Holdaway-Foster v. Brunell , 2014 NV 51 ( 2014 )

130 Nev., Advance Opinion SI
IN THE SUPREME COURT OF THE STATE OF NEVADA
PAMELA HOLDAWAY-FOSTER, A/K/A No. 61655
PAMELA JANE BRUNELL,
Appellant, FILED
vs.
ROBERT GENE BRUNELL, JUN 2 6 2014
Respondent. TRACIE K. LINDEMAN
Mt L.
tt
Ilu
ERN
Appeal from a post-divorce decree district co i t order
declining to take jurisdiction in a child support matter. Eighth Judicial
District Court, Family Court Division, Clark County; Jennifer Elliott,
Judge.
Reversed and remanded.
Greenberg & Nguyen, Attorneys, and Mike H.T. Nguyen, Las Vegas,
for Appellant
Joseph W. Houston, II, Las Vegas,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, DOUGLAS, J.:
In this opinion we consider whether a 1989 Nevada child
support order is controlling under the Full Faith and Credit for Child
Support Orders Act, 28 U.S.C. § 1738B (2012), when the mother and
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children continuously resided in Nevada and the parents did not consent
to the assumption of jurisdiction over and modification of the order by a
court in Hawaii, the father's new state of residence. To do so, we must
determine whether the Act applies retroactively. We hold that the Act
applies retroactively, and that under it, Nevada has continuing, exclusive
jurisdiction. Consequently, we conclude that the 1989 Nevada child
support order controls.
FACTS
Appellant Pamela Holdaway-Foster and respondent Robert
Brunell divorced in Nevada in 1985. In the divorce decree, the district
court granted Pamela custody of the parties' two children and ordered
Robert to pay Pamela $200 per month in child support. In 1989, the
district court increased Robert's child support obligation to $625 per
month. Subsequently, Robert relocated to Hawaii and allegedly ceased
making the child support payments.
After Robert's relocation to Hawaii, Pamela filed a uniform
support petition in the Nevada district court, seeking to register the 1989
Nevada child support order in Hawaii, under the Uniform Interstate
Family Support Act (UIFSA). The Hawaii court issued an administrative
order that continued the 1989 Nevada child support order, mandating
Robert to pay $625 per month in support and $50 per month toward
arrears. Subsequently, Robert filed a motion in Hawaii contesting the
child support order and asserting that he could not pay the requisite
amount. In 1992, after holding a hearing on the matter, the Hawaii court
entered an order reducing Robert's child support obligation to $350 per
month, determining that Robert had already paid $15,000 toward child
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support, and directing him to pay $10 per month toward the remaining
arrears. The Hawaii court notified Pamela of its decision.
Pamela sent a letter to the Clark County District Attorney's
office in which she asserted that Robert did not make $15,000 in child
support payments. The District Attorney's office forwarded the letter to
the Hawaii Child Support Enforcement Agency, and a representative from
the agency informed Pamela that she had 30 days to appeal the Hawaii
court order and that although the Hawaii order did not supersede the
Nevada order, Hawaii would nevertheless enforce its order. The
representative also informed Pamela that she could pursue an action in
Nevada to recoup the difference between the orders. Pamela did not
appeal the 1992 Hawaii order.
In 1996, the Hawaii court entered another order further
reducing Robert's child support obligation to $100 per month, but
increasing his arrears payment to $50 per month. The Hawaii court once
again notified Pamela of its decision, and again, she did not appeal.
Several years later, after the children reached majority,
Pamela filed a motion for a controlling order determination and for a
judgment of arrears in the Nevada district court. In the motion, Pamela
requested the Nevada court to determine that the 1989 Nevada child
support order was controlling and to reduce to judgment the child support
arrears that had accrued under the order. Robert argued that Pamela
should have brought her motion in the Hawaii district court, not in
Nevada. Robert also asserted that waiver and estoppel barred Pamela
from collecting arrears.
The Nevada district court determined that it had lost
jurisdiction over the matter and could not review or modify the Hawaii
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court's orders because Pamela failed to contest the orders within ten days
of their issuance. Alternatively, the Nevada district court determined that
even if it had jurisdiction to review the Hawaii orders, Pamela implicitly
waived her right to challenge them because she received proper notice of
the orders and failed to timely contest their validity. Consequently, the
district court denied Pamela's request to reduce the unpaid amount under
the 1989 Nevada child support order to a judgment. Pamela then filed
this appeal challenging the district court's decision, asserting that the
Nevada support order is controlling under federal law.'
DISCUSSION
Standard of review
This appeal requires us to address whether the district court
had continuing, exclusive jurisdiction to enforce and modify its child
support order. This court reviews a district court's decision regarding
subject matter jurisdiction de novo. Ogawa v. Ogawa, 125 Nev. 660, 667-
68, 221 P.3d 699, 704 (2009).
Retroactive application of the federal law
Congress enacted the Full Faith and Credit for Child Support
Orders Act in 1994 to regulate multiple and inconsistent child support
orders from different states. Twaddell v. Anderson, 523 S.E.2d 710, 717
(N.C. Ct. App. 1999). The Act also provides guidelines for recognizing
which state has continuing, exclusive jurisdiction. 28 U.S.C. § 1738B(d).
'Pamela also contends that Hawaii lacked jurisdiction to alter the
Nevada support order under the UIFSA and the Revised Uniform
Reciprocal Enforcement of Support Act. In light of our conclusion that the
Act governs here, we need not address these issues.
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Under the Act, a court that has issued a child support order has
continuing, exclusive jurisdiction and courts in other states are prohibited
from modifying the child support order unless certain jurisdictional
criteria are met. 28 U.S.C. § 1738B(e).
Under the Supremacy Clause of the United States
Constitution, the Act preempts any contrary or inconsistent state law, see
U.S. Const. art. VI, cl. 2, thus, it is the controlling authority in this matter.
Because the Act became effective after the Nevada child support orders
and the Hawaii court's initial modification were entered, we must decide
whether it should apply retroactively, which poses an issue of first
impression in Nevada.
Pamela asserts that this court should apply the Act
retroactively and determine that the Nevada child support order controls
in this matter. To support this assertion, Pamela notes that other courts
have applied the federal statute retroactively. In response, Robert does
not address the Act's application directly, but instead maintains that the
Hawaii orders control because Pamela did not seek to enforce the Nevada
support order in Hawaii; rather, she established a new order in the
Hawaii court, thereby providing Hawaii with jurisdiction over the matter.
Robert's argument is without merit because the Hawaii court order
expressly stated that it was modifying the Nevada child support
obligation. Accordingly, we turn to the issue concerning the Act's
retroactive application.
Generally, courts apply statutes prospectively unless the
legislature clearly manifests an intent for retroactive application or the
statute's purpose cannot otherwise be satisfied. Landgraf v. USI Film
Prods., 511 U.S. 244, 271 (1994); McKellar v. McKellar, 110 Nev. 200, 203,
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871 P.2d 296, 298 (1994). We have also held that courts should apply
statutes retroactively when the statute affects only remedies and
procedure and does not create new substantive rights. Valdez v. Emp'rs
Ins. Co. of Nev., 123 Nev. 170, 179-80, 162 P.3d 148, 154 (2007).
The Act is silent as to whether it applies retroactively; so, we
must look to the purposes behind the Act, which we conclude mandate
retroactive application. The Act has three purposes: "(1) to facilitate the
enforcement of child support orders among the [s]tates; (2) to discourage
continuing interstate controversies over child support . . . ; and (3) to avoid
jurisdictional competition and conflict among [s]tate courts [when
establishing] child support orders[.]" Full Faith and Credit for Child
Support Orders Act, Pub. L. No. 103-383, 108 Stat. 4063 (1994). A strict
prospective application would frustrate the Act's purposes because the
very issues that Congress designed the Act to resolve would persist.
Interstate conflicts and controversies would continue regarding child
support orders entered before enactment. Further, a prospective
application likely would make enforcing child support orders more difficult
because orders entered before the Act's effective date would be subject to
different procedural rules than those entered after that date.
Additionally, the Act is remedial in nature because it was designed to
assist in collecting past child support arrears. See Ga. Dep't of Human
Res. v. Deason, 520 S.E.2d 712, 720 (Ga. Ct. App. 1999) (holding that the
Act did not create a new right, rather it provided an avenue to enforce an
existing obligation). Therefore, we determine that the Act must be
retroactively applied. We note that this determination is consistent with
other jurisdictions that have considered this same issue. See, e.g., In re
Marriage of Yuro, 968 P.2d 1053, 1057 (Ariz. Ct. App. 1998); In re
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Marriage of Lurie, 39 Cal. Rptr. 2d 835, 844 (Ct. App. 1995); Deason, 520
S.E.2d at 719; Twaddell, 523 S.E.2d at 717.
Jurisdiction under the Act
Having concluded that the Act applies retroactively, we must
now determine whether Nevada has jurisdiction over child support in this
case. Under the Act, "a [state] court. . . that has made a child support
order consistent[] with [the Act] has continuing, exclusive jurisdiction
over the order if the [s]tate is the child's [s]tate or the residence of any
individual contestant. . . ," unless another state court has modified the
order in accordance with the Act. 28 U.S.0 § 1738B(d). A state court may
modify an existing support order of another state if the parties file written
consent to the modification. 28 U.S.0 § 1738B(e)(2)(B).
Here, the district court erred in determining that Nevada
lacked jurisdiction over this matter. Nevada has continuing, exclusive
jurisdiction over the child support matter because it had jurisdiction when
it issued the original order, and Pamela and the children have
continuously resided in Nevada, including the time during which the
Hawaii court modified the order. And no evidence suggests that the
Nevada child support order and its subsequent modification did not
comply with the federal law. Therefore, the Hawaii court could have
properly modified the Nevada order only if Pamela and Robert filed
written consent in Nevada to give Hawaii exclusive, continuing
jurisdiction over the Nevada order. See 28 U.S.C. § 1738B(e)(2)(B).
Neither party filed such consent; thus, Hawaii did not have jurisdiction to
modify the 1989 Nevada child support order. Consequently, the Hawaii
court's orders have no legal effect. See Swan v. Swan, 106 Nev. 464, 469,
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796 P.2d 221, 224 (1990) (holding that a district court's custody ruling was
void because the court lacked subject matter jurisdiction).
Pamela's failure to formally object to the Hawaii modifications
is immaterial because a challenge to a court's subject matter jurisdiction is
not waivable, unless by written consent, and can be raised at any time, or
reviewed sua sponte by an appellate court. Id. Moreover, our
determination that Nevada never lost continuing, exclusive jurisdiction
over this matter necessitates a finding that the 1989 Nevada order
controls for the purpose of determining Robert's child support arrears. See
28 U.S.C. § 1738B(f)(2) (providing that when two courts issue a child
support order but only one has continuing, exclusive jurisdiction under the
Act, that court's order must be recognized).
Although we conclude that the 1989 Nevada child support
order controls, the district court still must determine whether Pamela can
collect arrears from Robert under the order. We have held that an obligor
may assert equitable defenses, such as waiver and estoppel, in a
proceeding to reduce child support arrearages to judgment. See Parkinson
v. Parkinson, 106 Nev. 481, 483, 796 P.2d 229, 231 (1990), abrogated on
other grounds by Rivera v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009). Due
to its jurisdictional error, the district court never addressed Robert's
arguments that Pamela waived or was estopped from recovering arrears
under the Nevada order.
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Accordingly, we reverse the district court's order concluding
that it lacked jurisdiction over the child support matter, and we remand
this case to the district court to conduct a new hearing as to the child
support arrears and for any other proceedings consistent with this
opinion.
C77-
i i as J.
Douglas
We concur:
C.J.
Gibbons
Pickering
A eigeoA 7 J.
J.
Harpy
J.
Parraguirre
Saitta
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