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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. |
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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. |
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 Originally Posted by cadillac59
There apparently is a current action to reduce support filed in Texas. |
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Originally Posted by califdadof3
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. |
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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). |
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Originally Posted by cadillac59
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Originally Posted by StupidLamb07
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. |
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Originally Posted by StupidLamb07
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. |
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Originally Posted by califdadof3
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... |
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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. |
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[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? |
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[QUOTE=StupidLamb07;1744398]
Originally Posted by cadillac59
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. |
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