Commonwealth, DSS v. Neil C. Righter ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
COMMONWEALTH OF VIRGINIA,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. ELEANOR KENITZER OPINION BY
JUDGE CHARLES H. DUFF
v. Record No. 1252-95-4 SEPTEMBER 17, 1996
NEIL C. RICHTER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jack B. Stevens, Judge
Nancy J. Crawford, Regional Special Counsel
(Betsy S. Elliott, Senior Special Counsel;
James S. Gilmore, III, Attorney General;
William H. Hurd, Deputy Attorney General;
Siran S. Faulders, Senior Assistant Attorney
General, on brief), for appellant.
Wayne Hartke (Hartke & Hartke, on brief), for
appellee.
The Division of Child Support Enforcement (DCSE) appeals the
decision of the circuit court granting appellee's motion to
dismiss for lack of jurisdiction. DCSE contends the Virginia
trial court lacked statutory authority to register the South
Carolina court order staying implementation of a wage withholding
petition; petitioner made a general, not special appearance
seeking to effect registration; the Virginia trial court erred
when it declined to exercise jurisdiction to enforce its divorce
decree; and the Virginia trial court erred when it confirmed the
registration without first resolving the substantive issues.
We conclude that the South Carolina family court order was
not an order which could be registered under the provisions of
the Uniform Interstate Family Support Act (UIFSA), Code
§§ 20-88.32 to -88.82. We also find that the trial court erred
in ruling Virginia did not have jurisdiction. We remand this
matter to the trial court for it to determine the question of
support arrearages.
Background
In 1973, Eleanor Kenitzer was granted a decree of divorce a
mensa et thoro by the Fairfax County Circuit Court from Neil
Richter. The decree ratified and confirmed the parties' property
settlement agreement, which had been executed in Virginia on July
5, 1973. Under the terms of the agreement, Richter agreed to pay
$100 per month to Kenitzer for support of the parties' minor son.
On July 20, 1973, Richter signed a notarized waiver of service,
which provided in part that he waived "notice of any further
proceedings held in this matter" and "[consented] to the validity
of all proceedings held in this matter."
The circuit court entered a decree of divorce a vinculo
matrimonii on August 5, 1974. Both parties had substantial
contact with Virginia. Their son was born in Virginia, and they
had lived in Virginia for the last three years of their marriage.
However, after the divorce, Kenitzer and Richter relocated to,
respectively, California and South Carolina, and neither party
currently resides in Virginia.
Through the California child support agency, in 1991
2
Kenitzer filed a request to withhold wages in South Carolina to
recover delinquent child support payments from Richter. By order
entered January 9, 1992, a South Carolina family court ruled that
it had jurisdiction over Richter and over the wage withholding
request. Based upon evidence presented to the court, however, it
granted Richter's petition to stay implementation of Kenitzer's
request, noting "[t]here is a genuine question or dispute
concerning the existence of the arrearage." No further action
was taken on the South Carolina order.
Later in 1992, again through the California child support
agency, Kenitzer sought to recover the alleged support arrearages
by an action in Virginia. Mother registered the 1973 Virginia
order in California on February 19, 1992. A Uniform Reciprocal
Enforcement of Support Act (URESA) petition was received by DCSE
in October 1992. In 1995, DCSE filed a motion to intervene and a
motion for judgment and interest in Fairfax County Circuit Court.
Richter made a special appearance in the circuit court to
register the 1992 South Carolina family court order staying
Kenitzer's earlier wage withholding petition. The Virginia
circuit court ruled that it was bound by the 1992 South Carolina
order, including that court's finding that it had jurisdiction
over Richter and the subject matter. The Virginia trial court
granted Richter's motion to dismiss for lack of jurisdiction.
DCSE appeals the trial court's order.
3
Uniform Interstate Family Support Act
In 1994, Virginia repealed Code §§ 20-88.12 to -88.31, the
Revised Uniform Reciprocal Enforcement of Support Act, and
enacted Code §§ 20-88.32 to -88.82, the Uniform Interstate Family
Support Act. Both acts, as well as the original Uniform
Reciprocal Enforcement of Support Act, were intended to provide
"a means to establish and enforce child support obligations and
spousal support obligations across state lines." John J. Sampson
and Paul M. Kurtz, UIFSA: An Interstate Support Act for the 21st
Century, 27 Family Law Quarterly 85, 86 (1993). However, "the
most significant improvement offered by UIFSA [over provisions of
URESA and RURESA] is the elimination of the multiple-order
system." Id. at 88.
UIFSA adopts the concept of continuing,
exclusive jurisdiction to establish and
modify the levels of child support due a
particular child. Thus, once a court or
administrative agency enters a support decree
with jurisdiction, it is the only body
entitled to modify it so long as it retains
continuing, exclusive jurisdiction under the
Act. Another state, while required by UIFSA
to enforce the existing decree, has no power
under that Act to modify the original decree
or enter a support order at a different
level.
Id. UIFSA also contains long-arm jurisdictional provisions that
are "designed to allow the forum state to obtain as much such
jurisdiction as is constitutionally possible." Id. at 89.
Registration of the Order
DCSE argues that the trial court erred in registering the
4
South Carolina stay of Kenitzer's petition to withhold wages. We
agree. Code § 20-88.66 provides that "[a] support order or an
income-withholding order issued by a tribunal of another state
may be registered in this Commonwealth for enforcement." A
"support order" is defined as
a judgment, decree, or order, whether
temporary, final, or subject to modification,
for the benefit of a child, a spouse, or a
former spouse, which provides for monetary
support, health care, arrearages, or
reimbursement, and may include related costs
and fees, interest, income withholding,
attorney's fees, and other relief.
Code § 20-88.32. The South Carolina order did not provide for
the payment of monetary support or arrearages. The order did not
determine the merits of Kenitzer's claim or Richter's defense.
Cf. Price v. Price, 17 Va. App. 105, 114-15, 435 S.E.2d 652,
658-59 (1993). The order merely barred automatic withholding in
light of Richter's possibly meritorious defense, and stayed
further action without making a factual determination. While we
agree with Richter that an order finding that no support or
arrearage is due could be a "support order" registerable under
UIFSA, the South Carolina order is not such an order.
Similarly, the South Carolina order was not an
"income-withholding order." "Income-withholding order" is
defined as "an order or other legal process directed to an
obligor's employer or other debtor, to withhold amounts for child
or spousal support from the obligor's earnings as defined in
§ 63.1-250." Code § 20-88.32. The South Carolina order was not
5
directed to Richter's employer, and did not direct the
withholding of any funds.
Consequently, the South Carolina order was not within the
scope of those orders which can be registered in Virginia under
UIFSA. The trial court erred in registering the order.
Effecting Registration by Special Appearance
Richter contends that this issue was not raised in the trial
court and that DCSE may not raise it for the first time on
appeal. Rule 5A:18. The record supports Richter's contention.
We do not address this issue.
Jurisdiction of Virginia Court
DCSE contends that the trial court erred by declining to
exercise its continued jurisdiction to enforce its order. We
agree. "[A] tribunal of this Commonwealth may exercise personal
jurisdiction over a nonresident individual" when, among other
bases, the "individual resided with the child in this
Commonwealth" or when the "exercise of personal jurisdiction is
authorized under subdivision A8 of § 8.01-328.1." Code
§ 20-88.35(3) and (6). In pertinent part, Code § 8.01-328.1
extends personal jurisdiction to an individual who has "been
ordered to pay spousal support or child support pursuant to an
order entered by any court of competent jurisdiction in this
Commonwealth having in personam jurisdiction over such person."
Code § 8.01-328.1(A)(8)(ii). 1
1
Under the circumstances of this case, we find that neither
Code § 20-88.38 (addressing when Virginia courts may exercise
6
Moreover, this holding is consistent with the
Virginia Supreme Court's decision
in Sheffield v. Sheffield, 207 Va.
288, 148 S.E.2d 771 (1966). There,
the parties were divorced in
Virginia and the husband was
ordered to pay support. The
husband moved to Illinois, where he
was personally served with the
wife's petition to enter judgment
on support arrearages. The husband
did not appear before the court in
Virginia, although he wrote a
letter to the court admitting the
arrearage. The Supreme Court found
that the Virginia court had
jurisdiction over the husband,
noting that
a proceeding to reduce alimony arrears to
judgment is not a new and independent action
but merely a step taken in the original
matrimonial action; that having obtained
jurisdiction of the defendant husband in the
original proceeding such jurisdiction remains
unimpaired.
jurisdiction following the filing of a petition in another state)
nor Code § 20-88.39 (addressing when Virginia courts may exercise
continuing exclusive jurisdiction) either require or prohibit the
Virginia courts from exercising their pre-existing jurisdiction.
7
Id. at 291, 148 S.E.2d at 773. See also Shinn v. Kreul, 427
S.E.2d 695, 698 (S.C. Ct. App. 1993). Thus, the Virginia circuit
court had personal jurisdiction over Richter as part of its
continuing jurisdiction to enforce its original support order.
While Richter argued that the divorce decree was ex parte, the
record demonstrates conclusively that the Virginia circuit court
had personal jurisdiction over Richter at the time the divorce
decree was entered.
Code § 20-88.39(A)(1) provides that the Commonwealth of
Virginia "has continuing, exclusive jurisdiction . . . [a]s long
as this Commonwealth remains the residence of the obligor, the
individual obligee, or the child." The statute does not state,
either by express terms or by implication, that Virginia loses
all jurisdiction if none of the parties are residents of the
Commonwealth. We hold that Virginia continues to have the right
to enforce its own decrees even if all parties are no longer
residents. The intent of the statute is simply to facilitate the
enforcement of support decrees by making other states equally
available to an obligee. When South Carolina declined to issue
an income-withholding order and made no determination of
arrearages, Kenitzer could invoke Virginia's jurisdiction for the
purpose of enforcing its own decree.
In summary, we find that the trial court erred in concluding
that the South Carolina family court order staying Kenitzer's
wage-withholding petition was an order registerable under UIFSA.
8
We also find that the trial court erred in ruling it did not
have jurisdiction over this matter. We remand to the trial court
to determine what arrearages, if any, exist.
Reversed and remanded.
9