COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Huff
PUBLISHED
Argued at Richmond, Virginia
JOSEPH MONCRIEF
OPINION BY
v. Record No. 0051-12-2 JUDGE GLEN A. HUFF
OCTOBER 9, 2012
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. MARY ANN JOYNER
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge
Mark E. Englisby (Englisby, Vaughn & Slone, on briefs), for
appellant.
Rebecca A. Young, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General; Craig M. Burshem, Senior Assistant
Attorney General; Beth J. Edwards, Regional Senior Assistant
Attorney General, on brief), for appellee.
Joseph Moncrief (“appellant”) appeals the ruling of the Circuit Court of Chesterfield
County (“trial court”) registering a foreign child support order. On appeal, appellant argues that
the trial court erred in registering a North Carolina order as the “controlling order” while
applying the duration term of a previous New York child support order. At issue is the duration
of appellant’s child support obligation that initially arose under an order issued in New York in
1994, which was subsequently modified in 1997 by a North Carolina court. For the following
reasons, this Court affirms the trial court’s determination.
I. BACKGROUND
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003) (citations omitted). So
viewed, the evidence is as follows.
On December 4, 1994, the Supreme Court of New York, County of Clinton, granted
appellant a divorce (“1994 N.Y. order”) from Mary Ann Joyner (“Joyner”). The 1994 N.Y. order
incorporated the parties’ November 9, 1994 stipulation agreement, which specifically provided for
child support. The stipulation agreement provided that appellant would pay child support until the
child reached the age of twenty-one unless the child was emancipated through marriage, moving
away from Joyner, entering the armed forces, or obtaining employment with sufficient income to be
self-supporting. The stipulation agreement further provided that “nothing contained in this
[a]greement shall prohibit either party from seeking a modification of the child support provisions
herein upon a proper showing before any court of competent jurisdiction.”
In 1995, appellant moved to Virginia, and Joyner relocated to North Carolina. On August 5,
1997, the North Carolina Wayne County General Court of Justice, District Court Division (“N.C.
court”) entered an order (“1997 N.C. order”) modifying the 1994 N.Y. order pursuant to a
compromise and settlement agreement between appellant and Joyner. Specifically, the 1997 N.C.
order noted that North Carolina assumed subject matter jurisdiction since neither appellant, Joyner,
nor the child were residents of New York and the child resided in North Carolina. The 1997 N.C.
order also modified the child visitation provisions, the periodic child support amount, and the
obligor for the child’s health insurance. The 1997 N.C. order then concluded by providing that
“[a]ll provisions of previous [o]rders not modified herein shall remain in full force and effect.”
At some point prior to November 2009, Joyner and the child moved back to New York, and
Joyner filed a petition in the New York Family Court in Clinton County (“N.Y. family court”)
seeking modification of the 1997 N.C. order. Appellant, still a resident of Virginia, filed a motion
for dismissal on the grounds that the N.Y. family court lacked subject matter jurisdiction pursuant to
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the Uniform Interstate Family Support Act (“UIFSA”) and asserted that Virginia was the proper
jurisdiction. On November 6, 2009, the N.Y. family court held that the N.C. court had subject
matter jurisdiction pursuant to the 1997 N.C. order; thus, the N.Y. family court did not have
continuing, exclusive jurisdiction. The N.Y. family court specifically found that “the [1997 N.C.
order] did indeed modify significant provision[s] of [the 1994 N.Y. order] . . . . Under [the Family
Court Act § 580-205,] a tribunal of this state issuing a child support order which was subsequently
modified by a tribunal of another state pursuant to UIFSA procedures or substantially similar
procedures may not exercise continuing[,] exclusive jurisdiction.” Based on the foregoing, the N.Y.
family court concluded that it lacked subject matter jurisdiction to hear Joyner’s child support
modification petition.
On November 6, 2009, Joyner registered the 1997 N.C. order in the N.Y. family court. The
case came before the N.Y. family court again in December 2009 when Joyner filed a petition
seeking the enforcement of the child support provision regarding health care expenses in the 1997
N.C. order. On March 22, 2010, the N.Y. family court entered an order addressing the
apportionment of medical expenses for the child. The N.Y. family court noted that the 1994 N.Y.
order provided that dental treatment for the child was included in the uncovered health expenses for
which the parties would share the expenses and that this provision was not modified in the 1997
N.C. order. The N.Y. family court then held that appellant was responsible for half of the dental
expenses incurred.
On June 29, 2010, the N.C. court entered an order directing that the child support action be
“placed in an inactive status and deleted from the Child Support Enforcement System” since the
“child ha[d] reached the age of eighteen and had graduated from high school.” Two weeks later, the
N.C. court set aside the June 29, 2010 order because the order had been entered without notice to
Joyner, and the order provided that “although the above captioned 1997 file modified [the 1994
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N.Y. order], the [1997 N.C.] order was being enforced pursuant to [UIFSA] at [Joyner’s] request
and that neither [appellant] nor [Joyner] reside in North Carolina.”
In 2011, Virginia’s Department of Child Support Enforcement (“DCSE”) filed a motion to
register the 1997 N.C. order in the juvenile and domestic relations district court of Chesterfield
County (“J&DR court”) for purposes of modification. Appellant filed written objections to the
registration as well as a “Request for Determination of Controlling Order.” The J&DR court held a
hearing on DCSE’s motion on May 18, 2011. On May 24, 2011, the J&DR court ruled that the
1997 N.C. order did not modify the duration of support; “[t]hus[,] the terms of the [1994 N.Y.
order] regarding duration of support continued to govern.” No other order was entered in place of
the vacated order.
On June 17, 2011, appellant appealed the J&DR court’s decision to the trial court. On
September 1, 2011, appellant filed a request for the determination of the controlling order and
subsequently filed objections to the registration of the support order on September 8, 2011. On
September 12, 2011, the trial court held a hearing on DCSE’s motion to register a foreign child
support order in the J&DR court for purposes of modification, and appellant’s request for a
determination of the controlling order. At the conclusion of the hearing, the trial court asked DCSE
to file its written response to appellant’s objections before the trial court made its determination. On
or about September 27, 2011, DCSE submitted to the trial court its response to appellant’s objection
to registration of the support order,1 and appellant filed his reply to DCSE’s response on
September 30, 2011.
On November 8, 2011, the trial court held a hearing via teleconference during which the
trial court announced its ruling, later reducing the ruling to a written order entered on December 9,
1
The record indicates that DCSE’s response was never filed in the trial court, but that it
was submitted to the judge and a copy of it is in the trial court’s file.
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2011. The trial court held that the 1997 N.C. order did not modify the duration terms of the 1994
N.Y. order and that appellant was under an obligation to pay child support to Joyner pursuant to the
1994 N.Y. order. The trial court further held that “the 1997 [N.C. o]rder, with the duration set forth
in the 1994 [N.Y. o]rder, is the controlling order to be registered for modification.” At the
conclusion of the November 8, 2011 hearing, the trial court stated that it specifically was finding
that the 1997 N.C. order was “[s]imply the controlling order” and not the “initial controlling order.”
Appellant signed the trial court’s order as “Seen and Objected to by: for the reasons stated in oral
argument.” This appeal followed.
II. STANDARD OF REVIEW
We review de novo the trial court’s application of defined legal standards to the particular
facts of a case. Lewis v. Lewis, 53 Va. App. 528, 542, 673 S.E.2d 888, 894-95 (2009) (citations
omitted). It is, however, the trial court’s duty, when sitting as the finder of fact, to resolve
conflicts in the evidence. City of Bedford v. Zimmerman, 262 Va. 81, 86, 547 S.E.2d 211, 214
(2001) (citations omitted).
III. ANALYSIS
On appeal, appellant argues that the trial court erred in registering the 1997 N.C. order
and applying the duration of the 1994 N.Y. order when the trial court designated the 1997 N.C.
order as the controlling order and held that the 1997 N.C. order modified the 1994 N.Y. order.
DCSE, however, contends that appellant’s appeal is barred pursuant to Rule 5A:18 and Rule
5A:20 on the basis that appellant did not specifically object to the trial court’s ruling nor did he
provide an exact reference to the pages where the assignment of error was preserved. Thus,
DCSE argues this Court should dismiss appellant’s appeal since he failed to preserve any error
by not complying with Rule 5A:18 and Rule 5A:20.
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A. Preservation
1. Rule 5A:18
DCSE asserts that appellant failed to preserve his assignment of error for appeal since
appellant’s only objection in the trial court was his objection “Seen and Objected to by: for the
reasons stated in oral argument” on the December 9, 2011 order. Appellant argues that he
properly preserved his assignment of error on the basis that his argument on appeal is the same
argument that he submitted in his closing argument as well as in his written arguments to the trial
court.
Rule 5A:18 provides, in relevant part, “[n]o ruling of the trial court . . . will be considered
as a basis for reversal unless an objection was stated with reasonable certainty at the time of the
ruling, except . . . to enable the Court of Appeals to attain the ends of justice.” “Rule 5A:18
requires a litigant to make timely and specific objections, so that the trial court has ‘an
opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and
reversals.’” Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189 (2010) (quoting
West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278 (2004)).
Code § 8.01-384(A) provides the following requisites for complying with Rule 5A:18:
Formal exceptions to rulings or orders of the court shall be
unnecessary; but for all purposes for which an exception has
heretofore been necessary, it shall be sufficient that a party, at the
time the ruling or order of the court is made or sought, makes
known to the court the action which he desires the court to take or
his objections to the action of the court and his grounds
therefor; . . . . No party, after having made an objection or motion
known to the court, shall be required to make such objection or
motion again in order to preserve his right to appeal, challenge, or
move for reconsideration of, a ruling, order, or action of the court.
No party shall be deemed to have agreed to, or acquiesced in, any
written order of a trial court so as to forfeit his right to contest such
order on appeal except by express written agreement in his
endorsement of the order. Arguments made at trial via written
pleading, memorandum, recital of objections in a final order, oral
argument reduced to transcript, or agreed written statements of
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facts shall, unless expressly withdrawn or waived, be deemed
preserved therein for assertion on appeal.
This Court has held that “[c]ounsel may meet the mandates of Rule 5A:18 in many ways.
For instance, counsel may make clear the ground for his objection in a motion to strike the
evidence or in closing argument.” Lee v. Lee, 12 Va. App. 512, 515, 404 S.E.2d 736, 738
(1991). In interpreting Rule 5A:18, the Supreme Court has also held that “if a trial court is aware
of a litigant’s legal position and the litigant did not expressly waive such arguments, the
arguments remain preserved for appeal.” Brown, 279 Va. at 217, 688 S.E.2d at 189 (citing
Helms v. Manspile, 277 Va. 1, 7, 671 S.E.2d 127, 129-30 (2009)).
Appellant preserved for appeal his argument regarding the registration of the foreign
order because he made the trial court aware of his position. At trial, appellant filed written
pleadings setting forth his objections and arguments against the registration of the 1997 N.C.
order in Virginia. Appellant’s objection to the registration of the support order that he filed in
the trial court on September 8, 2011 sets forth the same arguments that he now asserts on appeal.
Indeed, appellant’s brief on appeal follows almost verbatim his objection to the registration of
the support order that he filed in the trial court on September 8, 2011.
Furthermore, appellant made clear the grounds for his objections in his closing argument.
At closing argument, appellant’s counsel again asserted that the 1997 N.C. order implicitly
modified the duration of child support by virtue of North Carolina’s statutory provision
terminating child support obligations when the child reaches the age of majority, the same
grounds he now presents on appeal. Accordingly, this Court holds that appellant complied with
Rule 5A:18 and properly preserved his issue for appeal.
2. Rule 5A:20
DCSE also asserts that appellant failed to comply with Rule 5A:20 due to his failure to
cite to a clear and exact reference to the pages where his assignment of error was preserved and
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to reference specific page numbers in the appendix throughout his statement of facts. Appellant,
however, asserts that he properly complied with Rule 5A:20(c) in that he cited to the entire
transcripts from September 12, 2011 and November 8, 2011 because they contained the
arguments and authorities appellant relied upon and the trial court’s ruling on the case.
Appellant also asserts that he properly provided references to pages in the record after each
paragraph in his statement of facts in compliance with Rule 5A:20(d).
Rule 5A:20 provides, in relevant part, that
[t]he opening brief of appellant shall contain:
* * * * * * *
(c) A statement of the assignments of error with a clear and exact
reference to the page(s) of the transcript, written statement, record,
or appendix where each assignment of error was preserved in the
trial court.
(d) A clear and concise statement of the facts that relate to the
assignments of error, with references to the pages of the transcript,
written statement, record, or appendix.
The Supreme Court of Virginia has held that the requirements of Rule 5A:20 are not
jurisdictional. See Jay v. Commonwealth, 275 Va. 510, 513, 517-20, 659 S.E.2d 311, 313,
315-17 (2008). The Supreme Court has also established that “invocation of a non-jurisdictional
rule to dismiss an appeal, or to prevent consideration of its merits, should not be undertaken
without considering whether a party’s failure to adhere strictly to the rule’s requirements is
insignificant, or so substantial as to preclude the court’s addressing the merits of the case.”
Moore v. Commonwealth, 276 Va. 747, 753, 668 S.E.2d 150, 154 (2008) (citing Jay, 275 Va. at
520, 659 S.E.2d at 317).
In the present case, we hold that appellant’s failure to strictly adhere to the requirements
of Rule 5A:20(c) were insignificant and were not so substantial as to preclude us from
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addressing the merits of the case. Although appellant cites to the entire September 12, 2011
transcript, consisting of thirty-seven pages, as well as the entire November 8, 2011 transcript,
containing eight pages, for his exact reference of where he preserved the alleged error for appeal,
his references adequately encompass his arguments and objections to the trial court as well as the
trial court’s ruling. Appellant’s failure to include specific page numbers, though inconvenient, is
not so substantial in this case in which the transcripts cited span only forty-five pages so as to
preclude this Court’s ability to consider the merits of this case. 2 Therefore, appellant’s argument
is not waived.
With regard to DCSE’s assertion that appellant failed to comply with Rule 5A:20(d)
when it did not cite to the joint appendix, this Court holds that appellant complied with this
requirement. Rule 5A:20(d) requires a party to include “references to the pages of the transcript,
written statement, record, or appendix.” On brief, appellant cited to pages in the record after
each paragraph in his statement of facts. Thus, appellant did not err when he cited to pages of
the record rather than to pages in the appendix.
B. Registration of the Foreign Order
As noted above, appellant argues that the trial court erred in registering the 1997 N.C.
order and applying the duration of the 1994 N.Y. order when the trial court designated the 1997
N.C. order as the controlling order and held that the 1997 N.C. order modified the 1994 N.Y.
order. Specifically, appellant asserts that 1) the 1994 N.Y. order is not the controlling order
because it was modified; 2) the 1997 N.C. order modified the duration of the 1994 N.Y. order
because New York law, at that time, did not prohibit modification of the duration of child
2
While we hold, under the particular circumstances of this case, that a citation to two
complete transcripts totaling forty-five pages is insignificant and not so substantial as to preclude
our review, we do not hold that any citation to full transcripts will satisfy the requirements of
Rule 5A:20. Typically, transcripts cover more than the issue on review in which case citing to
the entire transcript could be a significant error and sufficient cause for dismissal of the appeal.
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support since New York had not yet enacted UIFSA, New York law permitted parties to opt out
of the Child Support Standards Act, and the 1997 N.C. order did not specifically state that it
intended to maintain the same duration term that was established in the 1994 N.Y. order; 3) the
1997 N.C. order is the controlling order since North Carolina has continuing, exclusive
jurisdiction over child support; and 4) North Carolina statutory law on the duration of child
support applies since the controlling order determines the duration of child support and the 1997
N.C. order is the “initial controlling order.” Thus, appellant asserts the 1997 N.C. order should
not have been registered in Virginia because there is no outstanding child support obligation
under the law of North Carolina.
DCSE, however, contends that the trial court properly registered the 1997 N.C. order
because the child support obligation continued until the child reached the age of twenty-one
pursuant to the 1994 N.Y. order. Specifically, DCSE contends that 1) UIFSA and the federal
Full Faith and Credit for Child Support Orders Act (“FFCCSOA”) applies; 2) under UIFSA,
there can be only one valid child support order in effect at one time and FFCCSOA requires that
the law of the rendering state govern the order’s interpretation; 3) a determination of a
controlling order was not needed since there were never two valid support orders co-existing at
the same time, but rather the 1994 N.Y. order was issued first and the 1997 N.C. order modified
the 1994 N.Y. order pursuant to UIFSA; and 4) the duration of child support is governed by the
1994 N.Y. order since New York is the “issuing state,” the 1997 N.C. order did not modify the
duration of the child support but reinstated all un-modified provisions of the 1994 N.Y. order,
and North Carolina was prohibited from changing the duration period pursuant to UIFSA and
FFCCSOA.
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In the present case, there are support obligations involving two or more states; thus, we
turn to UIFSA as the applicable law for the determination of the “controlling order” and the
dispute over the registration of the 1997 N.C. order.
“Virginia has adopted the . . . UIFSA[] and has codified it, with minor amendments, at
Code §§ 20-88.32 to 20-88.82.” Nordstrom v. Nordstrom, 50 Va. App. 257, 262, 649 S.E.2d
200, 202-03 (2007). “The UIFSA is a model uniform law that has been enacted in all fifty states.
See Code § 20-88.32 et seq. It provides a comprehensive statutory scheme to establish and
enforce support obligations in proceedings involving two or more states.” Commonwealth ex
rel. Gagne v. Chamberlain, 31 Va. App. 533, 536-37, 525 S.E.2d 19, 21 (2000).
1. Controlling Order
Code § 20-88.66 provides, “[a] support order . . . issued by a tribunal of another state may
be registered in this Commonwealth for enforcement.” In determining which support order can
be registered, Code § 20-88.41 provides, in pertinent part,
B. If a proceeding is brought under this chapter, and two or more
child support orders have been issued by tribunals of the
Commonwealth or another state with regard to the same obligor
and same child, a tribunal of the Commonwealth having personal
jurisdiction over both the obligor and individual obligee shall
apply the following rules and by order shall determine which order
controls:
1. If only one of the tribunals would have continuing, exclusive
jurisdiction under this chapter, the order of that tribunal controls
and shall be so recognized.
2. If more than one of the tribunals would have continuing,
exclusive jurisdiction under this chapter, (i) an order issued by a
tribunal in the current home state of the child controls, but (ii) if an
order has not been issued in the current home state of the child, the
order most recently issued controls.
3. If none of the tribunals would have continuing, exclusive
jurisdiction under this chapter, a tribunal of the Commonwealth
shall issue a child support order, which controls.
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C. If two or more child support orders have been issued for the
same obligor and same child, upon request of a party who is an
individual or a support enforcement agency, a tribunal of the
Commonwealth having personal jurisdiction over both the obligor
and the obligee who is an individual shall determine which order
controls under subsection B. The request may be filed with a
registration for enforcement or registration for modification
pursuant to Articles 8 (§ 20-88.66 et seq.) and 9 (§ 20-88.74 et
seq.) or may be filed as a separate proceeding.
In the present case, the trial court found that the 1997 N.C. order, applying the duration
established in the 1994 N.Y. order, was the controlling order. In determining which state has
continuing, exclusive jurisdiction, we look to New York and North Carolina’s UIFSA law to
determine when they each had jurisdiction to modify a child support order. 3 See Code
§ 20-88.69(A). New York provides the following with regard to its continuing, exclusive
jurisdiction to modify a child support order:
(a) A tribunal of this state issuing a support order consistent with
the law of this state has continuing, exclusive jurisdiction over a
child support order:
(1) as long as this state remains the residence of the obligor, the
individual obligee, or the child for whose benefit the support order
is issued; or
(2) until all of the parties who are individuals have filed written
consents with the tribunal of this state for a tribunal of another
state to modify the order and assume continuing, exclusive
jurisdiction.
(b) A tribunal of this state issuing a child-support order consistent
with the law of this state may not exercise its continuing
jurisdiction to modify the order if the order has been modified by a
tribunal of another state pursuant to the . . . UIFSA[] or a law
substantially similar to UIFSA.
(c) If a child-support order of this state is modified by a tribunal of
another state pursuant to UIFSA or a law substantially similar to
UIFSA, a tribunal of this state loses its continuing, exclusive
3
We turn to New York and North Carolina’s UIFSA codes because Virginia’s version of
UIFSA, specifically as it relates to continuing, exclusive jurisdiction, does not provide a
reference for determining continuing, exclusive jurisdiction when the child support order is
issued by a tribunal of another state. See Code § 20-88.39.
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jurisdiction with regard to prospective enforcement of the order
issued in this state, . . . .
N.Y. Fam. Ct. Act § 580-205 (McKinney 2012).
Pursuant to New York’s UIFSA law, New York lost its continuing, exclusive jurisdiction
when the parties and child were no longer residents of New York due to their move to North
Carolina and when North Carolina modified the 1994 N.Y. order in its 1997 N.C. order. Turning
to North Carolina’s UIFSA law, North Carolina provides the following regarding its continuing,
exclusive jurisdiction:
(a) A tribunal of this State issuing a support order consistent with
the law of this State has continuing, exclusive jurisdiction over a
child support order:
(1) As long as this State remains the residence of the obligor, the
individual obligee, or the child for whose benefit the support order
is issued; or
(2) Until all of the parties who are individuals have filed written
consents with the tribunal of this State for a tribunal of another
state to modify the order and assume continuing, exclusive
jurisdiction.
(b) A tribunal of this State issuing a child support order consistent
with the law of this State may not exercise its continuing
jurisdiction to modify the order if the order has been modified by a
tribunal of another state pursuant to a law substantially similar to
this Chapter.
(c) If a child support order of this State is modified by a tribunal of
another state pursuant to a law substantially similar to this Chapter,
a tribunal of this State loses its continuing, exclusive jurisdiction
with regard to prospective enforcement of the order issued in this
State, . . . .
N.C. Gen. Stat. § 52C-2-205 (2012).
As noted above, North Carolina obtained jurisdiction to modify the 1994 N.Y. order in
1997 since neither appellant, Joyner, nor the child were residents of New York, and the child was
a resident of North Carolina. Furthermore, North Carolina has not lost its continuing, exclusive
jurisdiction as the 1997 N.C. order, entered pursuant to North Carolina’s adoption of UIFSA, has
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not been modified by a tribunal of another state. Accordingly, North Carolina has continuing,
exclusive jurisdiction, and the trial court did not err in finding that the 1997 N.C. order was the
controlling order. Code § 20-88.41(B)(1) (“If only one of the tribunals would have continuing,
exclusive jurisdiction under this chapter, the order of that tribunal controls and shall be so
recognized.”).
2. Duration
In turning to the 1997 N.C. order to determine the duration of the child support, the 1997
N.C. order was silent. Contrary to appellant’s assertion, however, this silence does not mean that
the child support duration was automatically governed by North Carolina’s default child support
provision. See N.C. Gen. Stat. § 50-13.4(c) (2012). Rather, the 1997 N.C. order provided that
“[a]ll provisions of previous [o]rders not modified herein shall remain in full force and effect.”
Thus, the trial court properly turned to the 1994 N.Y. order to determine the duration of the child
support order.
The 1994 N.Y. order provided that the appellant shall pay child support until the child
reached the age of twenty-one years or was emancipated through marriage, moving away from
Joyner, entering the armed forces, or obtaining employment with sufficient income to be
self-supporting. Accordingly, appellant’s child support obligation was for the duration set forth
in the 1994 N.Y. order. Thus, the trial court did not err in registering the 1997 N.C. order, which
applied the duration term set forth in the 1994 N.Y. order. Code § 20-88.66.
IV. CONCLUSION
Based on the foregoing, this Court holds that the trial court did not err in registering the
1997 N.C. order and applying the term of duration as originally set forth in the 1994 N.Y. order,
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which was not modified and remained in full force and effect through the 1997 N.C. order’s
saving language.
Affirmed.
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