In what state will (or should) my child support issues be resolved?
FREQUENTLY ASKED QUESTIONS
Question: Mother lives in Alaska and has a support order from Alaska that she wants to enforce against Father who lives in Oregon. Must Mother retain the services of an attorney in Oregon to register her judgment as a foreign judgment so that she can enforce the judgment?
Answer: She can, but she need not go to that expense. ORS 110.366. However, ORS 110.405 sets forth the procedure that Mother can follow to seek enforcement of her Alaska support order at no cost to her through the Division of Child Support of the Department of Justice. The Circuit Court (as the “registering tribunal”, see ORS 110.405(2)) is required to register the judgment and accompanying documents as a foreign judgment “regardless of their form.”
Question: Does Mother run the risk that Father will ask the Oregon court to modify the Alaska order downward, especially because she cannot realistically participate in any Oregon court proceeding?
Answer: No. Oregon can only enforce the registered judgment. It does not have authority to modify it so long as Alaska retains jurisdiction in the case. ORS 110.327 and ORS 110.411. That means either one or the other of the parents (or both) and/or the child still reside in Alaska as the originating state.
Question: Does it make a difference whether the judgment is registered for enforcement versus modification purposes?
Answer: Yes. There is a big difference whether the child support order was registered under UIFSA for enforcement purposes or registered for modification purposes. ORS 110.342. A state that has issued a child support order has “continuing, exclusive jurisdiction over that order as long as that state remains the residence of the obligor, the individual obligee, or the child or until the parties consent in writing to modification of the order by another state.1 ORS 110.327(1); State of Oregon DCS v. Anderson, 189 Or App 162, 168, 74 P 2d 1149 (2003). Thus Mother can enforce even an unfair or unrealistically out of date support order against Father and he can do little about it other than ask the originating state to modify it. (See limited defenses to registration ORS 110.420.) This places Father at a significant disadvantage.
Question: An Alaska court in 1987 ordered Father to pay $200 per month child support for the parties’ one child. Father later moved to Oregon. In 1989, an Oregon court ordered Father to pay monthly child support in the amount of $125. Over the next eight years, Father paid the $125 per month specified in the Oregon order, not the $200 per month required by the Alaska order. In 1997, Alaska asked Oregon to register and enforce the 1987 Alaska order and collect the arrearages that had accrued thereunder. Father objected to the registration, arguing that the 1987 Alaska support order had been modified and superseded by the 1989 Oregon order. Who prevails?
Answer: The trial court agreed with Father but the Court of Appeals reversed, concluding that, under ORS 110.272 (1987 version of the statute), a responding state’s entry of a prospective support order in a different amount does not affect the continuing validity of the original order. State ex rel Leo v. Tuthill, 170 Or App 79, 86, 11 P3d 270 (2000). Amounts paid against one order will be credited against amounts concurrently accruing on the other. ORS 110.339. That treatment comports with the statute’s fundamental purpose as an enforcement mechanism, as well as with principles of full faith and credit. Only if the subsequent order actually modifies the earlier order – if the subsequent order specifically provides that it is not to have concurrent effect – will the earlier order cease to have concurrent effect.
Question: What if Father believes that the foreign support order being registered in Oregon is incorrect?
Answer: The non-registering party may contest the validity or enforcement of the registered order. ORS 110.417(1); Mallon v. Cudahey, 177 Or App 614, 618(2001).
Question: Mother seeks enforcement of a 36 year old California child support judgment in Oregon. The statute of limitations on Oregon child support awards cause them to expire 35 years after the date of the original judgment. California has no statute of limitations on child support judgments. Can Father prevent Mother from enforcing the California judgment in Oregon based on a claim that it has expired or that she is time barred from enforcing it?
Answer: Wife can retain the services of an attorney in California and allow the divorce to proceed there. The downside for Wife is that it truly is logistically an inconvenient forum for her (fly down, hire an attorney, stay in a motel while waiting for a hearing, getting witnesses from Oregon to California, etc.). The law is also disadvantageous to her. For example, child support in California ends on the child’s 18th birthday or when the child graduates from high school (but not past age 19), whichever first occurs. California allows an award of joint custody over a parent’s objection. Spousal support terminates automatically upon remarriage. There are property issues of concern as well. Future enforcement will also be an issue. Wife must go to California to file a contempt action against Husband for his failure to comply with any provision of the judgment whereas Husband can walk across the street to his very convenient, local courthouse to file a motion to modify to give himself more parenting time, or even custody any time he pleases, forcing Wife to defend herself in California.
Question: Do the enforcement but “no modification” rules apply to a spousal support order as well as a child support order?
Answer: Yes. Oregon may not modify a spousal support award issued by another state so long as the original state has continuing, exclusive jurisdiction over that under the law of that state. ORS 110.327 (6).
Question: order. Can Father take advantage of her presence in the state to serve her with a motion to modify?
Answer: No. ORS 110.379 specifically grants Mother immunity from having service being made upon her based on a claim that she was within the state at the time of service if she was here only for the limited purpose of participating in an enforcement hearing.2 This probably will always be a non-issue in that ORS 110.384 (1) specifically provides that Mother need not be in the state to establish, enforce or modify the judgment. A verified petition, affidavit or similar document will suffice if given under oath.
Question: Mother has a child support award from Alaska. Mother and the child move to Oregon where Father now lives. Can she (or the State of Oregon) register the judgment in Oregon?
Answer: Yes. ORS 110.436 covers the situation where all parties now reside in Oregon and the child does not reside in the issuing state. This means that Alaska (the originating state) no longer has jurisdiction to make modifications to the original support award. With this fact situation, Mother can follow the UIFSA registration procedure set forth in ORS 110.405 and then either file an enforcement proceeding (contempt) under ORS 33.015, et. seq., UTCR 19 or a modification proceeding under ORS 107.135. The best course of action is to obtain an order from Alaska waiving UIFSA jurisdiction. See form 3.
Question: How does Mother modify the original support award if she and Father live in Oregon and the child does not?
Answer: Mother either has to have the originating state take action or convince Father to consent to jurisdiction in the Oregon court. The consent must be manifested by a written statement agreeing that Oregon has jurisdiction to modify the Alaska support award. ORS 110.432(1)(b). 3
Question: Mother receives a child support award against Father in Nevada and then moves to Oregon. She registers the judgment in Oregon and then moves to modify the child support award at the same time Father files in Nevada to modify the child support award. Which state has jurisdiction?
Answer: Nevada. The first state to impose a support order retains “continuing exclusive jurisdiction” as long as one of the parties continues to reside in that state or if both parties agree to transfer jurisdiction to another state. Until one of those events occurs, only the state which authorized the original support order can modify the award. In this way, all parties, courts and enforcement officials are assured that, between UIFSA states, there can only be one support order in effect at any given time. ORS 110.327; State of Oregon DCS v. Anderson, 189 Or App 162, 168, 74 P 2d 1149 (2003).
As a practical matter, judgments are often entered against individuals over whom the court has no jurisdiction and that party does not care for any number of reasons or the party may never become aware of the right to object on technical jurisdictional grounds, complying with the judgment in the belief that it is enforceable against him. Again, the question for the practitioner is one of expediency versus potential future risk.
Question: Mother has a Florida child support award order against Father as part of a judgment of dissolution. Several years after the divorce, Mother and child move to Oregon and Father moves to Arizona. Where should (or could) the modification proceeding be filed now that neither parent, nor the child reside in Florida?
Question: Mother can register the judgment and modify it in Arizona where Father resides because (1) mother, father and child no longer reside in Florida; and (2) mother (the party seeking modification) is a non-resident of AZ; and (3) AZ has personal jurisdiction over father (the nonmoving party). ORS 110.432.
The same analysis applies in the event that Father wants to modify the judgment but in reverse. Father (the party seeking modification) would have to register the Florida order in Oregon, a state in which he (the party seeking modification) does not reside and a state that has personal jurisdiction over Mother (the nonmoving party). Father can then move to modify the order in Oregon. Father cannot himself register and then modify it in Arizona because he lives there. ORS 110.432
Either of the above results would be different if the parties signed written consents authorizing the new state to enter a modification judgment.
Question: Mother has a Florida child support award order against Father as part of a judgment of dissolution. Several years after the divorce, Mother and child move to Oregon and Father moves to Arizona. Oregon is now the child’s home state under the UCCJEA. Does that mean it now has jurisdiction to modify the child support award?
Answer: No. The fact that the Mother and the child are now living in Oregon and that Oregon is the child’s “home state” for UCCJEA custody purposes, is not relevant to the question of child support modification. Having UCCJEA jurisdiction does not mean that Oregon also has UIFSA jurisdiction. They are two separate and distinct statutory schemes. This may result in the awkward situation of one state having modification jurisdiction over custody and visitation but not over support, while another state has modification jurisdiction over support but not over custody and visitation.
Question: Mother has a child support award from California that provides for support until the child is 18 years of age. She moves to Oregon and registers the judgment here. Can Oregon modify the California child support award to extend the support obligation until the child is 21 years of age, as long as the child is attending school?
Answer: No. Under UIFSA (ORS 110.411(1) the Oregon court does not have authority to extend the duration of a child support order beyond the age set by the original issuing state. Cooney and Cooney, 150 Or App 323, 328, 946 P2d 305 (1997). The court does not have the authority to modify a California decree of dissolution providing for child support past the age of 18, even if the child is attending school, if that support modification could not have been imposed under California law. Tavares and Tavares, 293 Or 484, 651 P2d 133 (1982). See also ORS 110.423(3).
Question: What if Father ignored the motion to modify or had an attorney who did not know the law who simply followed the Oregon “form” for the duration of child support? Can Father return to the Oregon court and request that portion of the modification order be set aside?
Answer: Yes. Oregon does not have authority to extend the age obligation of a child support order beyond that which the original state would allow. Father can and should move to set aside the order extending child support until the child is 21, and seek restitution for any payments made in excess of the original order. See Cooney and Cooney, 150 Or App 323, 328, 946 P2d 305 (1997).
Question: Mother has a child support award from Oregon that provides for support until the child is 21 years of age provided the child meets the educational requirements of the statute. Mother moves to California and registers the judgment there. California law terminates support when the child turns 18 or finishes high school (but not beyond age 19), whichever first occurs. Will the obligation continue until the child is 18 or 21, assuming the other qualifications are being met?
Answer: Age 21. The duration of the obligation to pay support is determined by the law of the issuing state, even if the law of the recognizing state provides for a shorter duration, such as when it provides for an earlier age of majority or emancipation.
1) The consent needs to be filed in Alaska because 1 Alaska is the “issuing tribunal”. ORS 110.432(1)(b).
2) ORS 110.379 Limited immunity of petitioner.
- Participation by a petitioner in a proceeding before a responding tribunal, whether in person, by private attorney or through services provided by the support enforcement agency, does not confer personal jurisdiction over the petitioner in another proceeding.
- A petitioner is not amenable to service of civil process while physically present in this state to participate in a proceeding under this chapter
- The immunity granted by this section does not extend to civil litigation based on acts unrelated to a proceeding under this chapter committed by a party while present in this state to participate in the proceeding. [Formerly 110.308].
3 ORS 110.432 Modification of child support order of another state.
1) After a child support order issued in another state has been registered in this state, the responding tribunal of this state may modify that order only if ORS 110.436 does not apply and, after notice and hearing, the responding tribunal finds that:
(A) The following requirements are met:
- The child, the individual obligee and the obligor do not reside in the issuing state;
- A petitioner who is a nonresident of this state seeks modification; and
- The respondent is subject to the personal jurisdiction of the tribunal of this state; or
(B) The child or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state and all of the parties who are individuals have filed a written consent in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction over the order. However, if the issuing state is a foreign jurisdiction that has not enacted a law or established procedures substantially similar to the procedures under this chapter, the consent otherwise required of an individual residing in this state is not required for the tribunal to assume jurisdiction to modify the child support order. Emphasis added.
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