Case of the Month Archive

Kansas court did not acquire continuing, exclusive jurisdiction over child support . . .

In reversal, Fourth District holds that in RURESA action, Kansas child-support order for amount lower than existing California support order does not nullify or modify existing order unless it specifically states that it does

When Louise and Charles Gerkin were divorced in December 1988, their disso judgment provided that Charles would pay support of $161 a month for each of their three children (who were 10, 7, and 4) until they turned 18 (or 19 if in high school), married, died, or were emancipated, or until further order of the court. Charles moved to Wichita, Kansas, at the end of the following year. In September 1990, the Orange County Department of Child Support Services (DCSS) sent a petition to the State of Kansas under the Revised Uniform Reciprocal Enforcement of Support Act [RURESA (then-current CCP §1650 et seq.); repealed January 1, 1998, and replaced by the Uniform Interstate Family Support Act (UIFSA; Fam C §4900 et seq.)], requesting an order for “ ‘fair & reasonable’ ” child support and medical coverage, as well as arrearages totaling $3,227. On November 13, 1991, the Kansas trial court ordered Charles to pay $251 a month in child support, and calculated the arrearages at $1,811; it later modified that order to increase the arrearages to $3,311. As each child turned 18, the Kansas court trustee (Kansas’s child-support enforcement agency) reduced the amount of support that Charles had to pay.

In July 2004, Charles filed a motion in the Kansas trial court to determine arrearages and to stay issuance of an income-withholding order, claiming that he had overpaid child support by $7,430. On August 9, the court ordered cessation of the income-withholding order. By that time, the DCSS records showed arrearages totaling $33,908. Louise did not receive notice of the hearing on Charles’s motion, and neither she nor the DCSS appeared. At the hearing on January 3, 2005, the Kansas court trustee and Charles’s attorney stated that they agreed that Charles had overpaid child support by $7,430. The court issued an order against Louise for that amount.

In May 2006, Charles filed an OSC in the Orange County Superior Court, seeking a determination of arrearages and an order for reimbursement of $7,430, plus any excess collected by the DCSS since the January 2005 Kansas order. After a hearing on the OSC, the California trial court issued a statement of decision, finding that Louise’s RURESA petition asked the Kansas court to establish a new support order, not register or enforce the existing California order. The court further found that the Kansas court had issued a new order that nullified and superseded the existing California order; that the Kansas court acquired continuing, exclusive jurisdiction over child support; and that the Kansas order regarding arrearages was controlling and entitled to full faith and credit. Accordingly, the trial court ordered the department to enforce the Kansas order.

The DCSS appealed, and the Fourth District reversed.

Remembering RURESA . . .
After briefly reviewing the history of RURESA, the justices noted that under section 31 of that act (“adopted virtually verbatim” in former CCP §1689), a support order made by one state was not nullified or modified by the subsequent order of another state unless the latter order specifically provided that it did, and any amounts paid under the latter order were to be credited against the obligation under the first order. This section, the panel continued, was the basis for the ruling in In re Marriage of Ward (1994) 29 Cal.App.4th 1452, 35 Cal.Rptr.2d 32, 1994 CFLR 6477, 1994 FA 675, in which the First District held that a Colorado order for a lower amount of child support did not modify a prior California order because it did not specifically state that it was a modification, and that a subsequent support order, “regardless of the amount of support,” did not modify a prior order absent that specific statement. Moreover, the justices here said, Kansas courts have arrived at the same conclusion in cases such as Wornkey v. Wornkey (1988) 12 Kan.App.2d 506, 749 P.2d 1045, based on former Kan. Stat. Ann. §23-480. And courts in many other jurisdiction have followed suit.

Nothing new in Kansas . . .
When the justices applied that rule in this case, they saw that the Kansas order did not state that it was nullifying or modifying the existing California order; in fact, it didn’t mention the existing order at all. The trial court, the panel believed, apparently thought that the DCSS, by checking the box that asked the Kansas court for a “ ‘fair & reasonable’ ” child-support order, was actually asking that court for a new, superseding order. However, the justices explained, under RURESA, checking such a box was not enough to meet statutory specificity requirements for a modification; moreover, two states could have had valid support orders of differing amounts at the same time “without causing a modification or nullification of the initiating state’s order.” And, the panel found, Charles’s contention that a subsequent order will automatically modify an earlier one unless it states that it does not “runs directly counter to the clear and unambiguous language” of section 31. Given all that, the justices concluded that the Kansas order neither nullified nor modified the existing California order, and that the trial court had erred in ruling that it had. Charles was entitled to offset the amounts he’d paid under the Kansas order against what he owed under the California order, but the latter order continued in full force and effect.

The rest of the story . . .
Turning to the lower court’s other findings, the justices first considered whether the Kansas order was entitled to full faith and credit. They pointed out that the petition for an order filed in the Kansas trial court was actually prepared and signed by a family support officer, not by Louise herself. Louise was not represented in the Kansas court, nor was she in its jurisdiction when it made the order against her. Thus, the panel found, that order was a violation of Louise’s due-process rights and was not entitled to full faith and credit. Moreover, the Kansas court had not acquired continuing, exclusive jurisdiction over child support, as the trial court erroneously concluded, because its orders did not nullify or modify the existing California order. Accordingly, the justices reversed the order directing the DCSS to enforce the Kansas order against Louise.