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LAW AND THE FAMILY

By Joel R. Brandes and Carole L. Weidman

New York Law Journal (p. 3, col. 1)
August 22, 1995

         PARTIES SEEKING enforcement of child support orders frequently 
     find themselves facing complex questions. In the case of matrimonial 
     actions, the initial inquiry is whether or not a court has 
     jurisdiction over the subject matter and the parties. 
     ``Jurisdiction'' is also referred to in the constitutional sense, 
     calling into play the Due Process Clause or the Full Faith and 
     Credit Clause of the U.S. Constitution.*1
         The practitioner's first consideration is Domestic Relations Law 
     Sec.230. This section of the New York statute authorizes a divorce 
Full Faith and Credit to Child-Support Orders
     where one or more of the parties is a resident of the state when the 
     action is commenced. ``Residence,'' which is an element of the cause 
     of action for divorce, is construed to mean domicile. Next, 
     considerable thought must be given to the relief sought. A 
     matrimonial action often involves both the marital status of the 
     parties and the incidents of that status, such as the obligation of 
     the paying spouse to support the children. The power of the court to 
     adjudicate either status or its incidents is dependent upon the type 
     of jurisdiction it has acquired.
         Where the purpose of the action is to alter or affect the 
     marital status it is often referred to as an ``action in rem.''*2 
     Under the in rem theory the ``res'' or ``property'' is the marital 
     status, and the connecting factor to jurisdiction is the domicile of 
     one or both parties or, perhaps, their matrimonial domicile. The 
     purpose and effect of the judgment in a matrimonial action is to 
     change the marital status. If the court has acquired jurisdiction 
     over the marital status it may adjudicate it although it has no 
     jurisdiction over the person of the defendant.
     
     Adjudication of Personal Rights
     
         In contrast, a court must have in personam jurisdiction to 
     adjudicate personal rights, such as questions of child support, 
     maintenance, property distribution and custody. An exception is 
     carved out where quasi in rem jurisdiction exists because property 
     has been sequestered.
         Personal jurisdiction over a defendant in a matrimonial action 
     comes in assorted colors and sizes. It may be acquired by: (1) 
     personal service of process within the jurisdiction of the court; 
     (2) the defendant's voluntary general appearance in the action; (3) 
     consent, either express or implied, to jurisdiction; (4) substituted 
     service; (5) service by publication upon a resident of the state; or 
     (6) service without the state upon a domiciliary.*3 If the defendant 
     is served with process in any of the statutory ways that result in 
     personal jurisdiction, or if he or she voluntarily appears*4 or 
     defends the action, the court has personal jurisdiction over the 
     defendant.
         Civil Practice Law and Rules Sec.302(b) gives the New York 
     courts additional slack. It allows the court to exercise ``long 
     arm'' personal jurisdiction over the defendant in actions involving 
     a demand for child support, alimony, maintenance and property 
     distribution. This is true even where the defendant no longer is a 
     resident or domiciliary of New York when and if the party seeking 
     support is a resident of or domiciled in New York when the demand is 
     made and provided New York was the matrimonial domicile of the 
     parties before their separation; or the defendant abandoned the 
     plaintiff in New York; or the claim for support, alimony, 
     maintenance or property distribution accrued under the laws of New 
     York or under an agreement executed in New York. In addition, 
     jurisdiction may be acquired in enforcement proceedings brought 
     under DRL, Article 30, known as the Uniform Support of Dependents 
     Law (USDL).
         Both the federal and state constitutions require that procedural 
     and substantive due process be observed in matrimonial actions, 
     affording full due process to the parties.*5 Procedural due process, 
     at a minimum, requires reasonable notice and an opportunity to be 
     heard.
         Once New York acquires jurisdiction viz-aviz a New York 
     domicile, personal service or by its ``long arm'' statute, the state 
     may enter an order or judgment for child support that is entitled to 
     full faith and credit elsewhere and to comity in foreign countries. 
     Like a sister state judgment that may be registered in New York 
     under DRL Sec.37-A, such a judgment may be registered in another 
     state and enforced as if it were a local judgment.
         The USDL has been frequently used to obtain and enforce 
     interstate child support orders. The statutes provide for a 
     bifurcated procedure in which the forwarding state makes a record as 
     to the claims. The responding state secures personal jurisdiction 
     over the obligor, provides a hearing, considers defenses, if any, 
     and thereafter sets the amount, if any, the obligor must pay. 
     Enforcement and collection are also implemented by the responding 
     state.
     
     War on Defaulters
     
         Child support has been the subject of an all-out coordinated 
     federal and state ``war on defaulters.'' Each state has been 
     required to set up wage-attachment systems and guidelines as to the 
     amount of child support. The latest federal effort in this area is 
     the ``Full Faith and Credit to Child Support Orders Act (FFCCSOA),'' 
     which became law on Oct. 20, 1994.*6 Its manifold mission includes 
     facilitating the enforcement of child support orders among the 
     states, discouraging interstate controversies over child support and 
     avoiding jurisdictional competition among state courts in making 
     child support orders.
         The clear and present policy embracing the act is the creation 
     of a national standard. This standard first will require the courts 
     of the states to determine if they have jurisdiction to make a child 
     support order.
         The FFCCSOA amends the Judiciary Act by adding Sec.1738B, 
     entitled ``Full faith and credit for child support orders,'' to 
     Title 28 of the United States Code. Under the U.S. Constitution's 
     Supremacy Clause, insofar as interstate recognition, enforcement and 
     modification of child support orders are concerned, the FFCCSOA 
     controls and overrides inconsistent state law, including the USDL 
     and similar statutes.
         The general rule under the FFCCSOA is that the authorities of 
     each state must enforce the terms of a child support order made by a 
     court of another state if it is ``made consistently with'' Sec.1738B 
     and may not seek or make a modification of such an order except in 
     accordance with subsection (e) of Sec.1738B.*7
         ``Child support order'' means a judgment, decree or order of a 
     court requiring the payment of child support in periodic amounts or 
     in a lump sum. The definition includes a permanent or temporary 
     order and an initial order or a modification of an order. 
     ``Modification'' means 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.*8 If the order is not ``made consistently with'' the 
     statute it is not entitled to enforcement or ``full faith and 
     credit.''
         A child support order is ``made consistently with'' Sec.1738B if 
     the court that makes the order, pursuant to the laws of the state in 
     which the court is located: (1) has subject matter jurisdiction to 
     hear the matter and enter such an order; and (2) has personal 
     jurisdiction over the contestants; and (3) reasonable notice and 
     opportunity to be heard is given to the contestants.*9 If the child 
     support order is not ``made consistently with'' the statute it is 
     not entitled to enforcement or ``full faith and credit.'' 
     
     Modification Power
     
         A court of a state that has made a child support order 
     ``consistently with Sec.1738B'' has continuing, exclusive 
     jurisdiction over the order if the state is the child's state or the 
     residence of any contestant unless the court of another state, 
     acting in accordance with Sec.1738B, subsection (e), has modified 
     the order.*10 Simply put, no other state may exercise jurisdiction 
     to modify such order. On the other hand, a court of a state that no 
     longer has continuing, exclusive jurisdiction of a child support 
     order, may enforce the order with respect to nonmodifiable 
     obligations and unsatisfied obligations that accrued before the date 
     on which a modification of the order is made under Sec.1738B, 
     subsection (e).*11
         Lastly, a court of a state may make a modification of a child 
     support order that is made by a court of another state if the court 
     has jurisdiction to make such a child support order; and the court 
     of the other state no longer has continuing, exclusive jurisdiction 
     of the child support order because that state no longer is the 
     child's state or the residence of any contestant; or each contestant 
     has filed written consent to that court's making the modification 
     and assuming continuing, exclusive jurisdiction over the order.
         The general rule as to choice of law is that in a proceeding to 
     establish, modify or enforce a child support order, the forum 
     state's law must apply. Caution must be applied in interpreting a 
     child support order because a court must apply the law of the state 
     of the court that issued the order. To further complicate matters, 
     in an action to enforce a child support order, a court must apply 
     the statute of limitations of the forum state or the state of the 
     court that issued the order, whichever statute of limitations is 
     longer.*12
         Only one case has construed the statute thus far. In Isabel M. 
     v. Thomas M.*13 the parties and their five children resided in 
     Pennsylvania, and the parties were divorced there in 1992. Their 
     divorce judgment provided for child support for the parties' five 
     children, whose custody was awarded to the mother. Following the 
     mother's move to Florida, four of the children returned to live with 
     the father.
         In January 1993 the Pennsylvania judgment was modified in 
     Pennsylvania because the father, who maintained dual residency in 
     Pennsylvania and New York, was supporting four of the children. 
     Thereafter, the mother commenced a USDL proceeding in Florida for 
     support for the child who resided with her. The Family Court held 
     that the USDL was preempted by the FFCCSOA, which is retroactive, 
     and dismissed the proceeding for lack of jurisdiction. It held that 
     making a child support order under the USDL would be a prohibited 
     ``modification'' of the Pennsylvania order since the father and 
     children still resided there.
     
     
     notes
         (1) See Williams v. North Carolina (1945) 325 US 226, 89 LEd 
     1577, 65 S. Ct. 1092, reh den 325 US 895, 89 LEd 2006, 65 S. Ct. 
     1560.
         (2) Geary v. Geary (1936) 272 NY 390, 6 NE2d 67.
         (3) See CPLR Sec.Sec.308, 314-315, 320-321.
         (4) Geary v. Geary, supra.
         (5) Milliken v. Meyer (1940) 311 US 457, 85 LEd 278, 61 S. Ct. 
     339, reh den 312 U.S. 712, 85 L.Ed. 1143, 61 S. Ct. 548; Armstrong 
     v. Manzo (1965) 380 US 545, 14 LEd2d 62, 85 S. Ct. 1187, on remand 
     (Tex. Civ. App. El Paso) 394 SW2d 552.
         (6) Act Oct. 20, 1994, P. L. 103-383, Sec.2, 108 Stat. 4063.
         (7) 28 USCS 1738B (a).
         (8) 28 USCS 1738B (b). ``Child'' is defined by the statute to 
     mean a person less than 18 years of age; and a person 18 or more 
     years of age with respect to whom a child support order has been 
     issued pursuant to the laws of a State. ``Child's State'' means the 
     State in which a child resides. ``Child support'' means a payment of 
     money, continuing support, or arrearages or the provision of a 
     benefit (including payment of health insurance, child care, and 
     educational expenses) for the support of a child. ``Contestant'' 
     means a person (including a parent) who (i) claims a right to 
     receive child support; (ii) is a party to a proceeding that may 
     result in the issuance of a child support order; or (iii) is under a 
     child support order; and (B) a State or political subdivision of a 
     State to which the right to obtain child support has been assigned. 
     ``Court'' means a court or administrative agency of a State that is 
     authorized by State law to establish the amount of child support 
     payable by a contestant or make a modification of a child support 
     order. ``State'' means a State of the United States, the District of 
     Columbia, the Commonwealth of Puerto Rico, the territories and 
     possessions of the United States, and Indian country (as defined in 
     Sec.1151 of Title 18). See 28 USCS 1738B (b).
         (9) 28 USCS 1738B (c).
         (10) 28 USCS 1738B (d).
         (11) 28 USCS 1738B (f).
         (12) 28 USCS 1738B (g).
         (13) 164 Misc2d 420, 624 NYS2d 356 (Fam. Ct., Kings Co.).
----------------
Joel R. Brandes and Carole L. Weidman have law offices in New York City 
and Garden City. They co-authored, with the late Doris Jonas Freed and 
Henry H. Foster, Law and the Family, New York (Lawyers' Co-Operative 
Publishing Co., Rochester, N.Y.) and co-authored the annual supplements.