Ask Me Help Desk - So Lost!

I will try to keep this as short as possible. My ex husband is trying to lower the child support, because he has a money grubbing materialistic girlfriend, and he is also very irresponsible financially. My problem is, he is originally from a different state than we are in now, BUT he resides in this state and NOT his home state. My child and I are from here. NEVER lived in his home state or anything. He fooled me into getting the divorce papers done where he is originally from so his Mommy and Daddy could pay for it. WEll now, I am trying to take care of what he is trying to do now, and I have been to a lawyer here where I am, and I was told nobody can touch my case HERE until it can be switched here. BUT in order to do that, I have to hire a Lawyer where he is from!! I am SO enraged by this, I don't know where to turn!!

Seems to me you got advice on what to do.

Well, I do know what I have to do, But how do I go about doing it. I mean I can't just pick up and go 1,000 miles away. Will I be able to find a lawyer where I will NOT have to travel? Is it possible?

Most attorneys have affiliate relationships with firms n other locations. So shop for a local attorney with a affiliate in the rght location.

Quote:

Originally Posted by StupidLamb07

I will try to keep this as short as possible. My ex husband is trying to lower the child support, because he has a money grubbing materialistic girlfriend, and he is also very irresponsible financially. My problem is, he is originally from a different state than we are in now, BUT he resides in this state and NOT his homestate. My child and I are from here. NEVER lived in his homestate or anything. He fooled me into getting the divorce papers done where he is originally from so his Mommy and Daddy could pay for it. WEll now, I am trying to take care of what he is trying to do now, and I have been to a lawyer here where I am, and I was told nobody can touch my case HERE until it can be switched here. BUT in order to do that, I have to hire a Lawyer where he is from!!! I am SO enraged by this, I don't know where to turn!!!!

OK, Can you break down what states are involved here ? From what your saying you may have a chance to move this thing near you.

1) need to know what state your in.

2) need to know what state he is living in for at least 6 months.

3) what state was the divorce / custody / child support is from ?

That would go a long way in determining what you can and can't do. If he resides in a different state then the order was in and so do you its possible to remove jurisdiction to where the child currently lives.

OK.. I am in NC, he has been here in NC for the past almost 11 years, and the divorce/custody/child support was filed in TX(where he is originally from), ONLY because that the only way he wanted it and his parents would pay for it.

But yes you travel 1000 miles and appear in court or you may just lose, but really child support is based on income, that is it, his life style of needs of girl friend don't matter,
I know in GA it will be 17 percent of his pay check,

That being said you should be able to transfer the case to N.C. because that is where the child currently resides. Texas should have no problems at all releasing jurisdiction because they don't really have anything but a piece of paper at this point.

Have you gotten paperwork from Texas already concerning the child support adjustment issue ?

Quote:

Originally Posted by Fr_Chuck

But yes you travel 1000 miles and appear in court or you may just lose, but really child support is based on income, that is it, his life style of needs of girl friend dont' matter,
I know in GA it will be 17 percent of his pay check,

I'm aware of that, but he is trying to lower it LOWER than what it should be and his lawyer even has the papers drawn up , and he has missed a few payments as well that he has NOT paid. But they will not touch it here until I get it switched here.

Quote:

Originally Posted by califdadof3

That being said you should be able to transfer the case to N.C. because that is where the child currently resides. Texas should have no problems at all releasing jurisdiction because they dont really have anything but a piece of paper at this point.

Have you gotten paperwork from Texas already concerning the child support adjustment issue ?

That's what I thought, but today the lawyer and people at The Child Support Enforcement Agency told me they cannot touch it AT ALL until it gets switched.

Yes, I have gotten the paperwork from my ex's lawyer to lower the support. In there it said that I had agreed to it, which my right hand up to God, I NEVER agreed to it. He has been harassing me and threatening me that I BETTER have them signed this coming Friday, or he's taking me to court in TX. We have been divorced 2 years, and separated and additional 2 years, and he STILL tries to control my life when it comes to our child. He doesn't even abide by the court papers as to when he is supposed to see her.

Quote:

Originally Posted by StupidLamb07

Thats what I thought, but today the lawyer and people at The Child Support Enforcement Agency told me they cannot touch it AT ALL til it gets switched.

Yes, I have gotten the paperwork from my ex's lawyer to lower the support. In there it said that I had agreed to it, which my right hand up to God, I NEVER agreed to it. He has been harassing me and threatening me that I BETTER have them signed this coming Friday, or he's taking me to court in TX. We have been divorced 2 years, and separated and additional 2 years, and he STILL tries to control my life when it comes to our child. He doesn't even abide by the court papers as to when he is supposed to see her.

The papers that you have received are from a Texas courthouse ? You may have to hire a lawyer from there to petition the courts for a change on venue and have your case heard in NC due to lack of jurisdiction in Texas as none of the parties reside there nor have resided there in the last 6 months. It should be a no brainer for the lawyer.

This link may help you understand what's going on.. as soon as its released by Texas then you take it to NC for collections.

http://www.state.ak.us/courts/jurisdictionfaq.htm

Quote:

Originally Posted by califdadof3

The papers that you have recieved are from a Texas courthouse ? You may have to hire a lawyer from there to petition the courts for a change on venue and have your case heard in NC due to lack of jurisdiction in Texas as none of the parties reside there nor have resided there in the last 6 months. It should be a no brainer for the lawyer.

This link may help you understand whats going on .. as soon as its released by Texas then you take it to NC for collections.

http://www.state.ak.us/courts/jurisdictionfaq.htm

That's EXACTLY what I was told and have to do. I have to change the venue. But my worries are would I have to go there, or would this be easy to get taken care of? I'm stressed pout enough as is, and I just can't get up and go to TX.

They won't touch it until its switched, so you first have to switch it. You go to your LOCAL Family court and submit a motion to have NC take jurisidiction since, neither party lives in the state where the order was originally adjudicated and the child lives in NC.

Once NC acknowledges jurisidiction, he will have to file for modification in NC.

Quote:

Originally Posted by ScottGem

They won't touch it until its switched, so you first have to switch it. You go to your LOCAL Family court and submit a motion to have NC take jurisidiction since, neither party lives in the state where the order was originally adjudicated and the child lives in NC.

Once NC acknowledges jurisidiction, he will have to file for modification in NC.

Since there seems to be an action already started then that action needs to be stopped so NC can take it from there.

Quote:

Originally Posted by ScottGem

They won't touch it until its switched, so you first have to switch it. You go to your LOCAL Family court and submit a motion to have NC take jurisidiction since, neither party lives in the state where the order was originally adjudicated and the child lives in NC.

Once NC acknowledges jurisidiction, he will have to file for modification in NC.

See, I was told that I can't do ANYTHING here in NC, and that I HAVE TO go through TX.

Quote:

Originally Posted by StupidLamb07

See, I was told that I can't do ANYTHING here in NC, and that I HAVE TO go thru TX.

That may be only to have the motion set aside and to get your change of venue so the matter can be taken up in NC courts.

Texas has to release jurisdiction. And since something is already started there it has to be cleared up there but for that you shouldn't have to make a personal appearance just send a representative ( aka lawyer )

Quote:

Originally Posted by califdadof3

That may be only to have the motion set aside and to get your change of venue so the matter can be taken up in NC courts.

Texas has to release jurisdiction. And since something is already started there it has to be cleared up there but for that you shouldnt have to make a personal appearence just send a representative ( aka lawyer )

Is it possible that a lawyer would cost more if he/she is representing someone from another state?

Quote:

Originally Posted by StupidLamb07

Is it possible that a lawyer would cost more if he/she is representing someone from another state??

The rate is the rate. And we are only talking about filing for one order. Try calling there and see. But the rate doesn't change no matter where your coming from hourly is hourly. And because of what it is you might even be able to ask the courts for him to pay your lawyer because of what he is doing.

Quote:

Originally Posted by califdadof3

The rate is the rate. And we are only talking about filing for one order. Try calling there and see. But the rate doesnt change no matter where your coming from hourly is hourly. And because of what it is you might even be able to ask the courts for him to pay your lawyer because of what he is doing.

This is all so overwhelming right now. When I got home earlier, I hopped online right away looking up lawyers... my head was spinning. By the time I looked, it was already too late to call so I will have to do it tomorrow, but there's so many, how do I know who to call? Sorry for all the questions, I am just so lost and worried.

Try the local BAR assc in Texas. They should be able to recommend someone in the area your courts are in.

Quote:

Originally Posted by califdadof3

Try the local BAR assc in Texas. They should be able to recomend someone in the area your courts are in.

What is that, and how do I find that?

Here you go.

State Bar of Texas | Home

Every state has them it's the panel that controls who is a lawyer in the state and the rules that govern them.

Here too is a list to go by.. same site.

State Bar of Texas | Lawyer Referral Information Service

Let me chime in.

So you've got a Texas child support order and you live in North Carolina, and the dad lives in North Carolina? So what's the big deal?

This is easy.

All you do is REGISTER the Texas order in North Carolina, then file a motion to modify it in North Carolina (if you are interested in modifying it). There's no such thing as "changing venue" between states. That doesn't exist. You change venue within a state from one county to the next.

The law governing this is the Uniform Interstate Family Support Act (UIFSA)--incidentally, where the child lives doesn't matter.

Quote:

Originally Posted by cadillac59

Let me chime in.

So you've got a Texas child support order and you live in North Carolina, and the dad lives in North Carolina? So what's the big deal?

This is easy.

All you do is REGISTER the Texas order in North Carolina, then file a motion to modify it in North Carolina (if you are interested in modifying it). There's no such thing as "changing venue" between states. That doesn't exist. You change venue within a state from one county to the next.

The law governing this is the Uniform Interstate Family Support Act (UIFSA)--incidentally, where the child lives doesn't matter.

Can that still happen if there is a current action taking place out of Texas or what needs to be done to get it to NC ? That's what I was trying to help her with.
There apparently is a current action to reduce support filed in Texas.

Quote:

Originally Posted by califdadof3

Can that still happen if there is a current action taking place out of texas or what needs to be done to get it to NC ? Thats what I was trying to help her with.
There apparently is a current action to reduce support filed in Texas.

I was about to post an addendum to what I just said because you made a good point.

It seems that the dad may have filed a motion to modify in Texas --the OP said one was threatened but I don't think she said it was already filed (the dad is doing it there obviously because that is where the divorce decree was entered). If there is a motion on file, this lady will have to file a motion to quash in the Texas case for lack of jurisdiction, the reason being that the dad no longer resides in Texas. This will require a lawyer and some money.

Don't forget, the Texas court doesn't know where the dad lives until someone points this out (and the dad may not have--and maybe he's got a lawyer who doesn't care, or just doesn't know the law).

Of course, if she ignores the case and the Texas court modifies support , she can always register the new support order in NC and modify it again. That might be the easiest (and cheapest) way of dealing with this. You don't "transfer" a case from one state to the next. There is no such thing. Never has been to my knowledge and I couldn't imagine the mess that would be created if that were possible. You register foreign support orders and domesticate them.

But that's all that's going on in this case.

You know what I'd probably recommend for this lady if she came into my office? I think I'd tell her that if she cannot afford a Texas lawyer to challenge jurisdiction she should simply let the motion for modification go forward and as soon as the Texas court enters a new order, register it in NC and file a motion to modify in NC including therewith a declaration stating what she just told us all here: dad has lived in NC for 11 years and she and the kid have always lived there (all she did was stip to jurisdiction in TX for the divorce to be done there and for a support order--UIFSA allows people to do this if at least one of them has some connection with the state).

The local child support agency ought to be able to do this for free for her and they really should understand how UIFSA works (it's only been the law in every state in the US for last 10 years!-geez).

Quote:

Originally Posted by cadillac59

You know what I'd probably recommend for this lady if she came into my office? I think I'd tell her that if she cannot afford a Texas lawyer to challenge jurisdiction she should simply let the motion for modification go forward and as soon as the Texas court enters a new order, register it in NC and file a motion to modify in NC including therewith a declaration stating what she just told us all here: dad has lived in NC for 11 years and she and the kid have always lived there (all she did was stip to jurisdiction in TX for the divorce to be done there and for a support order--UIFSA allows people to do this if at least one of them has some connection with the state).

The local child support agency ought to be able to do this for free for her and they really should understand how UIFSA works (it's only been the law in every state in the US for last 10 years!-geez).

It just doesn't make any sense. Yes, he is from TX but has been stationed here for 11. And I have lived here for close to 7, and my daughter since she was born. She will be 5. I don't understand how TX has their hands on all of this!

Quote:

Originally Posted by StupidLamb07

It just doesnt make any sense. Yes, he is from TX but has been stationed here for 11. And I have lived here for close to 7, and my daughter since she was born. She will be 5. I don't understand how TX has thier hands on all of this!

They have their hands on it because you said you stipulated to have the divorce decree entered in Texas and child support is part of the divorce. That's how it all got started there.

If your ex is in the military and only stationed in NC but maintains Texas as his military state of residence, the analysis might be different.

Quote:

Originally Posted by StupidLamb07

It just doesnt make any sense. Yes, he is from TX but has been stationed here for 11. And I have lived here for close to 7, and my daughter since she was born. She will be 5. I don't understand how TX has thier hands on all of this!

Lets put it this way. And maybe this would put you a little at ease. If you really want you might be able to fight the Texas decision and get your husband back.. lol

Ok now for the serious stuff.. You have 2 choices and you have received excellent advice from cadilac59. So you can either fight it there or let it pass and turn it to your advantage and bring it home to you. Then from there on so long as you don't or your husband doesn't move from NC then it stays there till it expires. Now take a deep breath and try to relax a little.

Quote:

Originally Posted by califdadof3

Lets put it this way. And maybe this would put you alittle at ease. If you really want you might be able to fight the Texas decision and get your husband back .. lol

Ok now for the serious stuff .. You have 2 choices and you have recieved excelent advice from cadilac59. So you can either fight it there or let it pass and turn it to your advantage and bring it home to you. Then from there on so long as you dont or your husband doesnt move from NC then it stays there till it expires. Now take a deep breath and try to relax alittle.

Get my husband back as in with me? HAHA I would rather hammer bamboo sticks under my fingernails... if that's what you meant.. lol

One way or another, I need to get this taken care of. The onely thing that SCARES me and always has... his father is a federal judge...

As I said earlier, if your ex is in the military and in NC on military assignment (even if he's been in NC for many many years) and considers Texas his "home state" there might be a BIG problem.

A few years ago a case was decided in California involving very similar facts to yours, but the ex (child support payor) was in the military and stationed in California and the mom and the kids had moved to California after the parties had obtained a New Mexico divorce. Now, I personally think this case was wrongly decided and that the appellate justices got it all wrong, but it is the law in California and, although not binding on other states, it has persuasive authority. This was the story: the parties got a New Mexico divorce with a New Mexico child support order. Mom and the kids moved to Sacramento, California and the dad, who was from New Mexico originally and considered it his "home state" for all intents and purposes, was later stationed in San Pedro, California. The mom went into court in California and sought to modify the NM support order arguing that, since the dad no longer resided in NM, NM lost continuing exclusive jurisdiction over support and therefore California could modify the NM order. The mom registered the NM order and then sought to modify it. The trial judge agreed that California had jurisdiction and modified the order using the California child support guideline. The dad appealed arguing that since he was in California only because of military assignment and maintained a NM domicile, NM never lost jurisdiction--in other words, since he was only stationed in California (presumably temporarily) he technically still "resided" in NM for purposes of the UIFSA and NM had continuing exclusive jurisdiction. The Court of Appeal agreed and reversed the trial judge. Wow!

I think this decision was ridiculous but, it's the law. The case I cited was fairly brief so I thought I would just cut and paste it for those interested:

In re the Marriage of Mark A. AMEZQUITA and ROBERTA D. ARCHULETA. MARK A. AMEZQUITA, Appellant, v. ROBERTA D. ARCHULETA, Respondent.

No. C038927.

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

101 Cal. App. 4th 1415; 124 Cal. Rptr. 2d 887; 2002 Cal. App. LEXIS 4642; 2002 Cal. Daily Op. Service 9511; 2002 Daily Journal DAR 10645

September 13, 2002, Decided
September 13, 2002, Filed

PRIOR-HISTORY: Superior Court of Sacramento County, No. 99FL05761, Gail D. OHanesian, Judge. .

COUNSEL: Michael E. Barber for Appellant.

Roberta D. Archuleta, in pro. Per. for Respondent.

JUDGES: (Opinion by Nicholson, Acting P. J. with Morrison and Hull, JJ. concurring.)

OPINION BY: NICHOLSON

OPINION

Family Code section 4962

Family Code section 4962 allows California courts to modify another state's child support order if, among other things, the obligor of the order "resides" in California. The question presented is whether a person "resides" in California while stationed here in the military, even though his domicile remains in another state. We conclude he does not "reside" here for the purpose of applying Family Code section 4962. Because the trial court concluded otherwise and modified the support order, we reverse.

BACKGROUND

The parties, who have three children (born in 1981, 1984, and 1987), were divorced in 1990. The New Mexico decree set child support payable from Mark A. Amezquita (Husband) to Roberta D. Archuleta (Wife) at $ 600 per month. In September 1999, Wife, who had moved to California with the children, registered the out-of-state support order in Sacramento and obtained an order to show cause for a modification of the support. She filed a declaration stating that Husband, an employee of the United States Air Force, was living in San Pedro, California. The pleadings were served on Husband personally within California.

Husband, in propria persona, filed a responsive declaration stating that he did not consent to the requested order but would consent to an order to "be specified after advisement by legal counsel." Soon thereafter, counsel for Husband filed a declaration and memorandum of points and authorities seeking to amend the responsive pleading so as not to admit that the court had jurisdiction over the support matter. Counsel asserted Husband was misled into filing the responsive pleading by a court employee and by the office of opposing counsel and that New Mexico is the only state with jurisdiction to modify the support order.

Husband is a sergeant in the Air Force assigned to active duty in California. He maintains a New Mexico driver's license. He votes and files income tax returns there. Husband holds, in his words, a "residual interest" in his parents' home in New Mexico and intends to return to that state when he retires from the military.

In January 2000, the trial court concluded it had jurisdiction to modify child support. It ordered Wife to prepare a formal order including an appropriate amount of support consistent with the court's findings. In June 2001, after many months of delay, Wife submitted and the trial court signed an order requiring Husband to pay a total of $ 974 in monthly child support. The court also found Husband was in arrears on support payments under the New Mexico order and directed Husband to pay $ 50 per month to satisfy that debt. Husband appeals.

DISCUSSION

I. Timeliness of Appeal

[OMITTED]

II. "Residence" Under Family Code Section 4962

A California court may modify another state's child support order "[i]f all of the parties.. . Reside in this state and the child does not reside in the issuing state.. . " (Fam. Code, § 4962, subd. (a), italics added.) If these conditions are not met, the California court does not have subject matter jurisdiction to make the modification. (See Fam. Code, § 4909.)

Husband asserts the trial court had no subject matter jurisdiction to modify the support order because, even though Wife and the children " (Fam. Code, § 4962, subd. (a), italics added.) If these conditions are not met, the California court does not have subject matter jurisdiction to make the modification. (See Fam. Code, § 4909.)

Husband asserts the trial court had no subject matter jurisdiction to modify the support order because, even though Wife and the children " in California, he did not. He claims the term " in California, he did not. He claims the term " in Family Code section 4962 refers to domicile. After considering the statute in context, we agree.

"In interpreting a statute where the language is clear, courts must follow its plain meaning. [Citation.] However, if the statutory language permits more than one reasonable interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute. [Citation.] In the end, we ' " in Family Code section 4962 refers to domicile. After considering the statute in context, we agree.

" [Citation.]' [Citation.]"must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences."Courts and legal writers usually distinguish 'domicile' and 'residence,' so that 'domicile' is the one location with which for legal purposes a person is considered to have the most settled and permanent connection, the place where he intends to remain and to which, whenever he is absent, he has the intention of returning, but which the law may also assign to him constructively; whereas 'residence' connotes any factual place of abode of some permanency, more than a mere temporary sojourn. 'Domicile' normally is the more comprehensive term, in that it includes both the act of residence and an intention to remain; a person may have only one domicile at a given time, but he may have more than one physical residence separate from his domicile, and at the same time. [Citations.] But statutes do not always make this distinction in the employment of those words. They frequently use 'residence' and 'resident' in the legal meaning of 'domicile' and 'domiciliary,' and at other times in the meaning of factual residence or in still other shades of meaning. [Citations.]" (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal. 4th 995, 1003, 30 P.3d 57, 111 Cal. Rptr. 2d 564.))

"[i]t is well settled in California that the term 'residence'.. . Is synonymous with 'domicile.' [Citations.]." (In re Marriage of Thornton (1982) 135 Cal. App. 3d 500, 507, 185 Cal. Rptr. 388.) Since there is no plain meaning of " ( Smith v. Smith (1955) 45 Cal. 2d 235, 239, 288 P.2d 497, italics in original.) In the context of jurisdiction to enter a judgment dissolving a marriage, " that we can apply to Family Code section 4962, we turn to extrinsic aids. (Torres v. Parkhouse Tire Service, Inc. supra, 26 Cal. 4th at p. 1003.)

Family Code section 4962 was borne of section 613 of the Uniform Interstate Family Support Act (UIFSA); they are identical in every way relevant to this case. The Legislature adopted the UIFSA in 1997. (Stats. 1997, ch. 194 § 2.) Drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL), the UIFSA was imposed on the states by Congress as a condition to receiving federal funding of child support enforcement efforts. (42 U.S.C. § 666.)

Family Code section 4962 is just one piece of the UIFSA, which was meant to ensure that, in the words of the NCCUSL, "only one valid support order may be effective at any one time" (In re Marriage of Thornton (1982) 135 Cal. App. 3d 500, 507, 185 Cal. Rptr. 388.) Since there is no plain meaning of "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: [P] (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 [P] (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." that we can apply to Family Code section 4962, we turn to extrinsic aids. (Torres v. Parkhouse Tire Service, Inc., supra, 26 Cal. 4th at p. 1003.)

Family Code section 4962 was borne of section 613 of the Uniform Interstate Family Support Act (UIFSA); they are identical in every way relevant to this case. The Legislature adopted the UIFSA in 1997. (Stats. 1997, ch. 194 § 2.) Drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL), the UIFSA was imposed on the states by Congress as a condition to receiving federal funding of child support enforcement efforts. (42 U.S.C. § 666.)

Family Code section 4962 is just one piece of the UIFSA, which was meant to ensure that, in the words of the NCCUSL, "perhaps the most crucial provision in UIFSA." (National Conference of Commissioners on Uniform State Laws, Uniform Interstate Family Support Act (1996) Prefatory Note, p. 5), even though the parties and their children may move from state to state. With that in mind, we turn to section 205 of the UIFSA, which was adopted in California as Family Code section 4909 and in New Mexico as section 40-6A-205. It provides: "continuing, exclusive jurisdiction" (UIFSA § 205, subd. (a), italics added.) The NCCUSL referred to this section as "residence." (National Conference of Commissioners on Uniform State Laws, Uniform Interstate Family Support Act (1996) § 205, com., p. 22.)

Under this section, which we will refer to as Family Code section 4909, New Mexico retains "residence," if that state is Husband's "domicile," If New Mexico's jurisdiction is exclusive, then, by definition, California does not have jurisdiction. In other words, under the UIFSA, it is assumed that a person cannot have more than one residence. This, however, does not comport with the more general definition of residence noted above, allowing for multiple residences. (See Smith v. Smith, supra, 45 Cal. 2d at p. 239.) Instead, "reside in this state" for the purpose of the UIFSA, must mean "are domiciled in this state" of which there can be only one. (Ibid.)

Interpreting "residence" in Family Code section 4962 to mean "domicile" does not stretch the meaning of the words used beyond an acceptable, plain-meaning limit. When section 4962 was adopted in 1997, the Legislature was aware, at least constructively, that courts have interpreted "When legislation has been judicially construed and subsequent statutes on a similar subject use identical or substantially similar language, the usual presumption is that the Legislature intended the same construction, unless a contrary intent clearly appears. [Citations.]" to mean "probably reasonable to assume New Mexico is his domicile." in the family law context. "the place where he intends to remain and to which, whenever he is absent, he has the intention of returning.. . " (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1135-1136, 17 P.3d 735, 104 Cal. Rptr. 2d 377.) ) Furthermore, as noted above, the goal of the UIFSA to prevent states from issuing conflicting support orders would be thwarted by a conclusion that a person can maintain more than one residence for the purpose of applying section 4962. This is the only interpretation that promotes, and does not defeat, the purpose of the UIFSA. (See Torres v. Parkhouse Tire Service, Inc., supra, 26 Cal. 4th at p. 1003.)

On this record, Husband is domiciled in New Mexico, even though he is stationed in California on military assignment. Counsel for Wife conceded it is "There's nothing unfair about litigating a modification of support here when [Husband] has lived here for five years, when [Wife] has lived here with the children.. . Since.. . June of 1998. [P] There's.. . Just nothing inherently unfair about proceeding here when everybody is living here. Regardless of where his domicile is, he's been here for five years, living here." As noted above, a person's domicile is "issuing state" of the original child support order, and therefore " (Smith v. Smith, supra, 45 Cal. 2d at p. 239.) Although Husband has lived in California for several years on military assignment, the record is uncontradicted that he does not intend to remain here after retirement and, instead, intends to return to New Mexico. He retains his New Mexico driver's license, and he votes and pays taxes there.

During argument in the trial court, counsel for Wife contended that asserting jurisdiction over child support modification in California is not unfair to Husband. She argued: " in that state for the purpose of applying the UIFSA. New Mexico retains "continuing, exclusive jurisdiction" over child support (Fam. Code, § 4909) and California does not have jurisdiction to modify New Mexico's order. (See Harding v. Harding (2002) 99 Cal. App. 4th 626, 636, 121 Cal. Rptr. 2d 450 [similarly interpreting the UIFSA].)

While we find the trial court did not have jurisdiction to modify the New Mexico support order, it had jurisdiction to enforce that order because Wife properly registered the order in California. (Fam. Code, § 4959.) Husband concedes this point.

DISPOSITION

The trial court's order is reversed as to modification of the New Mexico support order. To the extent the order directs Husband to pay on the arrearage under the New Mexico order, the current order is affirmed. The parties shall bear their own costs on appeal.

Morrison, J. and Hull, J. concurred.

[QUOTE=cadillac59;1743800]As I said earlier, if your ex is in the military and in NC on military assignment (even if he's been in NC for many many years) and considers Texas his "home state" there might be a BIG problem.

A few years ago a case was decided in California involving very similar facts to yours, but the ex (child support payor) was in the military and stationed in California and the mom and the kids had moved to California after the parties had obtained a New Mexico divorce. Now, I personally think this case was wrongly decided and that the appellate justices got it all wrong, but it is the law in California and, although not binding on other states, it has persuasive authority. This was the story: the parties got a New Mexico divorce with a New Mexico child support order. Mom and the kids moved to Sacramento, California and the dad, who was from New Mexico originally and considered it his "home state" for all intents and purposes, was later stationed in San Pedro, California. The mom went into court in California and sought to modify the NM support order arguing that, since the dad no longer resided in NM, NM lost continuing exclusive jurisdiction over support and therefore California could modify the NM order. The mom registered the NM order and then sought to modify it. The trial judge agreed that California had jurisdiction and modified the order using the California child support guideline. The dad appealed arguing that since he was in California only because of military assignment and maintained a NM domicile, NM never lost jurisdiction--in other words, since he was only stationed in California (presumably temporarily) he technically still "resided" in NM for purposes of the UIFSA and NM had continuing exclusive jurisdiction. The Court of Appeal agreed and reversed the trial judge. Wow!

I had to delete some of this, as it was too long to reply to.
THIS is all very interesting. I am doing everything I can to work on this right now, meanwhile being harassed by him through text messages. Forcing me to sign these papers. I am SO frustrated right now. So, I may have missed it, but where is the wife from, and where were the children born?

[QUOTE=StupidLamb07;1744398]

Quote:

Originally Posted by cadillac59

As I said earlier, if your ex is in the military and in NC on military assignment (even if he's been in NC for many many years) and considers Texas his "home state" there might be a BIG problem.

A few years ago a case was decided in California involving very similar facts to yours, but the ex (child support payor) was in the military and stationed in California and the mom and the kids had moved to California after the parties had obtained a New Mexico divorce. Now, I personally think this case was wrongly decided and that the appellate justices got it all wrong, but it is the law in California and, although not binding on other states, it has persuasive authority. This was the story: the parties got a New Mexico divorce with a New Mexico child support order. Mom and the kids moved to Sacramento, California and the dad, who was from New Mexico originally and considered it his "home state" for all intents and purposes, was later stationed in San Pedro, California. The mom went into court in California and sought to modify the NM support order arguing that, since the dad no longer resided in NM, NM lost continuing exclusive jurisdiction over support and therefore California could modify the NM order. The mom registered the NM order and then sought to modify it. The trial judge agreed that California had jurisdiction and modified the order using the California child support guideline. The dad appealed arguing that since he was in California only because of military assignment and maintained a NM domicile, NM never lost jurisdiction--in other words, since he was only stationed in California (presumably temporarily) he technically still "resided" in NM for purposes of the UIFSA and NM had continuing exclusive jurisdiction. The Court of Appeal agreed and reversed the trial judge. Wow!

I had to delete some of this, as it was too long to reply to.
THIS is all very interesting. I am doing everything I can to work on this right now, meanwhile being harassed by him thru text messages. Forcing me to sign these papers. I am SO frustrated right now. So, I may have missed it, but where is the wife from, and where were the children born??

When you are talking about child support (never mind child custody jurisdiction for the moment-- that's entirely different) it doesn't matter where the kids were born or where the custodial parent was from. You analyze jurisdiction in two steps: first, are you talking about an initial child support order or, second, are you dealing with a modification of an existing child support order? If you are dealing with a modification (like you are) then it does matter where everyone is living. If there is a "stay-behind" parent (one who continues to reside in the state that issued the support order after the custodial parent and kids have moved away) jurisdiction stays behind as well-- the state that issued the order has continuing exclusive jurisdiction (unless the parties agreed in writing or in court to change it). Once the "stay-behind" parent moves away and out of the state that issued the order, the custodial parent can modify the support order in the state the non-custodial parent moves to (if it's the same state as the state the custodial parent lives in then naturally she can modify right there in her own state).

But there is a possible caveat: If the non-custodial parent is in the military and moves because of military assignment and the support order is from his state of domicile (the one he designates as his state of residence for military purposes and shows up on his LES) California treats that person as never having left his state of residence and takes the view that jurisdiction remains in the state that issued the support order (if it is the same state as the military members state of residence). I don't know if other states follow this rule but it has persuasive authority if for no other reason than it is dealing with the same law that all states have.

So if your ex is in NC because he's in the military, Texas may have continuing exclusive jurisdiction over support and you may have to do all the modification in Texas. If NC or Texas does not follow California's rule on military members' residence, as I explained above, you might be able to argue that NC has jurisdiction.