Cavallari v. Martin (97-278)

[Filed 07-May-1999]

  NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter  of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 97-278


Marilyn Cavallari	                           Supreme Court

                                                   On Appeal from
     v.		                                   Bennington Family Court

Kingsley Martin	                                   February Term, 1998



John P. Wesley, J.

Marilyn Cavallari, Pro Se, Cambridge, New York, Plaintiff-Appellee.

Adele V. Pastor of Corsones & Corsones, Rutland, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       DOOLEY, J.  The simple question raised by this case requires the Court
  to confront the  legal jigsaw puzzle of state and federal statutes
  applicable to the interstate enforcement of child  support orders.  At
  issue is a decree, originally entered by a New York court pursuant to that 
  state's law, allocating parental rights and responsibilities between a
  father and a mother who each  subsequently moved to Vermont.  Although the
  decree is silent on the issue, New York law  requires the non-custodial
  parent to pay child support until the child's twenty-first birthday.  We 
  must decide whether our family court was required to apply Vermont law and
  therefore to modify  the decree to terminate the support obligation when
  the child turned eighteen.  We hold that it  was, and therefore reverse the
  judgment of the family court, but stress that subsequent statutory 
  amendments would yield a different result in a modification request first
  presented to the family  court today.
 
 

       The relevant facts are not in dispute.(FN1) The parties never
  married but had one child,  born in 1978 when they were residents of New
  York.  In the same year, a New York court  entered an order establishing a
  child support obligation for father as the non-custodial parent.  The 
  order does not specify the duration of the support obligation.  Shortly
  after the order issued,  mother and child moved to Pennsylvania.  In 1990,
  a New York court modified the order to  increase father's payments.  At
  that time, father still resided in New York.  Several years later, 
  however, he moved to Vermont.  The child turned eighteen on January 22,
  1996 and graduated  from high school on June 6, 1996.  On June 12, 1996,
  father petitioned the Bennington family  court to modify the 1990 New York
  order.(FN2)  He alleged that mother and child were then also  residing in
  Vermont and, therefore, that the court should apply Vermont law to
  determine that his  duty to support his minor child had ended because by
  then she had turned eighteen and had  graduated from high school.  See 15
  V.S.A.  658(c) (providing that court "may order support  to be continued
  until the child attains the age of majority or terminates secondary
  education  whichever is later"); 1 V.S.A.  173 (fixing age of majority at
  eighteen).  Father contended that,  although New York law obligated him to
  support his child until she was twenty-one, Vermont's  earlier age of
  majority applied.
  
       After a hearing, a family court magistrate found that mother and child
  were residents of  Vermont at the time father's motion was filed and at the
  time of the hearing.  The magistrate  concluded that Vermont law applied
  because the forum state "need not accede to the judgment of  a sister state
  concerning a continuing matter that has become a purely internal affair."  
  Accordingly, the magistrate terminated father's support obligation.  Mother
  appealed to the family court.

  

       The family court adopted the magistrate's factual determinations but
  reached the opposite  result.  The court reasoned that a "real, substantial
  and unanticipated change of circumstances,"  as required for modification
  of a support obligation pursuant to 15 V.S.A.  660(a), is not  established
  simply because a new jurisdiction with a different law governing duration
  of child  support orders has acquired personal jurisdiction over the
  parties to the decree.  Thus, although  the family court agreed that the
  parties were subject to the laws of Vermont generally, the court 
  determined that it was without authority to modify the support obligation
  because father failed to  meet the specific jurisdictional
  prerequisite.(FN3)  Father appeals.
  
       The family court's rationale, while having the virtue of avoiding a
  difficult choice-of-law  problem, is inconsistent with applicable
  precedent.  In Beaudry v. Beaudry, 132 Vt. 53, 312 A.2d  922 (1973), a case
  that arose soon after the Legislature lowered the age of majority from
  twenty-one to eighteen, this Court considered the validity of a child
  support order that modified a 1959  decree requiring the father of three
  children to pay child support of $35 per week during the  minority of the
  children.  The new superior court order, entered in light of the lowered
  age of  majority, limited father's obligation to the period before the
  eighteenth birthday of the children.  Wife argued on appeal that the order
  could not be modified solely because the age of majority  had changed.  We
  rejected this argument:

     In this state a divorce decree for alimony or other annual 
     allowance for the wife or children is not a final judgment.  After the 
     entry of the original decree, the Court has the power under 15 
     V.S.A.  292 to make, modify or revise its orders concerning the 
     custody and support of minor children.  Circumstantial changes in 
     the situation of either party, affecting either the necessity and 
     amount of support or the ability, improved or handicapped to 
     provide it, may be properly brought to the attention of the court by 
     a petition to modify at any time during the minority of the 
     children.  Judgments as to the support and maintenance of minor 
     children are necessarily provisional and temporary; in no sense are 
     they a final adjudication of the rights and duties of parent and child. 
     No rights, therefore, vested by virtue of the 1959 order and no 
     rights were divested by virtue of the 1973 order.

          . . . The status of the Beaudry children is defined not by the 
     decretal order of 1959, but by the terms of 1 V.S.A.  173.  They 
     will attain their majority at the age of eighteen, and the court is 
     without proper power to order provision of their support, including 
     education, beyond that age.
  
  Id. at 57-58, 312 A.2d at 925 (citations omitted).  See also Forte v.
  Forte, 143 Vt. 518, 520-21,  468 A.2d 561, 562 (1983) (error to enforce
  pre-1971 support order beyond new age of  majority).(FN4)

       The ground for modification in this case is exactly the same as that
  present in Beaudry - a new age of majority is effective, and the court
  must apply this age to the pre-existing support  order.  Indeed, as Beaudry
  holds, the family court has no jurisdiction to enforce a child support 
  order against plaintiff beyond the eighteenth birthday of the child or the
  child's graduation from  secondary school.  Since Vermont law requires the
  result requested by father, we are forced to  confront the issue avoided by
  the family court and decide whether the choice-of-law principles set  forth
  in the applicable statutes governing interstate enforcement of support
  obligations requires  that New York law govern this case.

       We begin our choice-of-law inquiry by noting that, as far as we can
  determine, every court  that has faced the situation before us has modified
  the preexisting support order to reflect the  duration-of-support rule of
  the forum state, the new state of residency of the parties.  See Finney  v.
  Eagly, 568 So. 2d 816, 819 (Ala. Ct. App. 1990); Elkins v. James, 842
  S.W.2d 58, 62 (Ark. Ct. App. 1992); In re Marriage of McCabe, 819 P.2d 1116, 1120
  (Colo. Ct. App.  1991); Hodges v. Hodges, 415 N.W.2d 62, 68 (Minn. Ct. App.
  1987); Lewis v. Roskin, 895  S.W.2d 190, 197 (Mo. Ct. App. 1995).  In some
  cases, the modification extends the duration to  twenty-two years, the rule
  in the forum state.  See Lewis, 895 S.W.2d at 197.  In others, it  reduces
  the duration to eighteen years, the rule in the forum state.  See Elkins,
  842 S.W.2d at 62.

       To reinforce the availability of modification when the parties move to
  a state with a  different durational rule, the New York courts have held
  that a foreign support order that  terminates on the eighteenth birthday of
  the child must be modified to reflect New York's twenty-one year duration
  when the parties move to New York.  See Ryan v. Ryan, 513 N.Y.S.2d 25, 25-
  26 (App. Div. 1987).  Thus, if the situation had been reversed, and parties
  governed by a  Vermont support order moved to New York, the New York courts
  would have routinely modified  that order so that it continued until the
  child reached twenty-one years of age.  It would be  incongruous to hold
  that Vermont courts may not take equivalent action.

       We are aware, of course, that Article IV,  1 of the United States
  Constitution requires  the courts of each state to accord full faith and
  credit to judicial proceedings of other states.  We  also acknowledge that,
  in appropriate circumstances, principles of comity can provide an 
  additional basis for non-intervention by a Vermont court in a dispute that
  has already come before  some other forum.  The case law from other
  jurisdictions, however, illustrates why neither comity  nor constitutional
  principles of full faith and credit required the family court to stay its
  hand here.  As the California Supreme Court has stressed, after reviewing
  the applicable full-faith-and-credit  jurisprudence, "the federal system
  now espouses the principle that no state may freeze the  obligations
  flowing from the continued relationship of parent and child."  Elkind v.
  Byck, 439  P.2d 316, 320 (Cal. 1968).  When the parties, including the
  child, all move to this state,  Vermont's courts are responsible for the
  welfare of the child, and New York no longer has a  legitimate interest in
  the relationship.  See Thompson v. Thompson, 645 S.W.2d 79, 88 
  (Mo. Ct. App. 1982).  The duration of child support "become[s] an internal
  affair of this state."  Elkins, 842 S.W.2d at 62.  We must honor the
  Vermont Legislature's decision that a child  support obligation may not
  continue beyond the eighteenth birthday of the child or the child's 
  graduation from secondary school.

       The next question we confront is whether the Legislature has in any
  sense qualified that  choice by virtue of the statutes it has enacted in
  the area of interstate enforcement of child-support  obligations.  The
  Revised Uniform Reciprocal Enforcement of Support Act (RURESA), 15  V.S.A.
   385-428, repealed by 1997 No. 11,  3, was effective when the daughter
  graduated  from high school, and when the family court ruled.  RURESA is
  not applicable for two reasons.  First, the statute covers only situations
  in which the child support obligor and obligee are in  different states, or
  in different counties of the same state.  See Bushway v. Riendeau, 137 Vt.
  455,  462, 407 A.2d 178, 181 (1979); 15 V.S.A.  421 (explicitly providing
  that RURESA applies  within Vermont only where obligor and obligee are in
  different counties).  Where, as here, the  parties reside in the same
  county, RURESA does not apply.  See Gonzales v. District Court, 629  P.2d
  1074, 1076 n.2 (Colo. 1981) (identical language in Colorado  RURESA does
  not apply  where obligor and obligee are residents of same county of same
  state).

       Secondly, the choice-of-law rule created by RURESA is not an
  impediment to modifying  the duration of the support order at issue here. 
  Section 395 provides that "[d]uties of support  applicable under this
  chapter are those imposed under the laws of any state where the obligor was 
  present for the period during which support is sought."  15 V.S.A.  395. 
  For the daughter's  post-graduate period, the period for which the duty of
  support is in issue, the father-obligor was  present in Vermont, and
  Vermont law terminates father's duty on his daughter's graduation.  See 
  Jennings v. DeBussey, 707 A.2d 44, 46 (Del. Fam. Ct. 1997) (under RURESA,
  court would not  register Massachusetts order that extended child support
  until child reached twenty-three years of  age because obligor lived in
  Delaware and Delaware law terminates child support at eighteen);  Pieper v.
  Pieper, 368 S.E.2d 422, 424 (N.C. Ct. App.), aff'd, 374 S.E.2d 275, 276 (N.C. 1988)
  (out-of-state order providing support until child reaches  twenty-two years of age 
  can not be enforced under RURESA beyond age eighteen cut-off  applicable under North
  Carolina law). The RURESA provision on a foreign support order  registered in
  Vermont, 15 V.S.A.  428(a), is not to the contrary.  In any event, it is
  inapplicable  where, as here, the obligee never registered the support
  order in Vermont.

       As of January 1, 1998, RURESA has been replaced by Uniform Interstate
  Family Support  Act (UIFSA).  See 1997, No. 11,  3.  Unlike RURESA, the
  new uniform statute does have  general intrastate applicability. (FN5)  15B
  V.S.A.  613 governs when a Vermont court may  modify a child support order
  from another state if the parties to that order now live in Vermont. 
  Generally, the Vermont court may modify the order, see 15B V.S.A.  613(a),
  but certain of the  substantive restrictions of UIFSA apply to that
  modification decision.  For our purposes, the  important applicable
  restriction is contained in  611(c).  That section provides that the
  Vermont  court "may not modify any aspect of a child support order that may
  not be modified under the law  of the issuing state."  15B V.S.A.  611(c). 
  Because a New York court could not modify the  order before us to reduce
  its duration to the eighteenth birthday of the child, a Vermont court could not 
  make that modification under  611(c).  See Welsher v. Rager, 491 S.E.2d 661, 664 
  (N.C. Ct. App. 1997); In re Marriage of Cooney, 946 P.2d 305, 307 (Ore. Ct.
  App. 1997).(FN6)

       There can be, however, no serious claim that UIFSA applies to this
  case.  Plaintiff filed  his motion to modify in 1996.  His daughter
  graduated from high school on June 6, 1996, having  reached eighteen years
  of age in January of that year.  Under Vermont law, plaintiff's obligation 
  to pay child support would have ended on the date of graduation.  See 15
  V.S.A.  658(c) (child  support may be ordered until child attains the age
  of majority, or terminates secondary education,  whichever is later).

       UIFSA was effective on January 1, 1998, see 1997, No. 11,  5, and
  there is no indication  that the Legislature intended that it operate
  retroactively. (FN7)  Indeed, the Legislature's decision  in 1997 to keep
  RURESA in effect until January 1, 1998 is strong evidence that the
  Legislature  intended interstate support enforcement matters to remain
  governed by RURESA until that date.  Cf. Cowan, 903 S.W.2d at 121 (citing
  Texas legislature's opposite decision as evidence of intent  to apply UIFSA
  to all pending proceedings).  Under 1 V.S.A.  213, pending suits are
  unaffected  by new legislative acts except "acts regulating practice in
  court, relating to the competency of  witnesses or to amendments of process
  or pleadings."  A decision whether a foreign divorce order may be modified is one 
  of substantive law and not within the very limited  exceptions of  213. Therefore,
  the enactment of UIFSA cannot affect the outcome of this case.  See Deltoro v.
  McMullen, 471 S.E.2d 742, 745 (S.C. Ct. App. 1996) (reaching same result  based on
  savings clause specifically appended to legislation enacting UIFSA).

       UIFSA has a federal counterpart, the Full Faith and Credit for Child
  Support Orders Act  (Full Faith and Credit Act), 28 U.S.C.  1738B, and we
  must also therefore consider whether the  federal legislation in any way
  alters the outcome under Vermont law.  The purpose of the Full  Faith and
  Credit Act is "ensuring that child support orders, although modifiable in
  some  circumstances by the courts of the issuing state, receive full faith
  and credit in sister states."   Albemarle Child Support Enforcement Agency
  v. Bray, 503 S.E.2d 686, 689 (N.C. Ct. App.  1998).  UIFSA and the Full
  Faith and Credit Act are for the most part "complementary or  duplicative
  and not contradictory." Id.  To the extent it applies, the Full Faith and
  Credit Act  preempts any inconsistent provisions of state law.  See Wilkie
  v. Silva, 685 A.2d 1239, 1241  (N.H. 1996).

       There are two provisions of the federal statute that are particularly
  relevant here.  First,   1738B(h) establishes choice-of-law rules for
  child support orders, specifying that "[i]n  interpreting a child support
  order including the duration of current payments and other obligations  of
  support, a court shall apply the law of the State of the court that issued
  the order."  28 U.S.C.   1738B(h)(2) (emphasis added).  This requires us
  to view the order as if it explicitly provided  that the payment obligation
  continues until the child reaches twenty-one years of age because a  New
  York court would have to enforce it for that duration.  This rule does no
  more than make  explicit what was formerly implicit.  In this case,
  plaintiff made a motion to modify the New York  order even though it had no
  stated duration.  In Beaudry and the various comparable out-of-state  cases
  cited above, the courts recognized that they had to modify the preexisting
  support order  whether or not its duration was explicit.

       The second relevant provision is the one governing modification of
  child support orders of another state:

     (e) Authority to modify orders. - A court of a state may modify 
     a child support order issued by a court of another State if -

          (1) the court has jurisdiction to make such a child 
          support order pursuant to subsection (i); and

          (2)(A) 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 individual 
          contestant; or

          (B) each individual contestant has filed written 
          consent . . . .

  28 U.S.C.  1738B(e).  Here the prerequisites to modification are present. 
  The Vermont Family  Court has jurisdiction over the parties.  New York
  courts no longer have continuing exclusive  jurisdiction because neither
  the parties nor the child reside in that state.  The Vermont court could 
  modify the New York order to shorten its duration to the later of the
  child's eighteenth birthday  or the child's graduation from secondary
  school.  See Lewis v. Lewis, 1997 WL 128566, at *6  (Ohio Ct. App. 1997)
  (so applying  1738B(e) in similar circumstances).

       Although the provisions of the Full Faith and Credit Act often
  duplicate those of UIFSA,  the federal statute lacks a prohibition on
  modifying a provision of a support order that is  nonmodifiable in the
  issuing state.  Thus, the Full Faith and Credit Act is not an impediment to 
  the modification sought in this case.

       Because the Full Faith and Credit Act is a relatively recent
  enactment, there are only a few  decisions interpreting its provisions. 
  The case most comparable to this one is Kelly v. Otte, 474  S.E.2d 131
  (N.C. Ct. App. 1996), where parties who were subject to a New Jersey
  divorce  decree and their children all moved to North Carolina.  
  Pursuant to an underlying agreement, the  child support provision of 
  the order contained an escalation clause that called for an annual
  adjustment in accordance with the consumer price index.  When the obligee
  sought to enforce the  order because of the obligor's nonpayment, the 
  obligor challenged the escalation clause under North Carolina law, and the trial
  court agreed it was void under the forum law.  The Court of  Appeals agreed that
  the Full Faith and Credit Act allowed the modification because the trial court 
  had jurisdiction over the parties and because the parties and their children had
  left the issuing state.  See id. at 135.  Since North Carolina law considered such
  escalation clauses to be void,  it was proper to modify the New Jersey
  order prospectively to strike the clause.  See id. at 136.

       As held in Kelly, the Full Faith and Credit Act presents no barrier to
  modification of the  New York order.  RURESA is not applicable by its terms
  and its successor, UIFSA, has no effect  on this proceeding.  Therefore, as
  expressed in Beaudry, the family court is without power to  order father to
  pay post-majority child support and must modify the inconsistent order.

       Finally, we address the point made in the dissent that the family
  court has the power to  modify the New York order under the Full Faith and
  Credit Act only if mother and child were  residents of Vermont on the date
  of the modification hearing and the magistrate failed to find  residency on
  that date.  The dissent notes that the family court could not determine
  whether the  magistrate found residency on that date.  The dissent
  characterizes mother's presence in Vermont  as "between states of
  residency" and argues the decision is based on "a mere fortuitous event," 
  that is, mother's presence in Vermont on the day she was served.

       These characterizations are not an accurate description of either the
  undisputed facts or the  magistrate's findings.  The only real issue before
  the magistrate was whether mother and the child  were residents of Vermont. 
  The magistrate noted that both the father and mother had been  residents of
  Vermont for about two years when mother was served at her home in Dorset, 
  Vermont with the motion to modify.  It was undisputed that mother and the
  child were residents  of Vermont on the date of child's graduation from
  high school, the filing of the petition to modify  and the service of the
  petition.  Mother argued, however, that she had moved back to New York 
  before the motion hearing, which occurred on October 9, 1996.  After
  considering all of mother's  contacts with Vermont and New York, and making
  extensive findings on those  contacts, the magistrate found that on the date 
  of the hearing mother "is a resident of the State of  Vermont."  The magistrate 
  was most influenced by the facts that mother maintained two  businesses in 
  Vermont, a ballet school and home decorating company, and the child retained a  college
  scholarship based on residency in Vermont.

       We therefore do not need to address the dissent's argument that the
  federal law allows  modification only when both parents are residents of
  this state on the date of the hearing.  The  magistrate found such
  residency, and because the findings are not clearly erroneous, and the 
  conclusions are supported by the findings, we must accept the magistrate's
  determination.  See  Tetreault v. Coon, 167 Vt. 396, 399-400, 708 A.2d 571,
  574 (1998).

       Reversed.




                                      _______________________________________
                                      Associate Justice


---------------------------------------------------------------------------------
                                  Footnotes

  FN1.  Father has moved to strike portions of mother's brief on the ground
    that it makes certain  factual allegations that are not contained in the
    record of the proceedings in the family court.   Because none of the
    allegations to which father objects are relevant to the disposition of his 
    appeal, we deny his motion as moot. 

  FN2.  Although the petition was dated May 9, 1996, father delayed filing it
    until after the  child graduated from high school. 

  FN3.  The family court also questioned whether the magistrate had
    determined domicile at the  correct point in time, and would have remanded
    for a clarification if it had not decided that the  change of domicile
    could not be a ground for modification.  As we address at the end of this 
    opinion, we believe the court's characterization of the magistrate's
    determination was erroneous. 

  FN4.  The Court reached a different result in a case involving a
    preexisting order that was based  on a stipulation explicitly continuing
    child support until the child reached twenty one years of age.  See Burke
    v. Burke, 134 Vt. 400, 401, 360 A.2d 574, 575 (1976).  Although we do not
    know  whether the New York order in this case was based on a stipulation,
    we do know that it did not  specify the duration of father's obligation to
    pay support.  Thus, the Burke situation is not present here.

  FN5.  The original version of UIFSA, adopted by the National Conference of
    Commissioners of  Uniform State Laws in 1992, applied only to interstate
    child support enforcement cases.  The  official comment to the section on
    modifying child support orders issued in another state speaks  to the exact
    issue before us:

         Finally, note that if both parties have left the issuing state and now 
         reside in the same state, this section is not applicable.  Such a fact 
         situation does not present an interstate matter and UIFSA does 
         not apply.

    15B V.S.A.  613 cmt. (Supp. 1999).

       In the 1996 version, the commissioners added  613 to extend the
    jurisdiction of UIFSA  where the parties are in one state, but the dispute
    is about a foreign support order.  The comment  to new  613 states that
    the section was added to change the law from that stated in the above-
    quoted comment.  See id. 

  FN6.  Welsher and Cooney both involve interstate child
    support disputes.  In Welsher, the obligor  moved to North Carolina, where
    child support orders extend only until the child reaches eighteen  years, 
    and the obligee remained in New York, where they extend to twenty-one
    years.  In  Cooney, the support order was issued in Nevada, where support
    orders extend only until eighteen  years, and the obligor and obligee had
    moved to different states, Oregon and Tennessee.  The  obligor sought the
    advantage of Oregon's law that child support obligations extend until the
    child  reaches twenty-one years.  After the 1996 amendments to UIFSA, their
    holdings would be equally  applicable to the purely intrastate dispute
    before us. 

  FN7.  Some Courts have held that UIFSA operates retrospectively to
    govern proceedings begun  under RURESA.  See, e.g., Child Support
    Enforcement Div. of Alaska v. Brenckle, 675 N.E.2d  390, 393 (Mass. 1997);
    Welsher, 491 S.E.2d at 664-65; Cowan v. Moreno, 903 S.W.2d 119, 121  (Tex.
    App. 1995).  As the Massachusetts court noted, none of the obligor's
    "substantive rights"  are impaired by that holding because the court is
    only applying a new procedural framework to  preexisting substantive
    rights.  See Brenckle, 675 N.E.2d at 393.  This is a different type of 
    retrospective application than the one we would have to apply in this case. 
    Here, there is no  preexisting RURESA proceeding, and RURESA does not
    apply.  Applying UIFSA retroactively  would deny a substantive right to
    modification that previously existed.

-------------------------------------------------------------------------------

                                 Dissenting


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter  of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 97-278


Marilyn Cavallari	                         Supreme Court

                                                 On Appeal from
     v.		                                 Bennington Family Court

                                                 February Term, 1998
Kingsley Martin


John P. Wesley, J.

Marilyn Cavallari, Pro Se, Cambridge, New York, Plaintiff-Appellee.

Adele V. Pastor of Corsones & Corsones, Rutland, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       MORSE, J., dissenting.   This is an odd case.  The child, Demetria,
  for whose benefit  child support was provided by a New York court, has
  scant connections to Vermont.

       While the magistrate concluded that Vermont was plaintiff's residence
  because she resided  here when the motion to modify was filed, the family
  court stated in its opinion:

     This conclusion is clearly supported as it applies to the Magistrate's 
     determination of residency when the Petition to Modify was filed. 
     However, under the Full Faith and Credit for Child Support Orders 
     Act, 18 U.S.C. 1738B, analyzed by the Magistrate, Vermont would 
     have had no jurisdiction to modify the New York order unless it 
     could have been found at the time of the hearing that neither parent, 
     nor the child, continued to be a New York resident.  It is not clear 
     from her order whether the Magistrate made such a finding, 
     especially since she determined that, at the time of the hearing, 
     Appellant was living in New York, had obtained a New York 
     driver's license, had registered her car there and had registered to 
     vote there.  Furthermore, the child was in New York attending 
     college.  A remand for a clarification of the findings would be 
     warranted, except for the Court's conclusion that, even assuming 
     Vermont had jurisdiction to consider a petition to modify, no 
     sufficient showing to justify modification has been made.
  Even if we were to conclude that the family court was mistaken on the
  law,(FN1) this record  hardly supports a conclusion that New York was "no
  longer . . . the child's State or the residence  of any individual
  contestant."  28 U.S.C.  1738B(e)(2)(A).

       Plaintiff lived a rather nomadic life moving to a house to redecorate
  it and, once the job  was finished,  moving on to another.  Plaintiff had
  moved from New York to Massachusetts, back  to New York, then to Georgia,
  then to Vermont, and finally back to New York.  Demetria  apparently
  attended secondary school at Miss Porter's in Connecticut before going to
  college in  New York.   Plaintiff testified she would live with her
  daughter's godmother in New York if she  was ever between houses.  She
  always maintained a post office box in New York.  The fact that  plaintiff
  was served with a motion to modify while in Vermont in between states of
  residency is  a mere fortuitous event, hardly a rationale for upsetting the
  expectation established many years  before that Demetria would benefit from
  child support until age twenty-one.

       I respectfully dissent.


                                            __________________________________
                                            Associate Justice

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                                  Footnotes
  FN1.  I wish to point out that the wholly intrastate application of Beaudry
    v. Beaudry, 132 Vt. 53,  312 A.2d 922 (1973), is distinguishable from this
    case and the holding there does not apply to a  family temporarily situated
    in Vermont.