Choice of Law in Interstate Child Support Modification Cases
When an original child support has been entered in State A, but the mother and child move to state B and the father moves to state C, and the mother brings an action for child support modification in state C under section 611 of UIFSA, what law should the court apply? The law of the forum, state C? The law where the child lives, state B? What if the parties had a choice of law clause in their original property settlement agreement denoting that the agreement shall be construed according to the law of state A? Should the court apply the law of state A?
The Federal Mandate
Prior to the state adopting guidelines under the Family Support Act of 1988, child support awards were subject mainly to the discretion of the judge. See Laura W. Morgan, Child Support Guidelines: Interpretation and Application § 1.01 (1996 & Supps. - 2006). Generally, a judge would determine the monthly support award based on the needs of the child, and make a similar determination on the medical needs of the child.
In 1988, the federal government required the states to enact mandatory (“presumptively correct”) child support guidelines, in order to continue to receive federal funding of Aid to Families with Dependent Children (AFDC). Family Support Act of 1988, Pub.L. 100-485, codified primarily at 42 U.S.C. §§ 654, 666-67. The federal government also required the states to require provision for a “child[ren]’s health care needs, through health insurance coverage or other means.” See 45 C.F.R. § 302.56(c)(3).
The federal mandate concerning state enactment of child support guidelines provides, inter alia, as follows:
(a) Establishment of guidelines; method
Each State, as a condition for having its State plan approved under this part, must establish guidelines for child support award amounts within the State. . . .
(b) Availability of guidelines; rebuttable presumption
. . .
(2) There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.
. . .
42 U.S.C. § 667.
Thus, the federal mandate requires that states establish guidelines that must be used in any proceeding for child support. There are no exceptions. Most states’ child support guidelines have a provision in the introductory sections of their child support statutes that reflect this mandate. For example, the Illinois child support guidelines echo this directive. 750 ILCS 5/505(a) provides:
(a) In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, a proceeding for child support following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, a proceeding for modification of a previous order for child support under Section 510 of this Act, or any proceeding authorized under Section 501 or 601 of this Act, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support, without regard to marital misconduct. The duty of support owed to a child includes the obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child. For purposes of this Section, the term "child" shall include any child under age 18 and any child under age 19 who is still attending high school.
(1) The Court shall determine the minimum amount of support by using the following guidelines:
. . .
Thus, the application of the Illinois child support guidelines in any proceeding for child support is mandatory.
The Uniform Interstate Family Support Act (UIFSA)
A court may take modification jurisdiction under UIFSA when all the parties have left the original issuing state, and the petitioner for modification is not a resident of the forum (except if all parties are residents of the forum). UIFSA § 611(a). This section also provides that when a court takes jurisdiction to modify a child support order originally issued by another state, the new state must apply its own child support guidelines in the modification proceeding:
(b) Modification of a registered child-support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by the tribunal of this State and the order may be enforced and satisfied in the same manner.
UIFSA § 611(b). The comments to this section state:
Subsection (b) states that when the forum has assumed modification jurisdiction because the issuing state has lost continuing, exclusive jurisdiction, the proceedings will generally follow local law with regard to modification or child support orders.
9 Part I U.L.A. 258 (2005). See also UIFSA § 613(b) (when all parties reside in modification state, that state applies its own law in modification proceeding). UIFSA § 303 underscores this point:
§ 303. Application of law of State. Except as otherwise provided in this Act, a responding tribunal of this State shall:
(1) apply the procedural and substantive law generally applicable to similar proceedings originating in this State and may exercise all powers and provide all remedies available in those proceedings; and
(2) determine the duty of support and the amount payable in accordance with the law and support guidelines of this State.
The commentary explains:
Historically States have insisted that forum law be applied to support cases whenever possible. This continues as a key principle of UIFSA. In general, a responding tribunal has the same powers in a proceeding involving interstate parties as it has in an intrastate case. This inevitably means that the Act is not self-contained; rather, it is supplemented by the forum's statutes and procedures governing support orders. To insure the efficient processing of the huge number of interstate support cases, it is vital that decision-makers apply familiar rules of local law to the maximum degree possible. This must be accomplished in a manner consistent with the overriding principle of UIFSA that enforcement is of the issuing tribunal's order, and that the responding State does not make the order its own as a condition of enforcing it.
9 Part I U.L.A. 208 (2005).
The introductory comments to UIFSA also explain that the forum is to apply its own law generally, with only a few significant exceptions:
UIFSA provides that the procedures and law of the forum apply, with some significant additions or exceptions:
(a) Certain procedures are prescribed for interstate cases even if they are not consistent with local law, i.e.: the contents of interstate petitions, Sections 311 and 602; the nondisclosure of certain sensitive information, Section 312; authority to award fees and costs including attorney's fees, Section 313; elimination of certain testimonial immunities, Section 314; and, limits on the assertion of nonparentage as a defense to support enforcement, Section 315.
(b) Visitation issues cannot be raised in child support proceedings, Section 305(d).
(c) Special rules for the interstate transmission of evidence and discovery are added to help place the maximum amount of information before the deciding tribunal. These procedures are available in cases in which the tribunal asserts jurisdiction over a nonresident, (Sections 210, 316-318), and may have the effect of amending local law in long-arm cases.
(d) The choice-of-law rule for the interpretation of a registered order is that the law of the issuing State governs the underlying terms of the controlling support order. One important exception exists; if the registering and issuing State have different statutes of limitation for enforcement, the longer time limit applies, Section 604.
The provisions of UIFSA mandating that a court taking modification jurisdiction apply its own law in the modification proceeding have been explained in numerous cases across the country. For example, in Spalding v. Spalding, 907 So.2d 1270, 1272 (Fla. 5th DCA 2005), the court explained:
For purposes of the choice of law provisions of section 88.6041, of UIFSA, once a judgment is registered and modified in another state, that state becomes the issuing state and the forum state's law governs modification of the support order. The trial court has jurisdiction to enforce and modify the final judgment and shall apply the procedural and substantive law of this state to the proceeding.
Accord C.K. v. J.M.S., 931 So.2d 724 (Ala. Civ. App. 2005) (under Mississippi law child support payments were subject to modification, and, thus, under UIFSA, Alabama law governed modification of father’s child support payments in Alabama); Batterman v. Bender, 809 N.E.2d 410 (Ind. Ct. App. 2004) (no statute or case law requires the law of the issuing jurisdiction to be applied where the issue is the modification in Indiana of a foreign support order; as Indiana is the responding tribunal in this case, the Indiana Child Support Guidelines were correctly used to determine the appropriate amount of support).
Agreements With Choice of Law Clauses
The principle that the forum state applies its own child support guidelines holds fast even though the parties may have an agreement that the law of another state shall govern the interpretation and enforcement of a child support agreement. In Wagner v. Wagner, 885 So.2d 488 (Fla. 1st DCA 2004), the parties were divorced in California, and at that time entered into a settlement agreement that included child support provisions and a choice of law clause. After the parties relocated to Florida, a petition for modification was brought in Florida. The court stated:
On the merits of the request to modify the child support component, we are satisfied that, notwithstanding the choice-of-law provision in the parties' agreement, the appropriate substantive law is that of Florida.
885 So.2d at 494.
The same result was reached in In re Marriage of Crosby & Grooms, 116 Cal. App.4th 201, 10 Cal. Rptr.3d 146 (2004). In that case, the county department of child support services filed a motion to modify the Idaho child support order of a father who resided in Humbolt County, California. The father argued that the Idaho child support guidelines should apply, because the parties had entered into a settlement agreement as to child support in Idaho, and the agreement provided as follows:
INTERPRETATION:  All matters affecting the interpretation of this Agreement and the rights of the parties hereto shall be governed by the laws of the State of Idaho.
10 Cal. Rptr. 3d at 148. The trial court disagreed and applied California law, and the appellate court affirmed. The court held:
In the present case, this means that once Grooms, Crosby, and the minor children left Idaho and the Idaho child support order was registered in California, Crosby was entitled to seek modification of the order in this state. Grooms does not quarrel with this conclusion. He agrees that California has jurisdiction to modify the Idaho order, but argues that California must use Idaho’s child support guidelines in making the modification. A careful reading of the relevant UIFSA provisions, however, demonstrates that the substantive and procedural laws of the forum state, in this case California, must be followed.
10 Cal. Rptr. 3d at 149. The court explained:
First, subdivision (b) of Family Code section 4960 provides: “Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.” (Accord, UIFSA, § 611, subd. (b).) The comment to section 611 explains that subdivision (b) “states that if the forum has modification jurisdiction because the issuing state has lost continuing, exclusive jurisdiction, the proceedings will generally follow local law with regard to modification of child support orders.” (UIFSA, com. to § 611, p. 373).
In support, the court cited cases from other states:
Although no California appellate court previously has been called upon to answer this exact question, courts in other jurisdictions that have addressed whether, in circumstances similar to those of the present case, the issuing or forum state’s law should be applied, have reached the same conclusion: the forum state’s law governs. (See State, CSED v. Bromley (Alaska 1999) 987 P.2d 183, 188-191 (Bromley) [when Alaska tribunal assumes jurisdiction of a child support order for purpose of modification, “it should apply Alaska law to determine the appropriate amount of child support”]; Groseth v. Groseth (Neb.1999) 257 Neb. 525, 533-536 [600 N.W.2d 159, 166-169] (Groseth) [once Nebraska assumes jurisdiction, court applies Nebraska's substantive law to modifiable provisions of other state’s support order]; Cooney and Cooney (1997) 150 Or. App. 323, 328, 946 P.2d 305, 307 (Cooney) [once Oregon court acquires jurisdiction over foreign support order, “it is to apply Oregon law to determine the proper amount of the child support”][.]
10 Cal. Rptr.3d at 150. Accord Petitto v. Petitto, 147 Md. App. 280, 808 A.2d 809 (2002) (Maryland trial court’s decision not to apply Massachusetts child support guidelines in father’s action to modify child support obligations under separation agreement incorporated into Massachusetts divorce judgment was not error, though agreement provided it was to be governed by, interpreted, and construed according to laws of Massachusetts, where parties and child no longer lived in Massachusetts). The cases cited in In re Marriage of Crosby and Grooms are particularly instructive. In State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183 (Alaska 1999), the court held that when an Alaska tribunal assumes continuing, exclusive jurisdiction of a child support order for the purpose of modification, it should apply Alaska law to determine the appropriate amount of child support. In reaching this decision, the court noted that United States Commission on Interstate Child Support recommended to Congress that the procedural and substantive law of the forum state should govern in establishment and modification proceedings, citing the ease and efficiency of application of local law by decision-makers as an important consideration.
Likewise, in Groseth v. Groseth, 257 Neb. 525, 600 N.W.2d 159 (1999), the court concluded that once a responding state assumes continuing, exclusive jurisdiction and modifies an issuing state's support order, the responding state becomes the issuing state. Consequently, that state must apply its own child support guidelines.
In essence, a choice of law clause in the parties agreement cannot be read to require the application of another state's child support guidelines, especially if all the parties have left that state. See Restatement (Second) of Conflict of Laws §§ 187, 188 (1988) (providing that the court shall apply the law of the state chosen by the parties in most cases, unless that state has no substantial relation to the contract or unless the law of that state offends a fundamental policy of a state having a greater interest in the particular issue); see also 1 Homer C. Clark, The Law of Domestic Relations in the United States § 1.9 at 48 (2d ed. 1988). Indeed, as noted in Hale v. Hale, 33 Kan. App.2d 769, 771, 108 P.3d 1012, 1014 (2005), a UIFSA case, ”although there are circumstances in which courts, and parties to a certain extent, may choose which state’s law will apply in a given dispute, when the choice of law is dictated by statute, courts do not have the authority to contradict such mandates.”
The clear language of UIFSA dictates that the law of the forum governs modification proceedings, notwithstanding a choice of law clause to the contrary.