. 540, 579 S.E.2d 419 (2003).

OFFICIAL COMMENT (2015)

Four distinct entities are defined as a "foreign country" with tribunals that enter a "foreign support order." See Section 102(5). With regard to the three types of proceedings identified in subsection (a), all of the provisions in this act in Articles 1 through 6 apply. Note, however, that under subsection (c), only one of these, a country "in which the Convention is in force with respect to the United States," see Section 102 (5)(D), will be subject to Article 7 as well as to Articles 1 through 6. Thus, a support order from one of these countries may require special attention. After the Convention comes into force in the United States, a body of case law may develop if it becomes necessary to resolve unanticipated differences between this act and the Convention. As this extensive commentary and the many cross references to provisions of the Convention indicate, significant efforts have been made to avoid any such conflicts.

Under subsection (b) a tribunal of this state may apply principles of comity if appropriate to recognize a support order from a foreign nation state that does not fit the definition of a "foreign country," see Section 102(5)(A)-(D), supra .

Subsection (c) resolves that if terms of the Convention and the terms of this act, including Article 7, are in conflict, the provision of the Convention controls. With regard to the other three statutory definitions of a "foreign country," all the terms, this act in articles 1 through 6 control. After the Convention comes into force in the United States, a body of case law may develop to resolve unanticipated differences between this act and the Convention.

OFFICIAL COMMENT (2015)

General Jurisdictional Principle: Sections 201 and 202 contain what is commonly described as long-arm jurisdiction over a nonresident respondent for purposes of establishing a support order or determining parentage. Read together, subsections (a) and (b) provide the basic jurisdictional rules established by the act for interstate application of a support order, and are designed to be as broad as is constitutionally permissible. To sustain enforceability of a family support order in the United States the tribunal must be able to assert personal jurisdiction over the parties. See Estin v. Estin, 334 U.S. 541, 68 S. Ct. 1213, 92 L. Ed. 1561 (1948), and Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S. Ct. 1360, 1 L. Ed. 2d 1456 (1957) (spousal support); Kulko v. Superior Court, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978) (child support).

Long-arm Provisions: Inclusion of this long-arm provision in this interstate act is justified because residents of two separate states are involved in the litigation, both of whom must be subject to the personal jurisdiction of the forum. Thus, the case has a clear interstate aspect, despite the fact that the substantive and procedural law of the forum state is applicable to a lawsuit in what is a one-state case. This rationale is sufficient to invoke additional UIFSA provisions in an otherwise intrastate proceeding. See Sections 202, 316, and 318, as pertaining to special rules of evidence and discovery for UIFSA cases. The intent is to ensure that every enacting state has a long-arm statute that is as broad as constitutionally permitted.

In situations in which the long-arm statute can be satisfied, the petitioner (either the obligor or the obligee) has two options: (1) utilize the long-arm statute to obtain personal jurisdiction over the respondent, or, (2) initiate a two-state proceeding under the succeeding provisions of UIFSA seeking to establish a support order in the respondent's state of residence. Of course, a third option is also available that does not implicate UIFSA; a petitioner may initiate a proceeding in the respondent's state of residence by filing a proceeding to settle all issues between the parties in a single proceeding.

Under RURESA, multiple support orders affecting the same parties were commonplace. UIFSA created a structure designed to provide for only one support order at a time. The new one-order regime is facilitated and combined with a broad assertion of personal jurisdiction under this long-arm provision. The frequency of a two-state procedure involving the participation of tribunals in both states has been substantially reduced by the introduction of this long-arm statute.

Subsection by subsection analyses: Subsections (1) through (8) are derived from a variety of sources, including the Uniform Parentage Act (1973) § 8, Texas Family Code § 102.011, and New York Family Court Act § 154.

Subsection (1) codifies the holding of Burnham v. Superior Court, 495 U.S. 604 (1990), which reaffirms the constitutional validity of asserting personal jurisdiction based on personal service within a state.

Subsection (2) expresses the principle that a nonresident party concedes personal jurisdiction by seeking affirmative relief or by submitting to the jurisdiction by answering or entering an appearance. However, the power to assert jurisdiction over an issue involving child support under the act does not necessarily extend the tribunal's jurisdiction to other matters. As noted above, family law is rife with instances of bifurcated jurisdiction. For example, a tribunal may have jurisdiction to establish a child-support order based on personal jurisdiction over the obligor under Section 201, but lack jurisdiction over child custody, which is a matter of status adjudication usually based on the home state of the child.

Subsections (3) through (6) identify specific fact situations justifying the assertion of long-arm jurisdiction over a nonresident. Each provides an appropriate affiliating nexus for such an assertion, when judged on a case-by-case basis with an eye on procedural and substantive due process. Further, each subsection does contain a possibility that an overly literal construction of the terms of the statute will overreach due process. For example, subsection (3) provides that long-arm jurisdiction to establish a support order may be asserted if "the individual resided with the child in this state." The typical scenario contemplated by the statute is that the parties lived as a family unit in the forum state, separated, and one of the parents subsequently moved to another state while the other parent and the child continued to reside in the forum. No time frame is stated for filing a proceeding; this is based on the fact that the absent parent has a support obligation that extends for at least the minority of the child (and longer in some states).

On the other hand, suppose that the two parents and their child lived in State A for many years and then decided to move the family to State B to seek better employment opportunities. Those opportunities did not materialize and, after several weeks or a few months of frustration with the situation, one of the parents returned with the child to State A. Under these facts, a tribunal of State A may conclude it has long-arm jurisdiction to establish the support obligation of the absent parent. But, suppose that the family's sojourn in State B lasted for many years, and then one parent unilaterally decides to return to State A. It is reasonable to expect that a tribunal will conclude that assertion of personal jurisdiction over the absent parent immediately after the return based on subsection (3) would offend due process. Note the provisions of UIFSA are available to the returning parent to establish child support in State B, and that state will have long-arm jurisdiction to establish support binding on the moving parent under Section 201. See also Section 204 for the resolution of simultaneous proceedings provided by the act.

The factual situations catalogued in the first seven subsections are appropriate and constitutionally acceptable grounds upon which to exercise personal jurisdiction over an individual. Subsection (7) is bracketed because not all states maintain putative father registries.

Finally, subsection (8) tracks the broad, catch-all provisions found in many state statutes, including Cal. Civ. Proc. Code § 410.10 (1973), and Tex. Family Code § 102.011. Note, however, that the California provision, standing alone, was found to be inadequate to sustain a child-support order under the facts presented in Kulko v. Superior Court, 436 U.S. 84 (1978).

Limit on Asserting Long-arm Jurisdiction to Modify Child-Support Order: Subsection (b) elaborates on the principle by providing that modification of an existing child-support order goes beyond the usual rules of personal jurisdiction over the parties. Amended in UIFSA (2001), subsection (b) makes clear long-arm personal jurisdiction over a respondent, standing alone, is not sufficient to grant subject matter jurisdiction to a responding tribunal of the state of residence of the petitioner for that tribunal to modify an existing child-support order. See the extended commentaries to Sections 609 through 616. The limitations on modification of a child-support order provided by Section 611 must be observed irrespective of the existence of personal jurisdiction over the parties.

For tribunals of the United States, these sections integrate the concepts of personal jurisdiction and its progeny, continuing jurisdiction, and controlling orders. Note that the long-arm provisions of UIFSA (1992) were originally written with only domestic cases in mind. If the tribunal of a state has personal jurisdiction over an individual residing in another state (or, by implication, a foreign country), the application of local law is entitled to recognition and enforcement. See Full Faith and Credit for Child Support Orders Act, a.k.a. FFCCSOA, 28 U.S.C. § 1738B. Integrating this federal law based on the Constitution with the statutory rule of subject matter jurisdiction for modification of an existing child-support order is a major accomplishment of UIFSA. Obviously, the federal act is applicable to a child-support order issued by a state tribunal, but is not applicable to a foreign support order. Nor does FFCCSOA in any way affect a foreign country, which will apply its local law of recognition, enforcement, and modification to a child-support order originating from a state of the United States. When the Convention enters into force, the integration of UIFSA and the law of some foreign countries will be international in scope. At that time the jurisdictional rules of all concerned become significantly more complex. See Section 708. Nonetheless, it seems likely the complexity will be more theoretical than actually troublesome.

Applicability of Long-Arm Jurisdiction to Spousal Support: Although this long-arm statute applies to a spousal-support order, almost all of the specific provisions of this section relate to a child-support order or a determination of parentage. This derives from the fact that the focus of UIFSA is primarily on child support. Only subsections (1), (2), and (8) are applicable to an action for spousal support asserting long-arm jurisdiction over a nonresident. The first two subsections are wholly noncontroversial insofar as an assertion of personal jurisdiction is concerned. Moreover, as a practical matter, an assertion of personal jurisdiction under UIFSA will almost always also yield jurisdiction over all matters to be decided between the spouses, including division of property on divorce. Thus, the most obvious possible basis for asserting long-arm jurisdiction over spousal support, i.e., "last matrimonial domicile," is not included in Section 201 to avoid the potential problem of another instance of bifurcated jurisdiction. This restraint avoids a situation in which UIFSA would arguably grant long-arm jurisdiction for a spousal-support order when the forum state has no correlative statute for property division in divorce.

Potential Application of Long-arm Jurisdiction to Foreign Support Order: If the facts of a case warrant, whether in an interstate or an international context, a state tribunal shall apply long-arm jurisdiction to establish a support order without regard to the physical location or residence of a party outside the United States. Interestingly, under certain fact situations involving a request to recognize and enforce or modify a foreign support order, a state tribunal may be called upon to determine the applicability of long-arm jurisdiction under UIFSA to the facts of the case in order to decide the enforceability of the foreign support order.

For example, a challenge to a request for enforcement of a foreign support order may be made by a respondent based on an allegation that the foreign issuing tribunal lacked personal jurisdiction over the respondent. A respondent may acknowledge that the obligee or the child resides in France, and that a French tribunal issued a support order. But, in the Kulko decision the Court accepted the respondent's allegation that under the state law then available there was no nexus between himself and California and therefore no personal jurisdiction over him as required by the opinion. From the perspective of the French tribunal under the facts above, an asserted lack of personal jurisdiction is of no consequence. Under the law of France, like the law of virtually all other foreign nations, the child-based jurisdiction stemming from the residence of the obligee or child is sufficient to sustain a child-support order against the noncustodial parent. But, meshing the world-wide system of child-based jurisdiction with the U.S. requirement of in personam jurisdiction presented an easily resolved challenge to the drafters of the new Hague Maintenance Convention.

Thus, under the Convention, a state tribunal may be called upon to determine whether the facts underlying the support order would have provided the issuing foreign tribunal with personal jurisdiction over the respondent under the standards of this section. In effect, the question is whether the foreign tribunal would have been able to exercise jurisdiction in accordance with Section 201. The foregoing fact situation illustrates that it is for the state tribunal to determine if the order of the French tribunal would have complied with UIFSA Section 201 on the facts of the case. If so, the foreign support order is entitled to recognition and enforcement. For example, the facts of the case may show that the father lived with the child in France, supported the mother or child in France, or perhaps was responsible for, or agreed to the movement of the child to France.

On the other hand, if the issuing French tribunal would have lacked personal jurisdiction over the respondent if Section 201 had been applicable, the support order cannot be enforced because there was no nexus between France and the respondent. The United States will make a reservation to Convention article 20, declining to recognize or enforce a foreign support order on child-based jurisdiction founded solely on the location or residence of the obligee or the child in the foreign country.

Interestingly, if the responding state tribunal finds the French tribunal lacked personal jurisdiction over the respondent, additional action may be taken. In a Convention case, the responding state tribunal may establish a child-support order if it has personal jurisdiction over the respondent without requesting a separate application for establishment of a new order.

Related to Convention: art. 2. Scope; art. 19. Scope of the chapter; art. 20. Bases for recognition and enforcement; art. 32. Enforcement under internal law; art. 62. Reservations.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, added the subsection (a) designation and subsection (b); in subsection (a), substituted "establish or enforce" for "establish, enforce, or modify" and "parentage of a child" for "parentage" in the introductory language, substituted "consent in a record" for "consent" in subdivision (a)(2), and deleted former subdivision (a)(7), which read: "The individual asserted paternity in an affidavit which has been filed with the clerk of superior court; or."

CASE NOTES

Legislative Intent. - The Legislature did not intend to limit the effect of former Chapter 52A to obligors residing in this State. Rather, the Legislature intended to extend the obligations of an obligee without the suit for domestication of a foreign judgment when proper jurisdiction was present. Stevens v. Stevens, 68 N.C. App. 234, 314 S.E.2d 786, cert. denied, 312 N.C. 89, 321 S.E.2d 908 (1984).

Broad Grant of Authority. - Because the State had an interest in the welfare and support of those persons living within its boundaries, the former statute was broad in granting authority to bring suit for support, and granted authority to the official who prosecuted criminal actions for the State to appear on behalf of the obligee, although the action could also have been brought by another. Stevens v. Stevens, 68 N.C. App. 234, 314 S.E.2d 786, cert. denied, 312 N.C. 89, 321 S.E.2d 908 (1984).

Jurisdiction over Parties. - The former Uniform Reciprocal Enforcement of Support Act applied only where the obligee was present in the initiating state and the obligor was subject to the jurisdiction of the responding state. Mahan v. Read, 240 N.C. 641, 83 S.E.2d 706 (1954).

In a proceeding under the former Uniform Reciprocal Enforcement of Support Act, the court of the initiating state, by approval of the petition and the certification of the documents, enabled petitioner to submit herself to the jurisdiction of the responding state without the necessity of personal presence or employment of counsel, and the responding state acquired jurisdiction of the respondent through service of summons and notice. Mahan v. Read, 240 N.C. 641, 83 S.E.2d 706 (1954).

In an action for child support, alimony, and equitable distribution, trial court properly ruled that the non-resident ex-husband had sufficient minimum contacts with North Carolina to establish personal jurisdiction, as the ex-husband had bought a house in North Carolina with his then-wife so his child could be schooled there, for two years he lived in that marital residence for three days each month, and used the residence's equity line for business purposes. Butler v. Butler, 152 N.C. App. 74, 566 S.E.2d 707 (2002).

California manufacturer's motion to dismiss third-party claims that the manufacturer had negligently packed and loaded a machine for shipment to a North Carolina buyer was denied; personal jurisdiction existed over the manufacturer because, inter alia, the manufacturer had solicited the buyer's business, the claims would not have arisen absent the manufacturer's contacts with North Carolina, and exercise of personal jurisdiction was constitutionally reasonable given the manufacturer's significant business relationship with North Carolina. Cree, Inc. v. Exel N. Am. Logistics, Inc., - F. Supp. 2d - (M.D.N.C. Feb. 6, 2004).

Modification of Valid Orders. - Under the Federal Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B, modification of a valid order is only allowed if: (1) all parties have consented to the jurisdiction of the forum state to modify the order; or (2) neither the child nor any of the parties remains in the issuing state and the forum state has personal jurisdiction over the parties. Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997).

Removal of Obligee to a Third State at Time of Hearing. - Where, after filing a petition under the former Uniform Reciprocal Enforcement of Support Act of the initiating state, the obligee moved to another state and was a resident of such third state at the time of the hearing in North Carolina, the responding state, the North Carolina court had no jurisdiction to make an award for transmittal to the initiating state for transmittal in turn to the petitioner in the third state, and judgment of nonsuit and dismissal should have been entered in the North Carolina court upon motion. Mahan v. Read, 240 N.C. 641, 83 S.E.2d 706 (1954).

OFFICIAL COMMENT (2015)

It is a useful legal truism after a tribunal of a state issues a support order binding on the parties, which must be based on personal jurisdiction by virtue of Kulko v. Superior Court , 436 U.S. 84 (1978) and Vanderbilt v. Vanderbilt , 354 U.S. 416 (1957), jurisdiction in personam continues for the duration of the support obligation absent the statutorily specified reasons to terminate the order. The rule established by UIFSA is that the personal jurisdiction necessary to sustain enforcement or modification of an order of child support or spousal support persists as long as the order is in force and effect, even as to arrears, see Sections 205-207, 211, infra . This is true irrespective of the context in which the support order arose, e.g., divorce, UIFSA support establishment, parentage establishment, modification of prior controlling order, etc. Insofar as a child-support order is concerned, depending on specific factual circumstances a distinction is made between retaining continuing, exclusive jurisdiction to modify an order and having continuing jurisdiction to enforce an order, see Sections 205 and 206, infra . Authority to modify a spousal-support order is permanently reserved to the issuing tribunal, Section 211, infra .

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section.

CASE NOTES

Cited in Butler v. Butler, 152 N.C. App. 74, 566 S.E.2d 707 (2002).

OFFICIAL COMMENT (2015)

This section identifies the two roles a tribunal of the forum may serve: acting as either an initiating or a responding tribunal. See Sections 304 and 305 for the duties and powers of the tribunal in each of these capacities. Under UIFSA, a tribunal may serve as a responding tribunal even when there is no initiating tribunal. This accommodates the direct filing of a proceeding in a responding tribunal by a nonresident of the forum, whether residing in a state or anywhere else in the world. Note, however, that the section does not deal with whether an initiating tribunal of a state may forward a proceeding to a tribunal in a foreign country, which may be left to the individual support enforcement agency.

Related to Convention: art. 2. Scope; art. 37. Direct requests to competent authorities.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, inserted "a tribunal of" preceding "another state," and added "or foreign country" at the end.

OFFICIAL COMMENT (2015)

Under the one-order system established by UIFSA, it was necessary to provide a procedure to eliminate the multiple orders so common under RURESA and URESA. This requires cooperation between, and deference by, state tribunals in order to avoid issuance of competing support orders. To this end, tribunals are expected to take an active role in seeking out information about support proceedings in another state or foreign country concerning the same child. Depending on the circumstances, one of the two tribunals considering the same support obligation should decide to defer to the other. The inclusion of a foreign country in this investigation facilitates the goal of a "one-order world" for a support obligation.

UIFSA (1992) took a significant departure from the approach adopted by the UCCJA (1986) ("first filing"), by choosing the "home state of the child" as the primary factual basis for resolving competing jurisdictional disputes. Not coincidentally, this had previously been the choice for resolving jurisdiction conflicts of the federal Parental Kidnapping Prevention Act, 28 U.S.C. Section 1738A (1980). Given the pre-emptive nature of the PKPA, and the possibility that custody and support will both be involved in some cases, the PKPA/UIFSA choice for resolving disputes between competing jurisdictional assertions was followed in 1997 by the decision of NCCUSL to replace the UCCJA with the UCCJEA. If the child has no home state, however, "first filing" will control.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, deleted "in another state" at the end of the section heading; and inserted "or foreign country" or similar language throughout the section.

OFFICIAL COMMENT (2015)

This section is perhaps the most crucial provision in UIFSA. Consistent with the precedent of the federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, except in very narrowly defined circumstances the issuing tribunal retains continuing, exclusive jurisdiction over a child-support order, commonly known as CEJ. First introduced by UIFSA in 1992, this principle is in force and widely accepted in all states. Indeed CEJ is fundamental to the principle of one-child-support-order-at-a-time.

As long as one of the individual parties or the child continues to reside in the issuing state, and as long as the parties do not agree to the contrary, the issuing tribunal has continuing, exclusive jurisdiction over its child-support order - which in practical terms means that it may modify its order. The statute takes an even-handed approach. The identity of the party remaining in the issuing state - obligor or obligee - does not matter. Indeed, if the individual parties have left the issuing state but the child remains behind, CEJ remains with the issuing tribunal. Even if the parties and the child no longer reside in the issuing state, the support order continues in existence and is fully enforceable unless and until a modification takes place in accordance with the requirements of Article 6, infra . Note, however, that the CEJ of the issuing tribunal over a spousal-support order is permanent, see Section 211, infra .

Subsection (a)(1) states the basic rule, and subsection (a)(2) states an exception to that rule. First, the time to measure whether the issuing tribunal has continuing, exclusive jurisdiction to modify its order, or whether the parties and the child have left the state, is explicitly stated to be at the time of filing a proceeding to modify the child-support order. Second, the term in subsection (a)(1) "is the residence" makes clear that any interruption of residence of a party between the date of the issuance of the order and the date of filing the request for modification does not affect jurisdiction to modify. Thus, if there is but one order, it is the controlling order in effect and enforceable throughout the United States, notwithstanding the fact that everyone at one time had left the issuing state. If the order is not modified during this time of mutual absence, a return to reside in the issuing state by a party or child immediately identifies the proper forum at the time of filing a proceeding for modification. Although the statute does not speak explicitly to the issue, temporary absence should be treated in a similar fashion. Temporary employment in another state may not forfeit a claim of residence in the issuing state. Of course, residence is a fact question for the trial court, keeping in mind that the question is residence, not domicile.

From the beginning of the implementation of the CEJ principle, questions have been raised about why a tribunal may not modify its own order if the parties agree that it should do so even after the parties have left the state. The move of the parties and the child from the state may have been of a very short distance and, although the parties no longer reside in the issuing state, they may prefer to continue to have the child-support order be governed by the same issuing tribunal because they continue to have a strong affiliation with it. For example, the child-support order may have been issued by a tribunal of Washington, D.C. Subsequently the obligee and child have moved to Virginia, the obligor now resides in Maryland, and perhaps one or both parties continue to be employed in Washington. Subsection (a)(2) authorizes retention of CEJ by the issuing state when the parties reasonably may prefer to continue to deal with the issuing tribunal even though the state is "not the residence" of the parties or child as an exception to the general rules of CEJ for modifications of a support order.

The other side of the coin follows logically. Just as subsection (a) defines the retention of continuing, exclusive jurisdiction, by clear implication the subsection also identifies how jurisdiction to modify may be lost. That is, if all the relevant persons - the obligor, the individual obligee, and the child - have permanently left the issuing state, absent an agreement the issuing tribunal no longer has an appropriate nexus with the parties or child to justify the exercise of jurisdiction to modify its child-support order. Further, the issuing tribunal will have no current evidence readily available to it about the factual circumstances of anyone involved, and the taxpayers of that state will have no reason to expend public funds on the process. Note, however, that the original order of the issuing tribunal remains valid and enforceable. That order is in effect not only in the issuing state, but also in those states in which the order has been registered. The order also may be registered and enforced in additional states even after the issuing tribunal has lost its power to modify its order, see Sections 601-604, infra . In sum, the original order remains in effect until it is properly modified in accordance with the narrow terms of Sections 609-612, infra .

Subsection (b)(1) explicitly provides that the parties may agree in a record that the issuing tribunal should relinquish its continuing, exclusive jurisdiction to modify so that a tribunal in another state may assume CEJ to modify the child-support order. It is believed that such consent seldom occurs because of the almost universal desire of each party to prefer his or her local tribunal. The principle that the parties should be allowed to agree upon an alternate forum if they so choose also extends to a situation in which all the parties and the child have left the issuing state and are in agreement that a tribunal of the state in which only the movant resides shall assume modification jurisdiction, see Section 611.

Although subsections (a) and (b) identify the methods for the retention and the loss of continuing, exclusive jurisdiction by the issuing tribunal, this section does not confer jurisdiction to modify on another tribunal. Modification requires that a tribunal have personal jurisdiction over the parties and meet other criteria as provided in Sections 609 through 615, infra .

Related to Convention: art. 18. Limit on proceedings.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section.

CASE NOTES

Conflict Between UIFSA and Prior Law. - G.S. 52C-2-205 and G.S. 52C-2-206 of the Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., which prohibit a responding state from modifying spousal support orders issued in another state, control over any conflict created by G.S. 50-16.9(c). Hook v. Hook, 170 N.C. App. 138, 611 S.E.2d 869 (2005).

Former wife's registering a New Jersey divorce judgment in North Carolina had no effect on New Jersey's status as the issuing state with continuing, exclusive jurisdiction over its alimony order. New Jersey was the only state with jurisdiction to modify the former husband's alimony obligation. Hook v. Hook, 170 N.C. App. 138, 611 S.E.2d 869 (2005).

Modification of Valid Order. - Under the Federal Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B, modification of a valid order is only allowed if: (1) all parties have consented to the jurisdiction of the forum state to modify the order; or (2) neither the child nor any of the parties remains in the issuing state and the forum state has personal jurisdiction over the parties. Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997).

Trial court did not err in finding that a 1997 North Carolina (N.C.) child support order was the controlling order because pursuant to the Uniform Interstate Family Support Act (UIFSA), G.S. 52C-2-205, North Carolina obtained jurisdiction to modify a 1994 New York (N.Y.) child support order since neither the father, mother, nor child were residents of New York, and the child was a resident of North Carolina; pursuant to the UIFSA, N.Y. Fam. Ct. Act § 580-205, New York lost its continuing, exclusive jurisdiction when the parties and child were no longer residents of New York and when North Carolina modified the 1994 N.Y. order. Moncrief v. Div. of Child Support Enforcement ex rel. Joyner, 60 Va. App. 721, 732 S.E.2d 714 (2012).

Pursuant to the Uniform Interstate Family Support Act (UIFSA), Va. Code Ann. § 20-88.66, the trial court did not err in registering a 1997 North Carolina (N.C.) child support order, which applied the duration term set forth in a 1994 New York (N.Y.) child support order because the 1994 N.Y. order was not modified and remained in full force and effect through the 1997 N.C. order's saving language; the 1997 N.C. order provided that all provisions of previous orders not modified therein would remain in full force and effect. Moncrief v. Div. of Child Support Enforcement ex rel. Joyner, 60 Va. App. 721, 732 S.E.2d 714 (2012).

Jurisdiction of Texas Court. - Where father sought to modify Texas order for child support, the Texas court retained exclusive jurisdiction over the matter. Hinton v. Hinton, 128 N.C. App. 637, 496 S.E.2d 409 (1998).

Jurisdiction Not Found. - The trial court erred both in failing to register a 1995 New Jersey order and in entering a North Carolina Voluntary Support Agreement terminating child support at age eighteen, contrary to the terms of the New Jersey order; the court did not have subject matter jurisdiction where the record demonstrated that the plaintiff met the requirements of G.S. 52C-6-602 by properly transmitting all of the required URESA documentation and where, upon notification, the defendant did not contest the foreign support order; furthermore, the law of the issuing state, allowing for child support until the child reaches twenty-two, should have been applied by the adopting state. State ex rel. Harnes v. Lawrence, 140 N.C. App. 707, 538 S.E.2d 223 (2000).

Trial court lacked authority to modify a foreign child support order or to reduce arrearages under the Uniform Interstate Family Support Act because the mother registered the order in North Carolina for enforcement only, North Carolina did not have personal jurisdiction over the mother, who lived in Florida, and the parties did not consent to North Carolina's jurisdiction to modify the child support order. Lacarrubba v. Lacarrubba, 202 N.C. App. 532, 688 S.E.2d 769 (2010).

OFFICIAL COMMENT (2015)

This section is the correlative of the continuing, exclusive jurisdiction described in the preceding section. It makes the relatively subtle distinction between the CEJ "to modify a support order" established in Section 205 and the "continuing jurisdiction to enforce" established in this section. A keystone of UIFSA is that the power to enforce the order of the issuing tribunal is not "exclusive" with that tribunal. Rather, on request one or more responding tribunals may also exercise authority to enforce the order of the issuing tribunal. Secondly, under the one-order-at-a-time system, the validity and enforceability of the controlling order continues unabated until it is fully complied with, unless it is replaced by a modified order issued in accordance with the standards established by Sections 609-616. That is, even if the individual parties and the child no longer reside in the issuing state, the controlling order remains in effect and may be enforced by the issuing tribunal or any responding tribunal without regard to the fact that the potential for its modification and replacement exists.

Subsection (a) authorizes the issuing tribunal to initiate a request for enforcement of its order by a tribunal of another state if its order is controlling, see Section 207, or to request reconciliation of the arrears and interest due on its order if another order is controlling.

Subsection (b) reiterates that the issuing tribunal has jurisdiction to serve as a responding tribunal to enforce its own order at the request of another tribunal.

Related to Convention: art. 19. Scope of the Chapter.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section.

CASE NOTES

Conflict Between UIFSA and Prior Law. - G.S. 52C-2-205 and G.S. 52C-2-206 of the Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., which prohibit a responding state from modifying spousal support orders issued in another state, control over any conflict created by G.S. 50-16.9(c). Hook v. Hook, 170 N.C. App. 138, 611 S.E.2d 869 (2005).

OFFICIAL COMMENT (2015)

In addition to the introduction of the concepts of one-order and continuing, exclusive jurisdiction in Section 205, another dramatic founding principle of UIFSA was to establish a system whereby the multiple orders created by URESA and RURESA could be reconciled in the transition from a world with multiple child-support orders to a one-order-at-a-time world. This principle introduced by Section 207 was subsequently incorporated into the requirements of 28 USC 1738B, Full Faith and Credit for Child Support Orders, a.k.a. FFCCSOA.

The combination of FFCCSOA becoming effective on October 20, 1994 and the adoption of UIFSA (1996) being mandated for all states by January 1, 1998, has made this section almost never used. The existence of multiple, valid orders for ongoing support have all but disappeared.

Sections 209-210, and especially Section 207, 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. These transitional procedures necessarily must provide for the eventual elimination of existing multiple support orders in an expeditious and efficient manner. Although FFCCSOA was effective October 20, 1994 and all U.S. jurisdictions enacted UIFSA by 1998, considerable time is required to pass before its one-order system could be completely in place. For example, multiple 21-year child-support orders issued for an infant in 1996 and 1997 would, by their terms, not end the conflict until the first expires 2017 - absent resolution of the conflict by a tribunal under this section. Nonetheless, at least on the appellate level, the problem of multiple orders is fast disappearing. This section provides a relatively simple procedure to identify a single viable order that will be entitled to prospective enforcement in every state.

Subsection (a) declares that if only one child-support order exists, it is to be denominated the controlling order, irrespective of when and where it was issued and whether any of the individual parties or the child continue to reside in the issuing state.

Subsection (b) establishes the priority scheme for recognition and prospective enforcement of a single order among existing multiple orders regarding the same obligor, obligee, and child. A tribunal requested to sort out the multiple orders and determine which one will be prospectively controlling of future payments must have personal jurisdiction over the litigants in order to ensure that its decision is binding on all concerned. For UIFSA to function, one order must be denominated as the controlling order, and its issuing tribunal must be recognized as having continuing, exclusive jurisdiction. In choosing among existing multiple orders, none of which can be distinguished as being in conflict with the principles of UIFSA, subsection (b)(1) gives first priority to an order issued by the only tribunal that is entitled to continuing, exclusive jurisdiction under the terms of UIFSA, i.e., an individual party or the child continues to reside in that state and no other state meets this criterion. If two or more tribunals would have continuing, exclusive jurisdiction under the act, subsection (b)(2) first looks to the tribunal of the child's current home state. If that tribunal has not issued a support order, subsection (b)(2) looks next to the order most recently issued. Finally, subsection (b)(3) provides that if none of the existing multiple orders are entitled to be denominated as the controlling order because none of the preceding priorities apply, the forum tribunal is directed to issue a new order, given that it has personal jurisdiction over the obligor and obligee. The new order becomes the controlling order, establishes the continuing, exclusive jurisdiction of the tribunal, and fixes the support obligation and its nonmodifiable aspects, primarily duration of support, see Sections 604 and 611(c), infra . The rationale for creating a new order to replace existing multiple orders is that there is no valid reason to prefer the terms of any one of the multiple orders over another in the absence of a fact situation described in subsections (b)(1) or (b)(2).

As originally promulgated, UIFSA did not come to grips with whether existing multiple orders issued by different states might be entitled to full faith and credit without regard to the determination of the controlling order under the act. The drafters took the position that state law, however uniform, could not interfere with the ultimate interpretation of a constitutional directive. Fortunately, this question has almost certainly been mooted by the 1996 amendment to 28 U.S.C. § 1738B, Full Faith and Credit for Child Support Orders. Congress incorporated the multiple order recognition provisions of Section 207 of UIFSA into FFCCSOA virtually word for word in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Pub. L. 104-193, Aug. 22, 1996, 110 Stat. 2221.

It is not altogether clear whether the terms of UIFSA apply to a strictly intrastate case; that is, a situation in which multiple child-support orders have been issued by multiple tribunals of a single state and the parties and the child continue to reside in that state. This is not an uncommon situation, often traceable to the intrastate applicability of RURESA. A literal reading of the statutory language suggests the section applies. Further, FFCCSOA does not make a distinction regarding the tribunals that issued multiple orders. If multiple orders have been issued by different tribunals in the home state of the child, most likely the most recent will be recognized as the controlling order, notwithstanding the fact that UIFSA Section 207 (b)(2)(B), and FFCCSOA 42 U.S.C. § 1738B(f)(3), literally do not apply. At the very least, this section, together with FFCCSOA, provide a template for resolving such conflicts.

Subsection (c) clarifies that any party or a support enforcement agency may request a tribunal of the forum state to identify the controlling order. That party is directed to fully inform the tribunal of all existing child-support orders.

Subsection (d) seeks to assure the tribunal is furnished with all the information needed to make a proper determination of the controlling order, as well as the information needed to make a calculation of the consolidated arrears. The party or support enforcement agency requesting the determination of controlling order and determination of consolidated arrears is also required to notify all other parties and entities who may have an interest in either of those determinations. Those with such an interest most likely are support agencies and the obligee.

Subsection (e) provides that the determination of the controlling order under this section has the effect of establishing the tribunal with continuing, exclusive jurisdiction; only the order of that tribunal is entitled to prospective enforcement by a sister state.

Subsection (f) directs the forum tribunal to identify the details upon which it makes its determination of the controlling order. In addition, the tribunal is also directed to state specifically the amount of the prospective support, and to reconcile and consolidate the arrears and interest due on all of the multiple orders to the extent possible.

The party obtaining the determination is directed by subsection (g) to notify all interested tribunals of the decision after the fact. Although tribunals need not be given original notice of the proceeding, all tribunals that have contributed an order to the determination must be informed regarding which order was determined to be controlling, and should also be informed of the consolidated arrears and interest so that the extent of possible subsequent enforcement will be known with regard to each of the orders. The act does not deal with the resolution of potential conflicting claims regarding arrears; this is left to case-by-case decisions or to federal regulation.

Section 207 presumes that the parties are accorded notice and opportunity to be heard by the tribunal. It also presumes that the tribunal will be fully informed about all existing orders when it is requested to determine which one of the existing multiple child-support orders is to be accorded prospective enforcement. If this does not occur and one or more existing orders is not considered by the tribunal, the finality of its decision is likely to turn on principles of estoppel on a case-by-case basis.

Finally, subsection (h), affirms the concept that when a fully informed tribunal makes a determination of the controlling order for prospective enforcement, or renders a judgment for the amount of the consolidated arrears, the decision is entitled to full faith and credit.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section.

CASE NOTES

Issuance by Home State. - Under this section, if the current home state of the child issued the support order, then that state retains continuing exclusive jurisdiction. State ex rel. Harnes v. Lawrence, 140 N.C. App. 707, 538 S.E.2d 223 (2000).

Intent as to Changed Circumstances. - The legislature apparently intended that enactment of former G.S. 52A-21 would provide authority to the courts of this State to apply the former Uniform Reciprocal Enforcement of Support Act so as to provide for the support of a minor child independent of and without regard for any other support judgments or whether there had been a change of circumstances of either the child or its parents; therefore, it was not necessary that the complaint for child support contain allegations of facts constituting changed circumstances. County of Stanislaus v. Ross, 41 N.C. App. 518, 255 S.E.2d 229 (1979).

Entitlement to Enforce Prior Support Order Made by Court of Another State. - The plaintiff who accepted payments under a North Carolina Uniform Reciprocal Enforcement of Support Act (URESA) order did not abandon her rights to child support payments awarded under a prior South Carolina support order; she was entitled to bring an action to enforce the South Carolina order, and the defendant was entitled to receive credit for the payments he made under the URESA order. Stephens v. Hamrick, 86 N.C. App. 556, 358 S.E.2d 547 (1987).

Where the only issue was arrearages, a North Carolina trial court erred in failing to give full faith and credit to an Oregon child support order; the trial court's duty was to enforce the Oregon order until a subsequent North Carolina order was entered, and then to enforce a father's child support arrearages under both orders. New Hanover County ex rel. Mannthey v. Kilbourne, 157 N.C. App. 239, 578 S.E.2d 610 (2003).

Jurisdiction of Texas Court. - Where father sought to modify Texas order for child support, the Texas court retained exclusive jurisdiction over the matter. Hinton v. Hinton, 128 N.C. App. 637, 496 S.E.2d 409 (1998).

Cited in Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997).

OFFICIAL COMMENT (2015)

This section is concerned with those multiple orders that involve two or more families of the same obligor. Although all such orders are entitled to enforcement, practical difficulties frequently exist. For example, full enforcement of each of the multiple orders may exceed the maximum allowed for income withholding. The federal statute, 42 U.S.C. § 666(b)(1), requires that to be eligible for the federal funding for enforcement, states must provide a ceiling for child-support withholding expressed in a percentage that may not exceed the federal law limitations on wage garnishment, Consumer Credit Protection Act of 1968, 15 U.S.C. § 1673(b). In order to allocate resources between competing families, UIFSA refers to state law. The basic principle is that one or more support orders for an out-of-state family of the obligor, and one or more orders for an in-state family, are of equal dignity. In allocating payments to different obligees, every child-support order should be treated as if it had been issued by a tribunal of the forum state, that is, preferential treatment for a local family over an out-of-state family is prohibited by local law. The addition of a foreign support order to the formula supplied by this section should assure that all children will have equal ability to obtain their share of child support.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, deleted "Multiple" at the beginning of the section heading; deleted "multiple" preceding "registrations" near the beginning of the section, inserted "or a foreign country," and deleted "multiple" preceding "orders had been issued" near the end of the section.

OFFICIAL COMMENT (2015)

The issuing tribunal is ultimately responsible for the overall control of the enforcement methods employed and for accounting for the payments made on its order from multiple sources. Until that scheme is fully in place, however, it will be necessary to continue to mandate pro tanto credit for actual payments made against all existing orders. The addition to include a foreign support order in the calculation should assure all payments of support are properly credited. This section does not attempt to impact the way support paid in an individual case is apportioned or distributed between the obligee and one or more states asserting a claim to the monies.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section.

CASE NOTES

Full Faith and Credit - Where the only issue was arrearages, a trial court erred in failing to give full faith and credit to an Oregon child support order; the trial court's duty was to enforce the Oregon order until a subsequent North Carolina order was entered, and then to enforce a father's child support arrearages under both orders. New Hanover County ex rel. Mannthey v. Kilbourne, 157 N.C. App. 239, 578 S.E.2d 610 (2003).

OFFICIAL COMMENT (2015)

Assertion of long-arm jurisdiction over a nonresident results in a one-state proceeding without regard to the fact that one of the parties resides in a different state or in a foreign country. On obtaining personal jurisdiction the tribunal must apply the law of the forum. Once personal jurisdiction has been asserted over a nonresident, the issuing tribunal retains continuing, exclusive jurisdiction (CEJ) to modify, and continuing jurisdiction to enforce a support order in accordance with the provisions of the act. Of course, it is far more common for a support order to be issued in conjunction with a divorce or determination of parentage in which both the obligor and obligee are residents of the forum than to be issued as a result of an assertion of long-arm jurisdiction. Note that either the petitioner or the respondent may be the nonresident party (either of whom may be the obligor or the obligee). Also note that absent this provision, the ordinary intrastate substantive and procedural law of the forum would apply to either fact situation without reference to the fact that one of the parties is a nonresident. Thus, CEJ applies whether the matter at hand involves establishment of an original support order or enforcement or modification of an existing order. In any event, if one of the parties resides outside the forum state, the nonresident may avail himself or herself of the special evidentiary and discovery provisions provided by UIFSA.

This section makes clear that the special rules of evidence and procedure identified in Sections 316, 317, and 318 are applicable in a case involving a nonresident of the forum state. Section 316 facilitates decision-making when a party or a child resides "outside this state" by providing special rules to recognize the impediments to presenting evidence caused by nonresident status. Note the terminology has the broadest possible application, i.e., worldwide. The improved interstate and international exchange of information enables the nonresident to participate as fully as possible in the proceedings without the necessity of personally appearing in the forum state. The same considerations account for authorizing interstate and international communications between tribunals as per Section 317. Finally, the discovery procedures of Section 318 are made applicable in a one-state proceeding when another tribunal may assist in that process. Of course, "may assist" is entirely at the discretion of the other tribunal. Note, a foreign tribunal may be completely unfamiliar with discovery procedures as known in the United States.

Generally, however, the ordinary substantive and procedural law of the forum state applies in a one-state proceeding. In sum, the parties and the tribunal in a one-state case may utilize those procedures that contribute to economy, efficiency, and fair play.

Related to Convention: art. 20. Bases for recognition and enforcement.

Editor's Note. - The bracketed references in this section were inserted at the direction of the Revisor of Statutes.

OFFICIAL COMMENT (2015)

The amendment to subsection (b) ensures that the restriction on modification of an out-of-state spousal-support order extends to a foreign order. At the same time, subsection (b) provides that the question of continuing, exclusive jurisdiction be resolved under the law of the issuing tribunal. Thus, if a foreign spousal- support order were subject to modification in another country by the law of the issuing tribunal, this section would permit modification in a tribunal of this state.

Related to Convention: art. 2. Scope.

OFFICIAL COMMENT (2015)

Subsection (a) mandates application of the general provisions of this article to all UIFSA proceedings, including those affecting a foreign support order.

The statement in subsection (b) is axiomatic that the tribunal in which a petition is filed for establishment or enforcement of a support order, or for modification of a child-support order, must be able to assert personal jurisdiction over the respondent. It is also axiomatic that an individual petitioner requesting affirmative relief under this act submits to the personal jurisdiction of the tribunal. Subsection (b) also continues reference to the basic two-state procedure long employed by the former reciprocal acts to establish a support order in the interstate context, but expands it to recognize foreign countries. Direct filing of a petition in a state tribunal by an individual or a support enforcement agency without reference to an initiating tribunal in another state was introduced by UIFSA (1992). UIFSA (2008) extends the direct filing capability to foreign countries as well.

Although the filing of a petition in an initiating tribunal to be forwarded to a responding tribunal is still recognized as an available procedure, the direct filing procedure has proven to be one of the most significant improvements in efficient interstate case management. The promulgation and use of the federally mandated, or substantially conforming, forms, Section 311(b), further serves to eliminate any role for the initiating tribunal. Incidentally, the Convention contains approved forms for use in Convention cases processed through a Central Authority.

Related to Convention: art. 2. Scope; art. 10. Available applications; art. 19. Scope of the chapter; art. 20. Bases for recognition and enforcement; art. 32. Enforcement under internal law; art. 33. Non-discrimination; art. 34. Enforcement measures; art.37. Direct requests to competent authorities; Annex 1. Transmittal form under Article 12(2); Annex 2. Acknowledgement form under Article 12(3).

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, deleted former subsection (b); and in subsection (c), substituted "initiate" for "commerce" following "agency may" and inserted "or a foreign country."

CASE NOTES

Purpose. - Under the former Uniform Reciprocal Enforcement of Support Act, a state had jurisdiction to establish, vacate, or modify an obligor's support obligation even when that obligation had been created in another jurisdiction, and the result was often multiple, inconsistent obligations existing for the same obligor and injustice in that obligors could avoid their responsibility by moving to another jurisdiction and having their support obligations modified or even vacated; the new Uniform Interstate Family Support Act was designed to correct this problem. Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997).

Establishment, Modification and Enforcement of Support Obligations. - The Uniform Reciprocal Enforcement of Support Act (URESA) was repealed effective January 1, 1996, and in its place, the legislature adopted the Uniform Interstate Family Support Act (UIFSA); both URESA and UIFSA were promulgated and intended to be used as procedural mechanisms for the establishment, modification, and enforcement of child and spousal support obligations. Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997).

Enforcement of Foreign Spousal Support Orders. - Under Chapter 52C, the trial court had subject matter jurisdiction to enforce a British court's spousal support order as that jurisdiction had enacted a law for the issuance and enforcement of support orders substantially similar to the law which North Carolina used to enforce foreign spousal support orders. Foreman v. Foreman, 144 N.C. App. 582, 550 S.E.2d 792 (2001), cert. denied, 354 N.C. 68, 553 S.E.2d 38 (2001).

Registration of Support Orders. - Even though effective date of Chapter 52C was January 1, 1996, plaintiff wife's petition for enforcement of British court's spousal support order entered before that date was valid, as Chapter 52C governed orders regardless of when entered so long as the orders were registered in North Carolina after January 1, 1996, and plaintiff properly registered the British support order in North Carolina on September 23, 1997. Foreman v. Foreman, 144 N.C. App. 582, 550 S.E.2d 792 (2001), cert. denied, 354 N.C. 68, 553 S.E.2d 38 (2001).

Nonparentage Not a Defense to Support Enforcement. - Where an Alaskan decree had adjudged the defendant to be the father of the subject child, under North Carolina's enactment of the Uniform Interstate Family Support Act (UIFSA), G.S. 52C-1 et seq., he may not plead nonparentage as a defense in a proceeding to enforce the payment of child support. See G.S. 52C-3-314. Reid v. Dixon, 136 N.C. App. 438, 524 S.E.2d 576 (2000).

Applied in Hook v. Hook, 170 N.C. App. 138, 611 S.E.2d 869 (2005).

Cited in Haker-Volkening v. Haker, 143 N.C. App. 688, 547 S.E.2d 127 (2001); Butler v. Butler, 152 N.C. App. 74, 566 S.E.2d 707 (2002).

OFFICIAL COMMENT (2015)

A minor parent may maintain a proceeding under UIFSA without the appointment of a guardian ad litem, even if the law of the forum jurisdiction requires a guardian for an in-state case. If a guardian or legal representative has been appointed, he or she may act on behalf of the minor's child in seeking support.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "Proceeding" for "Action" in the section heading.

Opinions of Attorney General

Identification of Minor Children as Complainants. - In a proceeding under former Chapter 52A, where it appeared from examination of all documents transmitted to the North Carolina Court in accordance with the Act that support was being sought for minor dependents identified in the complaint, it was lawful for a North Carolina Court to order support payments for the minor dependents even though their names did not appear in the style of the case and the mother was identified on the complaint as the complainant. See opinion of Attorney General to Mr. W.H.S. Burgwyn, Jr., Solicitor, 40 N.C.A.G. 718 (1969).

OFFICIAL COMMENT (2015)

Historically states have insisted that forum law be applied to support cases whenever possible. This continues to be a key principle of UIFSA. In general, a responding tribunal has the same powers in a proceeding involving parties in a case with interstate or international effect as it has in an intrastate case. This inevitably means that the act is not self-contained; rather, it is supplemented by the forum's statutes and procedures governing support orders. To insure the efficient processing of the huge number of interstate support cases, it is vital that decision makers apply familiar rules of law to the maximum degree possible. This must be accomplished in a manner consistent with the overriding principle of UIFSA that enforcement is of the issuing tribunal's order, and that the responding state does not make the order its own as a condition of enforcing it.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, deleted "including the rules on choice of law" following "substantive law" in subdivision (1); and made minor stylistic changes.

OFFICIAL COMMENT (2015)

Subsection (a) was designed primarily to facilitate interstate enforcement between UIFSA states and URESA and RURESA states, with some applicability to cases involving foreign jurisdictions. Since 1998, by which time UIFSA had been enacted nationwide, the procedure described has gradually become an anachronism. Note, however, that the last RURESA child-support order may not expire until 2017 or 2018. See Prefatory Note.

Subsection (b), however, retains its utility with regard to a support order of a foreign nation. Supplying documentation required by a foreign jurisdiction, which is not otherwise required by UIFSA procedure, is appropriate in the international context. For example, a venerable process in British Commonwealth countries is known as provisional and confirming orders. A "provisional order" is a statement of the nonbinding amount of support being requested by a Canadian tribunal for establishment of a support order by a state responding tribunal. A state responding tribunal will receive information about the amount of support provisionally calculated by a tribunal in Canada. It needs to be borne in mind that a request to establish support from a Canadian tribunal will be accomplished in accordance with the law of the responding state. Thus, the Canadian provisional order is informative, but not binding on the responding tribunal. An order issued by the responding tribunal, whether for the amount suggested in the provisional order or another amount based on the local law of the responding tribunal, is known as a confirming order. Similarly, the initiating state's tribunal, knowing that a provisional order will be required by the Canadian tribunal, is directed to cooperate and provide a statement of the amount of support being provisionally requested.

The initiating tribunal of this state also has a duty to identify the amount of foreign currency equivalent to its request to the Canadian tribunal and a corresponding duty for a responding tribunal to convert the foreign currency into dollars if the foreign initiating tribunal has not done so, Section 305(f). The reference to "the applicable official or market exchange rate" takes into account the present practices of international money markets. A few countries continue to maintain an official exchange rate for their currency. The vast majority of countries recognize the fact that the value of their currency is subject to daily market fluctuations that are reported on the financial pages of many daily newspapers. Thus, in the example described above, a request for a specific amount of support in U.S. dollars, which is to be translated into Canadian dollars on a specific date, will inevitably have a variable value as the foreign currency rises or falls against the U.S. dollar.

Related to Convention: art. 31. Decisions produced by the combined effect of provisional and confirmation orders.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, deleted "three copies of" following "shall forward" in the introductory language of subsection (a); and rewrote subsection (b).

CASE NOTES

Initiating Court Need Not Issue Summons. - Former G.S. 52A-11 did not require the initiating court to issue a summons. Frederick County ex rel. Ridgway v. Skinner, 48 N.C. App. 621, 269 S.E.2d 678 (1980).

OFFICIAL COMMENT (2015)

This section establishes a wide variety of duties for a responding tribunal. It contains: ministerial functions, subsection (a); judicial functions, subsection (b); and, substantive rules applicable to interstate cases, subsections (c)-(e). Because a responding tribunal may be an administrative agency rather than a court, the act explicitly states that a tribunal is not granted powers that it does not otherwise possess under state law. For example, authority to enforce a support order by contempt generally is limited to courts.

Subsection (a) directs the filing of the documents received without regard to whether an initiating tribunal in another state was involved in forwarding the documentation. It also directs that the individual or entity requesting the filing be notified, but leaves the means of that notification to local law. The advent of a variety of swifter, and perhaps even more reliable, forms of notice in the modern era justifies the deletion of a particular form of notice. For example, many states now authorize notice by telephone facsimile (FAX), or by an express delivery service, and many legal documents are transmitted by electronic mail (email).

Subsection (b) lists duties that, if possessed under state law in connection with intrastate cases, are extended to the responding tribunal in UIFSA cases. Thus, each subdivision purposefully avoids mention of substantive rules. For example, subsection (b)(7) does not identify the type, nature, or priority of liens that may be issued under UIFSA. As is generally true under the act, those details will be determined by applicable state law concerning support enforcement remedies of local orders.

Subsection (c) clarifies that the details of calculating the child-support order are to be included along with the order. Local law generally requires that variation from the child support guidelines must be explained, see 42 U.S.C. § 667; this requirement is extended to interstate cases.

Subsection (d) states that an interstate support order may not be conditioned on compliance with a visitation order. While this may be at variance with state law governing intrastate cases, under a UIFSA proceeding the petitioner generally is not present before the tribunal. This distinction justifies prohibiting visitation issues from being litigated in the context of a support proceeding. All states have enacted some version of either the UCCJA or the UCCJEA providing for resolution of visitation issues in interstate cases.

Subsection (e) introduces the policy determination that the petitioner, the respondent, and the initiating tribunal, if any, shall be kept informed about actions taken by the responding tribunal.

Subsection (f) is designed to facilitate enforcement of a foreign support order. Note that the language directing a conversion to a monetary equivalence in dollars is intended to make clear the equivalence is not a modification of the original order to an absolute dollar figure; rather, satisfaction of the obligation is to be determined by the order-issuing tribunal based on the present dollar value of the currency in which the order is denominated.

Related to Convention: art. 19. Scope of the Chapter; art. 34. Enforcement measures; art. 35. Transfer of funds; art. 43. Recovery of costs.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "not prohibited" for "otherwise authorized" in the introductory language of subsection (b); in subdivision (b)(1), substituted "Establish" for "Issue" at the beginning, and substituted "determine the controlling child support order, or determine parentage of a child" for "or render a judgment to determine parentage"; inserted "electronic-mail address" in subdivision (b)(8); and added subsection (f).

CASE NOTES

No Statutory Offense. - While a trial court of a "responding state" could punish a respondent for noncompliance with its orders, and while certain provisions of former Chapter 52A provided for the interstate rendition of persons charged in other states with the crime of nonsupport, no statutory offense was created by that Chapter, and it was error for the trial court to treat it as such, given the civil nature of the proceeding. Childers v. Childers, 19 N.C. App. 220, 198 S.E.2d 485 (1973).

A proceeding under former Chapter 52A was a civil proceeding as in actions for alimony without divorce. Cline v. Cline, 6 N.C. App. 523, 170 S.E.2d 645 (1969); Childers v. Childers, 19 N.C. App. 220, 198 S.E.2d 485 (1973); Brondum v. Cox, 30 N.C. App. 35, 225 S.E.2d 193 (1976), aff'd, 292 N.C. 192, 232 S.E.2d 687 (1977); Blake v. Blake, 34 N.C. App. 160, 237 S.E.2d 310 (1977).

An action for support of illegitimate children under former Chapter 52A was a civil action. Smith v. Burden, 31 N.C. App. 145, 228 S.E.2d 662 (1976).

Actions under former Chapter 52A were decided under same law as actions for alimony without divorce. Blake v. Blake, 34 N.C. App. 160, 237 S.E.2d 310 (1977).

Responding State to Determine Substantive Rights of Parties. - Under former Chapter 52A, the initiating state had no jurisdiction to make any determination affecting the substantive rights of the parties, and therefore, a conclusion by a court of North Carolina, the responding state, that the duty of respondent to support the children in question had already been found to exist by a court of competent jurisdiction of the initiating state, was erroneous. Mahan v. Read, 240 N.C. 641, 83 S.E.2d 706 (1954).

Jurisdiction of Judge in Responding State. - The judge in the responding State of North Carolina had jurisdiction only to determine whether defendant owed a duty of support to his children in the initiating State of Florida, and to enter an order requiring defendant to furnish such support. Pifer v. Pifer, 31 N.C. App. 486, 229 S.E.2d 700 (1976).

The judge in the responding state had no jurisdiction whatsoever to condition support payments upon certain visitation privileges for defendant with his children in the responding or initiating state. Pifer v. Pifer, 31 N.C. App. 486, 229 S.E.2d 700 (1976).

The judge in the responding state had no authority to permit a discontinuance of the support payments upon a finding by him of an alleged violation of the condition of visitation privileges. Pifer v. Pifer, 31 N.C. App. 486, 229 S.E.2d 700 (1976).

Right of Defendant to Blood Grouping Test and Jury Trial on Issue of Paternity. - A defendant was entitled in a proceeding under the former Uniform Reciprocal Enforcement of Support Act to a blood grouping test pursuant to G.S. 8-50.1 where the issue of paternity was raised, and upon timely motion, was entitled to have the jury pass on the issue of paternity. Brondum v. Cox, 30 N.C. App. 35, 226 S.E.2d 193 (1976), aff'd, 292 N.C. 192, 232 S.E.2d 687 (1977).

Past Due Support Installments. - A decree for future payment of alimony or child support was, as to installments part due and unpaid, within the protection of the full faith and credit clause of the United States Constitution, unless by law of the state in which the decree was rendered its enforcement was so completely in that state that they could annul or modify the decree as to overdue and unsatisfied installments. Fleming v. Fleming, 49 N.C. App. 345, 271 S.E.2d 584 (1980).

Ministerial Function of Court. - Subdivision (b)(4) allows the responding courts to perform only a ministerial function and does not contemplate relitigation of issues determined in the order or interpretation of the order under the responding state's law. State ex rel. George v. Bray, 130 N.C. App. 552, 503 S.E.2d 686 (1998).

Cited in State ex rel. Benford v. Bryant, 208 N.C. App. 165, 701 S.E.2d 387 (2010).

OFFICIAL COMMENT (2015)

If a [petition] or comparable pleading is received by an inappropriate tribunal of this state, the tribunal shall forward the pleading and accompanying documents to an appropriate tribunal of this state or another state and notify the [petitioner] where and when the pleading was sent. A tribunal receiving UIFSA documents in error is to forward the original documents to their proper destination without undue delay. This section was originally intended to apply both to initiating and responding tribunals receiving such documents, but the practical elimination of the role of initiating tribunals under modern practice now limits the notice requirement to the petitioner, i.e., the individual party or support enforcement agency, that filed (or misfiled) the document directly. For example, if a tribunal is inappropriately designated as the responding tribunal, it shall forward the petition to the appropriate responding tribunal wherever located, if known, and notify the petitioner of its action. Such a procedure is much to be preferred to returning the documents to the petitioner to begin the process anew.

Cooperation of this sort will facilitate the ultimate goals of the act. Although by its terms this section applies only to a tribunal of this state, it can be anticipated that the support enforcement agency will also assist in transferring documents to the appropriate tribunal. Note the section does not contemplate that a state tribunal will forward documents to a tribunal in a foreign country.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "the tribunal shall forward" for "it shall forward", and substituted "of this State" for "in this State" preceding "or another state."

OFFICIAL COMMENT (2015)

Federal legislation signed on Sept. 29, 2014 (P.L. 113-183) authorizes states to enact Alternative A or Alternative B of subsection (a). The focus of subsection (a) is on providing services to a petitioner. Either the obligee or the obligor may request services, and that request may be in the context of the establishment of an initial child-support order, enforcement or review and adjustment of an existing child-support order, or a modification of that order (upward or downward). Note that the section does not distinguish between child support and spousal support for purposes of providing services. Note also, the services available may differ significantly; for example, modification of spousal support is limited to the issuing tribunal. See Section 205(f).

Alternative A continues the longstanding rule that this state's support enforcement agency shall provide services upon request to a petitioner seeking relief under this act. Under Alternative B, the support agency may exercise discretion to provide or not provide assistance to an applicant: (1) from a reciprocating country or Convention country who does not apply through the Central Authority of his or her own country, but rather applies directly to the support enforcement agency; and (2) residing overseas in a country other than a reciprocating country or Convention country. The lack of services, of course, may impact the means by which an individual is able to obtain assistance in pursuing an action in the appropriate tribunal.

Subsection (b) responds to the past complaints of many petitioners that they were not properly kept informed about the progress of their requests for services.

Subsection (c) is a procedural clarification reflecting actual practice of the support agencies developed after years of experience with the act. It imposes a duty on all support enforcement agencies to facilitate the UIFSA one-order world by actively searching for cases with multiple orders and obtaining a determination of the controlling order as expeditiously as possible. This agency duty correlates to new Subsection 602(d) regarding the registration process and cases with multiple orders.

Subsection (d) imposes a duty of currency conversion on a support enforcement agency similar to that imposed on an initiating tribunal in Section 304(b).

Read in conjunction with Section 319, subsection (e) requires the state support enforcement agency to facilitate redirection of the stream of child support in order that payments be more efficiently received by the obligee.

Subsection (f) explicitly states that UIFSA neither creates nor rejects the establishment of an attorney-client or fiduciary relationship between the support enforcement agency and a petitioner receiving services from that agency. This once-highly controversial issue is left to otherwise applicable state law, which generally has concluded that attorneys employed by a state support enforcement agency do not form an attorney-client relationship with either the parties or the child as the ultimate obligee.

Related to Convention: art. 35. Transfer of funds.

Editor's Note. - The bracketed references in subdivision (a)(2) were inserted at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote subsection (a), which formerly read: "A support enforcement agency of this State, upon request, shall provide services to a petitioner in a proceeding under this Chapter"; in the introductory language of subsection (b), inserted "of this State" and deleted "as appropriate" following "petitioner"; substituted "of this State, another state, or a foreign country" for "in this State or another state" in subdivision (b)(1); substituted "notice in a record" for "a written notice" in subdivision (b)(4); substituted "communication in a record" for "a written communication" in subdivision (b)(5); and added subsections (b1)-(b3).

OFFICIAL COMMENT (2015)

Subsection (b) makes clear that a state has a variety of options in determining the international scope of its IV-D support enforcement program. Of course, a federal declaration that a foreign jurisdiction is a reciprocating country or political subdivision is controlling. See Section 102(5)(A). However, each state may designate an official with authority to make a statewide, binding determination recognizing a foreign country, foreign nation state, or political subdivision as having a reciprocal arrangement with that state. See Section 102(5)(B).

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section, which formerly read: "It shall be the duty of the district attorney to represent the obligee in proceedings authorized by this Chapter unless alternative arrangements are made by the obligee. An obligee may employ private counsel to represent the obligee in proceedings authorized by this Chapter."

CASE NOTES

The Attorney General of North Carolina had standing to file a brief on behalf of a New York resident in a case involving the enforcement of orders rendered in an action to register a foreign child support order. New York v. Paugh, 135 N.C. App. 434, 521 S.E.2d 475 (1999).

Cited in State v. Bare, 197 N.C. App. 461, 677 S.E.2d 518 (2009).

OFFICIAL COMMENT (2015)

The right of a party to retain private counsel in a proceeding brought under UIFSA is explicitly recognized. The failure to clearly recognize that power under the prior uniform acts led to confusion and inconsistent decisions. The Convention implicitly recognizes that the right to employ an attorney is to be available in every Convention country, but does not explicitly mention retaining private counsel. A "competent authority" in Convention terminology is equivalent to a tribunal.

OFFICIAL COMMENT (2015)

Subsection (a) identifies the state information agency.

Subsection (b) details the duties of that agency insofar as interstate proceedings are concerned. Subsection (b)(4) does not provide independent access to the information sources or to the governmental documents listed. Because states have different requirements and limitations concerning such access based on differing views of the privacy interests of individual citizens, the agency is directed to use all lawful means under the relevant state law to obtain and disseminate information.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "The Department is the" for "The Department of Health and Human Services, Division of Social Services, is designated as the" in subsection (a); inserted "names and addresses of" in subdivision (b)(2); and in subdivision (b)(3), substituted "county in this State in which the oblige who is an individual" for "place in this State in which the individual obligee", and substituted "another state or a foreign country; and" for "an initiating tribunal or the state information agency of the initiating state; and."

OFFICIAL COMMENT (2015)

This section establishes the basic requirements for drafting and filing interstate pleadings. Subsection (a) should be read in conjunction with Section 312, which provides for the confidentiality of certain information if disclosure is likely to result in harm to a party or a child. The goal of this section is to improve efficiency of the process by attaching all known support orders to the petition, coupled with the elimination of the requirement that such copies be certified. If a dispute arises over the authenticity of a purported order, the tribunal must, of necessity, sort out conflicting claims at that time. Another improvement is the deletion of the requirement for verified pleadings originated in URESA and carried forward in the original version of UIFSA. Note, however, that a request for registration of a foreign support order for which the Convention is in force is subject to Section 706. This is due to the fact that the list of documents comprising the required record in subsection (a) differs in a measurable degree with Convention articles 11 and 25.

Subsection (b) provides authorization for the use of the federally authorized forms to be used in interstate cases in connection with the IV-D child-support enforcement program and mandates substantial compliance with those forms. Although the use of other forms is not prohibited, standardized documents have resulted in substantial improvement in the efficient processing of UIFSA proceedings. The Convention also contains annexed forms for international use.

Related to Convention: art. 10. Available applications; art. 11. Application contents; art. 12. Transmission, receipt and processing of applications and cases through Central Authorities; art. 25. Documents; Annex 1. Transmittal form under Article 12(2); Annex 2. Acknowledgement form under Article 12(3).

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the first three sentences of subsection (a).

CASE NOTES

Petition Not Void. - Denial of a father's motion to dismiss a Uniform Interstate Family Support Act petition on the basis that the petition did not comply with G.S. 52C-3-310(a) was proper because the failure of the Florida notary to indicate the type of identification relied on to identify the mother, in contravention of the express language of Fla. Stat. § 117.05(4)(f), did not render the petition void; there was no dispute that the notary public properly identified the mother when she signed the petition and that the mother was present when the petition was notarized. State ex rel. Johnson v. Eason, 198 N.C. App. 138, 679 S.E.2d 151 (2009).

OFFICIAL COMMENT (2015)

UIFSA (1992) recognized that enforcement of child support across state lines might have an unintended consequence of putting a party or child at risk if domestic violence was involved in the past. This section is a substantial revision of the statutory formulation originally developed in UIFSA (1992). It conforms to the comparable provision in the Uniform Child Custody Jurisdiction and Enforcement Act Section 209. Public awareness of and sensitivity to the dangers of domestic violence has significantly increased since interstate enforcement of support originated. This section authorizes confidentiality in instances where there is a risk of domestic violence or child abduction. Section 712, infra , incorporates language from the Convention to restrict dissemination of personal jurisdiction to protect victims of domestic violence.

Although local law generally governs the conduct of the forum tribunal, state law may not provide for maintaining secrecy about the exact whereabouts of a litigant or other information ordinarily required to be disclosed under state law, i.e., Social Security number of the parties or the child. If so, this section creates a confidentiality provision that is particularly appropriate in light of the intractable problems associated with interstate parental kidnapping, see the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A.

Related to Convention: art. 38. Protection of personal data; art. 39. Confidentiality; art. 40. Non-disclosure of information.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section.

OFFICIAL COMMENT (2015)

Subsection (a) permits either party, i.e., as petitioner, to file without payment of a filing fee or other costs. This provision dates back to UIFSA (1992) when the term "unfunded mandate" was basically unknown.

Subsection (b), however, provides that only the support obligor may be assessed the authorized costs and fees by a tribunal. Federal law permits a state support enforcement agency to charge limited fees and to recover administrative costs from applicants for Title IV-D services, but many states have opted not to do so, or only to seek recovery from the obligor.

Subsection (c) provides a sanction to deal with a frivolous contest regarding compliance with an interstate withholding order, registration of a support order, or comparable delaying tactics regarding an appropriate enforcement remedy.

Related to Convention: art. 14. Effective access to procedures; art. 43. Recovery of costs.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, in subsection (b), inserted "of this State" following "tribunal" in the first sentence, and inserted "or foreign country" in the second sentence.

Legal Periodicals. - For article, "Detecting Good Public Policy Rationales for the American Rule: A Response to the Ill Conceived Calls for 'Loser Pays' Rules," see 66 Duke L.J. 729 (2016).

OFFICIAL COMMENT (2015)

Under subsection (a), direct or indirect participation in a UIFSA proceeding does not subject a petitioner to an assertion of personal jurisdiction over the petitioner by the forum state in other litigation between the parties. The primary object of this prohibition is to preclude joining disputes over child custody and visitation with the establishment, enforcement, or modification of child support. This prohibition strengthens the ban on visitation litigation established in Section 305(d). A petition for affirmative relief under UIFSA limits the jurisdiction of the tribunal to the boundaries of the support proceeding. In sum, proceedings under UIFSA are not suitable vehicles for the relitigation of all of the issues arising out of a foreign divorce or custody case. Only enforcement or modification of the support portion of such decrees or orders are relevant. Other issues, such as custody and visitation, or matters relating to other aspect of the divorce decree, are collateral and have no place in a UIFSA proceeding.

Subsection (b) grants a litigant a variety of limited immunity from service of process during the time that party is physically present in a state for a UIFSA proceeding. The immunity provided is in no way comparable to diplomatic immunity, however, which should be clear from reading subsection (c) in conjunction with the other subsections.

Subsection (c) does not extend immunity to civil litigation unrelated to the support proceeding which stems from contemporaneous acts committed by a party while present in the state for the support litigation. For example, a petitioner involved in an automobile accident or a contract dispute over the cost of lodging while present in the state does not have immunity from a civil suit on those issues.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, inserted "under this Chapter" near the beginning of subsection (a).

OFFICIAL COMMENT (2015)

Arguably this section does no more than restate the basic principle of res judicata. However, there is a great variety of state law regarding presumptions of parentage and available defenses after a prior determination of parentage. As long as a proceeding is brought in an appropriate forum, this section is intended neither to discourage nor encourage collateral attacks in situations in which the law of another jurisdiction is at significant odds with local law. If a collateral attack on a parentage decree is permissible under the law of the issuing jurisdiction, such a proceeding must be pursued in that forum and not in a UIFSA proceeding.

This section mandates that a parentage decree rendered by another tribunal "pursuant to law" is not subject to collateral attack in a UIFSA proceeding. Of course, an attack on an alleged final order based on a fundamental constitutional defect in the parentage decree is permissible in the forum state. For example, a responding tribunal may find that another tribunal acted unconstitutionally by denying a party due process due to a failure of notice and opportunity to be heard or a lack of personal jurisdiction over a party who did not answer or appear. Insofar as the latter ground is concerned, the universal enactment of the long-arm statute asserting personal jurisdiction over a respondent if the child "may have been conceived" in the forum state may greatly reduce successful attacks on a parentage determination. See Section 201(a)(6).

Similarly, the law of the issuing state or foreign country may provide for a determination of parentage based on certain specific acts of the obligor, such as voluntarily acknowledging parentage as a substitute for a decree. UIFSA also is neutral regarding a collateral attack on such a parentage determination filed in the issuing tribunal. In the meantime, however, the responding tribunal must give effect to such an act of acknowledgment of parentage if it is recognized as determinative in the issuing state or foreign country. The consistent theme is that a collateral attack on a parentage determination cannot be made in a UIFSA proceeding other than on fundamental due-process grounds.

OFFICIAL COMMENT (2015)

Note that the special rules of evidence and procedure are applicable to a party or witness "residing outside this state," substituting for "residing in another state." This is the broadest application possible because the utility of these special rules is not limited to parties in other states, or in foreign countries, as defined in the act, but extends to an individual residing anywhere. This extremely broad application of the special rules is to facilitate the processing of a support order in this state or elsewhere. This section combines many time-tested procedures with innovative methods for gathering evidence in interstate cases.

Subsection (a) ensures that a nonresident petitioner or a nonresident respondent may fully participate in a proceeding under the act without being required to appear personally. Subsection (b) recognizes the pervasive effect of the federal forms promulgated by the Office of Child Support Enforcement, which replace the necessity of swearing to a document "under oath" with the simpler requirement that the document be provided "under penalty of perjury," as has long been required by federal income tax Form 1040.

Subsections (b) through (f) provide special rules of evidence designed to take into account the virtually unique nature of the interstate proceedings under this act. These subsections provide exceptions to the otherwise guiding principle of UIFSA, i.e., local procedural and substantive law should apply. Because the out-of-state party, and that party's witnesses, necessarily do not ordinarily appear in person at the hearing, deviation from the ordinary rules of evidence is justified in order to assure that the tribunal will have available to it the maximum amount of information on which to base its decision. The intent throughout these subsections is to eliminate by statute as many potential hearsay problems as possible in interstate litigation, with the goal of providing each party with the means to present evidence, even if not physically present.

Subsection (d) provides a simplified means for proving health-care expenses related to the birth of a child. Because ordinarily the amount of these charges is not in dispute, this is designed to obviate the cost of having health-care providers appear in person or of obtaining affidavits of business records from each provider.

Subsections (e) and (f) encourage tribunals and litigants to take advantage of modern methods of communication in interstate support litigation; most dramatically, the out-of-state party is authorized to testify by the full panoply of audio and audiovisual technologies currently available for direct personal communication and to supply documents by fax, email, or direct transfer between computers or other electronic devices. One of the most useful applications of these subsections is to provide an enforcing tribunal with up-to-date information concerning the amount of arrears.

Subsection (f) unambiguously mandates that telephone or audiovisual testimony in depositions and hearings must be allowed. It anticipates that every courtroom is equipped with a speakerphone. In a day when laptop computers often come equipped with a video camera, live testimony from a remote location is not only possible, but almost as reliable as if the testimony was given in person. No doubt a demeanor is better judged in person than by viewing a video screen, but the latter is certainly preferable to only a disembodied voice.

Subsection (g) codifies the rule in effect in many states that in civil litigation an adverse inference may be drawn from a litigant's silence - that restriction of the Fifth Amendment does not apply. A related analogy is that a refusal to submit to genetic testing may be admitted into evidence and a trier of fact may resolve the question of parentage against the refusing party on the basis of an inference that the results of the test would have been unfavorable to the interest of that party.

Subsection (j), new in 2001, complies with the federally mandated procedure that every state must honor the "acknowledgment of paternity" validly made in another state.

Related to Convention: art. 13. Means of communication; art. 14. Effective access to procedures; art. 29. Physical presence of the child or the applicant not required.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "outside this State" for "in another state" or similar language throughout the section; in subsection (a), substituted "a nonresident party who is an individual in a" for "the petitioner in a responding" and added "of a child" at the end; in subsection (b), deleted "A verified petition" at the beginning and substituted "under penalty of perjury" for "under oath"; inserted "of a child" in subsection (d); in subsection (e), inserted "electronic" and substituted "record" for "writing"; in subsection (f), in the first sentence, substituted "shall permit" for "may permit," inserted "under penalty of perjury," and deleted "in that state" at the end, and substituted "other tribunals" for "tribunals of other states" in the second sentence; substituted "marital partners" for "husband and wife" in subsection (i); added subsection (j); and made minor stylistic changes.

CASE NOTES

Remand for Findings and Conclusions. - While plaintiff's allegations in her verified complaint established prima facie that the reasonable needs of the parties' children were in the amount of $778.00 per month and that defendant had the relative ability to pay $650.00 per month support for his children, it remained for the trial court to make the necessary findings of fact and conclusions of law, and the case could be remanded for this purpose. Grimes v. Grimes, 78 N.C. App. 208, 336 S.E.2d 664 (1985).

Cited in Butler v. Butler, 152 N.C. App. 74, 566 S.E.2d 707 (2002).

OFFICIAL COMMENT (2015)

This section explicitly authorizes a state tribunal to communicate with a tribunal of another state, foreign country, or in a foreign nation state not defined as a foreign country. It was derived from UCCJA § 110 authorizing such communications to facilitate a fully informed decision. The amendment in UIFSA (2008) not only expands the authorization to worldwide scope, i.e., "outside this state," but specifically adds email to the select modes of communication. Broad cooperation by tribunals is strongly encouraged in order to expedite establishment and enforcement of a support order. American judges are very familiar with this procedure. It remains to be seen whether overseas communication between judges will be received with similar cooperation.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, in the first sentence, substituted "outside this State in a record or by telephone, electronic mail," for "of another state in writing, or by telephone," deleted "of that state" following "laws," and deleted "in the other state" following "proceeding"; and substituted "outside this State" for "of another state" at the end of the second sentence.

OFFICIAL COMMENT (2015)

This section takes a logical step to facilitate interstate and international cooperation by enlisting the power of the forum to assist a tribunal of another state or country with the discovery process. The grant of authority is quite broad, enabling the tribunal of the enacting state to fashion its remedies to facilitate discovery consistent with local practice.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, inserted the subdivision (1) and (2) designations; substituted "outside this State" for "of another state" two times; and made minor stylistic changes.

CASE NOTES

Cited in Butler v. Butler, 152 N.C. App. 74, 566 S.E.2d 707 (2002).

OFFICIAL COMMENT (2015)

The first sentence of subsection (a) is truly hortatory in nature, although its principle is implemented insofar as support enforcement agencies are required by federal regulations promulgated by the Office of Child Support Enforcement (OCSE). The second sentence confirms the duty of the agency or tribunal to furnish payment information in interstate or international cases.

As an exception to the usual provisions in Article 3, subsections (b) and (c) are applicable only to interstate cases. The procedure described was inspired by the Office of Child Support Enforcement (OCSE), U.S. Department of Health and Human Services, and is designed to speed up receipt of support payments. Support enforcement agencies are directed to cooperate in the efficient and expeditious collection and transfer of child support from obligor to obligee. Over two-thirds of all child support payments currently are made through direct income withholding actions, whereby an out-of-state IV-D agency sends direct notice to an employer in the obligor's state to withhold funds to satisfy the support obligation. Nonetheless, this section remains viable for those situation in which the direct withholding encounters a glitch. Further, there are ongoing problems in states not having income withholding payments go to the state disbursement unit. This section is intended to solve the problem by directing the payments to the most logical disbursement unit, i.e., the state with continuing exclusive jurisdiction.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, added the subsection (a) designation; inserted "or a foreign country" in the second sentence of subsection (a); and added subsections (b) and (c).

OFFICIAL COMMENT (2015)

This section authorizes a responding tribunal of this state to issue temporary and permanent support orders binding on an obligor over whom the tribunal has personal jurisdiction when the person or entity requesting the order is "outside this state," i.e., anywhere else in the world. UIFSA does not permit such orders to be issued when another support order entitled to recognition exists, thereby prohibiting a second tribunal from establishing another support order and the accompanying continuing, exclusive jurisdiction over the matter. See Sections 205 and 206.

Related to Convention: art. 11. Application contents; art. 14. Effective access to procedures; art. 15. Free legal assistance for child support applications; art. 16. Declaration to permit use of child-centered means test; art. 17. Applications not qualifying under 15 or 16; art. 20. Bases for recognition and enforcement; art. 25. Documents; art. 27. Findings of fact; art. 28. No review of the merits; art. 37. Direct requests to competent authorities; art. 56. Transitional provisions.

Editor's Note. - Session Laws 2015-117, s. 1, effective June 24, 2015, added "or Determination of Parentage" to the Article 4 heading.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "Establishment" for "Petition to establish" in the section heading; inserted "with personal jurisdiction over the parties" in the introductory language of subsection (a); substituted "outside this State" for "in another state" in subdivisions (a)(1) and (a)(2); and rewrote subsection (b).

OFFICIAL COMMENT (2015)

This article authorizes a "pure" parentage action in the interstate context, i.e., an action not joined with a claim for support. The mother, an alleged father of a child, or a support enforcement agency may bring such an action. Typically an action to determine parentage across a state line or international border will also seek to establish a support order. See Section 401. An action to establish parentage under UIFSA is to be treated identically to such an action brought in the responding state.

In a departure from the rest of this act, in UIFSA (2001) the term "tribunal" was replaced by "court" in this section. The several states have a variety of combinations of judicial or administrative entities that are authorized to establish, enforce, and modify a child-support order. Because the Uniform Parentage Act (UPA) (2000) § 104 restricts parentage determinations to "a court," see UPA (2000) § 104, the drafters took the view that only a judicial officer should determine parentage as a matter of public policy. This conclusion was in error insofar as some states are concerned and is reversed in this iteration of the act.

Related to Convention: art. 2. Scope; art. 6. Specific functions of Central Authorities; art. 10. Available applications.

Legal Periodicals. - For article, "For the Sake of the Child: Parental Recognition in the Age of Assisted Reproductive Technology A Framework for North Carolina,” see 43 Campbell L. Rev. 21 (2021).

OFFICIAL COMMENT (2015)

In 1984 Congress mandated that all states adopt procedures for enforcing income-withholding orders of sister states. Direct recognition by the out-of-state obligor's employer of a withholding order issued by another state long was sought by support enforcement associations and other advocacy groups. UIFSA (1992) recognized such a procedure. This article was extensively amended in 1996, but was the subject only of clarifying amendments in 2001.

Section 501 is deliberately written in the passive voice; the act does not restrict those who may send an income-withholding order across state lines. Although the sender will ordinarily be a child support enforcement agency or the obligee, the obligor or any other person may supply an employer with the income-withholding order. "Sending a copy" of a withholding order to an employer is clearly distinguishable from "service" of that order on the same employer. Service of an order necessarily intends to invoke a tribunal's authority over an employer doing business in the state. Thus, for there to be valid "service" of a withholding order on an employer in a state, the tribunal must have authority to bind the employer. In most cases, this requires the assertion of the authority of a local responding tribunal in a "registration for enforcement" proceeding. In short, the formality of "service" defeats the whole purpose of direct income withholding across state lines.

The process contemplated in this article is direct "notification" of an employer in another state of a withholding order without the involvement of initiating or responding tribunals. Therefore, receipt of a copy of a withholding order by facsimile, regular first class mail, registered or certified mail, or any other type of direct notice is sufficient to provide the requisite notice to trigger direct income withholding in the absence of a contest by the employee-obligor. This process is now widely used by not only child support enforcement agencies, but also by private collection agencies or private attorneys acting on behalf of obligees.

Except as provided in Section 507, Administrative Enforcement of Orders, none of the sections in Article 5 are intended to apply to foreign support orders. While it is appropriate for U.S. employers to enforce sister state income-withholding orders routinely, enforcement of the wide variety of possible foreign support orders provides too many complexities and challenges to require an employer to interpret and enforce ostensible foreign income-withholding orders.

Effect of Amendments. - Session Laws 2011-401, s. 3.3, effective November 1, 2011, in subsection (a), substituted "Division of Employment Security (DES)" for "North Carolina Employment Security Commission", and substituted "DES" for "Employment Security Commission" throughout.

Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote subsection (a).

OFFICIAL COMMENT (2015)

In 1996 major employers and national payroll associations urged NCCUSL to supply more detail regarding the rights and duties of an employer on receipt of an income-withholding order from another state. The Conference obliged with amendments to UIFSA establishing a series of steps for employers to follow.

When an employer receives an income withholding order from another state, the first step is to notify the employee that an income withholding order has been received naming the employee as the obligor of child support, and that income withholding will begin within the time frame specified by local law. In other words, the employer will initially proceed just as if the withholding order had been received from a tribunal of the employer's state. It is the responsibility of the employee to take whatever protective measures are necessary to prevent the withholding if the employee asserts a defense as provided in Section 506, infra .

At this point neither an initiating nor a responding tribunal is directly involved. The withholding order may have been forwarded by the obligee, the obligee's attorney, or the out-of-state IV-D agency. In fact, there is no prohibition against anyone sending a valid copy of an income-withholding order, even a stranger to the litigation, such as the child's grandparent. Subsection (a) does not specify the method for sending this relatively informal notice for direct income withholding, but rather makes the assumption that the employer's communication to the employee regarding receipt of the order will cause an employee-obligor to act to prevent a wrongful invasion of his or her income if it is not owed as current child support or arrears.

Subsection (b) directs an employer of the enacting state to recognize a withholding order of a sister state, subject to the employee's right to contest the validity of the order or its enforcement. Prior to the promulgation of UIFSA, agencies in several states adopted a procedure of sending direct withholding requests to out-of-state employers. A contemporaneous study by the federal General Accounting Office reported that employers in a second state routinely recognized withholding orders of sister states despite an apparent lack of statutory authority to do so. UIFSA marked the first official sanction of this practice. Subsection (b) does not define "regular on its face," but the term should be liberally construed, see U.S. v. Morton , 467 U.S. 822 (1984) ("legal process regular on its face"). The rules governing intrastate procedure and defenses for withholding orders will apply to interstate orders.

Subsection (c) answered employers' complaints that insufficient direction for action was given by the original UIFSA. Prior to the 1996 amendments an employer was merely told to "distribute the funds as directed in the withholding order." This section clarifies the terms of the out-of-state order with which the employer must strictly comply. As a general principle, an employer is directed to comply with the specific terms contained in the order, but there are exceptions. Moreover, many income-withholding orders received at that time did not provide the detail necessary for the employer to comply with every directive. Since then, however, the long-anticipated federal forms were promulgated throughout 1997 and 1998, with periodic updates to the present time. Most recently, the text of income withholding orders for child support is fast conforming to a nationwide norm. To the extent that an order is silent, the employer is not required to respond to unstated demands of the issuing tribunal. Formerly, employers often were so concerned about ambiguous or incomplete orders that they telephoned child support enforcement agencies in other states to attempt to understand and comply with unstated terms. Employers should not be expected to become investigators or shoulder the responsibility of learning the law of 50 states.

Subsection (c)(1) directs that the amount and duration of periodic payments of current child support must be stated in a sum certain in order to elicit compliance. The amount of current support and duration of the support obligation are fixed by the controlling order and should be stated in the withholding order so that the employer is informed of the date on which the withholding is anticipated to terminate. The "sum certain" requirement is crucial to facilitating the employer's compliance. For example, an order for a "percentage of the obligor's net income," does not satisfy this requirement and is not entitled to compliance from an employer receiving an interstate income-withholding order.

Subsection (c)(2) states the obvious: information necessary for compliance must be clearly stated. For example, the destination of the payments must correspond to the destination originally designated or subsequently authorized by the issuing tribunal, such as by the redirection of payments pursuant to Section 319, supra .

Subsection (c)(3) provides that medical support for the child must be stated either by a periodic cash payment or, alternatively, by an order directing the employee-obligor to provide health insurance coverage from his employment. In the absence of an order for payment of a sum certain, issuance of an order for medical support as child support is required to ensure the employer enrolls the obligor's child for coverage if medical insurance is available through the obligor's employment. Failure to enroll the child should elicit, at the least, registration of an order for enforcement in the responding state, to be implemented by an order of a tribunal directing either the employee or the employer to comply to furnish insurance coverage for the child. If the employer is so directed by a medical support order, enrollment of the child in the health care plan at the employee-obligor's expense is not dependent on the obligor's consent, any more than withholding a sum certain from the obligor's income is subject to a veto. It is up to the employee-obligor to assert any defense to prevent the employer from abiding by the medical support order.

Subsection (c)(4) identifies certain costs and fees incurred in conjunction with the support enforcement that may be added to the withholding order.

Subsection (c)(5) requires that the amount of periodic payments for arrears and interest on arrears also must be stated as a sum certain. If the one-order system is to function properly, the issuing tribunal ultimately must be responsible to account for payments and maintain the record of arrears and interest rate on arrears. Full compliance with the support order will only be achieved when the issuing tribunal determines that the obligation no longer exists. The amount of periodic payments for arrears is also fixed by the controlling order unless the law of the issuing state or the state where the order is being enforced provides a procedure for redetermination of the amount.

Subsection (d) identifies those narrow provisions in which the law of the employee's work state applies, rather than the law of the issuing state. A large employer will almost certainly have a number of employees subject to income-withholding orders. From the employer's perspective, the procedural requirements for compliance should be uniform for all of those employees. Certain issues should be matters for the law of the employee's work state, such as the employer's fee for processing, the maximum amount to be withheld, and the time in which to comply. The latter necessarily includes the frequency with which income withholding must occur. This is also consistent with regard to the tax consideration imposed by choice of law considerations. The only element in the list of local laws identified in subsection (d) which stirred any controversy whatsoever was the fact that the maximum amount permitted to be withheld is to be subject to the law of the employee's work state. Demands of equal treatment for all obligees, plus the practical concern that large employers require uniform computer programming mandate this solution.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, deleted "or agency" following "The person" in subdivision (c)(2).

OFFICIAL COMMENT (2015)

Consistent with the act's general problem-solving approach, the employer is directed to deal with multiple income orders for multiple families in the same manner as required by local law for orders of the forum state.

In addition to income withholding orders issued by tribunals of other states, state support enforcement agencies may also issue income withholding orders to enforce foreign child-support orders.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "Employer's compliance with two or more" for "Compliance with multiple" in the section heading; substituted "two or more" for "multiple" two times; and deleted "multiple" preceding the second occurrence of "orders."

OFFICIAL COMMENT (2015)

Because employer cooperation is a key element in interstate child support enforcement, it is sound policy to state explicitly that an employer who complies with an income-withholding order from another state is immune from civil liability.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "that complies" for "who complies" near the beginning of the section.

OFFICIAL COMMENT (2015)

Only an employer who willfully fails to comply with an interstate order will be subject to enforcement procedures. Local law is the appropriate source for the applicable sanctions and other remedies available under state law.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "that willfully fails" for "who willfully fails" and substituted "in another state" for "by another state."

OFFICIAL COMMENT (2015)

This section incorporates into the interstate context the local law regarding defenses an employee-obligor may raise to an income-withholding order. Generally, states have accepted the IV-D requirement that the only viable defense is a mistake of fact, 42 U.S.C. § 666(b)(4)(A). This apparently includes errors in the amount of current support owed, in the amount of accrued arrearage, or mistaken identity of the alleged obligor. Other grounds are excluded, such as inappropriate amount of support ordered, changed financial circumstances of the obligor, or lack of visitation. H.R. Rep. No. 98-527, 98th Cong., 1st Sess. 33 (1983). The latter claims must be pursued in a separate proceeding in the appropriate state, not in a UIFSA proceeding.

This procedure is based on the assumption that valid defenses to income withholding for child support are few and far between. Experience has shown that in relatively few cases does an employee-obligor have a complete defense, e.g., the child has died, another contingency ending the support has occurred, the order has been superseded, or there is a case of mistaken identity and the employee is not the obligor. An employee's complaint that "The child support is too high" must be ignored.

As noted frequently above, instances of multiple orders have become increasingly rare over the past two decades plus. Situations do arise, however, in which an employer has received multiple withholding notices regarding the obligor-employee and the same obligee. The notices may even allege conflicting amounts due, especially for payments on arrears. Additionally, many employees claim to have only learned of default orders when the withholding notice is delivered to the employer. This claim often is based on an assertion that the order being enforced through income withholding was entered without personal jurisdiction over the obligor-employee. A variety of similar fundamental defenses may be asserted, such as mistaken identity, full payment, another order controlling, etc.

Subsection (a) provides for a simple, efficient, and cost-effective method for an employee-alleged obligor to assert a defense. For example, if the existence of a support obligation is acknowledged but the details are at issue, the obligor may register the underlying "controlling" support order with a local tribunal and seek temporary protection pending resolution of the contest. This may be accomplished pro se, employment of private counsel, or by a request for services from the child support enforcement agency of the responding state. Some states provide administrative procedures for challenging the income withholding that may provide quicker resolution of a dispute than a judicially-based registration and hearing process. In the absence of expeditious action by the employee to assert a defense and contest the direct filing of a notice for withholding, however, the employer must begin income withholding in a timely fashion.

Another issue the employee-obligor may raise is that the withholding order received by the employer is not based on the controlling child-support order issued by the tribunal with continuing, exclusive jurisdiction, see Section 207, supra . Such a claim does not constitute a defense to the obligation of child support, but does put at issue the identity of the order to which the employer must respond.

The one order system initiated by UIFSA effectively has eliminated the multiple-order system of RURESA, which primarily involved multiple orders by different courts for the same child. At present most "duplicate income withholding orders" involve one state seeking state assigned arrears and another state also seeking arrears, and possibly ongoing support as well. Clearly the employer is in no position to make a decision on how to proceed to resolve such conflicting claims. When multiple orders involve the same employee-obligor and child, or multiple children (including those with other mothers), as a practical matter resort to a responding tribunal to resolve the resulting dispute almost certainly will be necessary.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, in subsection (a), inserted "by registering the order .... or otherwise contesting the order", and deleted "G.S. 52C-6-604 applies to the contest" at the end of the subsection; inserted "relating to the obligor" in subdivision (b)(2); and in subdivision (b)(3), deleted "or agency" following "The person", and substituted "or, if no person is designated" for "if no person or agency is designated."

OFFICIAL COMMENT (2015)

Sections 501 through 506 are posited on the belief that U.S. employers ought not be burdened with enforcement of foreign income-withholding orders received directly from overseas. This view is inapplicable if a support enforcement agency is involved. The procedural safeguards built into the Title IV-D system of processing requests between Central Authorities provide reasonable assurance that the income withholding order to be enforced is genuine.

This section authorizes summary enforcement of an interstate or foreign child-support order through the administrative means available for intrastate orders if the agency deems it "appropriate" to do so. Under subsection (a), an interested party in another state or foreign country, which necessarily includes a private attorney or a support enforcement agency, may forward a support order or income-withholding order to a support enforcement agency of the responding state. The term "responding state" in this context does not necessarily contemplate resort to a tribunal as an initial step.

Subsection (b) directs the support enforcement agency in the responding state to consider and, if appropriate, to use that state's regular administrative procedures to process an out-of-state order. Thus, a local employer accustomed to dealing with the local agency need not change its procedure to comply with an out-of-state order. Similarly, the administrative agency is authorized to apply its ordinary rules equally to both intrastate and interstate orders. For example, if the administrative hearing procedure must be exhausted for an intrastate order before a contesting party may seek relief in a tribunal, the same rule applies to an interstate order received for administrative enforcement. This subsection also makes it clear that filing liens or submitting claims in legal actions do not require the initial registration of the order.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, in subsection (a), inserted "or support enforcement agency" near the beginning, and substituted "issued in another state or a foreign support order" for "issued by a tribunal of another state."

OFFICIAL COMMENT (2015)

Registration of an order in a tribunal of the responding state is the first step to enforce a support order from another state or foreign country. If a prior support order has been validly issued by a tribunal with continuing, exclusive jurisdiction, see Section 205, such an order is to be prospectively enforced against the obligor in the absence of narrow, strictly defined fact situations in which an existing order may be modified. See Sections 609 through 614. Until and unless that order is modified, however, it remains an order of the issuing tribunal and is fully enforceable in the responding state.

Although registration that is not accompanied by a request for the affirmative relief of enforcement is not prohibited, the act does not contemplate registration as serving a purpose in itself. In that regard, registration is a process, and the failure to register does not deprive an otherwise appropriate forum of subject matter jurisdiction. Note that either or both a state support order or a state income-withholding order may be registered. However, although a foreign support order also may be registered, this section does not contemplate recognition of a foreign income-withholding order.

Related to Convention: art. 23. Procedure on an application for recognition and enforcement; art. 26. Procedure on an application for recognition.

Editor's Note. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the Article 6 heading, which formerly read "Enforcement and Modification of Support Order After Registration."

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, deleted "an" preceding "income-withholding", and substituted "issued in another state or a foreign support order" for "issued by a tribunal of another state."

CASE NOTES

Constitutionality of Orders Under Former URESA. - Orders pursuant to former Chapter 52A, the Uniform Reciprocal Enforcement of Support Act (URESA), did not violate a respondent's right to due process and equal protection under the Constitutions of the United States and North Carolina. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

North Carolina law applied prospectively from the date of registration under former Chapter 52A, the Uniform Reciprocal Enforcement of Support Act (URESA). Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

But Not Retroactively. - Registration was a ministerial duty of the clerk, not exercising any power over the obligor's person or property. Such registration could not lawfully transform foreign alimony orders that were modifiable as to past-due installments in the jurisdiction of rendition into North Carolina orders subject to North Carolina law retrospectively. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Jurisdiction over the person or property of the obligor was unnecessary for registration of a foreign support order. Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d 633 (1977).

Registered alimony orders retained, for their lifespan prior to registration, their foreign identity, and the laws of the foreign jurisdiction apply in any subsequent enforcement proceeding. This means that at any enforcement proceeding under former G.S. 52A-30 the obligor could apply, just as at a civil action instituted under G.S. 50-16.9(c), for a new order modifying or superseding the foreign order "to the extent that it could have been so modified in the jurisdiction where granted." Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Effect of Registration on Foreign Alimony Order That Was Retroactively Modifiable. - Registration under former G.S. 52A-26 et seq. could not entitle a foreign alimony order that was retroactively modifiable in the jurisdiction of its rendition to the full faith and credit protection of the United States Constitution, since the full faith and credit clause was applicable only to judgments that were unconditional and certain, or at least capable of being made so. However, former G.S. 52A-30 authorized the courts of this State by comity to extend to foreign alimony orders the selfsame recognition and effect due them in the jurisdiction of their rendition. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

German Divorce Decree. - German divorce decree and settlement agreement were properly registered under former G.S. 52A-26. Lang v. Lang, 125 N.C. App. 573, 481 S.E.2d 380 (1997).

Record clearly showed that German authorities considered parties' settlement agreement to be an order of support where there was a letter from the German Federal Prosecutor asking the North Carolina Attorney General to take measures for the recovery of arrearage. Lang v. Lang, 125 N.C. App. 573, 481 S.E.2d 380 (1997).

Applied in Hook v. Hook, 170 N.C. App. 138, 611 S.E.2d 869 (2005).

Cited in Haker-Volkening v. Haker, 143 N.C. App. 688, 547 S.E.2d 127 (2001).

OFFICIAL COMMENT (2015)

Subsection (a) outlines the mechanics for registration of an interstate or foreign support order. Substantial compliance with the requirements is expected. The procedure for registration and enforcement set forth in this section is basically unchanged for a foreign support order; indeed, all of Sections 601 through 608 apply. The requirement that the order be "issued by a tribunal" has been subtly modified. Although the vast majority of enforceable support orders will be from a tribunal, in relatively rare instances an enforceable "foreign support order" from a Convention country will not have been issued by a tribunal, see e.g ., Section 710, infra . Note, however, that a request for registration of a foreign support order for which the Convention is in force is subject to Section 706. This is because the list of documents comprising the required record in subsection (a) differs in a measurable degree with Convention art. 11 and 25.

Millions of interstate domestic cases have been, and will continue to be, processed under the procedure specified in this section. It has been estimated that only approximately one-tenth of one percent (0.1%) of the Title IV-D caseload involve a foreign support order. Thus, the documentation specified by this section is the same for interstate and non-Convention foreign support orders. A support order from a Convention country is covered by the separate list of specifications in Section 706 to accommodate the differences between this act and the Convention. Because child-support enforcement agencies have successfully dealt with foreign support orders with increasing frequency during the UIFSA era, this may well prove to be a distinction without much difference.

Subsection (b) confirms that the support order being registered is not converted into an order of the responding state; rather, it continues to be an order of the tribunal of the issuing state or foreign country.

Subsection (c) warns that if a particular enforcement remedy must be specifically sought under local law, the same rules of procedure and substantive law apply to an interstate or international case. For example, if license suspension or revocation is sought as a remedy for alleged noncompliance with an order, the substantive and procedural rules of the responding state apply. Whether the range of application of the remedy in the responding state is wider or narrower than that available in the issuing state or foreign country is irrelevant. The responding tribunal will apply the familiar law of its state, and is neither expected nor authorized to consider the enforcement laws of the issuing state or foreign country. In short, the responding tribunal follows the identical path for enforcing the order of a tribunal of another state or foreign country as it would when enforcing an order of the responding state. The authorization of a later filing to comply with local law contemplates that interstate or international pleadings may be liberally amended to conform to local practice.

Subsections (d) and (e) amplify the procedures to be followed when two or more child-support orders exist and registration for enforcement is sought. In such instances, the requester is directed to furnish the tribunal with sufficient information and documentation so that the tribunal may make a determination of the controlling order for prospective support and of the amount of consolidated arrears and interest accrued under all valid orders. See Section 207.

Related to Convention: art. 11. Application contents; art. 20. Bases for recognition and enforcement; art. 21. Severability and partial recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 25. Documents.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the introductory language of subsection (a); in subdivision (a)(2), substituted "of the order" for "of all orders", and substituted "modification of the order" for "modification of an order"; substituted "person requesting" for "party seeking" in subdivision (a)(3); substituted "any other source" for "another source" in sub-subdivision (a)(4)b.; in subdivision (a)(5), added "Except as otherwise provided in G.S. 52C-3-311," at the beginning, and deleted "agency or" preceding "person"; substituted "an order of another state or a foreign support order" for "a foreign order" in subsection (b); and added subsections (d) and (e).

Legal Periodicals. - For survey of 1977 law on domestic relations, see 56 N.C.L. Rev. 1045 (1978).

CASE NOTES

Constitutionality of Orders Under Former URESA. - Orders pursuant to former Uniform Reciprocal Enforcement of Support Act (URESA) did not violate a respondent's right to due process and equal protection under the Constitutions of the United States and North Carolina. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Protection of Due Process Rights by Two-Step Registration Procedure. - Registration takes place in two stages: (1) The filing of documents, and (2) the confirmation of registration after 20 days; this procedure provided defendant ample opportunity to exercise his due process right to a hearing to challenge the validity of the foreign support order asserted. Allsup v. Allsup, 323 N.C. 603, 374 S.E.2d 237 (1988).

Registration and enforcement were entirely separate procedures under former Chapter 52A. Fleming v. Fleming, 49 N.C. App. 345, 271 S.E.2d 584 (1980).

Personal jurisdiction was unnecessary for mere registration of a foreign support order under former G.S. 52A-29, and language in a confirmation order purporting to find personal jurisdiction was superfluous and did not bind the defendant therein in subsequent enforcement proceedings. Fleming v. Fleming, 49 N.C. App. 345, 271 S.E.2d 584 (1980).

Personal jurisdiction was not a requisite for registration of an order under former 52A-29. Stevens v. Stevens, 68 N.C. App. 234, 314 S.E.2d 786, cert. denied, 312 N.C. 89, 321 S.E.2d 908 (1984).

Jurisdiction to Modify Child Support Obligation. - Under the provisions of the Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., the trial court had jurisdiction to modify a father's child support obligation because the mother registered the controlling Washington support order in North Carolina; Washington lost, and North Carolina gained continuing, exclusive jurisdiction to modify the controlling support order because all parties resided in North Carolina when the father filed his motion to modify. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

Trial Court Lacked Jurisdiction. - Mother's petition to register a foreign child support order was in substance and form a petition to register a foreign custody order, as her petition did not request registration and enforcement or contain a sworn statement showing the amount of any arrearage, and the trial court did not err in dismissing this claim for lack of subject matter jurisdiction and failure to state a claim. Even if the court assumed the mother also sought registration under the Uniform Interstate Family Support Act, her petition did not substantially comply with the statute. Halterman v. Halterman, - N.C. App. - , - S.E.2d - (Mar. 4, 2021).

The mere registration of a foreign support order presented by the obligee was a ministerial duty of the clerk. By that act, no court or agency of the State was purporting to exercise power over the obligor or his property. Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d 633 (1977).

As Was Transfer of Order to This State. - The registration provisions of former Chapter 52A applied so as to allow enforcement in this State of foreign state support orders entered prior to October 1, 1975; transfer of an order to this State was a ministerial act ancillary to the entry of original judgment. Stevens v. Stevens, 68 N.C. App. 234, 314 S.E.2d 786, cert. denied, 312 N.C. 89, 321 S.E.2d 908 (1984).

Compliance Prevented Exercise of Jurisdiction and Modification of Support Order. - The trial court erred both in failing to register a 1995 New Jersey order and in entering a North Carolina Voluntary Support Agreement terminating child support at age eighteen, contrary to the terms of the New Jersey order; the court did not have subject matter jurisdiction where the record demonstrated that the plaintiff met the requirements of G.S. 52C-6-602 by properly transmitting all of the required URESA documentation and where, upon notification, the defendant did not contest the foreign support order; furthermore, the law of the issuing state, allowing for child support until the child reaches twenty-two, should have been applied by the adopting state. State ex rel. Harnes v. Lawrence, 140 N.C. App. 707, 538 S.E.2d 223 (2000).

Lack Of Authority To Modify Child Support Order. - Trial court lacked authority to modify a Michigan child support order because North Carolina was the proper forum for modifying that order; the mother was a resident of Georgia, and consequently, the father, as the party seeking modification, was required by the Uniform Interstate Family Support Act, G.S. 52C-6-602 and G.S. 52C-6-609, to register the Michigan support order in Georgia, not North Carolina. Crenshaw v. Williams, 211 N.C. App. 136, 710 S.E.2d 227 (2011).

Registration did not prejudice any rights of the obligor; it merely changed the status of the foreign support order by allowing it to be treated the same as a support order issued by a court of North Carolina under former G.S. 52A-30. Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d 633 (1977).

An obligee could not strip an obligor of rights and defenses otherwise available by the simple expedient of litigating under former Chapter 52A, the Uniform Reciprocal Enforcement of Support Act (URESA), rather than G.S. 50-16.9(c). Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

No Requirement to File Complaint. - In a former Uniform Reciprocal Enforcement of Support Act (URESA) registration proceeding, one was not required to file a complaint in the traditional sense. Former G.S. 52A-29 required only that certain documents be transmitted to the clerk of court. After submitting the required documents, obligee seeking registration had no other duties under the statute. Williams v. Williams, 97 N.C. App. 118, 387 S.E.2d 217 (1990).

Under former G.S. 52A-30(a), registration of a Tennessee decree in this State was treated as any other support order issued by a North Carolina court. Thereafter, either party could request modifications in the order. Jenkins v. Jenkins, 89 N.C. App. 705, 367 S.E.2d 4 (1988).

Registered alimony orders retained, for their lifespan prior to registration, their foreign identity, and the laws of the foreign jurisdiction apply in any subsequent enforcement proceeding. This means that at any enforcement proceeding under former G.S. 52A-30 the obligor could apply, just as at a civil action instituted under G.S. 50-16.9(c), for a new order modifying or superseding the foreign order "to the extent that it would could have been so modified in the jurisdiction where granted." Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Failure to Describe Obligor's Property or to List States. - The failure to describe the obligor's property did not warrant dismissal of an action; it merely limited the enforcement remedies available to the obligee. Likewise, failure to list other states where the decree was registered did not warrant a dismissal. Silvering v. Vito, 107 N.C. App. 270, 419 S.E.2d 360 (1992).

Substantial Compliance. - The plaintiff substantially complied with this section where the record indicated that her "Registration Statement" was signed and notarized, and contained the case number, date and county of the foreign state's order, the parties to the action and their respective addresses and employers, and the support amount, date of last payment, and total amount of arrears, along with the name and address of the State agency to which support payments were to be remitted. Twaddell v. Anderson, 136 N.C. App. 56, 523 S.E.2d 710 (1999), cert. denied, 351 N.C. 480, 543 S.E.2d 510 (2000).

Trial court properly exercised jurisdiction to modify the controlling Washington child support order because the fact that the mother inadvertently omitted a corrected order from her Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., registration packet did not deprive North Carolina courts of subject-matter jurisdiction to modify the father's child support obligation; the mother substantially complied with the statute by registering two of the three parts of the controlling order. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

Neither the mother nor the father were prejudiced by the mother's failure to strictly comply with all of the statutory registration procedures because the mother substantially complied with the statute by registering two of the three parts of the controlling order; as for the third portion of the controlling order, the mother referred to the omitted corrected order in several filings before the trial court. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

Actual Notice Sufficient. - Although defendant did not receive notice of registration from the clerk, he did have actual notice of registration. Where a civil summons and the former Uniform Reciprocal Enforcement of Support Act (URESA) petition were served upon defendant eight days after the URESA petition was filed. Therefore, the defendant received actual notice of the pending litigation within the 20 days prescribed. Silvering v. Vito, 107 N.C. App. 270, 419 S.E.2d 360 (1992).

Applied in Hook v. Hook, 170 N.C. App. 138, 611 S.E.2d 869 (2005).

Cited in Haker-Volkening v. Haker, 143 N.C. App. 688, 547 S.E.2d 127 (2001).

OFFICIAL COMMENT (2015)

Initially the text of the registration procedure under UIFSA (1992) was nearly identical to that set forth in RURESA. But, the intent of UIFSA registration was always radically different. Under UIFSA, registration of a support order of State A continues to be an order of that state, which is to be enforced by a tribunal of State B. The ordinary rules of evidence and procedure of State B apply to hearings, except as local law may be supplemented or specifically superseded by other local law, i.e., UIFSA. The purpose of the registration procedure in sections 601 through 604 is that the order being registered remains a State A order until modified.

First, note that subsection (a) is phrased in the passive voice; "A support order . . . is registered when the order is filed in the registering tribunal . . . ." This drafting is deliberate. By indirection, in effect UIFSA provides that either the obligor, the obligee, or a support enforcement agency, may register a support order of another state or a foreign support order. In fact, even a stranger to the litigation, for example a grandparent or an employer of an alleged obligor, may register a support order. Presumptively, the order registered is the valid, controlling order. If not, the act depends on the respondent to contest the registration. See Sections 605 through 608.

Subsection (b) provides that a support order of another state or a foreign support order is to be enforced and satisfied in the same manner as if it had been issued by a tribunal of the registering state. Conceptually, the responding tribunal is enforcing the order of a tribunal of another state or a foreign support order, not its own order.

Subsection (c) mandates enforcement of the registered order, but forbids modification unless the terms of Sections 609 through 614 are met. Under UIFSA there will be only one order in existence at any one time. That order is enforceable in a responding state irrespective of whether the order may be modified. In most instances, a child-support order will be subject to the continuing, exclusive jurisdiction of the issuing tribunal. Sometimes the issuing tribunal will not be able to exercise its authority to modify the order because neither the child nor the parties reside in the issuing state. Nonetheless, the order may be registered and is fully enforceable in a responding state until the potential for modification actually occurs in accordance with the strict terms for such a proceeding. See Section 611. Thus, the registering tribunal always must bear in mind that the enforcement procedures taken, whether to enforce current support or to assist collecting current and future arrears and interest, are made on behalf of the issuing tribunal, and are not a modification of the controlling order.

Related to Convention: art. 11. Application contents; art. 20. Bases for recognition and enforcement; art. 21. Severability and partial recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 25. Documents.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, inserted "or a foreign support order" in subsection (a); in subsection (b), inserted "support" following "registered", and inserted "or a foreign country"; and in subsection (c), substituted "Chapter" for "Article", and inserted "support" following "registered."

CASE NOTES

Constitutionality of Orders Under Former URESA. - Orders pursuant to the former Uniform Reciprocal Enforcement of Support Act (URESA) did not violate a respondent's right to due process and equal protection under the Constitutions of the United States and North Carolina. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Former G.S. 52A-30 established a two-step procedure: (1) Registration of the order, and if required, a hearing on whether to vacate the registration or grant the "obligor" other relief; and (2) Enforcement of the order. Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d 633 (1977); Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Registration takes place in two stages: (1) The filing of documents, and (2) the confirmation of registration after 20 days; this procedure provided defendant ample opportunity to exercise his due process right to a hearing to challenge the validity of the foreign support order asserted. Allsup v. Allsup, 323 N.C. 603, 374 S.E.2d 237 (1988).

Registration and enforcement were entirely separate procedures under former Chapter 52A. Fleming v. Fleming, 49 N.C. App. 345, 271 S.E.2d 584 (1980).

Personal jurisdiction was not a requisite for registration of an order. Stevens v. Stevens, 68 N.C. App. 234, 314 S.E.2d 786, cert. denied, 312 N.C. 89, 321 S.E.2d 908 (1984).

Jurisdiction to Modify Child Support Obligation. - Under the provisions of the Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., the trial court had jurisdiction to modify a father's child support obligation because the mother registered the controlling Washington support order in North Carolina; Washington lost, and North Carolina gained continuing, exclusive jurisdiction to modify the controlling support order because all parties resided in North Carolina when the father filed his motion to modify. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

Trial court properly exercised jurisdiction to modify a controlling Washington child support order because the fact the mother inadvertently omitted a corrected order from her Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., registration packet did not deprive North Carolina courts of subject-matter jurisdiction to modify the father's child support obligation; the mother substantially complied with the Uniform Interstate Family Support Act by registering two of the three parts of the controlling order. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

Registration of Tennessee decree in this State was treated as any other support order issued by North Carolina court. Thereafter, either party could request modifications in the order. Jenkins v. Jenkins, 89 N.C. App. 705, 367 S.E.2d 4 (1988).

Failure to Describe Obligor's Property or to List States. - The failure to describe the obligor's property did not warrant dismissal of an action; it merely limited the enforcement remedies available to the obligee. Likewise, failure to list other states where the decree was registered did not warrant a dismissal. Silvering v. Vito, 107 N.C. App. 270, 419 S.E.2d 360 (1992).

Transfer of Order to This State as Ministerial Act. - The registration provisions of former Chapter 52A applied so as to allow enforcement in this State of foreign state support orders entered prior to October 1, 1975; transfer of an order to this State was a ministerial act ancillary to the entry of original judgment. Stevens v. Stevens, 68 N.C. App. 234, 314 S.E.2d 786, cert. denied, 312 N.C. 89, 321 S.E.2d 908 (1984).

Determinations Required in Proceedings to Enforce Order. - Once foreign support order was treated as a support order issued by a North Carolina court, the obligee or obligor could request modifications in the order, and when the obligee attempted to enforce the order, the court had to determine whether jurisdiction existed over the person or property of the obligor and what amount, if any, was in arrears. Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d 633 (1977).

In challenging a foreign judgment, defendant had the right to interpose proper defenses. He could defeat recovery by showing want of jurisdiction either as to the subject matter or as to his person; however, jurisdiction would be presumed until the contrary was shown. Fleming v. Fleming, 49 N.C. App. 345, 271 S.E.2d 584 (1980).

Once a foreign alimony order was registered, it lost its identity as an order of the foreign court and became an order of the North Carolina court for all purposes. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

But registered alimony orders retained, for their lifespan prior to registration, their foreign identity, and the laws of the foreign jurisdiction applied in any subsequent enforcement proceeding. This means that at any enforcement proceeding under former G.S. 52A-30 the obligor could apply, just as at a civil action instituted under G.S. 50-16.9(c), for a new order modifying or superseding the foreign order "to the extent that it could have been so modified in the jurisdiction where granted." Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Effect of Registration on Foreign Alimony Order That Was Retroactively Modifiable. - Registration under former Chapter 52A could not entitle a foreign alimony order that was retroactively modifiable in the jurisdiction of its rendition to the full faith and credit protection of the United States Constitution, since the full faith and credit clause is applicable only to judgments that are unconditional and certain, or at least capable of being made so. However, former G.S. 52A-30 authorized the courts of this State by comity to extend to foreign alimony orders the selfsame recognition and effect due them in the jurisdiction of their rendition. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Registration for Enforcement Only. - Trial court lacked authority to modify a foreign child support order or to reduce arrearages under the Uniform Interstate Family Support Act because the mother registered the order in North Carolina for enforcement only, North Carolina did not have personal jurisdiction over the mother, who lived in Florida, and the parties did not consent to North Carolina's jurisdiction to modify the child support order. Lacarrubba v. Lacarrubba, 202 N.C. App. 532, 688 S.E.2d 769 (2010).

North Carolina court could not modify child support order over which Texas courts had jurisdiction. Hinton v. Hinton, 128 N.C. App. 637, 496 S.E.2d 409 (1998).

Cited in Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997); Martin County ex rel. Hampton v. Dallas, 140 N.C. App. 267, 535 S.E.2d 903 (2000); State ex rel. Harnes v. Lawrence, 140 N.C. App. 707, 538 S.E.2d 223 (2000); Haker-Volkening v. Haker, 143 N.C. App. 688, 547 S.E.2d 127 (2001); State ex rel. Benford v. Bryant, 208 N.C. App. 165, 701 S.E.2d 387 (2010).

OFFICIAL COMMENT (2015)

Subsection (a) is intended to clarify the wide range of subjects that are governed by the choice-of-law rules established in this section. The task is to identify those aspects of the case for which local law is inapplicable. A basic principle of UIFSA is that throughout the process the controlling order remains the order of the tribunal of the issuing state or foreign country until a valid modification. The responding tribunal only assists in the enforcement of that order. Absent a loss of continuing, exclusive jurisdiction by the issuing tribunal and a subsequent modification of the order, the order never becomes an order of a responding tribunal.

Subsection (a) first identifies those aspects of the initial child-support order that are governed by the term's original decision and the function of the issuing tribunal. First and foremost, ultimate responsibility for enforcement and final resolution of the obligor's compliance with all aspects of the support order belongs to the issuing tribunal. Thus, calculation of whether the obligor has fully complied with the payment of current support, arrears, and interest on arrears is also the duty of the issuing tribunal.

In UIFSA (1992) the decision was made by NCCUSL that the duration of child support should be fixed by the initial controlling child-support order. See Section 611(c). This policy decision was somewhat controversial at the time, especially given the general rule that "local law controls." But, case law regarding issues created by movement from one state with one duration to a state with another policy was hopelessly muddled, so a solution was sought. Then, as now, the policies of states on this subject varied greatly: today, a few states continue to set the once most-common age of 21 as the cut-off date; some continue the obligation past 21, dependent on enrollment in higher education (often with limited time specified); at the other end of the spectrum, some states end the obligation of child support at age 18; in others at 19; and, most popularly, at one or the other of either age 18 or 19, plus graduation from high school, whichever is later.

Under subsection (a), if the initial issuing tribunal sets the age for termination of child support at 18, a responding state must recognize and enforce that child-support order. If the responding state sets its child support to age 21, the responding tribunal may not apply that time duration to require additional support to that age. The converse is also true. If the controlling order of another state ends the support obligation at 21, the responding tribunal in a state with 18 as the maximum duration for child support must enforce the controlling order until age 21. The dissent on this policy decision in UIFSA has abated over time. Interestingly, the Convention establishes age 21 as the hallmark. At the same time, under Convention art. 2(2), a country may reserve the right to limit the application of the Convention with regard to child support to persons who have not reached the age of 18. The United States does not intend to make such a reservation.

Similarly, subsection (a) directs that the law of the issuing state or foreign country governs the answer to questions such as whether a payment made for the benefit of a child, such as a Social Security benefit for a child of a disabled obligor, should be credited against the obligor's child support obligation. In sum, on these subjects the consistent rule is that a controlling order from State A is enforced in State B (and State C as well).

Note that as soon as a general proposition is identified, an exception may well be presented. Subsection (b) contains a choice-of-law provision that often diverges from other local law. In situations in which the statutes of limitation differ from state to state, the statute with the longer term is to be applied. In interstate cases, arrearages often will have accumulated over a considerable period of time before enforcement is perfected. The rationale for this exception to the general rule of "local law applies" is that the obligor should not gain an undue benefit from his or her choice of residence if the forum state, as the obligor's state of residence, has a shorter statute of limitations for arrearages than does the controlling order state. On the other side of the coin, i.e., if the forum has a longer statute of limitations, the obligor will be treated in an identical manner as all other obligors in that state. This choice of limitations also applies to the time period after the accrual of the arrears in which to bring an enforcement action.

Subsection (c) mandates that local law controls with regard to enforcement procedures. For example, if the issuing state or foreign country has enacted a wide variety of license suspension or revocation statutes, while the responding state has a much narrower list of licenses subject to suspension or revocation, local law prevails.

Subsection (d) may initially appear only to express a truism - the law of the issuing state is superior with regard to the terms of the support order. The last clause in the sentence, however, contains an important clarifying provision; that is, the law of the issuing state or foreign country is to be applied to the consolidated arrears, most particularly to the interest to be charged prospectively, even if the support orders of other states contributed a portion to those arrears. In sum, the local tribunal applies its own familiar procedures to enforce a support order, but it is clearly enforcing an order of a tribunal of another state and not an order of the forum.

Related to Convention: art. 2. Scope; art. 11. Application contents; art. 20. Bases for recognition and enforcement; art. 21. Severability and partial recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 25. Documents.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section.

CASE NOTES

In terms of choice of law, former URESA generally required that the law applied in interpreting and/or enforcing the support order be that of the state in which enforcement was sought; however, UIFSA provides that the law of the issuing state governs the current payments and other obligations of support and the payment of arrears under the order, and any order for the support of a child until age 21 must be recognized and enforced in that manner in a state in which the duty of support of a child ends at age 18. Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997).

Illustrative Case. - Indiana's statute of limitations applied in determining if an action to register and enforce an Indiana child support order in North Carolina was timely. State ex rel. George v. Bray, 130 N.C. App. 552, 503 S.E.2d 686 (1998).

PART 2. CONTEST OF VALIDITY OR ENFORCEMENT.

OFFICIAL COMMENT (2015)

Subsection (a) requires the registering tribunal to provide notice to the nonregistering party of the effect of registration. After such notice is given, absent a successful contest by the nonregistering party, the order will be confirmed and future contest will be precluded. The notice contemplates far more than merely announcing an intent to initiate enforcement of an existing support order. The registered order or orders and other relevant documents and information must accompany the notice, including details about the alleged arrears.

Subsection (b) provides the nonregistering party with a wealth of information about the proceeding, including that: (1) the order is immediately enforceable; (2) a hearing must be requested within a relatively short time; (3) failure to contest "will result" in a confirmation of the order (roughly the equivalent of a default judgment); and (4) the amount of arrears, if any. Initially subsection (b) made the suggestion, via brackets, that [20] days be the time within which a request for a hearing to contest the support order be made. The rationale for this relatively short period was that the matter had already been litigated, and the obligor had already had the requisite "day in court," and was allegedly in default of a known order. Moreover, advocates of child-support enforcement stressed the necessity of quick resolution of an instance of nonsupport.

On the other hand, the Convention requires notice of hearing to be within a fixed time of 30 days, and further a fixed time of 60 days if the respondent resides in a foreign country. See Convention art. 23(6). This difference between UIFSA and the Convention is accommodated in Section 707. The time frame for notice of registration for an interstate support order and a foreign support order not subject to the Convention will be established by local law.

Subsection (c) is the correlative to Section 602 regarding the notice to be given to the nonregistering party if determination of a controlling order must be made because of the existence of two or more child-support orders. The petitioner requesting this affirmative relief is directed to identify the order alleged to be controlling under Section 207.

Subsection (d) states the obvious; i.e., the obligor's employer also must be notified if income is to be withheld. Often this will not be necessary if the employer has already been notified by the responding state's enforcement agency via the administrative process established in Section 507.

Related to Convention: art. 20. Bases for recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement.

Editor's Note. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "or Enforcement" for "of Enforcement" at the end of the Part 2 heading.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, in the first sentence of subsection (a), inserted "or a foreign support order" and "of this State"; substituted "A notice" for "The notice" in the introductory language of subsection (b); added "unless the registered order is under G.S. 52C-7-707" at the end of subdivision (b)(2); substituted "arrearages; and" for "arrears and precludes further contest of that order with respect to any matter that could have been asserted" at the end of subdivision (b)(3); substituted "arrearages" for "arrears" at the end of subdivision (b)(4); added subsection (b1); and inserted "the support enforcement agency or" in subsection (c).

OFFICIAL COMMENT (2015)

Subsection (a) directs the "nonregistering party" to contest the registration of an interstate support order or a foreign support order not subject to the Convention within a short period of time or forfeit the opportunity to contest. As noted in Section 605, that time frame is extended for cases subject to the Convention.

Notice of registration is the first step for enforcement or modification of another state's child-support order. Once the nonregistering party is put on notice of the registration, if an error allegedly has been made, the second step is crucial. The nonregistering party is required to assert any existing defense to the alleged controlling order, or forfeit the opportunity to contest the allegations. Note that either the obligor or the obligee may have objections to the registered order, although in the vast majority of cases the obligor is the nonregistering party.

On the other hand, there is a possibility that in multiple-order situations either party may register the order most favorable to that party rather than register the likely controlling order, thus triggering a contest. Deliberately furnishing misinformation regarding the controlling order doubtless constitutes chicanery, which is contrary to Section 605(c). When a support enforcement agency requests registration, Section 307(c) requires reasonable efforts to ensure registration of the proper controlling order. Nonetheless, there may be an honest difference of opinion as to which order controls. The nonregistering obligor has a significant stake in assuring that both the order and the arrears are correctly stated.

Under UIFSA a contest of the fundamental provisions of the registered order is not permitted in the responding state. The nonregistering party must return to the issuing state or foreign country to prosecute such a contest (only as the law of that state or foreign country permits). This approach is akin to the prohibition found in Section 315 against asserting a nonparentage defense in a UIFSA proceeding. There is no attempt by UIFSA to preclude a collateral attack on the support order from being litigated in the appropriate forum.

Subsection (b) precludes an untimely contest of a registered support order.

Subsection (c) directs that a hearing be scheduled when the nonregistering party contests some aspect of the registration.

Related to Convention: art. 20. Bases for recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 26. Procedure on an application for recognition.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, inserted "support" proceeding "order" in the section heading; substituted "the time required by G.S. 52C-6-605" for "20 days after notice of the registration" in the first sentence of subsection (a); and inserted "support" following "registered" in subsections (b) and (c).

CASE NOTES

Cited in Haker-Volkening v. Haker, 143 N.C. App. 688, 547 S.E.2d 127 (2001).

OFFICIAL COMMENT (2015)

Subsection (a) places the burden on the nonregistering party to assert narrowly defined defenses to registration of a support order. The first of the listed defenses, lack of personal jurisdiction over the nonregistering party in the original proceeding, is undoubtedly the most widely discussed topic. It appears that at the appellate level, several of the other listed defenses are more commonly asserted. The decision in Kulko v. Superior Court, 436 U.S. 84 (1978) was somewhat controversial when delivered, and has remained so, at least in the international context. As a practical matter, however, the requirement that a support order be based on personal jurisdiction over both parties - but primarily the obligor - is a well-established fixture in the jurisprudence of the United States; relatively few appellate cases on this subject have been reported.

A nonregistering obligor may assert a wide variety of listed defenses, such as "payment" or "the obligation has terminated," in response to allegations of noncompliance with the registered order. There is no defense, however, to registration of a valid foreign support order. The nonregistering party also may contest the allegedly controlling order because its terms have been modified. Or, the defense may be based on the existence of a different controlling order. See Section 207. Presumably this defense must be substantiated by registration of the alleged controlling order to be effective.

While subsection (a)(6) is couched in terms that imply the defense to the amount of alleged arrears can only be that they are less, the converse is also available. For example, if the registering party is the obligor and asserts an amount of arrears that the obligee believes is too low, as the nonregistering party the obligee must contest to preclude confirmation of the alleged amount.

In the absence of a valid defense, if the obligor is found to be liable for current support, the registering tribunal must enter an order to enforce that obligation. Additional proof of arrearages must also result in enforcement under the Bradley Amendment, 42 U.S.C. Section 666(a)(10), which requires all states to treat child-support payments as final judgments as they come due (or lose federal funding). Therefore, federal law precludes arrearages from being subject to retroactive modification. Future modification of a child support order from another state is governed by Sections 609-614, and Sections 615-616 regulate modification of foreign child support orders.

Subsection (c) provides that failure to contest a registered order successfully requires the tribunal to confirm the validity of the registered order.

Related to Convention: art. 26. Procedure on an application for recognition.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, inserted "support" following "registered" in the introductory language of subsection (a); deleted "or" at the end of subdivision (a)(6); substituted "alleged arrearages; or" for "arrears" at the end of subdivision (a)(7); added subdivision (a)(8); substituted "a registered support order" for "the registered order" in the first sentence of subsection (b); and substituted "a registered support order" for "the order" in subsection (c).

CASE NOTES

Enforcement. - If the defending party either fails to contest the registration or does not establish a defense under subsection (a), the registering tribunal is required by law to confirm the order under subsection (c); in other words, unless the court finds that the defendant has met his burden of proving one of the specified defenses, enforcement is compulsory. Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997).

Trial court lacked authority to modify a foreign child support order or to reduce arrearages under the Uniform Interstate Family Support Act because the mother registered the order in North Carolina for enforcement only, North Carolina did not have personal jurisdiction over the mother, who lived in Florida, and the parties did not consent to North Carolina's jurisdiction to modify the child support order. Lacarrubba v. Lacarrubba, 202 N.C. App. 532, 688 S.E.2d 769 (2010).

Burden of Proof on Contesting Party. - The trial court erred in placing the burden on the plaintiff county acting on behalf of the mother of the couple's two children to prove that the Virginia child support order should be registered; while there were conflicts in the evidence presented by defendant and by plaintiff, such conflicts were for the trial court to resolve and their presence did not justify or permit vacation of the prior registration Martin County ex rel. Hampton v. Dallas, 140 N.C. App. 267, 535 S.E.2d 903 (2000).

Enforcement of foreign support orders under the Uniform Interstate Family Support Act is not an equitable remedy; the Act provides a legal remedy, not an equitable remedy. Accordingly, in an action to register Florida support orders against a father in North Carolina, any equitable defenses to the child support obligations that the father might wish to raise could be raised only in Florida. State ex rel. Lively v. Berry, 187 N.C. App. 459, 653 S.E.2d 192 (2007).

The list of defenses in subsection (a) is exclusive. State ex rel. George v. Bray, 130 N.C. App. 552, 503 S.E.2d 686 (1998).

Nonparentage Not a Defense. - Pursuant to G.S. 52C-3-314, a party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this chapter. Reid v. Dixon, 136 N.C. App. 438, 524 S.E.2d 576 (2000).

Remedy Sought. - In subdivision (a)(5) the term "remedy sought" refers only to the procedural means by which a child support order is sought to be enforced, such as wage withholding, license revocation or imprisonment; thus, this subdivision allows a defendant to challenge those means. State ex rel. George v. Bray, 130 N.C. App. 552, 503 S.E.2d 686 (1998).

Registration Improperly Denied. - Trial court erred under the Uniform Interstate Family Support Act in denying registration of foreign child support orders against a father as to arrears because the father had not presented evidence to establish at least one of the seven enumerated defenses under G.S. 52C-6-607; furthermore, the trial court's refusal to register the arrears portion of the orders affected their amount and thus effectively modified the orders, which the trial court did not have the authority to do under the Full Faith and Credit for Child Support Orders Act. State ex rel. Lively v. Berry, 187 N.C. App. 459, 653 S.E.2d 192 (2007).

Cited in Haker-Volkening v. Haker, 143 N.C. App. 688, 547 S.E.2d 127 (2001); State ex rel. Benford v. Bryant, 208 N.C. App. 165, 701 S.E.2d 387 (2010).

OFFICIAL COMMENT (2015)

If, after notice, the nonregistering party fails to contest, the registered support order is confirmed by operation of law and no further action by a responding tribunal is necessary. Although the statute is not explicit on the subject, it seems likely in the absence of a contest both the registering and nonregistering party would be estopped from subsequently collaterally attacking the confirmed order, whether on the basis that "the wrong order was registered" or otherwise.

If contested, a registered support order must be confirmed by the responding tribunal if, after a hearing, the defenses authorized in Section 607 are rejected. Thus, either scenario precludes the nonregistering party from raising any issue that could have been asserted in a hearing. Confirmation of a support order, whether by action or as the result of inaction, validates both the terms of the order and the asserted arrearages.

Related to Convention: art. 22. Grounds for refusing recognition and enforcement; art. 26. Procedure on an application for recognition.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "registered support order" for "registered order."

CASE NOTES

Modification of Foreign Support Order. - Trial court lacked authority to modify a foreign child support order or to reduce arrearages under the Uniform Interstate Family Support Act because the mother registered the order in North Carolina for enforcement only, North Carolina did not have personal jurisdiction over the mother, who lived in Florida, and the parties did not consent to North Carolina's jurisdiction to modify the child support order. Lacarrubba v. Lacarrubba, 202 N.C. App. 532, 688 S.E.2d 769 (2010).

Cited in Haker-Volkening v. Haker, 143 N.C. App. 688, 547 S.E.2d 127 (2001).

PART 3. REGISTRATION AND MODIFICATION OF CHILD SUPPORT ORDER OF ANOTHER STATE.

OFFICIAL COMMENT (2015)

Sections 609 through 614 deal with situations in which it is permissible for a registering state to modify the existing child-support order of another state. The first step for modification of another state's child-support order is registration in the responding tribunal under Sections 601 to 604. In some situations, this may also involve identification of the controlling order. A petitioner wishing to register a support order of another state for purposes of modification must conform to the general requirements for pleadings in Section 311, and follow the procedure for registration set forth in Section 602. If the tribunal has the requisite personal jurisdiction over the parties and may assume subject matter jurisdiction as provided in Sections 611 or 613, modification may be sought independently, in conjunction with registration and enforcement, or at a later date after the order has been registered and enforced if circumstances have changed.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "G.S. 52C-6-601 through G.S. 52C-6-608" for "Part 1 of this Article."

CASE NOTES

Jurisdiction to Modify Child Support Obligation. - Under the provisions of the Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., the trial court had jurisdiction to modify a father's child support obligation because the mother registered the controlling Washington support order in North Carolina; Washington lost, and North Carolina gained continuing, exclusive jurisdiction to modify the controlling support order because all parties resided in North Carolina when the father filed his motion to modify. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

Lack Of Authority To Modify Child Support Order. - Trial court lacked authority to modify a Michigan child support order because North Carolina was the proper forum for modifying that order; the mother was a resident of Georgia, and consequently, the father, as the party seeking modification, was required by the Uniform Interstate Family Support Act, G.S. 52C-6-602 and G.S. 52C-6-609, to register the Michigan support order in Georgia, not North Carolina. Crenshaw v. Williams, 211 N.C. App. 136, 710 S.E.2d 227 (2011).

OFFICIAL COMMENT (2015)

An order issued in another state registered for purposes of modification may be enforced in the same manner as an order registered for purposes of enforcement. But, the power of the forum tribunal to modify a child-support order of another tribunal is limited by the specific factual preconditions set forth in Sections 611 and 613.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "registered support order" for "registered order", and inserted "or G.S. 52C-6-613" near the end of the section.

CASE NOTES

Jurisdiction to Modify Child Support Obligation. - Under the provisions of the Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., the trial court had jurisdiction to modify a father's child support obligation because the mother registered the controlling Washington support order in North Carolina; Washington lost, and North Carolina gained continuing, exclusive jurisdiction to modify the controlling support order because all parties resided in North Carolina when the father filed his motion to modify. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

Trial court properly exercised jurisdiction to modify the controlling Washington child support order because the fact that the mother inadvertently omitted a corrected order from her Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., registration packet did not deprive North Carolina courts of subject-matter jurisdiction to modify the father's child support obligation; the mother substantially complied with the statute by registering two of the three parts of the controlling order. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

OFFICIAL COMMENT (2015)

The Play-away Rule. As long as the issuing tribunal has continuing, exclusive jurisdiction over its child-support order, a responding tribunal is precluded from modifying the controlling order. See Sections 205 through 207. UIFSA (1992) made critical choices regarding modification of an existing child-support order. First, the "one-order" rule was to be paramount. Second, the issuing tribunal had continuing, exclusive jurisdiction to modify its order as long as a party or the child continued to reside in the issuing state. The original order remained in force as the controlling order until modified by another tribunal. Third, a separate procedure was created for modification of an existing child-support order when all parties and the child moved from the issuing state and acquired new residences. The key was that the movant seeking modification be "a nonresident of this state." The deciding factor, determined after extended debate, centered on curbing or eliminating the undesirable effect of "ambush or tag" jurisdiction, e.g., the likelihood that the parties would vie to strike first to obtain a home-town advantage. Although constitutional under Burnham v. Superior Court, 495 U.S. 604 (1990), such lawsuits would discourage continued contact between the child and the obligor, or between the parties for fear of a lawsuit in a distant forum. Thus, the goal was to avoid the situation in which modification would be available in a forum having personal jurisdiction over both parties based solely on the ground that service of process was made in the would-be forum state.

Under subsection (a)(1), before a responding tribunal may modify the existing controlling order, three specific criteria must be satisfied. First, the individual parties and the child must no longer reside in the issuing state. Second, the party seeking modification, usually the obligee, must register the order as a nonresident of the forum. That forum is almost always the state of residence of the other party, usually the obligor. A colloquial (but easily understood) description is that the nonresident movant for modification must "play an away game on the other party's home field." Third, the forum must have personal jurisdiction over the parties. By registering the support order, the movant submits to the personal jurisdiction of the forum through seeking affirmative relief. On rare occasion, personal jurisdiction over the respondent may be supplied by long-arm jurisdiction. See Section 201.

The underlying policies of this procedure contemplate that the issuing tribunal no longer has an interest in exercising its continuing, exclusive jurisdiction to modify its order, nor information readily available to it to do so. The play-away rule achieves rough justice between the parties in the majority of cases by preventing ambush in a local tribunal. Moreover, it takes into account the factual realities of the situation. In the overwhelming majority of cases the movant is the obligee who is receiving legal assistance in the issuing and responding states from Title IV-D support enforcement agencies. Further, evidence about the obligor's ability to pay child support and enforcement of the support order is best accomplished in the obligor's state of residence.

Fairness requires that an obligee seeking to modify the existing child-support order in the state of residence of the obligor will not be subject to a cross-motion to modify custody merely because the issuing tribunal has lost its continuing, exclusive jurisdiction over the support order. The same restriction applies to an obligor who moves to modify the support order in a state other than that of his or her residence.

There are exceptions to the play-away rule. Under subsection (a)(2), the parties may agree that a particular forum may serve to modify the order, even if the issuing tribunal has continuing, exclusive jurisdiction. Subsection (a)(2) also applies if the individual parties agree to submit the modification issue to a tribunal in the petitioner's state of residence. Implicit in this shift of jurisdiction is that the agreed tribunal has subject matter jurisdiction and personal jurisdiction over at least one of the parties or the child, and that the other party submits to the personal jurisdiction of that forum. UIFSA does not contemplate that parties may agree to confer jurisdiction on a tribunal without a nexus to the parties or the child.

Proof that neither individual party nor the child continues to reside in the issuing state is made directly in the responding tribunal. No purpose is served by requiring the movant to return to the original issuing tribunal for a hearing to elicit confirmation of fact that none of the relevant persons still lives in the issuing state. Thus, the issuing tribunal is not called upon to transfer or surrender its continuing, exclusive jurisdiction or otherwise participate in the process, nor does it have discretion to refuse to yield jurisdiction.

There is a distinction between the processes involved under subsection (a). Once the requirements of subsection (a)(1) are met for assumption of jurisdiction, the responding tribunal acts on the modification and then notifies the issuing tribunal that the prior controlling order has been replaced by a new controlling order. In contrast, for another tribunal to assume modification jurisdiction by agreement under subsection (a)(2), the individual parties first must agree in a record to modification in the responding tribunal and file the record with the issuing tribunal. Thereafter they may proceed in the responding tribunal.

A similar exception is found in Section 205(a)(2), which enables the parties to agree in a record of the original issuing tribunal that it may retain jurisdiction over the order even if all parties have left that state. Note that such an agreement can be incorporated in the initial order of the issuing tribunal.

Section 613 also is an exception to subsection (a)(1): it supplants the play-away rule if all parties have left the original issuing state and now reside in the same state, whether by chance or design.

Subsection (b) provides that when a responding tribunal assumes modification jurisdiction because the issuing tribunal has lost continuing, exclusive jurisdiction, the proceedings will generally follow local law with regard to modification of a child-support order, except as provided in subsections (c) and (d).

Duration of the Child Support Obligation. Prior to 1993 American case law was thoroughly in chaos over modification of the duration of a child-support obligation when an obligor or obligee moved from one state to another state and the states had different ages for the duration of child support. The existing duration usually was ignored by the issuance of a new order applying local law, which elicited a variety of appellate court opinions. UIFSA (1992) determined that a uniform rule should be proposed, to wit, duration of the child-support obligation would be fixed by the initial controlling order. Subsection (c) provides the original time frame for support is not modifiable unless the law of the issuing state provides for its modification. After UIFSA (1996) was universally enacted, some tribunals sought to subvert this policy by holding that completion of the obligation to support a child through age 18 established by a now-completed controlling order did not preclude the imposition of a new obligation to support the child through age 21, or beyond.

Subsection (d) prohibits imposition of multiple, albeit successive, support obligations. The initial controlling order may be modified and replaced by a new controlling order in accordance with the terms of Sections 609 through 614. But, the duration of the child support obligation remains constant, even though other aspects of the original order may be changed.

Sometimes a domestic-violence protective order includes a provision for child support that will be in force for a specific time. The duration of the protective order often is less than the general law of the state for duration of the child-support obligation. Under these facts the general law of the issuing state regarding duration controls a subsequent child-support order.

Subsection (e) provides that on modification the new child-support order becomes the controlling order to be recognized by all UIFSA states. Good practice mandates that the responding tribunal should explicitly state in its order that it is assuming responsibility for the controlling child-support order. Neither the parties nor other tribunals should be required to speculate about the effect of the action.

International Effect. Prohibiting modification based on the play-away principle in the international context is problematic. The issue arises because the United States is wedded to personal jurisdiction over the individual parties at a state level, rather than the child-based, national jurisdiction found virtually everywhere else. For example, a foreign country typically regards a support order to be of the country, not an order from a political subdivision, e.g., an order from Germany. In some important instances, however, a foreign support order is indeed made in a political subdivision, e.g., a support order from a Canadian province. Although consideration was given to labeling a support order issued in a state to be an order of the United States, conforming modification of child support to the general principles of state law through UIFSA is the only practical choice.

Subsection (f) creates a necessary exception to the play-away concept when the parties and the child no longer reside in the issuing state and one party resides outside the United States. The play-away principle makes sense when the tribunals involved have identical laws regarding continuing, exclusive jurisdiction to modify a child-support order. See Sections 205 through 207. If one party resides in a foreign country, a pure play-away rule would deny modification in a forum subject to UIFSA rules to the party or child who has moved from the issuing state, but continues to reside in the United States. This result does not occur under Convention art.18, which places restrictions on modification of a support order in another Convention country if the obligee remains in the issuing Convention country. That article does not mention an effect when only the obligor remains in the issuing country, perhaps because the Convention makes clear that under a child-based system modification jurisdiction will follow the obligee and the child.

Subsection (f) identifies the tribunal that issued the controlling order as the logical choice for an available forum in which UIFSA will apply. This exception to the play-away rule provides assured personal jurisdiction over the parties, which in turn enables the issuing tribunal to retain continuing jurisdiction to modify its order. Of course, the party residing outside the United States has the option to pursue a modification in the state where the other party or child currently reside.

In sum, under this section personal service on either the custodial or noncustodial party found within the state borders, by itself, does not yield jurisdiction to modify. A party seeking to exercise rights of visitation, delivering or picking-up the child for such visitation, or engaging in unrelated business activity in the state, will not be involuntarily subjected to protracted litigation in an inconvenient forum. The play-away rule avoids the possible chilling effect on the exercise of parental contact with the child that the possibility of such litigation might have. The vast majority of disputes about whether a tribunal has jurisdiction will be eliminated. Moreover, submission by the petitioner to the state of residence of the respondent obviates this issue. Finally, because there is an existing order, the primary focus will shift to enforcement, thereby curtailing unnecessary modification efforts.

UIFSA Relationship to UCCJEA. Jurisdiction for modification of child support under subsections (a)(1) and (a)(2) is distinct from modification of custody under the federal Parental Kidnapping Prevention Act (PKPA), 42 U.S.C. § 1738A, and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) §§ 201-202. These acts provide that the court of exclusive, continuing jurisdiction may "decline jurisdiction." Declining jurisdiction, thereby creating a potential vacuum, is not authorized under UIFSA. Once a controlling child-support order is established under UIFSA, at all times thereafter there is an existing order in effect to be enforced. Even if the issuing tribunal no longer has continuing, exclusive jurisdiction, its order remains fully enforceable until a tribunal with modification jurisdiction issues a new order in conformance with this article.

UIFSA and UCCJEA seek a world in which there is but one order at a time for child support and custody and visitation. Both have similar restrictions on the ability of a tribunal to modify the existing order. The major difference between the two acts is that the basic jurisdictional nexus of each is founded on different considerations. UIFSA has its focus on the personal jurisdiction necessary to bind the obligor to payment of a child-support order. UCCJEA places its focus on the factual circumstances of the child, primarily the "home state" of the child; personal jurisdiction to bind a party to the custody decree is not required. An example of the disparate consequences of this difference is the fact that a return to the decree state does not reestablish continuing, exclusive jurisdiction under the UCCJEA. See UCCJEA § 202. Under similar facts UIFSA grants the issuing tribunal continuing, exclusive jurisdiction to modify its child-support order if, at the time the proceeding is filed, the issuing tribunal "is the residence" of one of the individual parties or the child. See Section 205.

Related to Convention: art. 18. Limit on proceedings.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote subsection (a); in subsection (c), added "including the duration of the obligation of support" to the first sentence and inserted "same" preceding "child" in the second sentence; added subsection (c1); in subsection (d), inserted "by a tribunal of this State"; added subsection (d1); and made minor stylistic changes.

CASE NOTES

Findings Required for Order Incarcerating Person Until He Complies with Support Order. - An order under former Chapter 52A, entered pursuant to a contempt hearing, which confined a person to jail until he complied with a support order, must have found not only that his failure to comply with the support order was willful, but also that he possessed the means to comply with the order. Ingle v. Ingle, 18 N.C. App. 455, 197 S.E.2d 61 (1973).

Illustrative Cases - North Carolina trial court properly exercised jurisdiction over a father's action seeking modification of a New Jersey trial court's order requiring the father to pay child support for a mentally retarded child who was born in 1964 after the child and her mother moved to North Carolina and the father moved to Maryland, and the trial court's judgment that the father's request for an order terminating his obligation to pay child support had to be granted, pursuant to G.S. 50-13.4(c), was affirmed on appeal. Lombardi v. Lombardi, 157 N.C. App. 540, 579 S.E.2d 419 (2003).

Trial court lacked authority to modify a foreign child support order or to reduce arrearages under the Uniform Interstate Family Support Act, G.S. 52C-6-611, because the mother registered the order in North Carolina for enforcement only, North Carolina did not have personal jurisdiction over the mother, who lived in Florida, and the parties did not consent to North Carolina's jurisdiction to modify the child support order. Lacarrubba v. Lacarrubba, 202 N.C. App. 532, 688 S.E.2d 769 (2010).

Trial court lacked authority to modify a Michigan child support order because North Carolina was the proper forum for modifying that order; the mother was a resident of Georgia, and consequently, the father, as the party seeking modification, was required by the Uniform Interstate Family Support Act, G.S. 52C-6-602 and G.S. 52C-6-609, to register the Michigan support order in Georgia, not North Carolina. Crenshaw v. Williams, 211 N.C. App. 136, 710 S.E.2d 227 (2011).

Under the provisions of the Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., the trial court had jurisdiction to modify a father's child support obligation because the mother registered the controlling Washington support order in North Carolina; Washington lost, and North Carolina gained continuing, exclusive jurisdiction to modify the controlling support order because all parties resided in North Carolina when the father filed his motion to modify. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

Applied in Devaney v. Miller, 191 N.C. App. 208, 662 S.E.2d 672 (2008).

OFFICIAL COMMENT (2015)

A key aspect of UIFSA is the deference to the controlling child-support order of a sister state demanded from a tribunal of the forum state. This applies not just to the original order, but also to a modified child-support order issued by a second state under the standards established by Sections 611and 613. For the act to function properly, the original issuing tribunal must recognize and accept the modified order as controlling, and must regard its prior order as prospectively inoperative. Because the UIFSA system is based on an interlocking series of state laws, it is fundamental that a modifying tribunal of one state lacks the authority to direct the original issuing tribunal to release its continuing, exclusive jurisdiction. That result is accomplished through the enactment of UIFSA by all states, which empowers a modifying tribunal to assume continuing, exclusive jurisdiction from the original issuing tribunal and requires an issuing tribunal to recognize such an assumption of jurisdiction. This explains why the U.S. Congress took the extraordinary measure in PRWORA of mandating universal passage of UIFSA (1996), as amended. See Prefatory Note.

The original issuing tribunal retains authority post-modification to take remedial enforcement action directly connected to its now-modified order.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section.

OFFICIAL COMMENT (2015)

It is not unusual for the parties and the child subject to a child-support order to no longer reside in the issuing state, and for the individual parties to have moved to the same new state. The result is that the child-support order remains enforceable, but the issuing tribunal no longer has continuing, exclusive jurisdiction to modify its order. A tribunal of the state of mutual residence of the individual parties has jurisdiction to modify the child-support order and assume continuing, exclusive jurisdiction. Although the individual parties must reside in the forum state, there is no requirement that the child must also reside in the forum state (although the child must have moved from the issuing state).

Finally, because modification of the child-support order when all parties reside in the forum is essentially an intrastate matter, subsection (b) withdraws authority to apply most of the substantive and procedural provisions of UIFSA, i.e., those found in the act other than in Articles 1, 2, and 6. Note the duration of the support obligation is a nonmodifiable aspect of the original controlling order, see Section 611(c)-(d).

CASE NOTES

Jurisdiction to Modify Child Support Obligation. - Under the provisions of the Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., the trial court had jurisdiction to modify a father's child support obligation because the mother registered the controlling Washington support order in North Carolina; Washington lost, and North Carolina gained continuing, exclusive jurisdiction to modify the controlling support order because all parties resided in North Carolina when the father filed his motion to modify. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

Trial court properly exercised jurisdiction to modify the controlling Washington child support order because the fact that the mother inadvertently omitted a corrected order from her Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., registration packet did not deprive North Carolina courts of subject-matter jurisdiction to modify the father's child support obligation; the mother substantially complied with the statute by registering two of the three parts of the controlling order. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

OFFICIAL COMMENT (2015)

For the act to function properly, the prevailing party in a proceeding that modifies a controlling order must inform the original issuing tribunal about its loss of continuing, exclusive jurisdiction over its child-support order. Thereafter, the original tribunal may not modify, or review and adjust, the amount of child support. Notice to the issuing tribunal and other affected tribunals that the continuing, exclusive jurisdiction of the former controlling order has been modified is crucial to avoid the confusion and chaos of the multiple-order system UIFSA replaced.

The new issuing tribunal has authority to impose sanctions on a party who fails to comply with the requirement to give notice of a modification to all interested tribunals. Note, however, that failure to notify a displaced tribunal of the modification of its order does not affect the validity of the modified order.

PART 4. REGISTRATION AND MODIFICATION OF FOREIGN CHILD SUPPORT ORDER.

OFFICIAL COMMENT (2015)

Subsection (a) provides that a state tribunal may modify a foreign child-support order, other than a Convention order, when the foreign issuing tribunal lacks or refuses to exercise jurisdiction to modify its order. The standard example cited for the necessity of this special rule involved the conundrum posed when an obligor has moved to the responding state from the issuing country and the law of that country requires both parties to be physically present at a hearing before the tribunal in order to sustain a modification of child support. In that circumstance, the foreign issuing tribunal is unable to exercise jurisdiction to modify under its law. Ordinarily, under Section 611 the responding state tribunal is not authorized to issue a new order, in effect modifying the foreign support order, because the child or the obligee continues to reside in the issuing country. To remedy the perceived inequity in such a fact situation, this section provides an exception to the rule of Section 611. If both parties are subject to the personal jurisdiction of a state by the obligee's submission and the obligor's residence, or other grounds under Section 201, the responding state tribunal may modify the foreign child-support order. Modification of a Convention order is governed by Section 711.

The ability of a state tribunal to modify when the foreign country refuses to exercise its jurisdiction should be invoked with circumspection, as there may be a cogent reason for such refusal. Note, Section 317 empowers tribunals to communicate regarding this issue, rather than rely upon representations of one or more of the parties.

Subsection (b) states that if a new order is issued under subsection (a), it becomes the UIFSA controlling order insofar as other states are concerned. Obviously this act cannot dictate the same result to the issuing foreign tribunal, although it seems highly likely that either through child-based jurisdiction or an action filed by the obligee recognition by the foreign tribunal will occur.

Related to Convention: art. 18. Limit on proceedings.

OFFICIAL COMMENT (2015)

The procedure for registration and enforcement set forth in Sections 601 through 608 is applicable to a child-support order from a non-Convention country. This section provides coverage for modification in that situation. Presumptively, the general law of the state regarding modification of a child-support order will apply because, by their terms, Sections 609 through 614 apply only to modification of a child-support order by a state tribunal. The rationale is that modification is available because the foreign order is not founded on the UIFSA principles of continuing, exclusive jurisdiction and a controlling order. See Sections 205 through 207.

OFFICIAL COMMENT (2015)

A readily apparent difference between UIFSA (2008) and the Convention is the perceived need for definitions in the former, and the very limited number of definitions in the latter. This act contains twenty-nine definitions in Section 102, and an additional seven for this article. In contrast, the Convention contains only seven official definitions. Some of these are synonyms for definitions in UIFSA, i.e., "creditor and debtor" for "obligor and obligee," and "agreement in writing" for "record."

Subsection (1), "application" refers to the process for an individual obligor or obligee to request assistance from a central authority under the Convention.

Subsections (2) and (5) identify the governmental entities, i.e., central authority, in each contracting country or political subdivisions thereof, that will function as the operating agencies to facilitate contacts between Convention countries. The Convention is a treaty between the countries in which it is in force thus creating mutual obligations. The duties assigned in the Convention to the central authority of each country will be performed according to the choice of each country. It is crucial to recognize that in the United States it will be the Title IV-D agency of each state that will be designated by the U.S. central authority to perform most of the functions specified in the Convention. It appears likely that in many foreign countries the central authority will serve in the role of a clearinghouse, rather than as the operative enforcement entity, while some countries may assign all central authority functions to one agency.

Subsection (3), "Convention support order" narrows the term "foreign support order," as employed in Articles 1 through 6. The provisions in those articles also apply to Convention support orders, but when this act is not congruent with the Convention, support orders under the Convention are subject to this article. This article has no application to a support order from a non-Convention foreign country, as defined in Section 102(5)(A) and (B) or a support order entitled to comity, Section 102(5)(C), except to the extent that a Convention country may request enforcement of a non-Convention support order that has been recognized in the United States under some other procedure, see Section 704.

Subsection (4) integrates the "direct request" authorized by the Convention with the provisions for filing a petition in Articles 1 through 6.

The definition in the Convention for "maintenance arrangement" has been rephrased in Subsection (6), and must be read together with Section 710 to understand the process authorized in the Convention.

Convention source: art. 3. Definitions; art. 30. Maintenance arrangements.

Related to Convention: art. 4. Designation of Central Authorities; art. 37. Direct requests to competent authorities.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, rewrote the section, which formerly concerned proceeding to determine parentage (now see G.S. 52C-4-402).

CASE NOTES

Jurisdiction to Determine Issue of Paternity. - Since the district court had exclusive original jurisdiction to entertain a proceeding under the former Uniform Reciprocal Enforcement of Support Act, it was clear that the district court had jurisdiction to determine the issue of paternity in such a case. Amaker v. Amaker, 28 N.C. App. 558, 221 S.E.2d 917 (1976).

In an action under former Chapter 52A, paternity must be judicially determined to warrant relief. Smith v. Burden, 31 N.C. App. 145, 228 S.E.2d 662 (1976); Brondum v. Cox, 292 N.C. 192, 232 S.E.2d 687 (1977).

No Additional Grounds for Determining Paternity. - The former Uniform Reciprocal Enforcement of Support Act (URESA) did not provide additional grounds for determining paternity; consequently, a North Carolina court adjudicating the issue of paternity in a URESA action looked to the applicable substantive law governing the determination of paternity. This, in turn, was determined by reference to the statutory choice of law directive pertaining to URESA actions. Reynolds v. Motley, 96 N.C. App. 299, 385 S.E.2d 548 (1989).

No Certified Copies of Birth Certificates Attached to Petition. - In action under former Uniform Reciprocal Enforcement of Support Act (URESA), where the record disclosed that no certified copies of the birth certificates of the alleged children-obligees were attached to plaintiffs' petition, court was without subject matter jurisdiction to adjudicate defendant's paternity. Reynolds v. Motley, 96 N.C. App. 299, 385 S.E.2d 548 (1989).

Prior criminal conviction of failure to support illegitimate children was not conclusive as to paternity in a subsequent civil action for support of the same children. In the subsequent civil action, the putative father was entitled to have the issue of paternity litigated. Smith v. Burden, 31 N.C. App. 145, 228 S.E.2d 662 (1976).

As to effect of foreign adjudication of paternity, see Brondum v. Cox, 292 N.C. 192, 232 S.E.2d 687 (1977).

OFFICIAL COMMENT (2015)

The first sentence definitively states that this article applies only to a proceeding involving a Convention country, as defined in Section 102(5)(D). This article does not generally apply to a support order from a non-Convention foreign country as defined in Section 102(5)(A) and (B) or to a support order entitled to comity. The second sentence resolves a situation in which there is a conflict between a section in this article and a provision in Articles 1 through 6, in which case this article controls.

Related to Convention: art. 1. Object; art. 2. Scope; art. 4. Designation of Central Authorities.

OFFICIAL COMMENT (2015)

The Secretary of Health and Human Services has designated the state Title IV-D child support agencies as the governmental entities that will carry out many of the central authority's functions under the Convention. Each state determines which public office or administrative agency will perform the Title IV-D services for child support enforcement. Because the federal government provides a significant subsidy for this effort, the actions of the agency must comply with federal statutes and regulations and the state legislature must enact certain mandatory laws. The relationship is symbiotic in that states choose to participate in the Title IV-D program, and do so by following their own state procedures and legislative enactments that recognize and authorize the state officer or agency to function under these conditions.

Related to Convention: ch. II. Administrative co-operation, arts. 4-8; ch. III. Applications through central authorities, arts. 9-17.

OFFICIAL COMMENT (2015)

This section is designed to enable lawyers and non-lawyers to better understand proceedings under the Convention, which itself is written in terminology unfamiliar to legal proceedings in the United States.

Subsection (a) lists the rights and duties of a support enforcement agency.

Subsection (b) lists what rights and duties are available to an obligee, whether the proceeding is inbound from a Convention country or outbound to a Convention country.

In contrast to the general rule in UIFSA, which attempts to maintain something of parity between the obligor and obligee, subsection (c) limits the rights and duties available to an obligor under the Convention. This reflects the equal treatment ideal espoused by UIFSA in Articles 1 through 6, and the pro-obligee philosophy of the Convention. In actual practice, the results may not be that different. Recall that until replaced by UIFSA, an informal subtitle given to URESA by its leading proponents was "The Runaway Pappy Act."

Subsection (d) tracks Convention art. 14 (5).

Convention source: art. 6. Specific functions of Central Authorities; art. 10. Available applications; art. 14. Effective access to procedures.

Related to Convention: ch. II. Administrative co-operation, arts. 4-7; ch. III. Applications through central authorities, arts. 9-17.

OFFICIAL COMMENT (2015)

Given the long history of open courts in the United States, this section may seem axiomatic, redundant, or unnecessary. In fact, because this principle has not always been universal, it is important to recognize that the Convention confirms that an individual residing in a Convention country may file a petition directly in a tribunal of another Convention country without requesting the assistance of a central authority or a support enforcement agency. Given the variety of legal systems that may be involved under the Convention, this freedom of choice is explicitly protected. A person residing in a Convention county, whether a citizen or a noncitizen of the United States, may apply to a tribunal in the United States for establishment, recognition, and enforcement of a child-support order for enforcement of a spousal support order, for recognition and enforcement of a foreign support agreement, and in some situations, for modification of an existing support order. Of course, the freedom of an individual to petition for relief in a tribunal says nothing about the nature of legal representation, if any, implicit in the right of access to a tribunal, is that representation may be pro se or by private counsel. See Section 309.

Subsection (a) provides that an individual party may file a proceeding directly in a tribunal, thus submitting to the jurisdiction of the tribunal and to state law. The object of the proceeding may be establishment of a support order, determination of parentage of a child, or modification of an existing support order.

Subsection (b) recognizes that an individual party may file a proceeding in a tribunal requesting recognition and enforcement of a Convention support order, or a foreign support agreement as defined in Section 710. The party thereby chooses not to seek the services of a central authority or support enforcement agency. Nonetheless, the individual will be affected indirectly by the terms of the Convention because the proceeding is subject to Sections 706 through 713, which are drawn from the Convention. This effect applies to an individual residing in a Convention country and to an individual residing elsewhere who is seeking to enforce a Convention support order.

Subsection (c) contains two provisions drawn from the Convention specifically applicable to a petition for recognition and enforcement of a Convention support order. First, a guarantee of payment of costs may not be required. Second, if the individual has benefited from free legal assistance in a Convention country, that individual is entitled to free legal assistance if it is available in similar circumstances under the law of the responding state.

Under subsection (d) an individual party who files a direct request regarding a Convention support order in a tribunal is not entitled to assistance from the governmental entity, i.e. the support enforcement agency.

Subsection (e) echoes Article 52 of the Convention. An individual party who files a petition in a tribunal may take advantage of any "simplified, more expeditious procedures" which may be available in the requested state, so long as they are "compatible with the protection offered to the parties under articles 23 and 24" of the Convention.

Convention source: art. 14. Effective access to procedures; art. 17. Applications not qualifying under Article 15 or Article 16; art. 37. Direct requests to competent authorities; art.52, Most effective rule.

Related to Convention: ch. II. Administrative co-operation, arts.4-8; ch. III. Applications through central authorities, arts. 9-17; art. 20. Bases for recognition and enforcement; art. 25. Documents; art. 27. Findings of fact; art. 28. No review of the merits; art. 37. Direct requests to competent authorities; art. 56. Transitional provisions.

OFFICIAL COMMENT (2015)

Subsection (a) integrates the Convention support order into the registration for enforcement procedure set forth in Sections 601 through 608. A state support enforcement agency and a tribunal will use basically the same procedures for a Convention order under this article as would be used in a non-Convention proceeding.

From inception, UIFSA contained detailed provisions for substantive procedures for interstate child-support orders. To facilitate expedited processing, detailed statutory instructions have encouraged uniformity of legal documents. The Convention follows this precedent. The list of documents to be provided, however, is somewhat different than the documents described in Sections 311 and 602. In order to ensure that a document satisfying the requirements of the Convention will be accepted by a support enforcement agency or tribunal, subsection (a) identifies the documents required to accompany an application under the Convention.

Several of the required documents may be unfamiliar in the United States, e.g., the authority to provide an abstract or an extract of an order rather than the complete text of an order under paragraph (b)(1); the requirement for a statement of enforceability of the order under paragraph (b)(2); proof that the respondent had proper notice of the proceedings and an opportunity to be heard if the respondent did not appear and was not represented under (b)(3); and proof that the applicant received free legal assistance in the issuing country under paragraph (b)(6).

Subsection (c) provides that a petitioner may request only partial enforcement of a support order, see Section 709. infra , which speaks to partial enforcement by a tribunal.

Subsections (d) and (e) authorize action by a tribunal available under the Convention that may not be available under other state law. Subsection (d) permits the tribunal to vacate registration, acting on its own motion, under certain exceptional circumstances, and subsection (e) requires that notice be promptly provided of any such order vacating registration. Such ex officio review, if used to refuse recognition of an order, is in tension with the core UIFSA policy of requiring recognition. In any event, the subsections are not a vehicle for a review of the merits of the decision. An example would be useful here, but there is none in the Explanatory Report to the Convention, just the negative reference that a country could not use this to enforce a policy against ordering support for a child born out of wedlock. http://www.hcch.netpload/expl38.pdf. Perhaps an example could be that the court might reject an application to establish support from a biological parent whose rights had been terminated and the child was subsequently adopted.

Convention source: art. 25. Documents; art. 21. Severability and partial recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 25. Documents.

Related to Convention: art. 11. Application contents; art. 20. Bases for recognition and enforcement.

OFFICIAL COMMENT (2015)

Subsection (a) states the general rule that a contest of a registration is generally governed by Sections 605 through 608, supra . Subsection (b), however, establishes separate, longer time frames to contest the registration of a Convention support order than for filing a contest as established in Section 605. If notice of contest is to be given in the United States, the time difference is relatively modest, i.e., 30 days instead of 20. A more significant difference is created for out-of-country notice, i.e., 60 days instead of 20. Arguably this takes into account that providing notice to a party in a foreign country may take longer than ordinarily expected. In any event, the longer time frames are specifically required in connection with a Convention order. Note that while the principle may always be true that notice to a party situated in a foreign country may take longer, the additional times for notice apply only to an order subject to the Convention.

Subsections (c)-(g) transform Convention language into UIFSA terminology. Subsection (g), which prohibits a stay in enforcement pending a challenge or appeal except in exceptional circumstances, is another substantive provision required by the Convention. It does not apply in non-Convention cases, in which domestic law determines whether a stay of enforcement should be granted pending an appeal or other challenge.

Convention source: art. 23. Procedure on an application for recognition and enforcement; art. 27. Findings of fact; art. 28. No review of the merits.

Related to Convention: art. 20. Bases for recognition and enforcement; art. 21. Severability and partial recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 27. Findings of fact; art. 28. No review of the merits.

OFFICIAL COMMENT (2015)

Enforceability; the general rule, with exceptions. Subsection (a) states the general proposition that if a child-support order is issued by a tribunal in a Convention country, except as otherwise provided in subsection (b), the order shall be recognized and enforced. In domestic cases UIFSA requires recognition of child-support order of a sister state, 28 U.S.C.A. § 1738B, Full Faith and Credit for Child Support Orders Act (FFCCSOA). Receipt of a child-support order from a sister state is routinely processed and enforced. Critical examination of the sister state order for defects is not called for; it is the responsibility of the respondent to assert any defenses available. Moreover, experience has shown that child-support orders are generally valid, for relatively modest amounts, and seldom subject to claims of fraud. The most common defect is one of mistake, rather than deliberate misconduct.

Subsection (b) combines provisions from four separate articles in the Convention. These articles provide an extensive number of specific reasons for a tribunal or support enforcement agency of one Convention country to refuse to recognize a child-support order from another Convention country. For this act to be consistent with the Convention, it is necessary to identify the potential defects of a support order from a Convention country in which a defendant might raise a challenge based on lack of jurisdiction, due process, or enforceability of an order for arrearages. The majority of these defects arguably are self-explanatory, and almost all are subject to factual dispute to be resolved by the tribunal, to wit: (b)(1) "manifestly incompatible" with public policy, including violation of minimum standards of due process; (b)(2) issued without personal jurisdiction over the individual party ( discussed at length below ); (b)(3) unenforceable in the issuing country; (b)(4) obtained by fraud in connection with a matter of procedure; (b)(5) the record lacks authenticity or integrity, e.g., forged; (b)(6) a prior proceeding is pending; (b)(7) a more recent support order is controlling; (b)(8) full or partial payment; (b)(9)(A),(B), no appearance, notice, or opportunity to be heard ( discussed below ); and, (b)(10) exceeds limitations and restraints on modification. As with domestic cases, the norm will be to recognize and enforce a foreign order absent a challenge by the respondent. Three provisions most likely to trigger a tribunal to refuse to recognize and enforce a foreign support order require more attention, i.e., subsections (b)(2), (4) and (9)(A), (B).

Of particular note, subsection (c) applies to a refusal to recognize and enforce a Convention order under any of these grounds. From the perspective of the United States, subsection (b)(2) is likely to be the primary reason for a tribunal to refuse to recognize and enforce a registered Convention support order. Key to its participation in the negotiations leading to the Convention, the United States insisted that a support order may be refused recognition by a tribunal if the issuing foreign tribunal lacked personal jurisdiction over the respondent. The facts underlying the Convention support order must be measured by a tribunal as consistent with the long-arm jurisdictional provisions of UIFSA. See Sections 201-202. A potential problem occurs only if a Convention support order cannot be enforced by a tribunal because there was no appropriate nexus between the foreign country and the respondent,

Subsection (c) provides that any of the reasons enumerated for not recognizing and enforcing a registered Convention support order, i.e., (b)(2), (4) and (9), will trigger the obligation of the tribunal not to dismiss the proceeding before allowing a reasonable time for a party to seek the establishment of a new child-support order. Moreover, if the Title IV-D support enforcement agency is involved, it must "take all appropriate measures to request a child-support order;" i.e., file a petition seeking to establish an initial child-support order by the tribunal. In that case, the tribunal shall treat the request for recognition and enforcement as a petition for establishment of a new order.

Two systems; direct and indirect jurisdiction. In drafting the Convention, the subject of the requisite jurisdiction to issue a support order generated considerable discussion. The choice divided itself into two distinct categories; rules of direct and indirect jurisdiction. Direct jurisdiction provides explicit bases on which a tribunal is vested with the power to assert its authority and enter a support order. See Section 201.

The UIFSA long-arm provisions are paradigm rules of direct jurisdiction. Section 201 identifies the bases on which a tribunal may assert personal jurisdiction over a nonresident individual, obligor or obligee, without regard to the current residence of the individual or child. As discussed in the comment to Section 201, supra , these long-arm jurisdictional rules for child support and spousal support orders were fashioned case-by-case by the Supreme Court, see Estin v. Estin , 334 U.S. 541, 68 S. Ct. 1213, 92 L. Ed. 1561 (1948); Vanderbilt v. Vanderbilt , 354 U.S. 416, 77 S. Ct. 1360, 1 L. Ed. 2d. 1456 (1957) (spousal support); Kulko v. Superior Court , 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d. 132 (1978) (child support).

An initial difficulty arose because some authorities from foreign countries expressed concern about the UIFSA long-arm statute. This was especially true regarding Section 201(a)(1), i.e., service of legal process that creates personal jurisdiction, sometimes called "tag or ambush jurisdiction.' Some experts in civil law countries regard the claim that jurisdiction can be acquired merely by serving documents on an individual passing through, with no fundamental ties to the jurisdiction, as "exorbitant," and fundamentally unfair. Another provision eliciting criticism was Section 201(a)(6), which literally reads that an allegation of engaging in sexual intercourse in the state that "may have' resulted in conception will suffice to support a basis for issuing a child support-order.

Similarly, rules of jurisdiction recognized by civil law countries are contrary to the principles that apply to proceedings in the United States. The fact that residence of a child or an obligee in a forum is sufficient basis in most foreign countries to support a child-support order, even though the obligor has no personal nexus with the forum, is generally viewed as wholly inconsistent with notions of due process in the United States. Assuming the obligor has never been physically present in the forum and has not participated in any of the acts described in Section 201, an assertion of jurisdiction to establish a support order based solely on the residence of the obligee or child in that forum is widely regarded in the United States as unconstitutional.

The Convention adopts a rule of indirect jurisdiction which requires a tribunal to register and enforce the order of another tribunal if certain basic jurisdictional requirements have been satisfied. The Convention does not actually prescribe the bases on which the tribunal may assert jurisdiction, as UIFSA does in Section 201. Most commonly, in countries other than the United States if a child is a "habitual resident" of a country, a support order of a tribunal of that country will be recognized in another country. As a practical matter, although "habitual residence" of the obligee provides no basis for assertion of personal jurisdiction over the obligor in the United States, the home tribunal is almost always the preferred forum if the obligee has any basis under Section 201 to obtain long-arm jurisdiction over a non-resident obligor. That is, the actual custodian of the child is almost always the person who seeks to establish and enforce child support and, if possible, chooses to bring a proceeding in the state of residence of the obligee and the child. A tribunal that recognizes "habitual residence" as a basis for indirect jurisdiction would, accordingly, register and enforce an order from a tribunal in the "habitual residence" of the obligee or child without concern about whether the obligor has a nexus with that tribunal. Thus, most foreign concerns about the tenuous reaches of long-arm jurisdiction in the United States are obviated in practice.

The Convention eschews rules of direct jurisdiction, choosing instead to rely on half-a-dozen indirect rules of jurisdiction, "habitual residence" of any of the parties (respondent, creditor or child) being the most common. The focus of the Convention is to identify the bases on which a tribunal of one Convention country will be required to recognize the assertion of jurisdiction by a tribunal of another Convention country. When the Convention is in force in both countries, a support order issued by a tribunal of Country A will be enforced by a tribunal of Country B, provided that the order is enforceable in Country A, plus the host of other possible considerations discussed above. There are a limited number of exceptions, or "reservations," to such rules permitted under the Convention, which give rise to additional procedures noted below. Once recognition is accorded to a support order, the normal procedures available to enforce the order come into play. The routes to arrive at enforcement by way of direct or indirect jurisdiction are different, but the destination is the same.

Virtually all foreign countries recognize and enforce a child-support order based on the residence of the obligee or the child. The U.S. requirement of personal jurisdiction over the obligor is often regarded abroad as idiosyncratic. Nonetheless, the new Convention requires recognition of U.S. orders based on long-arm jurisdiction asserted over the obligor, a.k.a. "debtor" if the forum state is also the state of residence of the obligee, a.k.a. "creditor." From the perspective of a foreign tribunal, such an order should be considered valid, if only for creditor- or child-based jurisdictional reasons. The fact that the state tribunal requires a personal nexus between the parties and the tribunal is irrelevant to the foreign tribunal.

These distinct views of appropriate jurisdiction presented a genuine issue for resolution. The United States delegation took the position that, as a matter of constitutional law, its tribunals could not recognize and enforce creditor- or child-based support orders under certain factual circumstances accepted in other countries as providing appropriate jurisdiction. The conclusion of the delegation was that this approach conflicts with the Kulko decision, supra . The potential lack of nexus with the obligor, if jurisdiction was based solely on the "habitual residence" of the obligee, would present an impenetrable barrier to participation in the Convention by the United States.

Fairly early on in the Convention negotiations, a consensus developed that these different systems of jurisdiction could be accommodated. On the U.S. side, a challenge to a foreign child-support order will be rejected if the factual circumstances are sufficient to support an assertion of long-arm jurisdiction in the foreign tribunal. Rather obviously, the foreign tribunal need not, and almost certainly will not, consider whether there is a factual basis for establishing personal jurisdiction over the absent obligor based upon "minimum contacts" with the forum. This is not a part of the jurisprudence of the foreign tribunal. If a challenge to a support order is raised by the obligor when the order is sought for enforcement in a United States tribunal, however, that tribunal shall undertake a determination of whether the jurisdictional bases of Section 201 would have been applicable if that issue had been raised in the foreign tribunal. If so, the order is enforceable in this country, notwithstanding that the foreign tribunal based its decision on jurisdiction on the fact that the child or the obligee resided in that forum. See Convention art. 20(1)(c)-(d).

Asserting long-arm jurisdiction to establish a support order by a tribunal in a proceeding under UIFSA will be unaffected by the entry into force of the Convention. This will be true irrespective of whether the nonresident respondent resides in another state or in a foreign country, or even resides in a non-Convention foreign nation.

The term "habitually resident" is used in a number of private international law conventions, including the 2007 Maintenance Convention. The term is not defined in any of them. Rather, in common law countries its meaning is determined on a case-by-case basis by the practice and case law of each country. In the United States and elsewhere there is no consistent interpretation of the term by the courts considering it in the context of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The negotiators of the Convention from the United States made it clear that case law on the meaning of "habitually resident" in the child abduction context should not automatically be applied to child support cases. That is because the effect of the use of "habitual residence" in the 1980 Child Abduction Convention is intended to restrict the ability of a person to obtain a new custody order shortly after arriving in another country. In fact, one of the objects of the 1980 Convention is to limit the ability of a parent unhappy with the custody order of one court to "forum shop" by moving to another country and seeking a new order. In the 2007 Maintenance Convention, the object is to make it easier for an obligee to recover child support in an international case, not to restrict the ability of an obligee to apply for that support.

Due process under the Convention. Subsection (b)(9)(A) applies to a failure to give a party prior notice of the proceedings and an opportunity to be heard, which is the classic denial of due process in a proceeding in the United States.

Subsection (b)(9)(B) will be unfamiliar to practitioners in this country and requires some explanation. This provision recognizes the legitimacy of, and provides a method for challenge of, a support order which may be routinely entered in some administrative systems in an ex parte proceeding. The support order is issued without prior notice to the obligor or opportunity to be heard. The due process opportunity is provided after the ex parte decision. This system is currently in use in administrative proceedings in Australia and New Zealand. Because the respondent will not have participated in the original proceeding, the post facto due process allows the obligor an opportunity to challenge the decision on fact or law.

Convention source: art. 20. Bases for recognition and enforcement; art. 21. Severability and partial recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 25. Documents.

Related to Convention: art. 11. Application contents.

OFFICIAL COMMENT (2015)

This section transforms Convention language into UIFSA terminology. If a responding tribunal is unable to enforce the entirety of a Convention support order, it shall enforce a severable part of the order. For example, a mother of a child may have another woman as her registered partner in a Convention country. If a support order provides support for both the mother and child support for the child, that part of the order awarding support to the mother from the registered partner may not be enforceable in some states. Nonetheless, a tribunal is obligated to recognize and enforce that part of the order for support of the child. The second sentence authorizes the mother to request enforcement only of the child support portion, see also Section 706 (c), supra .

Convention source: art. 21. Severability and partial recognition and enforcement.

Related to Convention: art. 20. Bases for recognition and enforcement.

OFFICIAL COMMENT (2015)

Section 701(6) provides an extensive definition of a "foreign support agreement," which is UIFSA terminology to make more readily understandable for U.S. bench and bar a process that is denominated as a "maintenance arrangement" in the Convention. Subsection (a) requires a state tribunal to recognize and enforce a foreign support agreement if the terms of this section are met. Most crucially, such an agreement must be accompanied by a document stating that the foreign support agreement is as enforceable as a support order would be in the country of origin.

This section basically translates into common parlance the procedure identified in Convention art. 30, which was the result of a very extended discussions about "authentic instruments and private agreements" during the negotiations on the Convention. In many countries, such an agreement is unknown insofar as enforcement by a tribunal is concerned. In the United States, a purely private agreement is treated as a form of contract, rather than as an order of a tribunal. Under the Convention, however, a foreign support agreement meeting the standards established in this section, and as defined in Section 701(6), is entitled to enforcement by the tribunal. Advantages for enforcement of child support binding on the parties in the country of origin stem from the inclusion of a foreign support agreement because there is a growing tendency internationally to promote amicable solutions and avoid contentious procedures. In view of the movement towards alternative methods of dispute resolution in the United States, this mechanism provides for recognition and enforcement of a dispute resolution system in some of the likely Convention countries. The absence of this provision would have been a loss for the Convention, and limited its usefulness for support agreements, particularly in the Scandinavian countries. Although the possibility of a reservation is available, the United States has not indicated that it intends to make such a reservation.

To reiterate, the key to enforcement is that the foreign support agreement must be "enforceable as a decision" in the foreign country of its origin (quoting the Convention). If such an agreement is enforceable only as a contract, it will not fall within the scope of this section. Another key provision is that under subsection (e) the enforcement proceeding will be suspended if the respondent challenges the underlying agreement in a tribunal that has jurisdiction to hear challenges to the agreement.

Convention source: art. 3. Definitions; art. 30. Maintenance arrangements.

OFFICIAL COMMENT (2015)

One goal of the Convention was to limit the number of multiple foreign orders with respect to the same parties to the extent possible. But, given differing laws and jurisdictional bases, consensus on limiting modification was reached only on the fact patterns presented by Section 711(a).

First, this section transforms Convention language into UIFSA terminology. The restriction identified on modification of a child-support order in subsection (a) strikes a familiar note. Similar to Section 611, supra , a restriction is placed on modification of a support order if the obligee remains in the issuing Convention country. Subsection (a)(1) provides an exception if, by failure to object, the obligee submits to the jurisdiction of another tribunal. Subsection (a)(2) is similar to Section 615, supra . From the perspective of the obligee, the restriction has virtually the same effect as found in Sections 205 and 611. That is, in effect the issuing foreign tribunal has a form of continuing, exclusive jurisdiction that it maintains over modification of the order so long as the obligee remains a resident of the country. The difference is that the protection against modification is accorded only to the obligee, and not to the obligor. Thus, under the Convention the obligee may be free to seek a modification in another forum notwithstanding the fact that the obligor remains in the issuing country but the obligee moves to another country, with the implicit requirement that the issuing foreign tribunal must have personal jurisdiction over the obligor to sustain the enforcement of modification by a state tribunal.

Subsection (b) requires a state tribunal to issue a new child-support order if the Convention order was founded on child-based jurisdiction, the foreign tribunal lacked personal jurisdiction over the obligor, and there is a request to establish an order in accordance with Section 708.

Convention source: art. 18. Limit on proceedings; art. 21. Severability and partial recognition and enforcement.

Related to Convention: art. 18. Limit on proceedings; art. 20. Bases for recognition and enforcement.

OFFICIAL COMMENT (2015)

This section is an almost word-for-word tracking of the Convention provision, rephrased in UIFSA terminology. This single sentence is illustrative of the different drafting rules for a uniform act and an international treaty. Although certainly not always adhered to, cardinal rules for drafting a uniform act include writing in the active voice, identifying the intended actor, and specifying the consequences for failure to follow the directive or ignore the proscription. Convention provisions, such as this one, are generally written in passive voice, the actor is not identified, and no penalty is specified for noncompliance. Insofar as the admirable goals of the provision are concerned, ambiguity in the statute, or an exception to the rule, must be resolved case-by-case.

Confidentiality is highly prized in the United States in many circumstances, e.g., the attorney-client privilege is protected to the maximum extent possible. Under other circumstances, the opposite is true, e.g., records of litigation are generally available, and a judicial decision is ordinarily in open court or public record. Neither goal is absolute. Section 312, supra , adds another exception, i.e., nondisclosure of information is sometimes required to protect the health, safety, or liberty of a party or a child. In a case in which there is a risk of domestic violence or parental kidnapping, nondisclosure may be crucial.

The anticipated breadth of application of this provision is to constrain individuals and entities subject to a Convention support order. Protection of personal information in this computerized world is increasingly important, whatever the medium or means of communication. Both the sender and recipient of personal information transmitted electronically are expected to take appropriate measures vis-a-vis their service providers to meet the requirements of this section. The exact meaning of the statutory phrase "for the purpose for which it was gathered or transmitted" will necessarily remain ambiguous until elaborated by statute, caselaw, or regulation.

Convention source: art. 38. Protection of personal data.

Legal Periodicals. - For article, "Privacy, Public Goods, and the Tragedy of the Trust Commons: A Response to Professors Fairfield and Engel," see 65 Duke L.J. 67 (2016).

OFFICIAL COMMENT (2015)

The United States will declare that English is the official language for transmittals to this country. Further, the United States will make a reservation objecting to the use of French, the other official language of the Convention, as a default translation. Of course, the original order may be in French. The cost of translation is borne by the issuing state or Convention country.

Convention source: art. 44. Language requirements; art. 62. Reservations; art. 63.

Related to Convention: art. 45. Means and costs of translation.

CASE NOTES

Requirements. - Trial court lacked subject matter jurisdiction to enter any orders in this case because father failed to include certified copies of the Jerusalem Court's provisional and final child custody determinations with his petition; father failed to provide the requisite English translation, nothing indicated that the untranslated document was certified to be an exact reproduction of the Jerusalem Court's original determination, and stamps on the copies reading "Jerusalem Court" was insufficient to render the documents certified true copies. Hamdan v. Freitekh, - N.C. App. - , 844 S.E.2d 338 (2020), review dismissed, as moot, 376 N.C. 541, 851 S.E.2d 625, 2020 N.C. LEXIS 1159 (2020); review denied, 376 N.C. 541, 851 S.E.2d 621, 2020 N.C. LEXIS 1333 (2020).

OFFICIAL COMMENT (2015)

This section has not been amended substantively since 1968. Virtually no controversy has been generated regarding this procedure. Arguably application of subsection (c) is problematic in situations in which the obligor neither was present in the demanding state at the time of the commission of the crime nor fled from the demanding state. The possibility that an individual may commit a crime in a state without ever being physically present there has elicited considerable discussion and some case law. See L. Brilmayer, An Introduction To Jurisdiction In The American Federal System," 329-335 (1986) (discussing minimum contacts theory for criminal jurisdiction); Rotenberg, Extraterritorial Legislative Jurisdiction and the State Criminal Law , 38 Tex. L. Rev. 763, 784-87 (1960) (due process requires that the behavior of the defendant must be predictably subject to state's criminal jurisdiction); cf. Ex parte Boetscher , 812 S.W.2d 600 (Tex. Crim. App. 1991) (Equal Protection Clause limits disparate treatment of nonresident defendants); In re King , 3 Cal.3d 226, 90 Cal. Rptr. 15, 474 P.2d 983 (1970), cert. denied 403 U.S. 931 (enhanced offense for nonresidents impacts constitutional right to travel).

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, substituted "of the governor" for "by the governor" in subdivision (b)(2).

OFFICIAL COMMENT (2015)

This section has not undergone significant change since 1968. Interstate rendition remains the last resort for support enforcement, in part because a governor may exercise considerable discretion in deciding whether to honor a demand for rendition of an obligor.

Effect of Amendments. - Session Laws 2015-117, s. 1, effective June 24, 2015, deleted "the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act," following "Chapter," in subsection (b).

CASE NOTES

Construction With Other Provisions. - The Federal Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B, which became effective on 20 October 1994, is extremely similar to UIFSA both in terms of structure and intent; the federal statute obligates states to enforce, according to its terms, a child support order issued by another state which is made consistent with the act's jurisdiction and due process standards. Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997).

While the law of the forum state may have applied to the enforcement and remedy applied to a registered foreign support order under the former Uniform Reciprocal Enforcement of Support Act, UIFSA and the Federal Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B, require that the law of the rendering state govern the order's interpretation. Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (1997).

Cited in State ex rel. Johnson v. Eason, 198 N.C. App. 138, 679 S.E.2d 151 (2009).

CASE NOTES

Cited in Hinton v. Hinton, 128 N.C. App. 637, 496 S.E.2d 409 (1998); State ex rel. Benford v. Bryant, 208 N.C. App. 165, 701 S.E.2d 387 (2010).