FILED
Sep 03 2009, 11:41 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Peter S. French
Stone Law Office & Legal Research Joseph P. Rompala
Anderson, Indiana Lewis & Kappes, P.C.
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 29S02-0810-CV-584
IN RE THE MARRIAGE OF:
MAHMOUD M. BASILEH,
Appellant (Plaintiff below),
v.
ARWA G. ALGHUSAIN,
Appellee (Defendant below).
_________________________________
Appeal from the Hamilton Superior Court 1, No. 29D01-0112-DR-833
The Honorable Steven R. Nation, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 29A02-0712-CV-1132
_________________________________
September 3, 2009
Rucker, Justice.
In this post-dissolution action the Indiana trial court relinquished its jurisdiction over
matters of child support to a California trial court. At issue is the interplay between the Full
Faith and Credit for Child Support Orders Act and the Uniform Interstate Family Support Act.
We affirm the judgment of the trial court.
Background and Procedural History
The marriage between Arwa Alghusain (Mother) and Mahmoud Basileh (Father) was
dissolved in Indiana – the Hamilton Superior Court – in 2002. The parties were awarded joint
legal custody of their two minor children with Mother having physical custody. The parties
agreed to a weekly child support amount payable by Father to Mother and to a liberal visitation
schedule between Father and the children. At the time of dissolution, Mother indicated her
intention to relocate with the children to Monterey County, California, and the parties‟ visitation
schedule accounted for the relocation.
The cooperative relationship between the parents apparently fell apart, and in May 2004
Mother filed a petition for modification and sought transfer of jurisdiction to California. At
some point in mid- to late-2004, Father, who is a United States citizen, left Indiana for his native
country of Jordan in order to care for his ailing mother. On December 1, 2004, Father lost his
Indiana job after he was unable to return to the United States following expiration of his leave
under the Family Medical Leave Act. Father later explained that he was unable to return because
his mother still had not recovered from her illness. Father remained in Jordan seeking
employment in either Jordan or the United States.
In February 2005, Mother registered the parties‟ Indiana dissolution decree and the
agreements concerning child custody, parenting time, and child support with the Monterey
County, California trial court. Mother also filed with the California court an “Application for
Order and Support Declaration.” Appellant‟s App. at 50. In response, the California court
entered a temporary order pertaining to visitation and custody, but not support. In the meantime
Father filed in the Indiana court an objection to Mother‟s petition to transfer jurisdiction to
California. On May 6, 2005, the Indiana court granted Mother‟s motion with a written order that
provided: “After reviewing the pleadings and hearing the arguments of counsel, the Court hereby
2
concedes and relinquishes its jurisdiction under the [Uniform Child Custody Jurisdiction Act] to
the Superior Court of Monterey County, California. All pending matters will be transferred to be
heard by the Superior Court in California.” Appellant‟s App. at 64. Father did not appeal.
Thereafter, the California court accepted jurisdiction over child custody and visitation
matters, but concluded that jurisdiction over child support matters had not been transferred from
Indiana. In August 2007, the California court sent a “Memorandum” to the Indiana court
informing the court that Mother and the children resided in California, that Father “now resides
in Saudi Arabia,” and that the parties had conducted visitation following orders issued by the
California court. Id. at 66. The California court also inquired “whether Hamilton County
[Indiana] will cede jurisdiction to Monterey County [California].” Id. The judge of the
Hamilton Superior Court issued an order ceding jurisdiction “in all matters pertaining to
visitation, custody, and child support matters[,]” noting that this is what he intended to do in
2005. Appellant‟s App. at 11-12.
Father appealed and the Court of Appeals affirmed the judgment of the trial court. In
doing so the Court of Appeals reviewed Indiana‟s version of the Uniform Interstate Family
Support Act (“UIFSA,” sometimes referred to as the “Uniform Act”) and the federal Full Faith
and Credit for Child Support Orders Act (“FFCCSOA,” sometimes referred to as the “Federal
Act”). The court determined: (1) Father was not a resident of Indiana within the meaning of the
Federal Act, and (2) the Federal Act preempts the Uniform Act because of a conflict between the
two statutes. Basileh v. Alghusain, 890 N.E.2d 779 (Ind. Ct. App. 2008). We granted transfer to
address the Court of Appeals‟ preemption determination. We summarily affirm its determination
concerning residency.1
Discussion
The trial court‟s 2005 order ceded jurisdiction to the California court pursuant to the
Uniform Child Custody Jurisdiction Act (“UCCJA”), which deals with child custody matters.
1
Although the Court of Appeals addressed the question of residency in the context of the FFCCSOA, the
court‟s rationale is equally applicable to the UIFSA.
3
See State ex rel. Meade v. Marshall Super. Ct. II, 644 N.E.2d 87, 89 n.2 (Ind. 1994) (“[T]he
legislature has provided for jurisdictional stability among the states by adopting the Uniform
Child Custody Jurisdiction Act . . . . The purpose of this act is to „discourage continuing
controversies over child custody‟ and to „avoid re-litigation of custody decisions of other states
in this state.‟” (quoting Ind. Code § 31-1-11.6-1(4), (6) (1994))). However, the instant appeal,
which involves child support matters, implicates the Federal Act and Indiana‟s version of the
Uniform Act. The Indiana version provides in relevant part:
An Indiana tribunal that issues a support order consistent with
Indiana law has continuing, exclusive jurisdiction over a child
support order:
(1) if Indiana remains the residence of the:
(A) obligor;
(B) individual obligee; or
(C) child for whose benefit the support order is issued; or
(2) until each individual party has filed written consent with the
Indiana tribunal for a tribunal of another state to modify the
order and assume continuing, exclusive jurisdiction.
Ind. Code § 31-18-2-5(a) (emphasis added). The Federal Act provides in relevant part:
Continuing jurisdiction.–A court of a State that has made a child
support order consistently with this section has continuing,
exclusive jurisdiction over the order if the State is the child‟s State
or the residence of any individual contestant unless the court of
another State, acting in accordance with subsections (e) and (f), has
made a modification of the order.
28 U.S.C. § 1738B. In concluding that the Federal Act preempts Indiana‟s version of the
Uniform Act, the Court of Appeals determined there was a “crucial” distinction between the two;
namely, the Uniform Act requires the parties‟ written consent to another state‟s jurisdiction,
whereas the Federal Act does not. Basileh, 890 N.E.2d at 785. This conclusion hinged on the
court‟s interpretation of the word “or” in I.C. § 31-18-2-5 that links subsection (a)(1) (the
nonresidency requirement) and subsection (a)(2) (the consent requirement).
4
General Rules of Federal Preemption
The Supremacy Clause, which provides in relevant part that the laws of the United States
“shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding,” U.S. Const. art. VI, cl. 2, provides Congress with the power to
preempt state law. Courts, however, are reluctant to presume that preemption of state law has
occurred. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663-64 (1993) (“In the interest of
avoiding unintended encroachment on the authority of the States, however, a court interpreting a
federal statute pertaining to a subject traditionally governed by state law will be reluctant to find
pre-emption.”).
Three variations of federal preemption doctrine exist: express preemption, which occurs
when a statute expressly defines the scope of its preemptive effect, Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 383 (1992), field preemption, which occurs when a pervasive
scheme of federal regulation makes it reasonable to infer that Congress intended exclusive
federal regulation of the area, English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990), and conflict
preemption, which occurs when there is an outright conflict between federal and state law and
thus it is either impossible to comply with both federal and state or local law, or where state law
stands as an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress, Crosby v. Nat‟l Foreign Trade Council, 530 U.S. 363, 372-73 (2000). In this case the
Court of Appeals relied on conflict preemption to determine that Indiana‟s version of UIFSA
must yield to the FFCCSOA. “[T]he language of Indiana Code § 31-18-2-5(a) and 28 U.S.C. §
1738B (d) and (e) render the state and federal laws in conflict because they define continuing,
exclusive jurisdiction differently.” Basileh, 890 N.E.2d at 785 n.7.
Preemption is basically a question of congressional intent. Barnett Bank of Marion
County, N.A. v. Nelson, 517 U.S. 25, 30 (1996). “„[T]he purpose of Congress is the ultimate
touchstone‟ in every pre-emption case.” Altria Group, Inc. v. Good, __ U.S. __, 129 S.Ct. 538,
543 (2008) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). But, “[t]here is indeed
a presumption against pre-emption in areas of traditional state regulation such as family law.”
Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151 (2001). The best evidence of preemptive
intent is an express preemption clause. Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 895
5
(2000). However, in the absence of explicit preemption language, courts examine the structure
and purpose of the federal statute for implicit preemptory intent. Barnett Bank of Marion
County, 517 U.S. at 31. See also Altria Group, 129 S.Ct. at 543 (“Pre-emptive intent may also
be inferred if the scope of the statute indicates that Congress intended federal law to occupy the
legislative field, or if there is an actual conflict between state and federal law.”); Cipollone v.
Liggett Group, Inc., 505 U.S. 504, 516 (1992) (“Congress‟ intent may be „explicitly stated in the
statute‟s language or implicitly contained in its structure and purpose.‟ In the absence of an
express congressional command, state law is pre-empted if that law actually conflicts with
federal law, or if federal law so thoroughly occupies a legislative field „as to make reasonable the
inference that Congress left no room for the States to supplement it.‟”) (internal citations
omitted).
Does the FFCCSOA Preempt Indiana’s Version of UIFSA?
In 1988 Congress established the United States Commission on Interstate Child Support
(“Commission”) to offer recommendations on the resolution of interstate child support problems.
As part of its recommendations, the Commission “declared its support for the Uniform Interstate
Family Support Act . . . [and] also recommended that Congress mandate adoption of UIFSA by
the States.” H.R. Rep. No. 102-982, at 4-5 (1992). As a consequence of the Commission‟s work
the FFCCSOA was signed into law in 1994. See Pub. L. No. 103-383, § 3 (1994) (codified at 28
U.S.C. § 1738B). From the beginning FFCCSOA was intended to be consistent with UIFSA.
See, e.g., H.R. Rep. No. 102-982, at 5 (1992) (“[FFCCSOA, as proposed,] is consistent with the
recommendations of the Commission and the terms of UIFSA.”); see also H.R. Rep. No. 103-
206, at 4 (1993) (same).
In 1996, the Indiana legislature enacted its first version of UIFSA, following the 1992
model promulgated by the Commission. Pub.L. No. 116-1996, § 4 (codified at Ind. Code § 31-
1.5 (1996)). In order for states to receive federal funding for aid to families with dependent
children, effective October 1, 1996, Congress passed legislation requiring all fifty states to adopt
UIFSA, including all amendments adopted by the Commission through August 1996. See
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. § 666 (f)
(2009). In 1997, Indiana amended its UIFSA to account for the 1996 amendments adopted by
6
the Commission and recodified the statute at Ind. Code § 31-18-2-5. Pub.L. No. 1-1997, § 10.
Indiana‟s UIFSA is nearly identical to the 1996 federal version.2
Congress apparently anticipated the necessity of amending FFCCSOA to comply with
UIFSA. See, e.g., 141 Cong. Rec. S2823-02, S2887 (1995) (stating in summary of the Interstate
Child Support Responsibility Act of 1995 that “The Full Faith and Credit Act, signed into law
last year, which requires every state to respect child support orders from other states, would be
modified to follow UIFSA.”). And although conflicts between the two acts were recognized,
they were characterized as unintentional.3 Subsequent revisions to the Federal Act were intended
2
Although amended in 2001, the 1996 version of the Uniform Interstate Family Support Act, upon which
Indiana‟s UIFSA is based, read:
(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.
Unif. Interstate Family Support Act § 205 (1996) (emphasis added).
3
For example, the Former Chair of the Commission testified before the Senate Finance Committee and
the House Committee on Ways and Means:
In order to achieve a “one order, one time” rule, Congress recently
amended [FFCCSOA] to add a section that requires full faith and credit
to child support orders, including ongoing and administrative orders, that
are based on valid exercises of jurisdiction. In defining jurisdiction, the
Act attempts to be consistent with the UIFSA . . . .
Unfortunately, as currently enacted, [FFCCSOA] conflicts with UIFSA.
It requires recognition of orders that would not be entitled to recognition
under UIFSA. There are several other inconsistencies with UIFSA that
also need correcting. I urge Congress to make these technical
amendments as quickly as possible. States are currently in a great deal of
confusion. The inconsistencies were unintentional, and can be easily
corrected.
Child Support Enforcement: Before S. Comm. on Finance, 104th Cong. 1995 WL 133889 (1995)
(testimony of Margaret Campbell Haynes, Former Chair, U.S. Commission on Interstate Child Support)
7
to correct any conflicts and make the Federal Act consistent with the Uniform Act. See H.R.
Conf. Rep. No. 104-725, at 351 (1996), reprinted in 1996 U.S.C.C.A.N. 2649, 2739 (revisions to
FFCCSOA proposed “to ensure that full faith and credit laws can be applied consistently with
UIFSA”); H.R. Rep. 104-651, at 1413 (1996) reprinted in 1996 U.S.C.C.A.N. 2183, 2472
(same); 142 Cong. Rec. H8829-02, H8919 (1996) (same); H.R. Conf. Rep. No. 104-430, at 416
(1995) (same).
The application of general rules of federal preemption leads us to conclude that Congress
did not intend the Federal Act to preempt the Uniform Act. Rather, it appears that FFCCSOA
was intended to follow the contours of UIFSA. There is no indication in the text of FFCCSOA
or its legislative history of any intent to preempt UIFSA. And importantly for our purposes the
specific provisions here at issue in Indiana‟s version of the Uniform Act – the nonresidency
requirement and the consent requirement – are closely modeled after the federal version of the
Uniform Act. See supra note 2. “The very fact that Congress mandated that all fifty states adopt
UIFSA strongly mitigates against a construction of FFCCSOA that would impliedly preempt
UIFSA to any degree.” LeTellier v. LeTellier, 40 S.W.3d 490, 498 (Tenn. 2001). We therefore
also conclude that the FFCCSOA does not preempt the Indiana version of UIFSA.
Reconciliation of the Federal Act and the Uniform Act
Although we conclude Congress did not intend that the Federal Act preempt Indiana‟s
version of the Uniform Act, we do acknowledge the Uniform Act contains a jurisdictional
provision that is absent in the Federal Act, namely: a consent requirement. More specifically,
I.C. § 31-18-2-5(a) essentially provides that an Indiana court retains continuing, exclusive
jurisdiction “if” a party or related child remains in Indiana, “or until” each party has filed written
consent to jurisdiction elsewhere. The Court of Appeals in this case interpreted this provision to
mean that Indiana retains jurisdiction unless both of these conditions are met. The net effect of
the court‟s interpretation is that in order for Indiana no longer to retain continuing jurisdiction
both the nonresidency requirement and the written consent requirement must be met. However
(emphasis added); Welfare Revision-Child Support: Before the Subcomm. on Human Resources, Comm.
on Ways and Means, 104th Cong. 1995 WL 45575 (1995) (testimony of Margaret Campbell Haynes,
Former Chair, U.S. Commission on Interstate Child Support) (emphasis added).
8
we are of the view that the statute is ambiguous on this point because it is susceptible to an
alternative interpretation.4
The first step in interpreting a statute is to determine whether the Legislature has spoken
clearly and unambiguously on the point in question. Rheem Mfg. Co. v. Phelps Heating & Air
Conditioning, Inc., 746 N.E.2d 941, 947 (Ind. 2001). When a statute is clear and unambiguous,
we need not apply any rules of construction other than to require that words and phrases be taken
in their plain, ordinary, and usual sense. Sees v. Bank One, Ind., N.A., 839 N.E.2d 154, 157
(Ind. 2005). Clear and unambiguous statutes leave no room for judicial construction. Id.
However when a statute is susceptible to more than one interpretation it is deemed ambiguous
and thus open to judicial construction. City of N. Vernon v. Jennings Nw. Reg‟l Utils., 829
N.E.2d 1, 4 (Ind. 2005); Amoco Prod. Co. v. Laird, 622 N.E.2d 912, 915 (Ind. 1993). And when
faced with an ambiguous statute, other well-established rules of statutory construction are
applicable. One such rule is that our primary goal of statutory construction is to determine, give
effect to, and implement the intent of the Legislature. City of N. Vernon, 829 N.E.2d at 4.
The corresponding section of the federal UIFSA upon which the Indiana Legislature
based I.C. § 31-18-2-5(a) is Section 205 of the 1996 version of UIFSA. The drafters of the 1996
version set forth in relevant part the following Comment to Section 205:
[I]f all the relevant persons–the obligor, the individual obligee, and
the child–have permanently left the issuing state, the issuing state
no longer has an appropriate nexus with the parties or child to
justify exercise of jurisdiction to modify. . . .
[T]he issuing state may also lose its continuing, exclusive
jurisdiction to modify if the parties consent in writing for another
state to assume jurisdiction to modify (even though one of the
parties or the child continues to reside in the issuing state).
Unif. Interstate Family Support Act § 205 cmt. (1996) (emphasis added). The comments to a
uniform act are indicative of the Legislature‟s intent in enacting a statute based on the uniform
4
But see Brickner v. Brickner, 723 N.E.2d 468, 472 (Ind. Ct. App. 2000) (declaring, “The statutory
language of UIFSA is plain and unambiguous in its requirement . . . that Indiana courts maintain
exclusive jurisdiction to enforce such decrees as long as either the obligor, obligee, or child lives in
Indiana or until all parties consent to modification by another state.”).
9
act. See In re Lawrance, 579 N.E.2d 32, 38 (Ind. 1991) (noting it is permissible “to consider the
notes of the Commissioners of Uniform Laws when construing a uniform statute”) (quoting Eads
v. J & J Sales Corp., 257 Ind. 485, 275 N.E.2d 802, 806 (1971)). Given that the 1996 version of
section 205 of UIFSA and I.C. § 31-18-2-5(a) are almost identical, we find the language of the
Comment to UIFSA (1996) § 205 to be a strong indicator of the legislative intent when it enacted
I.C. § 31-18-2-5, namely: subsection (a)(1) (the nonresidency requirement) and subsection (a)(2)
(the consent requirement) are separate and alternative methods by which an Indiana court may
maintain its continuing, exclusive jurisdiction over a child support order; and thus do not require
both the absence of the parties and consent before a court loses jurisdiction.5
In this case it is of no moment that the parties did not file a written consent with the
Indiana court for the California court to modify the Indiana support order. Rather, the Indiana
court lost its jurisdiction because Father, like Mother and the children, is no longer an Indiana
resident.
Conclusion
We affirm the judgment of the trial court.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
5
We also observe: (1) courts of other states that have addressed this issue have reached the same
conclusion. See, e.g., McHale v. McHale, 109 P.3d 89 (Ariz. Ct. App. 2005); Linn v. Delaware Child
Support Enforcement, 736 A.2d 954 (Del. 1999); In re Marriage of Metz, 69 P.3d 1128 (Kan. Ct. App.
2003); Groseth v. Groseth, 600 N.W.2d 159 (Neb. 1999); Etter v. Etter, 18 P.3d 1088 (Okla. Civ. App.
2001); and (2) a 2001 amendment to the consent requirement in the federal USIFA provides that a state
maintains continuing, exclusive jurisdiction: “even if this State is not the residence of the obligor, the
individual obligee, or the child for whose benefit the support order is issued, [if] the parties consent in a
record or in open court that the tribunal of this State may continue to exercise jurisdiction to modify its
order.” Unif. Interstate Family Support Act § 205 (2001).
10