State of Washington v. Bagley

Shearing, J., with whom Maupin, J., joins,

concurring in part and dissenting in part:

I agree that NRS 125B.050(3) permits appellants to recover child support payments dating back to July 1, 1981. However, I take issue with this court’s refusal to address the alternative claim raised by the appellants with foreign child support orders.

In an action to enforce a foreign child support order, the federal Full Faith and Credit for Child Support Orders Act (“Act”) requires a Nevada court to apply the statute of limitations of either Nevada or the foreign state, “whichever statute provides the longer period of limitation.” 28 U.S.C.A. § 1738B(h)(3) (West Supp. 1998). The Act is clearly applicable here. See In re Marriage of Carrier, 576 N.W.2d 97 (Iowa 1998) (holding that under the supremacy clause of the United States Constitution, the Act is binding on all states and supersedes any inconsistent provisions of state law); DCSE/Jennings v. DeBussy, 707 A.2d 44 (Del. Fam. Ct. 1997) (holding that the Act, which was enacted in October 1994, applies retroactively). As a result, the district court committed plain error by failing to apply the Act and thus, this court is free to address this issue even though it was not raised below. See Bradley v. Romeo, 102 Nev. 103, 716 P.2d 227 (1986) (concluding that this court may consider relevant issues sua sponte in order to prevent plain error, such as when a clearly controlling statute is not applied by the district court). Therefore, I would remand with instructions that the district court determine whether any appellant with a foreign child support order may benefit from a longer period of limitation provided by the foreign state that entered the support order, and that the district court recalculate the child support arrears due those appellants accordingly. See Cal. Fam. Code § 4502 (West 1994); N.D. Cent. Code § 28-01-*79415(1) (1991); Wash. Rev. Code Ann. § 4.16.020(2) (West Supp. 1998).