Hoyle v. Wilson

OPINION ON PETITION TO REHEAR

DROWOTA, Justice.

The State of Tennessee has filed a Petition to Rehear pursuant to Rule 39, T.R. A.P. The Petition does not seek a reconsideration of the holding in this case, conceding that the opinion correctly states the law in Tennessee, but asks the Court to clarify some of the implications of the opinion. We continue to adhere to the views set out in the opinion but find it necessary to address one of the State’s contentions.

One of the issues raised by the state concerns the Court’s construction of URESA in Section II of the opinion. The State asks that we reconsider the statements that “[t]he duty to support is not and cannot be established through a URE-SA action. At some point prior to the institution of a URESA action, some State must render an order establishing a duty to support.” Citing T.C.A. § 36-5-207, which incorporates the definition of duty of support in T.C.A. § 36-5-202(3) and which provides that the duties of support enforceable under URESA “are those imposed or imposable” by law, the State relies on three cases to contend that this construction conflicts with prior case law. We cannot agree. We acknowledge that some States have construed the imposability language in URESA to permit a URESA action to establish a new duty of support but other States have rejected this interpretation. By its own terms, URESA is an enforcement statute that presumes the existence of an established duty to support; a URE-SA proceeding does not itself decide the duty to support exists but merely provides an additional (not substitutional) remedy to enforce the duty of support, imposed or imposable by law, once that duty is judicially determined at a fair hearing. Of course, nothing in URESA would prevent a responding court from ordering support in a URESA proceeding if the respondent makes an admission of the underlying obligation to support that would be imposable by law. When a duty to support is imposable and no admission of the obligation to support is made by a URESA respondent, due process requires that the duty be judicially imposed by an action to obtain an order of support. Numerous statutes vindicate rights to support. While the existence of the obligation to support might be easily established in some instances, in others that duty is not readily shown. A summary procedure is inappropriate because each case presents its own circumstances. By definition, a duty imposable by law is one that has not yet been judicially imposed and URESA cannot substitute for the due process required to permit a court to enforce such a duty of support. Without a prior order or adjudication, the URESA petition requires the responding State to assume the role of a rendering State, acting under its concurrent jurisdiction over support matters.1 In effect, a *676consolidated action results in which the Court first determines the existence of the duty of support, rendering an order to support, and then enforces that order under URESA.

As recently as State ex rel. Department of Social Services v. Wright, 736 S.W.2d 84 (Tenn.1987), this Court recognized that “URESA’s goal [is] to simplify and reduce the costs of enforcing a ... duty of support, which has already attached by virtue of judicial determination or admission.” 736 S.W.2d at 86 (emphasis in original). In Wright, faced with an attempt to establish paternity — -and thus the concomitant duty of support — through a URESA action, the Court refused to permit the burden of proof to be unconstitutionally shifted from the petitioner to the putative father and held that, absent a prior court order establishing any duty to support or an admission of the duty by the URESA respondent, “URESA’s purpose will not ... support discriminatory treatment between URESA respondents and ‘in-state’ paternity defendants before the duty to support has attached.” Id. (emphasis in original). If an adjudication or admission of the duty of support exists, no issue of whether the duty is imposable arises because due process has established the right to enforce that duty and entitles a person to utilize the streamlined procedures of URESA. We can see no meaningful difference between a case involving a putative father and one involving any other person who has not yet admitted a duty or been ordered by a court to pay support; the only distinction is the evidentiary difficulty of establishing that the obligation is imposable by law. Although we do not necessarily agree with the analysis of URESA in Olson v. Olson, 534 S.W.2d 526 (Mo.App.1976), we do concur in that Court’s interpretation of the imposability language:

“A duty of support ‘imposable by law’ is one arising out of a relationship — a duty of support to be adjudicated and reduced to decretal form in the responding state upon proper evidence at a hearing after due notice to the defendant, through the instrumentality of this new, additional remedy afforded by [URE-SA].”

534 S.W.2d at 530 (emphasis in original). As the Georgia Court of Appeals noted in Balasco v. County of San Diego, 140 Ga.App. 482, 231 S.E.2d 485 (1976), URESA “clearly gives [an obligee] the right to institute [such] proceedings against an [obligor] who has not met his obligation of support; we find no authorization however for the URESA provisions to be used to force a respondent to meet this obligation other than under the terms of a valid court order.” 231 S.E.2d at 488. Wright requires that, absent an admission or a pre-existing court order, the burden of establishing the duty of support remains on that party to whom it is allocated under the relevant statutes by which the underlying duty to support would be imposed if the action had originated in Tennessee. Despite its streamlined procedures and its purpose, URESA cannot substitute for a proper and fair adjudication of the existence vel non of a support obligation in the first instance. As the Supreme Court of South Carolina observed in Wilson v. Wilson, 274 S.C. 516, 266 S.E.2d 65 (1980), “URESA was not intended to create a separate means of determining the amount and scope of the obligation to support, but the act is intended to improve and extend enforcement.” 266 S.E.2d at 66. See also In re Marriage of Ryall, 154 Cal.App.3d 743, 747, 201 Cal.Rptr. 504, 507 (1984); Moffat v. Moffat, supra, 27 Cal.3d at 659, 165 Cal.Rptr. at 885, 612 P.2d at 975; People ex rel. St. Louis v. St. Louis, 90 Ill.App.3d 449, 45 Ill.Dec. 824, 413 N.E.2d 157, 159 (1980); Ray v. Pentlicki, 375 So.2d 875, 877 (Fla.App.1979); State ex rel. Arvayo v. Guerrero, 21 Ariz.App. 173, 517 P.2d 526, 528-529 (1973); Thompson v. Thompson, 93 So.2d 90, 92 (Fla.1957).

Aside from the State’s reliance on Wright in support of its argument, its reliance on two other cases is also misplaced. *677While Ratcliffe v. Ratcliffe, 709 S.W.2d 609 (Tenn.App.1986) (enforcement of spousal support under URESA), does appear to support the State’s position, the Ratcliffe court’s reliance on Brown v. Thomas, 221 Tenn. 319, 426 S.W.2d 496 (1968), is inappo-site. Brown v. Thomas, supra, cited in Wright, involves substantially the same situation as that in Wright and does not support the construction given to URESA in Ratcliffe. We do not, however, believe it is necessary to overrule Ratcliffe and think the cases can be reconciled. The URESA petitioner in Brown sought to establish the paternity and duty of support of a putative father; the URESA respondent answered the petition by demurrer. Although the Court did state that “[ujnder [URESA], the duty of support need not be the result of court action; but may be any duty imposable by law,”, 221 Tenn. at 323, 426 S.W.2d at 498, the procedural posture of the case distinguishes it from Wright because a demurrer is an admission of the allegations of a pleading for the purposes of testing its legal sufficiency. 221 Tenn. at 322, 426 S.W.2d at 497. The Court then remanded Brown for further proceedings, just as did the Court of Appeals in Ratcliffe. We think that Brown and Wright can be reconciled because in each case the same action (establishment of paternity) was presented and Wright resolved any unanswered questions concerning the proper procedures to be followed when the duty of the URESA respondent to support has neither been established by a prior court order nor been admitted by the respondent. In this sense, Ratcliffe is not inconsistent with either of our other cases because under Wright an imposable duty must be demonstrated in what is in effect a consolidated action under the relevant statutes vindicating the right to support, which is reduced to an order that may then be enforced by the court under URESA. Consequently, we must reaffirm the Court’s position that URESA cannot substitute for the due process required to establish the duty of support in the first instance if that duty is not voluntarily undertaken by a respondent. If no other State has rendered an otherwise unsuspended order of support that can be enforced under URESA, a URESA petition has the effect of invoking the responding State’s concurrent jurisdiction over support matters and thus the procedures in Wright may be used to adjudicate the existence of the duty of support. Once the duty is reduced to an order of support, it may be enforced under URESA in a consolidated action.

The State raises two additional issues. Referring to a recent amendment to T.C.A. § 36-5-101(a), which deleted a portion of the statute and added language now codified at T.C.A. § 36-5-101(a)(5) (Supp. 1987), the State requests clarification that the result reached in Hoyle v. Wilson can no longer obtain because it is now prohibited by this statute. This statute was not applicable to the situation in Hoyle v. Wilson and we decline to issue an advisory opinion on the proper construction of the amendment until the issue of its application is squarely presented in another case. The State also asks that we clarify the observation that the record in Hoyle v. Wilson did not show that the arrearages would be used for the benefit of the children because no such requirement has previously been imposed on a support obligee. Although recognizing the context in which the Court made this statement, the State wants to avoid any implication that such a burden could be imposed on obligees seeking ar-rearages as a routine practice. We reaffirm the existing law that no such showing is ordinarily required because enforcement of arrearages constitutes a form of reimbursement for the obligee’s assumption of the entire duty of support during the period covered by arrearages. In Hoyle v. Wilson, given the Petitioner’s long delay in attempting to enforce the duty of support, her evasion and contempt of court orders, the termination of Respondent’s duty to support the oldest child during Petitioner’s disappearance, and Respondent’s good faith efforts regarding his support obligations, this statement was made in reference to weighing the equities of the case. The Court did not intend to impose such a burden on a support obligee in routine cases. We do, however, want to encourage *678the timely assertion of the right to support by obligees so that any accrual of arrearag-es clearly results from an obligor’s refusal or failure to pay.

Accordingly, the Petition to Rehear is denied. Costs are taxed to the State.

HARBISON, C.J., and FONES, COOPER and O’BRIEN, JJ., concur.

. Once a court in a rendering State has taken jurisdiction, its orders are what are enforced in a URESA proceeding under the laws of the responding State. If the rendering State has suspended the support obligation, then nothing exists to be enforced in a URESA action. See, *676e.g., Moffat v. Moffat, 27 Cal.3d 645, 659-660, 165 Cal.Rptr. 877, 885-886, 612 P.2d 967, 975-976 (1980).