Choice of Law: Whether California Law or Another State’s Law Should Be Applied in a Case that Originated Outside of California
By Ethan M. Weisinger, Esq.
When a parent relocates to a new state, he or she often wants to know about the implications on child support. “Will the prior order for child support remain in effect?” “If the order stays in effect, how does it work if I want to modify the child support under the new state’s laws?” “What is best for me and my family?”
Under the Uniform Interstate Family Support Act (“UIFSA”, codified at Cal. Fam. Code §4900, et. seq.), the concept of Continuing Exclusive Jurisdiction (“CEJ”) determines which State has the authority to modify a child support order. UIFSA's "Controlling Order" is the order to be prospectively enforced. When multiple orders exist in a single case, it is necessary to determine CEJ (which court has the authority to hear the case) and identify the Controlling Order. Pursuant to UIFSA and Family Code §4909(d), “a tribunal of this state shall recognize the continuing, exclusive jurisdiction of a tribunal of another state which has issued a child support order pursuant to this chapter or a law substantially similar to this chapter.”
The choice-of-law rule for the interpretation of a registered order is that the law of the issuing State governs the underlying terms of the controlling support order, with one exception, and that is if the registering and issuing State have different statutes of limitation for enforcement, the longer time limit applies. (UIFSA §604). In California there is no statute of limitations for collection of child support.
In the landmark case of Spalding v. Spalding, 907 So.2d 1270, 1272 (Fla. 5th DCA 2005), the Florida Court of Appeal explained: For purposes of the choice of law provisions of section 88.6041 of UIFSA, at the time a judgment is registered and modified in another state, that state becomes the issuing state and the forum state’s law governs modification of the support order. The trial court has jurisdiction to enforce and modify the final judgment and shall apply the procedural and substantive law of this state to the proceeding. Therefore, prior to registration and a filing for modification in a new forum, the prior forum which issued the order is the issuing state whose laws are applied.
The Office of Child Support Enforcement has published a UIFSA Procedural Guidelines Handbook wherein the handbook poses questions which are answered according to the UIFSA. At page 6 under the Choice of Law/Determining Which State’s Laws Apply (CL) the handbook answers the two following questions, relevant to choice of law:
Paragraph CL 1 states:
Question: Which State’s laws apply in a UIFSA proceeding?
Answer: Under UIFSA (303), the general rule regarding choice of law is that the responding state’s law controls.
Paragraph CL 2 states:
Question: Are there any exceptions to this general rule?
Answer: Yes, the main exception to this general rule is:
*UIFSA specifies that the nature, extent, amount, and duration of the current support and other obligations of support (including the payment of arrears) is governed by the law of the State issuing the Controlling Order. [See UIFSA, 604].
In In re Marriage of Crosby & Grooms, 116 Cal. App. 4th 201 the parties had entered into an agreement regarding child support when they lived in Idaho. The agreement contained a choice of law provision. After the father moved to California, a motion to modify child support was instituted. The trial court applied California law when it modified the amount payable by the father, as the prior order was registered with the California Court as part of the moving papers. The father sought review of the order in California. In affirming, the court determined that the child support agreement had been registered in California, and the parties had left Idaho. Therefore, California had jurisdiction to modify the existing order prospectively from the date of filing. The trial court was not required to use Idaho's child support guidelines, pursuant to California Family Code § 4917. Per California Family Code §4953, the court stated, “we find persuasive the Nebraska Supreme Court’s discussion in Groseth, 600 N.W. 2d 159, in which it explained: “It is implicit, by the use of the term ‘current’ in § 42-739(a) [Nebraska’s version of UIFSA, § 604], that the substantive law of Massachusetts (the issuing state) applies merely to petitions to enforce existing orders of the issuing state and not to subsequent orders resulting from petitions to modify child support orders in a responding state. Indeed, ‘current payments and other obligations’ cease to be ‘current’ once they are modified. Moreover, once a responding state assumes continuing, exclusive jurisdiction and modifies an issuing state’s support order, the responding state becomes the issuing state. [Citations.]” (Groseth, supra, at pp. 166–167.)
The important part of Crosby and Grooms is the timing of when California assumed jurisdiction. Upon assuming exclusive continuing jurisdiction, a forum may apply its own laws. However, prior thereto, the issue becomes about enforcement of the prior orders and the issuing state’s laws control.
The Groseth court further noted that the comment to the UIFSA, section 604, underscores that section’s choice-of-law language “was intended for enforcement actions and not for modification proceedings. In particular, it explains: [¶] ‘This section identifies situations in which local law is inapplicable. The basic principle of [the UIFSA] is that throughout the process the controlling order remains the order of the issuing state, and that responding states only assist in the enforcement of that order. Absent a loss of continuing, exclusive jurisdiction and a subsequent modification of the order, the order never becomes an “order of the responding state.” ’ ” (Groseth, supra, 600 N.W.2d at p. 167, quoting UIFSA, com. to § 604, pp. 357–358.)
Therefore the state that has issued the Controlling Order is the state whose laws must be applied. According to the UIFSA Handbook on page 4 CEJ 3, when only one child support order exists in a case, that child support order is the controlling order. We note there is a substantial difference between “enforcement” and “modification.” They are not synonymous. Modification requires registration of the order and a filing to modify. Until modification, the underlying Controlling Order governs and remains in effect.
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