Clark v. Clark

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/04/2018 08:10 AM CDT
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CLARK v. CLARK
Cite as 26 Neb. Ct. App. 289
Ronald J. Clark, appellant, v.
Nori D. Clark, now known as
Nori D. Carter, appellee.
___ N.W.2d ___
Filed September 4, 2018. No. A-17-852.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, on which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
2. Child Support: States. The general purpose of the Uniform Interstate
Family Support Act is to unify state laws relating to the establishment,
enforcement, and modification of child support orders.
3. ____: ____. The goal of the Uniform Interstate Family Support Act is
to streamline and expedite interstate enforcement of support decrees
and to eliminate the problems arising from multiple or conflicting sup-
port orders from various states by providing for one tribunal to have
continuing and exclusive jurisdiction to establish or modify a child sup-
port order.
4. ____: ____. The Uniform Interstate Family Support Act provides a
system where only one child support order may be in effect at any
one time.
5. ____: ____. Following the adoption of the Uniform Interstate Family
Support Act, there should not exist multiple or conflicting support
orders and only one tribunal shall have continuing and exclusive juris-
diction to establish or modify a child support order.
6. ____: ____. The Uniform Interstate Family Support Act’s provisions
may only be used to enforce an existing support order, establish a sup-
port order where no order has previously been established, or modify an
existing support order.
7. Jurisdiction: Waiver. Generally speaking, the filing of a general
appearance which does not preserve an objection to personal jurisdic-
tion constitutes a waiver of personal jurisdiction.
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CLARK v. CLARK
Cite as 26 Neb. Ct. App. 289
8. Statutes: Equity: Jurisdiction. When a statute provides an adequate
remedy at law, equity will not entertain jurisdiction, and a party must
exhaust the statutory remedy before it may resort to equity.
Appeal from the District Court for Lancaster County: Lori A.
M aret, Judge. Reversed and remanded for further proceedings.
Mark T. Bestul, of Legal Aid of Nebraska, for appellant.
No appearance for appellee.
Moore, Chief Judge, and A rterburn and Welch, Judges.
Welch, Judge.
INTRODUCTION
Ronald J. Clark (Clark) appeals from an order issued by
the Lancaster County District Court dismissing his request
to (1) vacate or modify a Nebraska child support order origi-
nally issued in August 1999 and modified starting in April
2002 or (2) make a determination regarding whether the
Nebraska order or a concurrent Wisconsin child support order
is the controlling order. We reverse, and remand for further
proceedings.
STATEMENT OF FACTS
In September 1985, Nori D. Clark, now known as Nori D.
Carter (Carter), a resident of Wisconsin, gave birth to the par-
ties’ son. At the time of the son’s birth, Carter was not married;
however, 4 days later, she married Clark, who admitted he was
the father. Because there were outstanding birth expenses paid
by the State of Wisconsin, Wisconsin commenced a paternity
action against Clark to recover those expenses. On March
2, 1989, the “State of Wisconsin[,] Circuit Court[,] Family
Division[,] Milwaukee County,” entered an order in case No.
80-641 finding that Carter gave birth to the parties’ son in
September 1985, that Clark was the father, that Carter and
Clark were married 4 days later, and that Clark must pay the
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State of Wisconsin $2,130 in birth expenses payable at the rate
of $43 per month.
Also provided in the record is a document entered by the
“State of Wisconsin[,] Circuit Court[,] Family Court Branch[,]
Milwaukee County,” in case No. 900-426. This document
purports to be “In re the Marriage of: State of Wisconsin
Nori Clark . . . Petitioner, and Ronald Clark . . . Respondent.”
The document also reads “FINDINGS AND ORDER” but
then recites matters apparently occurring on different dates.
The top section of the document references an “ACTION TO
COMPEL SUPPORT” as of March 22, 1990, identifies that
Clark appeared “in person” but not Carter, and provided that
Clark was to pay “SUPPORT” of $152 per month to be payable
at the rate of $35 per week commencing April 1, 1990. This top
section of the document is not signed.
The lower section of the same document, bearing the date
April 3, 1990, states as follows:
ADJOURNED TO: 5-24-90 at 11:15 [and] both TO
APPEAR IN PERSON[.]
FINDINGS: THE FOLLOWING FINDINGS ARE
MADE: Parties have been separated two years. Child
was born 4 days before parent’s [sic] marriage; husband
acknowledges paternity[.]
Mother works for Am[erican] Airlines, earning $500/
mo[nth] gross working part time but she’s been off work
3-4 months and just went back. She says she is going
off [Aid to Families with Dependent Children]. She had
child in a Montessori school but had to take child out
because of financial problems.
Order for support is based on husband’s income from
one job: wife claims he’s working a second job, but
he denies it. Husband is extremely antagonistic and
doesn’t want to pay support but he’s going to have to
do that. . . .
ORDER: BASED ON THESE FINDINGS, THE
FOLLOWING ORDERS ARE MADE: Suspend and
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hold open past support and birth expense payment in
case P80-641.
Matter adjourned to 5-24-90 at 11:15 for review on
support; both parties to produce income tax returns for
1989 and YTD statement of current income.
....
This assignment super[s]edes any other assignment
in a case between these parties, including the one in
Case P80-641.
The second page of this document is signed by “Lucy Cooper
(Deputy/Asst.) Family Court Commissioner.”
In September 2007, these two Wisconsin cases were
consolidated by the “State of Wisconsin[,] Circuit Court[,]
Milwaukee County.” The court’s “EXPARTE ORDER FOR
CONSOLIDATION” provided that “[a]ny credit or debt bal-
ances owed on the former case(s) shall be removed from the
former case(s) and added to the new case.”
Separately, the record contains the parties’ Nebraska divorce
decree from the Lancaster County District Court dated August
24, 1999. On that date, the district court issued a decree gov-
erning the marriage of Carter and Clark, dissolved their mar-
riage, divided their property, provided Clark with reasonable
visitation of Carter and Clark’s “minor child” (not named in the
decree), and ordered Clark to pay $395 per month in child sup-
port for “one (1) minor child” commencing September 1. This
order was modified by the district court on March 29, 2002,
to reduce Clark’s child support obligation to $300 per month
starting April 1.
In October 2016, Clark filed a lawsuit in the Lancaster
County District Court claiming that he was the obligor on two
separate decrees governing the same obligee and the same
child, entered in two separate states, and requesting that the
“child support be reduced or modified retroactively to $0 per
month or that the original decree and subsequent modifica-
tion be vacated as to the provisions in said orders related to
child support and for such other and further relief as the
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Court deems just and equitable.” After being served with the
complaint, Carter wrote a letter to the district court in which
she chastised Clark for serving her at her recently deceased
mother’s home and for not paying child support, expressing
confusion as to why she was being sued in court. Carter did not
appear or testify at trial.
At trial, Clark testified that he was formerly married to
Carter; that he was the father of their son, who was now
an adult; and that he and Carter separated long before their
divorce. He testified that neither Carter nor their son ever lived
in Nebraska, but that he had moved to Nebraska and sought
the divorce from the Lancaster County District Court in 1999
in order to get that part of his life resolved. He also testified
that at the time of his divorce, he was aware of the State of
Wisconsin’s original paternity order, but not the separate child
support order. He then testified that he was asking the court to
resolve the discrepancy so that he could take care of the arrear-
ages and “move on” with his life.
In connection with the Lancaster County child support order,
Clark offered, and the district court received into evidence, a
“Payment History Report” from the Nebraska Department of
Health and Human Services showing Clark’s payment his-
tory, including both the arrears balance and interest balance
on the obligation. The court also received into evidence a
State of Wisconsin payment summary from “Milwaukee Co.
Child Support Services,” which references an “[o]rder estab-
lished 4/1/90 @ $152 per month” showing both a “Principle
[sic] Ending Balance” as of 2016 and an “AFFIDAVIT OF
ARREARS” to the “Circuit Court[,] Milwaukee County” cer-
tifying Clark’s arrears to the State of Wisconsin and custodial
parent governing the consolidated case.
Following the trial, upon Clark’s motion, the district
court allowed Clark to amend his complaint to add the sub-
stantive allegations and prayer that “this court enter and
[sic] order making a determination under NEB. REV. STAT.
§ 42-711 [(Reissue 2016)] as to which child support order
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is the controlling order” and “for any such other and further
relief as the Court deems just and equitable.”
After reviewing the evidence, the district court held:
The Court finds that [Clark] fails to provide the Court
with the necessary evidence and information to make
a determination between competing cases in differing
jurisdictions. In order to make such determination, the
Court lacks the present authority to effectuate the relief
requested as it does not have jurisdiction over the out-of-
state matter. The Amended Complaint is hereby overruled
and the matter is dismissed.
Clark has timely appealed that final order of dismissal to
this court.
ASSIGNMENTS OF ERROR
Clark’s assignments of error, consolidated and restated, are
that the district court erred (1) in determining that it did not
have jurisdiction over the Wisconsin matter for the purpose of
determining which state’s order is the controlling child support
order, (2) in determining that there was insufficient evidence
and information to make a determination as to which of the
concurrent Wisconsin and Nebraska child support orders was
the controlling child support order, and (3) in failing to vacate
or modify his Nebraska child support obligation.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, on
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court
below. TransCanada Keystone Pipeline v. Nicholas Family,
299 Neb. 276, 908 N.W.2d 60 (2018).
ANALYSIS
Jurisdiction
We first address the district court’s finding that it lacked
jurisdiction over the out-of-state matter in order to effectuate
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the relief requested by Clark. This case involves a request
by a Nebraska resident to have a Nebraska court determine
which of two child support orders, issued in different states,
is the “controlling” child support order. As framed by the
amended complaint, the case fits squarely within the terms of
the Uniform Interstate Family Support Act (UIFSA), Neb. Rev.
Stat. §§ 42-701 to 42-751.01 (Reissue 2016).
[2-4] The Nebraska Supreme court had occasion to discuss
the general purpose of the UIFSA in Hamilton v. Foster, 260
Neb. 887, 620 N.W.2d 103 (2000). In Hamilton, the Nebraska
Supreme Court held:
UIFSA, as its name implies, deals with the interstate
enforcement and modification of support orders. The
general purpose of UIFSA is to unify state laws relat-
ing to the establishment, enforcement, and modification
of child support orders. Groseth v. Groseth, 257 Neb.
525, 600 N.W.2d 159 (1999); Kasdan v. Berney, 587
N.W.2d 319 (Minn. App. 1999). The goal of UIFSA
is to streamline and expedite interstate enforcement of
support decrees and to eliminate the problems arising
from multiple or conflicting support orders from various
states by providing for one tribunal to have continuing
and exclusive jurisdiction to establish or modify a child
support order. See, OCSE v. Clemmons, 65 Ark. App.
84, 984 S.W.2d 837 (1999); Reis v. Zimmer, 263 A.D.2d
136, 700 N.Y.S.2d 609 (1999); In re Marriage of Zinke,
967 P.2d 210 (Colo. App. 1998); Cowan v. Moreno, 903
S.W.2d 119 (Tex. App. 1995). UIFSA provides a system
where only one child support order may be in effect
at any one time. See Unif. Interstate Family Support
Act, Prefatory Note, 9IB U.L.A. 241 (1999). See, also,
Linn v. State Child Support Enforcement, 736 A.2d 954
(Del. 1999).
260 Neb. at 899, 620 N.W.2d at 114.
[5] It is clear from this general purpose statement that,
following the adoption of the UIFSA, there should not exist
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multiple or conflicting support orders and that only one tri-
bunal shall have continuing and exclusive jurisdiction to
establish or modify a child support order. It is also clear
that both Nebraska and Wisconsin have adopted versions
of the UIFSA. See Wis. Stat. Ann. ch. 769 (West 2009 &
Cum. Supp. 2017). But Clark is not asking the district court
to establish or modify an order; he is asking the district
court to determine which child support order is controlling.
Assuming, without deciding, that courts in both Wisconsin and
Nebraska have issued two conflicting child support orders,
we must first determine whether the district court has juris-
diction to determine which child support order is control-
ling. The district court held that it did not have jurisdiction
to make a determination governing the Wisconsin court’s
order. We disagree.
Section 42-711(c) provides:
If two or more child support orders have been issued for
the same obligor and the same child, upon request of a
party who is an individual or that is a support enforce-
ment agency, a tribunal of this state having personal
jurisdiction over both the obligor and the obligee who is
an individual shall determine which order controls under
subsection (b) of this section. The request may be filed
with a registration for enforcement or registration for
modification pursuant to sections 42-736 to 42-747.04 or
may be filed as a separate proceeding.
(Emphasis supplied.) Section 42-711(b) provides, in perti-
nent part:
If a proceeding is brought under the [UIFSA] and two
or more child support orders have been issued by tribu-
nals of this state, another state, or a foreign country with
regard to the same obligor and the same child, a tribunal
of this state having personal jurisdiction over both the
obligor and individual obligee shall apply the following
rules and by order shall determine which order controls
and must be recognized:
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(1) If only one of the tribunals would have continuing,
exclusive jurisdiction under the [UIFSA], the order of that
tribunal controls.
(2) If more than one of the tribunals would have con-
tinuing, exclusive jurisdiction under the [UIFSA]:
(A) an order issued by a tribunal in the current home
state of the child controls; or
(B) if an order has not been issued in the current
home state of the child, the order most recently issued
controls.
[6] Notably, the Nebraska Supreme Court stated that the
“UIFSA’s provisions may only be used to enforce an existing
support order, establish a support order where no order has pre-
viously been established, or modify an existing support order.
See §§ 42–714 and 42–733.” Hamilton v. Foster, 260 Neb.
887, 900, 620 N.W.2d 103, 114 (2000).
When read together with § 42-711(b) and (c), this means
that in order for Clark to bring this action, the action must
constitute one to enforce, establish, or modify a support order,
and in connection therewith, if two or more child support
orders have been issued, one of which has been issued in this
state, he can request a tribunal in this state, if it has personal
jurisdiction, to determine which order controls. Although this
case is unusual in the sense that Clark is the obligor bringing
the action, we hold that the action represents a claim by Clark
to enforce a child support order wherein he properly requested
the district court, under the UIFSA, to determine the control-
ling order.
That said, although the district court has subject matter
jurisdiction to hear the controversy, it can only do so if it
has “personal jurisdiction over both the obligor and indi-
vidual obligee,” see § 42-711(b). Here, Clark is a Nebraska
resident filing the action and subjecting himself to the juris-
diction of the district court to resolve this controversy.
Conversely, Carter is a nonresident of Nebraska residing in
Wisconsin.
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Section 42-705 provides, in relevant part:
(a) In a proceeding to establish or enforce a support
order or to determine parentage of a child, a tribunal of
this state may exercise personal jurisdiction over a non-
resident individual or the individual’s guardian or conser-
vator if:
....
(2) The individual submits to the jurisdiction of this
state by consent in a record, by entering a general appear-
ance, or by filing a responsive document having the
effect of waiving any contest to personal jurisdiction;
....
(8) There is any other basis consistent with the consti-
tutions of this state and the United States for the exercise
of personal jurisdiction.
The record reflects that neither Carter nor the parties’ son,
now in his thirties, have ever lived in Nebraska. That said,
after Clark filed this lawsuit and served Carter in Wisconsin,
Carter sent a document addressed to the District Court of
Lancaster County, Nebraska, referencing “Ronald J. Clark v.
Nori D. Clark” and included both the case number assigned to
this action (“Case ID: CI 98 9026904”) and the case number
governing the 1999 divorce action (“Old Case ID: 576589”).
In that document, Clark generally directed that all future
documents be sent to her at a different address; generally
asked why she was being sued despite Clark’s failure to con-
sistently pay child support over the years; generally provided
that she and her mother have funded the parties’ son over the
years, including his education; and expressed her disbelief that
Clark will ever make good on his child support obligations.
Carter signed the document, and the clerk of the district court
filed the document. In the document, Carter never objected
to the suit’s being brought in Nebraska nor mentioned any-
thing that could be reasonably construed as contesting per-
sonal jurisdiction.
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[7] Generally speaking, the filing of a general appearance
which does not preserve an objection to personal jurisdiction
constitutes a waiver of personal jurisdiction. See Friedman
v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015). Section
42-705(a)(2) appears to provide an even broader grant of per-
sonal jurisdiction over a nonresident individual if that individ-
ual files “a responsive document having the effect of waiving
any contest to personal jurisdiction.” After reviewing the docu-
ment filed by Carter in this matter, we believe the language of
that document is sufficient to have effected a waiver of any
contest to personal jurisdiction. In so finding, we note that
Carter’s written response made reference to both the pending
action and the parties’ divorce action—where she apparently
waived any objection to personal jurisdiction, which action
resulted in the child support order that is now part of the dis-
pute. Under these facts, we hold that the district court had a
basis to exercise personal jurisdiction over Carter pursuant to
§ 42-705.
Because we hold that Clark did properly file a claim under
the UIFSA where the district court had subject matter juris-
diction to resolve the controversy and rightfully acquired
personal jurisdiction over Carter to enforce a support order,
we now turn to the district court’s holding that it lacked “the
necessary evidence and information to make a determination
between competing cases in differing jurisdictions.”
Insufficient Evidence and Information
to Determine Controlling
Child Support Order
As we previously described, § 42-711 governs proceed-
ings brought under the UIFSA where two or more support
orders have been issued in this state and others. When a court
in this state is called upon to “determine which order con-
trols and must be recognized,” pursuant to § 42-711(b), the
individual must follow the remaining directives in § 42-711.
Those directives include: “A request to determine which is
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the controlling order shall be accompanied by a copy of every
child support order in effect and the applicable record of pay-
ments. The requesting party shall give notice of the request
to each party whose rights may be affected by the determina-
tion.” § 42-711(d).
The record appears to contain copies of the alleged con-
flicting orders and record of payments, and it is difficult to
determine from the district court’s order the specific bases
of the district court’s determination that it lacked “the nec-
essary evidence and information to make a determination
between competing cases in differing jurisdictions.” But the
UIFSA appears to provide for matters of uncertainty in con-
nection with these claims. In addition to the special rules of
evidence and procedure contained in § 42-729, the UIFSA
contemplates, and includes a provision for, direct communi-
cation between courts of different jurisdictions. Specifically,
§ 42-730 provides:
A tribunal of this state may communicate with a tri-
bunal outside this state in a record or by telephone,
electronic mail, or other means to obtain information con-
cerning the laws, the legal effect of a judgment, decree,
or order of that tribunal, and the status of a proceeding. A
tribunal of this state may furnish similar information by
similar means to a tribunal outside this state.
Additionally, § 42-731 provides: “A tribunal of this state may:
(1) request a tribunal outside this state to assist in obtaining
discovery; and (2) upon request, compel a person over which
it has jurisdiction to respond to a discovery order issued by a
tribunal outside this state.”
We additionally note that § 42-714 provides:
(a) Except as otherwise provided in the [UIFSA], sec-
tions 42-714 to 42-732 apply to all proceedings under
the [UIFSA].
(b) An individual petitioner or a support enforcement
agency may initiate a proceeding authorized under the
[UIFSA] by filing a petition in an initiating tribunal
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for forwarding to a responding tribunal or by filing a
petition or a comparable pleading directly in a tribunal
of another state or a foreign country which has or can
obtain personal jurisdiction over the respondent.
The UIFSA then provides in § 42-717:
(a) Upon the filing of a petition authorized by the
[UIFSA], an initiating tribunal of this state shall forward
the petition and its accompanying documents:
(1) to the responding tribunal or appropriate support
enforcement agency in the responding state; or
(2) if the identity of the responding tribunal is unknown,
to the state information agency of the responding state
with a request that they be forwarded to the appropriate
tribunal and that receipt be acknowledged.
(b) If requested by the responding tribunal, a tribunal
of this state shall issue a certificate or other document and
make findings required by the law of the responding state.
If the responding tribunal is in a foreign country, upon
request the tribunal of this state shall specify the amount
of support sought, convert that amount into the equivalent
amount in the foreign currency under applicable official
or market exchange rate as publicly reported, and provide
any other documents necessary to satisfy the requirements
of the responding foreign tribunal.
Accordingly, because of the statutory powers authorized by
the legislatures of the respective states to cooperate and obtain
or provide information necessary to resolve these controver-
sies, we reverse the district court’s decision and remand the
cause to the district court—which tribunal we have held has
jurisdiction of this matter—to forward the complaint to the
appropriate responding tribunal within the State of Wisconsin,
to obtain from the Wisconsin tribunal all information deemed
necessary by the district court to “determine which order con-
trols and must be recognized,” to make all relevant findings
under § 42-711(f), and to otherwise comply with the terms of
the UIFSA.
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[8] Upon remand, we note that, as it relates to counsel’s
claim during oral argument that his claim is grounded in both
the UIFSA and equity, when a statute provides an adequate
remedy at law, equity will not entertain jurisdiction, and a
party must exhaust the statutory remedy before it may resort
to equity. See Bock v. Dalbey, 283 Neb. 994, 815 N.W.2d 530
(2012). See, also, State on behalf of B.M. v. Brian F., 288 Neb.
106, 846 N.W.2d 257 (2014) (equitable remedies are gener-
ally not available where there exists adequate remedy at law);
Ganser v. County of Lancaster, 215 Neb. 313, 317, 338 N.W.2d
609, 611 (1983) (“suit in equity will not lie when the plaintiff
has a plain and adequate remedy at law”).
Failure to Vacate or Modify Nebraska
Child Support Obligation
Having determined that the order of the district court must
be reversed and the cause remanded for further proceedings,
we do not reach Clark’s assigned error that the district court
erred in failing to vacate or modify his Nebraska child sup-
port obligation.
CONCLUSION
The district court had jurisdiction over this matter, and
the UIFSA provides the court with powers authorized by the
legislatures of the respective states to cooperate and obtain or
provide information necessary to resolve controversies such
as those presented in the instant case. Accordingly, we reverse
the order of the district court and remand the cause for fur-
ther proceedings.
R eversed and remanded for
further proceedings.