DANIEL M. LINN,
DELAWARE CHILD SUPPORT ENFORCEMENT and CAROL J.TOMAN,
No. 520, 1997
Court Below: Family Court of the State of Delaware, in and for New Castle County File No. CN96-06508, CPI No. 9701525
Before VEASEY, Chief Justice, WALSH, HOLLAND, HARTNETT, and BERGER, Justices (constituting the Court en Banc).
Robert C. McDonald, Esquire, and Barbara J. Gadbois, Esquire (argued),
Borin & McDonald, Wilmington, DE, attorneys for Appellant.
Ellen S. Meyer, Esquire, Wilmington, DE, attorney for Appellees.
John M. McCabe, Esquire, and John J. Sampson, Esquire, National Conference of Commissioners on Uniform State Laws, Chicago, IL, attorneys for Amicus Curiae
In this appeal, we consider the provisions of the Uniform Interstate Family Support Act that relate to the modification and enforcement of a child support order after both parties and the children have left the issuing state. Although we do not agree with all of the reasoning of the Delaware Family Court, we find that a Minnesota Court did not lose jurisdiction in 1995 to enforce its 1983 Child Support Order, despite that all the parties and the children had left Minnesota by that time, because no other court had assumed jurisdiction over the matter. The Family Court correctly held that the 1983 Minnesota Support Order as amended in 1995 was properly registered before it. We also find that the Family Court did not abuse its discretion in awarding attorney's fees against Appellant. We therefore AFFIRM.
Daniel M. Linn and Carol J. Toman, were married in Iowa in 1968. In January 1983 they moved with their two children to Minnesota. On December 22, 1983, the Minnesota Court entered a Divorce Decree and Order giving Ms. Toman primary custody of the two children and ordering Mr. Linn to pay child support in the amount of 30% of his net income and one-half of medical and dental expenses of the children until both children reached the age of majority.
In 1984 the older child began living with his father. The parties at that time allegedly orally agreed that Mr. Linn would pay Ms. Toman only 15% of his net income as child support. No written agreement was submitted to the Minnesota Court, however. In June of 1987 the older child graduated from high school and this led to a dispute as to Mr. Linn's continuing support obligations. Mr. Linn believed his payments were to remain at the 15% level and he therefore continued to pay only 15% of his net income as support. Ms. Toman disagrees and claims that Mr. Linn's obligation was to pay 30% of his net income as support.
In March, 1995, Ms. Toman filed a petition in Minnesota for assessment of arrearages in payments from April 1987 through April 30, 1995, pursuant to the Minnesota original support decree dated December 22, 1983. By then neither Mr. Linn, Ms. Toman, nor any of the children, resided in Minnesota. Although Mr. Linn was personally served with notice of the 1995 hearing on the arrears, he failed to respond or appear at the hearing. After a hearing,See footnote 1 the Minnesota Court entered an order on April 21, 1995 requiring Mr. Linn to pay $30,458.00 in child support arrearages from June 1, 1987 through April 30, 1995 and $4,731.05 for his half share of medical and dental expenses for the period of January 1, 1988 through April 30, 1995. After notice from Ms. Toman's counsel that the order did not include a provision setting forth a specific dollar amount for the ongoing child support that was based on the percentage calculation, the Minnesota Court entered an Amended Arrearages Order on May 1, 1995 ordering Mr. Linn's employer to withhold $750 per month for current support.
Ms. Toman then registered the 1995 Minnesota Arrearages Order in California, where she was then residing with the younger child, and sought enforcement. Neither Mr. Linn nor the older child ever resided in California. The California Court entered an Interstate Wage Attachment against Mr. Linn, who then resided in Delaware, by mailing it to his Delaware employer and directing it to withhold from Mr. Linn's monthly wages $750 for current support and $175 for arrears. Mr. Linn's employer then began deducting $925.00 from his monthly wages.
In February 1996, Mr. Linn filed a petition in the Delaware Family Court contesting the validity and enforcement of the non-registered foreign support order in Delaware and petitioned the Court of Chancery for an injunction to prevent a wage attachment. Both the Court of Chancery and the Family Court dismissed Mr. Linn's petitions for lack of subject matter jurisdiction. Mr. Linn then filed an action against his employer in the Delaware Superior Court seeking to have the wage attachment stayed. The Superior Court granted Mr. Linn's Motion for summary judgment and stayed the wage attachment, finding that there was no registered support order in Delaware and Mr. Linn's employer terminated the wage withholding.
On January 3, 1997, the California Court, on behalf of Ms. Toman, registered the 1995 Arrearages Order of the Minnesota Court in the Delaware Family Court.See footnote 2 The original 1983 Minnesota Court Support Order, however, has apparently not been filed with the Delaware Family Court. Mr. Linn objected to this attempt to register the 1995 Minnesota Arrearages Order but the Delaware Family Court Master ruled it was properly filed and registered it on August 1, 1997.See footnote 3 The Family Court certified the arrears owed by Mr. Linn at $32,866.05 as of July 23, 1996 and ordered a monthly wage attachment for $750.00.See footnote 4 Mr. Linn requested a review de novo of the Master's order. The Delaware Family Court on October 15, 1997 rejected Mr. Linn's claims and upheld the registration of the 1995 Minnesota Arrearages Order for enforcement.See footnote 5 The court denied Ms. Toman's request for interest on the arrearages judgment, found that by contesting the registration Mr. Linn had engaged in unnecessary litigation, and granted Ms. Toman's request for award of attorney fees.See footnote 6 Mr. Linn appeals these holdings. After oral argument in this Court, the National Conference of Commissioners on Uniform State Laws, at the invitation of the Court, submitted an amicus curiae informational brief.
In its October 15, 1997 decision, the Delaware Family Court, inter alia, ruled that the 1995 Minnesota Arrearages Order was properly before it for enforcement.See footnote 7 Mr. Linn contends that the Uniform Reciprocal Enforcement of Support Act (1950) (as amended in 1952 and 1958) (URESA)See footnote 8 controls this action because the Uniform Interstate Family Support Act (1992) (UIFSA) had not been enacted in Delaware on May 1, 1995 when the Minnesota Arrearages Order was issued. The Family Court found that on March 1, 1995, when the Minnesota Court entered its Arrearages Order, Minnesota had adopted section 205(a) of the Uniform Interstate Family Support Act (1992) (UIFSA) and that Delaware enacted it effective July 1, 1995.See footnote 9 The Family Court, therefore, found that in January 1997 when the 1995 Minnesota Arrearages Order was forwarded to the Delaware Family Court on behalf of Ms. Toman, section 205(a) of the UIFSA (1992)See footnote 10 was in effect in Delaware and therefore it correctly applied UIFSA (1992) to this proceeding.See footnote 11
It is undisputed that when the Minnesota Court entered its 1995 Arrearages Order, Minnesota was not the residence of the obligor (Mr. Linn), the individual obligee (Ms. Toman), nor the children for whose benefit the support order was issued. And none of the individual parties had filed a written consent with Minnesota for a tribunal of another state to assume continuing, exclusive jurisdiction so as to be able to modify the order. Nor had any other state assumed continuing jurisdiction over the child support order. The Family Court found that the Minnesota Court had continuing subject matter jurisdiction when it entered its 1995 Arrearages Order despite that Mr. Linn, Ms. Toman, and the children no longer resided in Minnesota.See footnote 12 The Delaware Family Court relied on section 205(a) of UIFSA (1992) (quoted hereafter) and held that under it the Minnesota Court retained continuing, exclusive jurisdiction to modify its original 1983 Child Support Order, despite the departure of all the parties from Minnesota because Mr. Linn and Ms. Toman had not filed a written consent for a tribunal in another state to assume jurisdiction as provided in section 205(a)(2) of UIFSA (1992).See footnote 13 The Family Court also found that the Minnesota Court had personal jurisdiction over Mr. Linn when it entered the 1995 Arrearages Order. That holding was not contested in this appeal.See footnote 14
The Delaware Family Court also held that it could not consider what payments were made under the 1983 Minnesota Support Order before the 1995 Minnesota Arrearages Order was entered, but it could consider what payments were made after the 1995 Minnesota Arrearages Order was entered in Delaware.See footnote 15 The Family Court also held it could not consider the alleged oral agreement between Mr. Linn and Ms. Toman to reduce the support payments that were required under the 1983 Minnesota Support Order and it could not consider the issue of whether any interest is due under the two Minnesota Orders.See footnote 16 Finding the Delaware litigation was unnecessary, the Family Court awarded Ms. Toman counsel fees.See footnote 17
The standard and scope of review as to whether a court has subject matter jurisdiction requires this Court to review a question of law, that is reviewable de novo.See footnote 18
The term "continuing, exclusive jurisdiction" is used in the Uniform Interstate Family Support Act (1992) (UIFSA) to indicate that only one tribunal has jurisdiction to modify a child support order at a time and that tribunals in jurisdictions that have enacted UIFSA (1992) have subject matter jurisdiction to enforce the one-order, provided they have personal jurisdiction over the respondent.See footnote 19 In this case only one state issued a child support order: Minnesota.See footnote 20 Mr. Linn incorrectly asserts that the Delaware Family Court should not recognize the 1995 Minnesota Arrearages Order because Minnesota lost continuing, exclusive jurisdiction to modify that order when all the parties and the children moved from the state.
Delaware enacted the UIFSA (1992) effective July 1, 1995.See footnote 21 The controlling section of the Act provides:
Continuing, exclusive jurisdiction.
(a) A tribunal of this State issuing a support order consistent with the law of this State has continuing, exclusive jurisdiction over a child support order:
(1) As long as this State remains the residence of the obligor, the individual obligee or the child for whose benefit the support order is issued; or
(2) Until all of the parties who are individuals have filed written consents with the tribunal of this State for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.
(b) A tribunal of this State issuing a support order consistent with the law of this State may not exercise its continuing jurisdiction to modify the order if the order has been modified by a tribunal of another state pursuant to a law substantially similar to this chapter.
(c) If a child support order of this State is modified by a tribunal of another state pursuant to this chapter or a law substantially similar to this chapter, a tribunal of this State loses its continuing, exclusive jurisdiction with regard to prospective enforcement of the order issued in this State, and may only:
(1) Enforce the order that was modified as to amounts accruing before the modification;
(2) Enforce nonmodifiable aspects of that order; and
(3) Provide other appropriate relief for violations of that order which occurred before the effective date of the modification.
(d) A tribunal of this State shall recognize the continuing, exclusive jurisdiction of a tribunal of another state which has issued a child support order pursuant to this chapter or a law substantially similar to this chapter.See footnote 22
The Amicus suggests that when sections 205, 206, 611, and 612See footnote 23 of the Uniform Interstate Family Support Act (1992) are read together the sections mean:
a tribunal that enters a child support order has continuing, exclusive jurisdiction over the support order if that state remains the residence of the obligor, the individual obligee or the child; or a tribunal that has continuing, exclusive jurisdiction over a child support order will be divested of that continuing, exclusive jurisdiction if:
A) the obligor, the individual obligee, and the child leave the issuing state and another state assumes continuing, exclusive jurisdiction over the child support order in accordance with the terms of §§ 609-614; or
B) all the individual parties file written consents with the issuing tribunal for a tribunal of another state to assume continuing, exclusive jurisdiction over the subject matter so that it may modify the order. See footnote 24
We agree. Although the Delaware Family Court correctly held that the Minnesota Court had jurisdiction to enter its 1995 Arrearages Order, it incorrectly relied on Section 205(a)(2) of UIFSA without considering Sections 611 and 612. We agree with the Amicus that section 205(a)(2) of UIFSA (1992) applies only if at least one of the parties or the child remains in the state and therefore the issuing state still has continuing, exclusive jurisdiction, but the parties consent to have another tribunal assume continuing, exclusive jurisdiction, thereby divesting continuing, exclusive jurisdiction from the issuing state. The facts here are different.
The purpose of the Uniform Interstate Family Support Act (1992) is to eliminate multiple child support orders that were permitted under its predecessors, the Uniform Reciprocal Enforcement of Support Act (URESA) and the Revised Uniform Reciprocal Enforcement of Support Act (1968) (RURESA).See footnote 25 The goal of UIFSA (1992) is to provide a system where only one child support order is in effect at any one time.See footnote 26
Under URESA and RURESA (1968) an obligor would often attempt to gain a home field advantage by refusing to pay a support order and then wait until the obligee attempted to enforce the order in the obligor's domiciliary jurisdiction.See footnote 27 The obligor would then seek a modification in the jurisdiction the obligee did not choose.See footnote 28 Under URESA , the obligor often succeeded in obtaining a more favorable support order in the obligor's domiciliary jurisdiction.See footnote 29 The intent of UIFSA (1992) was to stop this practice and to level the playing field.See footnote 30 Under UIFSA (1992), if either the obligor or obligee wants to modify the order and the issuing state no longer has continuing, exclusive jurisdiction, the party seeking the modification must bring the action in the state with personal jurisdiction over the respondent, usually the respondent's domiciliary state.See footnote 31
Sections 609-614 of UIFSA (1992) provide the process for registration of a child support order for modification. After notice and a hearing, the responding tribunal must find the following requirements of Section 611(a)(1) of UIFSA (1992) exist in order for it to obtain jurisdiction to modify a child support order entered in another state: 1) that the child, the individual obligee, and the obligor no longer reside in the issuing state; 2) that the petitioner seeking modification is not a resident of the responding tribunal's state; and 3) that the responding tribunal has personal jurisdiction over the respondent.See footnote 32
Section 611(a)(2) provides an alternative basis for the responding tribunal to obtain jurisdiction to modify the order of another state if it finds that: "an individual party or the child is subject to the personal jurisdiction of the tribunal and all of the individual parties have filed a written consent in the issuing tribunal providing that a tribunal of this State may modify the support order and assume continuing, exclusive jurisdiction over the order."See footnote 33 Under UIFSA (1992), Mr. Linn could have sought modification of his then current support obligations under the 1983 Minnesota Child Support Order in Ms. Toman's then home state, but he could not have sought modification in his home state, Delaware.
The comment to Section 205 of UIFSA (1992) indicates that under that Act when all the parties and all the children leave the issuing state, the issuing tribunal loses continuing, exclusive jurisdiction to modify its existing order, but does not lose jurisdiction to enforce the order. The comment states:
[t]his section is perhaps the most crucial provision in UIFSA. It establishes the principle that the issuing tribunal retains continuing, exclusive jurisdiction over the support order except in very narrowly defined circumstances. If all parties and the child reside elsewhere, the issuing state loses its continuing, exclusive jurisdiction -- which in practical terms means the issuing tribunal loses its authority to modify its order. The issuing state no longer has a nexus with the parties or child and, furthermore, the issuing tribunal has no current information about the circumstances of anyone involved. Note, however, that the one-order of the issuing tribunal remains valid and enforceable. That order is in effect not only in the issuing state and those states in which the order has been registered, but also may be enforced in additional states in which the one-order is registered for enforcement after the issuing state loses its power to modify the original order, see Sections 601-604 . . . The one- order remains in effect until it is properly modified in accordance with the narrow terms of the Act, see Sections 609-612.See footnote 34
This comment to Section 206 of UIFSA (1992) reinforces the premise that for the issuing state to retain the power to modify its order, the child or at least one party must continue to reside in the issuing state.See footnote 35 It states "[s]ubsection (b) confirms the power to modify a child support order of the issuing state, provided it retains a sufficient nexus with its order [;] UIFSA defines that nexus as any situation in which the child or at least one of the parties continues to reside in the issuing state."See footnote 36
The Uniform Interstate Family Support Act (1992) was amended in 1996. Although these amendments have no bearing on this action, they are supportive of our interpretation.See footnote 37 The 1996 revised comment to Section 611 of UIFSA (1996) states:
[u]nder UIFSA, registration is subdivided into distinct categories; registration for enforcement, or modification, or both. UIFSA is based on recognizing the truism that when a foreign support order is registered for enforcement, the rights of the parties affected have been previously litigated. Because the obligor already has had a day before an appropriate tribunal, an enforcement remedy may be summarily invoked. On the other hand, modification of an existing order presupposes a change in the rights of the parties. In fact, even under RURESA more elaborate procedures were required by most states prior to the issuance of a modified order. The requirements for modification of a child support order are much more explicit and restrictive under UIFSA.
. . . UIFSA establishes a set of "bright line" rules which must be met before a tribunal may modify an existing child support order. The intent is to eliminate multiple support orders to the maximum extent possible consistent with the principle of continuing, exclusive jurisdiction that pervades the Act.
. . . .
The procedure put in place by UIFSA is in marked contrast to the actual system under RURESA. The multiple-order system provided virtually no incentive for an obligor to seek to reduce an unfair or unduly burdensome child support order. Rather, the obligor typically waited for an enforcement proceeding to be filed in his state of residence and then sought modification in a forum which presented him with the "hometown advantage." Two major arguments sustain the choice of venue made by the Act. First, "jurisdiction by ambush" will be avoided. That is, personal service on either the custodial or noncustodial party found within the state borders will not yield jurisdiction to modify. Thus, parents 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 chilling effect on the exercise of parental contact with the child that the possibility of such litigation might have is avoided. Second, disputes about whether the tribunal has jurisdiction will be eliminated; submission by the petitioner to the state of residence of the respondent alleviates this issue completely.See footnote 38
As will be discussed, it is unnecessary for us to determine if Minnesota had continuing, exclusive jurisdiction to modify its original 1983 Support Order in 1995 because we find that the 1995 Minnesota Arrearages Order was an enforcement action authorized under UIFSA (1992) and not a modification of the original order.
Amicus asserts, in the alternative, that even if an issuing tribunal loses continuing, exclusive jurisdiction when all the parties and child(ren) leave its jurisdiction, the issuing state still has "continuing jurisdiction to enforce" accrued amounts and nonmodifiable assets of its order as compared to "continuing, exclusive jurisdiction to modify."
UIFSA (1992) provides that the issuing state does not lose its power to enforce the existing order until another state properly exercises its jurisdiction and modifies the issuing state's order.See footnote 39 Section 207 states: "[i]f only one tribunal has issued a child support order, the order of that tribunal must be recognized."See footnote 40 Although not dispositive, the revised comment to Section 207 UIFSA (1996) confirms this interpretation: "[s]ubsection (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."See footnote 41 We agree with the Amicus that, if sections 205 and 207 are read together, they provide that when only one order has been issued that order controls, and the issuing tribunal is authorized to enforce its order if no other state has assumed continuing, exclusive jurisdiction.
In 1995, Ms. Toman filed a petition for arrears, current support, and medical and dental expenses in Minnesota. On April 20, 1995 and May 1, 1995, the Minnesota Court issued an order holding that Mr. Linn owed $30,458.00 in arrears, $4,731.05 in medical and dental expenses, and $750.00 per month in current support.See footnote 42 Mr. Linn contends that the 1995 Minnesota Arrearages Order was a modification of the 1983 order and that the Minnesota Court no longer had jurisdiction to "modify" its 1983 order because all of the parites had left Minnesota. Under UIFSA (1992), whether or not Minnesota retained continuing, exclusive jurisdiction to modify its 1983 Support Order, it clearly retained jurisdiction to enforce its original 1983 Support Order.See footnote 43 Section 205(b) of UIFSA (1992) provides the steps necessary to divest the issuing tribunal of continuing, exclusive jurisdiction. Section 205(c) of UIFSA (1992) explicitly provides that the original issuing state retains the power to enforce the collection of amounts accruing before a modification, to enforce nonmodifiable aspects of the order, and to provide for other appropriate relief for premodification violations of that order.See footnote 44 The official comment to section 205 states: "nothing in this section is intended to deprive a court which has lost continuing, exclusive jurisdiction of the power to enforce arrearages which have accrued during the existence of a valid order."See footnote 45 Clearly if an issuing tribunal does not lose jurisdiction to enforce its existing order when it has been modified in another state, the issuing tribunal retains jurisdiction to enforce its order if no modification has taken place and no other jurisdiction has assumed continuing, exclusive jurisdiction.
Modification is not defined in UIFSA (1992); therefore the ordinary meaning of the word applies. In Black's Law Dictionary modify is defined: "[t]o alter; to change in incidental or subordinate features; enlarge, extend; amend; limit, reduce. Such alteration or change may be characterized, in quantitative sense, as either an increase or decrease."See footnote 46 Modification is also defined as "[a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact."See footnote 47
Ms. Toman's 1995 petition in Minnesota requested arrears for unpaid support accruing as of April 1987 under the 1983 order that required payment by Mr. Linn of 30% of his salary and for 50% of accrued medical bills. In 1995, Ms. Toman was only seeking to enforce the 1983 order, not to modify it. Additionally, Ms. Toman sought a monetary calculation of the 1983 order to facilitate enforcement via a wage attachment. She requested that the Minnesota Court compute the sums due under the 1983 Order, whereby 30% of Mr. Linn's salary was to be paid, to arrive at an enforceable dollar figure. Ms. Toman did not seek to increase, decrease or change the amount of the 1983 order; therefore, the 1995 order was not a modification of the earlier order and Minnesota retained jurisdiction to enforce its 1983 order.
We find that Mr. Linn's contention that a modification has been defined in Minnesota to include a percentage calculation is without merit. Mr. Linn asserts that the Minnesota Court in Allan v. Allan defined modification of a child support order to include substituting a fixed amount per month or a percentage of income.See footnote 48 Allan, however, is distinguishable.See footnote 49 When reading the entire opinion, it is clear that the Minnesota Court's use of the term "modification" was in reference to an increase or decrease in the amount of child support based on changing conditions or the discarding of the existing formula used to calculate the child support, not a simple calculation based on the existing formula and current salary.See footnote 50 The Court made this clear when it stated that "a child support order may be modified upon a showing of [the statutory defined factors, such as] substantially increased or decreased earnings or needs of a party or the children that makes the terms of the existing order unreasonable and unfair."See footnote 51 The support modification in Allan was from an existing formula based on a percentage of the father's income to a lower fixed amount that was capped; it was not a mere calculation computation to determine an enforceable amount.See footnote 52 Mr. Linn's argument is therefore unpersuasive. It is clear from the Minnesota Court's 1995 Order that the $750.00 per month is based on 30% of Mr. Linn's salary and is not a modification of the 1983 Child Support Order.
Mr. Linn's reliance on Ms. Toman's use of the word "modify" in her 1995 petition filed in Minnesota to support his argument that this is a modification is also unpersuasive.See footnote 53 Within the same documents, Ms. Toman requested that the court issue an order "[s]etting a fixed amount for ongoing child support to be paid by wage withholding."See footnote 54 Ms. Toman explained that she had unsuccessfully and repeatedly tried to obtain information regarding Mr. Linn's income including serving him with Interrogatories and Request for Production of documents regarding his financial situation and that she was having trouble enforcing its 1983 support order without a calculation of the dollar amount owed. In its 1995 Arrearages Order the Minnesota Court based its calculation on the only evidence Ms. Toman had of Mr. Linn's income, his March 6, 1986 notarized statement that he was required to provide 30% of his net income for child support that at that time was approximately $9,000 per year.See footnote 55
Because we find that the 1995 Minnesota Arrearage Order was not a legal modification of its 1983 Support Order, it is unnecessary for us to decide if Minnesota had continuing jurisdiction to modify that order.
VII. Registration of the Minnesota 1995 Arrearages Order in Delaware
Mr. Linn contends that the Minnesota 1995 Arrearages Order is not properly before the Delaware Family Court because the California Court did not have subject matter nor personal jurisdiction over him so as to have had the authority to cause the order to be registered in Delaware for enforcement under RURESA (1968). On behalf of Ms. Toman, the Superior Court of California, in December 1996, sent a request to register a foreign support order to the Delaware Family Court.See footnote 56
Mr. Linn contends that because California had not enacted the Uniform Interstate Family Support Act (1992) when it forwarded the registration request to Delaware and continued to enforce child support under the prior Revised Uniform Reciprocal Enforcement of Support Act of 1968, California lacked jurisdiction to request registration and enforcement of the Minnesota 1995 Arrearages Order in Delaware. This claim is without merit.
UIFSA (1992) was in effect in Delaware when the Minnesota 1995 Arrearages Order forwarded from California was received in Delaware in January 1997. Section 207 of UIFSA (1992) governs the reconciliation of the responding state's proceedings with orders of other states. It provides the rules that apply if a proceeding is brought for enforcement and one or more child support orders have been issued and states "[i]f only one tribunal has issued a child support order, the order of that tribunal must be recognized."See footnote 57 The comment states that the "Reconciliation with Orders of Other States" section addresses the problem of switching from URESA and RURESA (1968) to UIFSA (1992) and is "designed to span the gulf between the one- order system and the multiple order system in place under RURESA."See footnote 58 Under section 207 of UIFSA (1992) if only one order has been issued, it will be treated as if it had been issued under UIFSA if it was issued under a statute consistent with the principles of UIFSA.See footnote 59
Section 301 of UIFSA (1992) lists the proceedings authorized under the Act and includes "enforcement of a support order and income-withholding order of another state without registration pursuant to Article 5"See footnote 60 and "registration of an order for . . . child support of another state for enforcement pursuant to Article 6."See footnote 61 Under UIFSA, "the role of the initiating tribunal consists merely of the ministerial function of forwarding the documents."See footnote 62 As a responding tribunal, the Delaware Family Court is required to apply Delaware procedural and substantive law to the enforcement action unless otherwise provided by the Act.See footnote 63 Section 305 of UIFSA (1992) authorizes the responding tribunal to enforce a support order and states:
(a) When a responding tribunal of this State receives a [petition] or comparable pleading from an initiating tribunal or directly pursuant to Section 301(c) (Proceedings Under this [Act]), it shall cause the [petition] or pleading to be filed and notify the [petitioner] by first class mail where and when it was filed.See footnote 64
Section 101(7) of UIFSA (1992) defines initiating state as "a state in which a proceeding under this [Act] or a law substantially similar to this [Act], the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act is filed for forwarding to a responding state."See footnote 65 Responding state is defined as "a state to which a proceeding is forwarded under this [Act] or a law substantially similar to this [Act], the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act."See footnote 66 The Delaware Family Court, therefore, properly applied UIFSA (1992) to the proceedings before it because Delaware had adopted UIFSA (1992) before the registration was received and the support order forwarded for registration from California under the RURESA was recognized and enforced by the responding state under UIFSA.See footnote 67
Mr. Linn contends that the Delaware Family Court erred by rejecting the three defenses that he raised under 13 Del. C. § 666(a):See footnote 68 1) that Ms. Toman was equitably estopped from enforcing the Minnesota order because of the alleged oral modification by the parties in 1984; 2) that Ms. Toman was equitably estopped from seeking payment of medical bills and insurance premiums because she never presented the bills to Mr. Linn for payment until she filed her 1995 action in Minnesota; and 3) that Mr. Linn should be able to reduce the amount of the Minnesota 1995 Arrearages Order by showing the Delaware Family Court all the payments he previously made.
Although Mr. Linn received notice of the 1995 motion in Minnesota, he took no action to request a modification or challenge the arrears. Mr. Linn can not now attempt to modify, in Delaware, the Minnesota 1995 Arrearages Order that has been filed for enforcement in Delaware. Mr. Linn's assertion that because UIFSA (1992) was not adopted in Delaware until July 1, 1995, this action should be governed by URESA is without merit. As discussed above, the enforcement action was not filed in Delaware until after UIFSA (1992) had been adopted; therefore URESA does not apply. UIFSA (1992) attempted to address the problems that occurred under URESA and RURESA (1968) whereby an obligor would wait for an enforcement action to be commenced and then request a modification in the obligor's then home state to a lesser sum.See footnote 69
Section 604 of UIFSA (1992) states that "[t]he law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order."See footnote 70 The Family Court, therefore, did not err in not granting Mr. Linn's request for equitable relief under the circumstances. It would be inequitable to allow Mr. Linn to assert defenses that probably would not have been available to him in MinnesotaSee footnote 71 when he did not provide any information as to his net income.See footnote 72
To allow Mr. Linn to challenge the Minnesota 1995 Arrearages Order would violate 28 U.S.C. 1738BSee footnote 73 and the full faith and credit provisions of the United States Constitution. Under 28 U.S.C. § 1738B(g) even if a state loses continuing, exclusive jurisdiction, the state may still enforce the "unsatisfied obligations that accrued before the date on which a modification of the order is made."See footnote 74 Thus, if Mr. Linn wishes to challenge the arrears calculation in the 1995 Minnesota Arrearages Order, he must do so in Minnesota.See footnote 75
As discussed above, Minnesota had jurisdiction to enforce its 1983 Child Support Order. It is not for this Court to decide if Minnesota improperly modified its 1983 Child Support Order; it is well settled that an appealable error underlying a final judgment must be corrected by the appellate process of the state entering the order, and not by collateral attack when enforcement is sought in a sister state.See footnote 76 Mr. Linn now attempts to improperly assert an error underlying the final judgment entered in Minnesota by collaterally attacking the judgment in Delaware; therefore, Delaware must give Minnesota's order full faith and credit and treat the judgment as "though it were perfectly correct under substantive principles" of Minnesota law.See footnote 77
Although we note that the 1995 Minnesota Arrearages Order may not have accounted for all the support payments made by Mr. Linn,See footnote 78 we find that the Delaware Family Court properly rejected Mr. Linn's request to introduce evidence of support payments made before the 1995 Minnesota Arrearages Order reduced the arrears to a judgment. Section 607(a)(6) of UIFSA (1992) states: "[a] party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses: . . .(6) full or partial payment has been made."See footnote 79 The Delaware Family Court found that (a)(6) did not authorize "a new or de novo hearing to determine what payments were made for the time period in question that the foreign state court considered . . . [but did] mean that [it] should determine what payments have been made subsequent to the entry of the foreign order in full or partial satisfaction of the obligation established by the foreign court."See footnote 80 The Delaware Family Court stated:
[i]t is neither in the interests of judicial economy, nor fair to the opposing party, nor logical to require a registering or enforcing state to hold a second hearing on the merits. It would be grossly unfair for a party, who voluntarily elected not to appear and participate in a hearing on the merits in the Court with subject matter jurisdiction, to now be entitled to a new hearing on the merits in a State not selected by the petitioner or plaintiff.See footnote 81
We agree with the Family Court that to interpret section 607(a)(6) of UIFSA (1992) to allow the Respondent to relitigate the Minnesota Arrearages Judgment Order on the merits in Delaware would be inconsistent with the intent of UIFSA (1992). Because the 1995 Minnesota Arrearage Order was a final judgment, Delaware must give full faith and credit to it and enforce the judgment.See footnote 82 Any direct attacks on the judgment must be raised in Minnesota.See footnote 83
Finding that Mr. Linn engaged in unnecessary litigation by contesting the registration of Minnesota's 1995 Arrearages Order, the Delaware Family Court granted Ms. Toman's request to assess the attorney's fees she paid in defending this action against Mr. Linn.See footnote 84 The court found that although Mr. Linn was personally served and had personal knowledge of the Minnesota proceeding, he did not raise his defenses in Minnesota.See footnote 85 The court also found that the issues raised by Mr. Linn were of little merit and the "creative arguments that [he set forth,] required a great deal of research into the statutes of another state, [although] [t]hose statutes. . . were clear and unambiguous."See footnote 86 The court found Mr. Linn's conduct had an adverse financial effect on Ms. Toman. The Family Court relied on the guidelines set forth in Mays v. Mays, Del. Supr., No. 364, 1987, (Nov. 23, 1988) (ORDER) in awarding Ms. Toman attorney's fees.See footnote 87 The court noted that it did not have authority to award attorney's fees for any of the earlier completed proceedings in the Family Court or other Delaware courts.See footnote 88 Mr. Linn did not dispute the affidavit submitted by Ms. Toman's attorney detailing the expenses incurred in defending the action.
The Delaware Family Court was authorized to award attorney's fees under Mays v. Mays and UIFSA. UIFSA section 313(c) (1992) states:
The tribunal shall order the payment of costs and reasonable attorney's fees if it determines that a hearing was requested primarily for delay. In a proceeding under Article 6 (Enforcement and Modification of Support Order After Registration), a hearing is presumed to have been requested primarily for delay if a registered support order is confirmed or enforced without change."See footnote 89
The comment to section 313 states: "[s]ubsection (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."See footnote 90 Under Mays, the Family Court has discretion to assess attorney fees against a party if it finds his conduct has been excessively litigious and that conduct had an adverse financial effect on the opposing party.See footnote 91 Although Mays v. Mays dealt with divorce proceedings, we believe the rule of law is also applicable in child support proceedings where attorney fees are authorized by UIFSA (1992). Under the circumstances of this action, we do not believe that the Family Court abused its discretion in awarding Ms. Toman's attorney fees.
The Delaware Family Court's Judgment is therefore AFFIRMED.
I am asking that this Court modify the current order only in so far as setting a specific dollar amount for ongoing support so that the support provision can be enforced. I am not requesting a modification of the substance of the support provision. Continuing support based upon a percentage figure without independent verification is unreasonable and unfair and certainly was not the intent of this Court in 1983. Additionally, I cannot utilize any of the support collection agency services because they do not know what it is that they are supposed to collect.
Affidavit of Petitioner, Carol J. Toman, filed in Minnesota, County of Henneplin, District Court, 10th Judicial District, Family Court Division dated March 23, 1995.