In Matter of Spencer v. Spencer __NY3d___(February 14, 2008) the Court of Appeals held that when a Connecticut child support order has expired because the child has reached 18 (the age of majority under Connecticut law), and the father still resides in Connecticut, although the mother and children now reside in New York, a subsequent New York child support order for support of the same child to age 21 (the age of majority under New York law) is considered a petition for modification of the Connecticut order. Under the Full Faith and Credit for Child Support Orders Act (28 USC § 1738B) and the Uniform Interstate Family Support Act (Family Ct Act § 580-611), New York lacks subject matter jurisdiction over a modification petition where the father still resides in the state of the expired original support order, absent a consent to jurisdiction. The parties were married in Connecticut, and had three children. They separated in 1994, and the mother and children moved from Connecticut to New York, where they have since resided. The father maintained his residence in Connecticut. In 1994 the parties were divorced in Connecticut. The judgment of divorce, among other things, ordered the father to pay child support of $250 weekly per minor child, and to continue providing the children with medical insurance at his sole expense. In 2004, when the eldest son turned 18 the father's support obligations terminated under Connecticut law. In 2005 the mother filed a petition in Family Court seeking a de novo determination of child support for the eldest son. Family Court awarded child support and counsel fees of $5,080. It held there was subject matter jurisdiction over the child support petition because the second order was not a modification of Connecticut's original decree. The Appellate Division affirmed, reasoning that because the Connecticut child support order expired as to the eldest son, there was no existing order to modify under the FFCCSOA and UIFSA. The Court of Appeals reversed and remitted for further proceedings. It pointed out that the Full Faith and Credit for Child Support Orders Act requires each state to give full faith and credit to another state's validly issued child support order . It provides that a state "shall enforce according to its terms a child support order . . . of another State; and shall not seek or make a modification of such an order . . ." except in limited circumstances. Subsequently Congress mandated that each state enact the Uniform Interstate Family Support Act (UIFSA).The Court held that although UIFSA governs a broader array of child support issues than the FFCCSOA, the statutes have complementary policy goals and should be read in tandem. This was a case where the the relevant provisions of the statutes were consistent. The Court noted that where UIFSA is silent, the FFCCSOA may help fill any gaps. The Court of Appeals found that the statutes together established a national single-order system, vesting continuing, exclusive jurisdiction with the issuing state. Under the FFCCSOA and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state (see 28 USC § 1738B [d]; Family Ct Act § 580-205). Accordingly, a state may modify the issuing state's order of child support only when the issuing state has lost continuing, exclusive jurisdiction, unless the parties consent to jurisdiction (see 28 USC § 1738B [e]; Family Ct Act § 580-611 [a]]). The father always lived in Connecticut, the state that issued the child support order. Under both statutes, because the father continued to reside in the issuing state, Connecticut retained continuing, exclusive jurisdiction of its child support order and New York did not have subject matter jurisdiction to modify the Connecticut order. The only issue, was whether a petition filed after the termination of the initial child support obligation because the child reached the issuing state's age of majority seeks a "modification" of the issuing state's order. If so, under the provisions of both statutes, New York lacked subject matter jurisdiction. The Appellate Division determined that an "expired order", by its very nature, cannot be modified because it no longer is in effect. The court therefore granted what it saw as a de novo child support petition after the father's child support obligation terminated under Connecticut's lower age of majority. The Court of Appeals rejected the expired order concept because a subsequent child support order is a "modification" as defined by the federal statute. The FFCCSOA defines "modification" of a child support order and, under the Supremacy Clause of the United States Constitution, New York is bound to follow that definition. A modification is "a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order" (28 USC § 1738B [b]). Here, the New York order changed the amount of the initial order (increasing it by $100 per week), the scope of the initial order (adding a provision for college expenses), and the duration of the initial order (extending the father's obligation for three years). The New York order was "made subsequent" to the Connecticut order. Therefore, under the plain language of the federal statute, a second order for child support is a "modification" of Connecticut's order. In addition the court found that the drafters of UIFSA clearly intended the same result. Under New York's version of UIFSA, "[a] tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state" (Family Ct Act § 580-611 [c]). In Connecticut, a court may issue an order of support for a child who is under the age of 18 (Conn Gen Stat Ann § 46b-215 [a] [1]). If a child is unmarried and enrolled in a full-time high school, a court may order child support until "such child completes the twelfth grade or attains the age of nineteen, whichever occurs first" (Conn Gen Stat Ann § 46b-215 [a] [1]). Therefore, even if New York had subject matter jurisdiction to modify the Connecticut order, Connecticut law would control the duration of the father's support obligation. The Court also rejected the expired order concept in order to promote the principle of comity embedded in the FFCCSOA and UIFSA. The New York order was a modification of the Connecticut order. Because the father still resided in Connecticut, that state had continuing, exclusive jurisdiction of the child support order -- despite termination of the father's obligations for his eldest son under that order -- and New York did not have subject matter jurisdiction to modify that order. |
