***NEW ARIZONA COURT OF APPEALS DECISION RE: CHILD SUPPORT***
Jurisdiction Was Lost Under UIFSA When Parties and Child No Longer Reside In Arizona
March 8, 2005
In McHale v. McHale, Ariz. Ct. App., 1 CA-CV 04-0022, (click here for full opinion), the Court of Appeals found that the trial court erred in holding that it retained jurisdiction to modify its previously issued child support order after both parties and the child had moved from Arizona. Construing the Uniform Interstate Family Support Act ("UIFSA"), the court explained that the trial court misinterpreted the Act when it concluded that it retained modification jurisdiction because the original order had not yet been modified by a court of another state.
The noncustodial father's child support obligation was set forth in the parties' 2001 Arizona divorce decree. After the divorce, the mother and child moved to Texas; the father to California. In 2003, the mother returned to the Arizona court by filing a contempt petition and requested an increase in child support. She alleged the father had not paid child support since 2002.
The father moved to dismiss mother's petition, arguing that the Arizona court lacked continuing jurisdiction under UIFSA because both parties and the child no longer resided in Arizona. (The father did agree to submit to personal jurisdiction in Texas for the purpose of modification and enforcement of support.)
The Arizona trial court denied the father's motion on the ground that UIFSA granted it continuing jurisdiction to enforce and/or modify the pre-existing support order because "the order has not been modified by a court of another state." (UIFSA, Ariz. Rev. Stat. § 25-626(B), provides that an issuing court shall not exercise its continuing jurisdiction to modify the order if it has been modified by a tribunal of another state.) It ordered the father to pay arrearages and increased his support obligation.
The father appealed, again arguing the trial court lacked jurisdiction to modify the pre-existing order because the parties and the child no longer resided in Arizona.
Conflicting Interpretations
Judge Lawrence F. Winthrop, writing for the Court of Appeals, focused on § 25-626(A), which provides that an Arizona court retains continuing, exclusive jurisdiction "as long as" a party or related child remains in Arizona, "or until" each party has filed written consent to jurisdiction elsewhere. The father interpreted this provision to mean that the Arizona court retained jurisdiction to modify until either of those events occurred, and contended that subsection (B) imposed an additional restriction on the trial court's continuing authority when it exists under (A). By contrast, the mother asserted that when (A) and (B) are read together, it becomes clear that when all parties and the child have left the state, the trial court retains modification jurisdiction until either written consent is provided, or another state's court acts.
Winthrop found that the plain language of the Act did not rule out either party's interpretation, and thus turned to the legislative intent and the policies that sustain it. Determining that the corresponding section of the uniform act upon which the Arizona legislature initially based § 25-62 was § 205 of the 1992 version of UIFSA (the Act was revised in 1996 to respond to legislation at the federal level impacting state child support enforcement laws), he ascertained that the 1992 version was almost identical to § 25-626.
1992 Version
Winthrop thus turned to the comment to § 205 by the drafters of the 1992 version of UIFSA, which provides:
If all the parties and the child reside elsewhere, the issuing state loses its continuing, exclusive jurisdiction--which in practical terms means the issuing tribunal loses its authority to modify the order. The issuing state no longer has a nexus with the parties or child and, furthermore, the issuing tribunal has no current information about the circumstances of anyone involved. UIFSA (1992) § 205 cmt., 9IB U.L.A. app. 488 (2005).
"Given that the 1992 version of § 205 of UIFSA and A.R.S. § 25-626 are almost identical, we find the language of the Comment . . . to be a strong indicator of our state legislature's intent when it enacted A.R.S. § 25-626," Winthrop wrote. He also noted that courts of other states have decided this issue in favor of the father's interpretation.
Winthrop thus concluded that the lower court did not retain jurisdiction in this case to modify the pre-existing order after the parties and the child had moved out of Arizona. Further noting that as a matter of policy, UIFSA establishes a set of "bright line" rules that are intended to prevent multiple, inconsistent support orders among the states, he added that finding that the trial court had the power to modify the pre-existing order would violate the policy and open the door to the inconsistent orders that § 25-626 attempts to avoid.
