Cordie v. Tank

MESCHKE, Justice,

dissenting.

I agree with much of the majority opinion, but I disagree on several key points. Because I would affirm, I respectfully dissent.

First, I disagree that the trial court modified the 1986 Minnesota judgment for child support. The Minnesota judgment transferred custody of LeAnn from her father to her mother, but that judgment was interlocutory and incomplete on support — “to be determined by future order of the Court.” To our knowledge, it was never completed to designate an amount of monetary support in a final order.5

While the 1986 Minnesota judgment was in evidence, I see nothing in the findings, conclusions, or order of this trial court that indicates it intended to “modify” the Minnesota judgment. Tank moved “for an order modifying the May 22, 1978, Divorce Judgment and the May 22, 1980, Modified Judgment, entered in the above-entitled action in the Cass County District Court of the First Judicial District of the State of North Dakota,” which Tank had first changed to the McKenzie County venue. Rather than modifying the 1986 Minnesota judgment, the trial court addressed and described Cordie’s main arguments that, “[b]ecause there was no follow-up order to establish the precise amount [in the Minnesota proceeding] that would constitute reasonable child support, ... Cor-die[ ] takes the position that he was under no obligation to pay, because there was no order saying how much he should pay,” and that, “because no [Minnesota] order has been filed from 1986 until after the child is 18 years old, the child has lost out on support and ... the obligor [Cordie] is ‘home free.’”

The trial court rejected these arguments about the effect of the incomplete Minnesota support proceeding. Then, the court entered a judgment against Cordie for $19,674 of “accrued but unpaid child support from January 1989 through May 1994,” “pursuant to a Motion to Modify Judgment to provide child support for the child, LeAnn Christine Cordie, born February 5, 1976.” The judgment was not entered in the Minnesota case with the heading of Hummel v. Cordie, but as Cordie v. Tank, the heading of the Cass County divorce decree that was transferred to McKenzie County.

The majority says that “the district court for McKenzie County lacked subject-matter jurisdiction to modify or enforce” a Minnesota child support order, and I would agree with that. But I do not agree there was such an order, or that the trial court even tried to do so. The 1986 Minnesota judgment did not “provide[ ] for monetary support.” See n. 1, ante. Rather, the trial court effectively concluded that an inactive and incomplete Minnesota proceeding did not bar relief in North Dakota.

The majority opinion concludes “the Minnesota court interrupted the trial court’s continuing jurisdiction [from the 1978 N.D. divorce decree] in 1986 when it took jurisdiction over LeAnn and rendered judgment establishing continuing jurisdiction in itself.” If this were a child custody case, I would agree. But this case is not about custody; it is about child support.

*221The differences between jurisdiction for custody and jurisdiction for support were explained in Larson v. Dunn, 474 N.W.2d 34, 89 (N.D.1991):

Jurisdiction over the marital status and the incidences of a marriage, such as support, involve distinct and separate jurisdictional foundations. Similarly, jurisdiction over the status of child custody and claims for child support involve different jurisdictional foundations.

(Citations omitted). Our analysis in Larson examined several precedents that found no jurisdiction for custody, but confirmed jurisdiction for child support, “because that claim was closely analogous to a claim for a debt which required personal jurisdiction over a non-resident for validity.” 474 N.W.2d at 40. In each precedent examined, a state’s jurisdiction over a support proceeding was upheld because the non-resident parent had either begun the action in that state or “had made a general appearance and subjected himself to the in personam jurisdiction of the court.” Id.

In Larson, too, we concluded that the trial court had lacked subject-matter jurisdiction to change custody of the children from the non-resident mother to the non-resident father, but we also concluded the trial court had had both subject matter jurisdiction over support for the children and personal jurisdiction over the then non-resident mother. Id. at 39-40. The mother had first appeared “without objecting to the court’s jurisdiction over her person,” and had continuing employment in North Dakota that created “sufficient minimal contacts with North Dakota to confer personal jurisdiction over her.” Id. at 40. Likewise, in this case, the North Dakota court had subject matter jurisdiction over child support (debt), and it had personal jurisdiction over Cordie, continuing from the divorce decree and from his personal appearance in McKenzie County that failed to object to personal jurisdiction.

Except for the custody aspect not involved here, I do not agree with the majority that “the 1986 Minnesota judgment terminate[d] the continuing jurisdiction of North Dakota courts under the original Cass County divorce decree.” There is not a complete Minnesota order fixing monetary support, and support is certainly a continuing aspect of the North Dakota divorce decree. See NDCC 14-05-22(1) (authorizing divorce court to “give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper” and to “vacate or modify the same at any time”). Moreover, Tank, as one of LeAnn’s parents, has continued to live in this state without interruption, and the child has resided here at the direction of the Minnesota court for more than seven years before this proceeding.6

*222I agree with the majority’s analysis of the mechanics of the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), NDCC 14-12.1-01 et seq., but I disagree with the majority’s implication that RURE-SA exclusively governs this state’s jurisdiction for child support when the obligor has moved and resides in another state. The RURESA remedies “are in addition to and not in substitution for any other remedies.” NDCC 14-12.1-03.7 In my opinion, the majority fails to recognize the non-exclusive aspect of RURESA in a case like this.

In this appeal, Cordie argued: “The February 13, 1986 Minnesota order and judgment did not set or impose an enforceable child support obligation on Mr. Cordie.” Instead, Cordie insisted, since LeAnn had become eighteen, he “no longer had an obligation to provide for her current support” for her, and contended that the trial court had lost jurisdiction for that reason. Cordie argued:

It is undisputed that LeAnn Cordie turned age eighteen on February 5, 1994 and graduated from high school in May 1994. The motion to modify was brought on June 23, 1994. At that time, Mr. Cordie no longer had an obligation to provide current support to LeAnn Cordie. Thus, current child support was no longer imposable.
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By the time Ms. Tank’s motion to modify was brought, LeAnn Cordie was an adult. Mr. Cordie no longer had an obligation to provide for her current support.

We should reject this immaterial argument, as the trial court did, and we should affirm.

This money judgment for child support entered by our trial court does not reach back beyond the statute of limitations, and it enforces the very duty of support that the majority notes in its footnote 4:

Had there been no subsisting support order in this case, Tank could have sought reimbursement from Cordie for the support Tank furnished to LeAnn. NDCC § 14^08.1-01.

I believe the 1986 Minnesota judgment is not a “subsisting court order” for support, because it did not impose a monetary amount of child support on Cordie. Therefore, I believe the trial court was correct in enforcing Cordie’s duty of support.

The majority opinion properly recognizes that we need not give full faith and credit to the 1986 Minnesota judgment for child support purposes, but the majority chooses to defer to the Minnesota court for “comity” reasons, that it then describes as jurisdictional. I believe that is mistaken, and that it is unfair to the resident, custodial parent who has cared for and supported this child for the last eight years in this state.

Because I would affirm, I respectfully dissent.

NEUMANN, J., concurs.

. In the Uniform Interstate Family Support Act (UIFSA), effective August 1, 1995, " 'Support order’ means a judgment, decree, or order, ... which provides for monetary support....” NDCC 14-12.2-01(21). I believe that definition reflects existing law. See NDCC 14-12.2-01(11) (" ’Law’ includes decisional and statutory law and rules having the force of law.”). The minutes of a House Committee session on February 27, 1995, summarize the views of Vonette Richter, an attorney for the legislative council. She indicated the adapted version of UIFSA “completely replaced the current law,” did not make "any fundamental changes from the current law,” and makes the current law "much more comprehensive and makes the process much more efficient."

. The UIFSA, effective August 1, 1995, recognizes that “a tribunal of this state may exercise personal jurisdiction over a nonresident individual” in a child support proceeding, “if”:

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2. The individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
3. The individual resided with the child in this state;
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5. The child resides in this state as a result of the acts or directives of the individual;
6. The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse; or
7. There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.

NDCC 14-12.2-04. The Comment to UIFSA § 201 describes the effect of this section:

The intent is to insure that every enacting state has a long-arm statute as broad as constitutionally permitted. In situations where the long-arm statute can be satisfied, the petitioner (either the obligor or the obligee) has two options under the Act: (1) utilize the long-arm statute to obtain personal jurisdiction over the respondent; or (2) initiate a two-state action under the succeeding provisions of UIFSA seeking to establish a support order in the respondent’s state of residence.
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Under RURESA, multiple support orders affecting the same parties are commonplace. UIFSA creates a structure designed to provide for only one support order at a time. This one order regime is facilitated and combined with a broad assertion of personal jurisdiction under this long-arm provision. The frequency of a two-state procedure involving the participation of tribunals in both states should be substantially reduced by the introduction of this long-arm statute.

9 ULA 243 (Supp.1995).

. Similarly, UIFSA, effective August 1, 1995, at NDCC 14-12.2-03, directs:

Remedies provided by this chapter are cumulative and do not affect the availability of remedies under other law.

If there had been a subsisting support order, that “provide[d] for monetary support” in Minnesota, I would agree with and join in the majority opinion, because the majority analysis would then be correct. See UIFSA, NDCC 14-12.2-08 on “[cjontinuing, exclusive jurisdiction.” Subsection 2 directs: "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.”