UIFSA / Interstate Modification Question

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On Aug 2, 1:53 pm, "Bob Whiteside" wrote:
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With regard to one state modifying another state's CS order, UIFSA
611(c) states:

"A tribunal of this State may not modify any aspect of a child-support
order that may not be modified under the law of the issuing State."

In the comments, the example given to illustrate this provision is
this:

"Subsection (b) states that if the forum has modification jurisdiction
because the issuing State has lost continuing, exclusive jurisdiction,
the proceedings will generally follow local law with regard to
modification of child support orders. However, subsection (c) prevents
the modification of any final, nonmodifiable aspect of the original
order. For example, if child support was ordered through age 21 in
accordance with the law of the issuing State and the law of the forum
State ends the support obligation at 18, modification by the forum
tribunal may not affect the duration of the support order to age 21."

My question is, how does one differentiate between a "modifiable
aspect" of the original order from a "final non-modifiable" aspect of
the original order?

My ex is trying for a modification in our new state (basically asking
for more per month, plus add-ons for private school, therapist visits,
etc.), and I'm trying to figure out which modifications I can object
to under UIFSA. Our original state was Texas, new state is
California.

If I have read your situation correctly, you are asking can a child's
mother
who resides with the child in TX use the CA CS rules and guidelines to
get a
modification. IOW - Can a mother shop around between the states for the
most favorable outcome?

I would say the answer lies in which state has jurisdiction to act. And
then the other state has the responsibility under the full faith and
credit
clause of the Constitution to enforce the original states court order.
Residency in CA would have to be legally established, and the file
transferred from TX, in order for the CA courts to have jurisdiction.

No, sorry, that's not quite the situation. All parties are now in
CA. So, CA definitely has jurisdiction. Mother's requesting a
modification of the original TX order. I was trying to find out if
UIFSA requires that CA continue to use the TX CS guidelines when
calculating support amount, because UIFSA 611(c) seems to suggest that
this is the case (see original post).

The bulk of case precedent seems to indicate that when modifying
another states CS order in a new state, the CS guidelines in the new
state are applied, but certain "non-modifiable" elements of the
original order cannot be modified by the new state. I'm still not
exactly clear on which elements of an order are "modifiable" and which
are "non-modifiable," but the example given in almost every case is
the duration of the CS order. I.e, if the original state orders CS to
age 18, the new state cannot extend it to age 21.

Got it! Here is the Oregon law which lays out my states implementation of
UIFSA covering the way another state's law can be modified. Since this is a
recitation of the federal low I would assume CA has a similar provision in
CA law.

110.411 Choice of law. (1) The law of the issuing state governs the nature,
extent, amount and duration of current payments and other obligations of
support and the payment of arrearages under the order.

(2) In a proceeding for arrearages, the statute of limitation under
the laws of this state or of the issuing state, whichever is longer,
applies.

So to answer your question, the non-modifiable portions of the original
state court order are those provisions regarding the "nature, extent,
amount, and duration of current payments." What is not clear, and good
questions to ask an attorney in CA are - Does CA have a "long-arm" statute
where they can reach out over-ride the origin state in some way? Does the
original CS order have to be "registered" in CA before they will initiate a
review of that order? Does the fact the order will no longer be an
Interstate CS order change what CA can do in a subsequent modification? I'm
sure those types of questions have been answered through appeals and should
be clearly defined by case law.

"Bob Whiteside" wrote

wrote in message

...............................

The bulk of case precedent seems to indicate that when modifying
another states CS order in a new state, the CS guidelines in the new
state are applied, but certain "non-modifiable" elements of the
original order cannot be modified by the new state. I'm still not
exactly clear on which elements of an order are "modifiable" and which
are "non-modifiable," but the example given in almost every case is
the duration of the CS order. I.e, if the original state orders CS to
age 18, the new state cannot extend it to age 21.

Got it! Here is the Oregon law which lays out my states implementation of
UIFSA covering the way another state's law can be modified. Since this is
a recitation of the federal low I would assume CA has a similar provision
in CA law.

110.411 Choice of law. (1) The law of the issuing state governs the
nature, extent, amount and duration of current payments and other
obligations of support and the payment of arrearages under the order.

(2) In a proceeding for arrearages, the statute of limitation under
the laws of this state or of the issuing state, whichever is longer,
applies.

So to answer your question, the non-modifiable portions of the original
state court order are those provisions regarding the "nature, extent,
amount, and duration of current payments." What is not clear, and good
questions to ask an attorney in CA are - Does CA have a "long-arm"
statute where they can reach out over-ride the origin state in some way?
Does the original CS order have to be "registered" in CA before they will
initiate a review of that order? Does the fact the order will no longer
be an Interstate CS order change what CA can do in a subsequent
modification? I'm sure those types of questions have been answered
through appeals and should be clearly defined by case law.
==
TM might have some info for him since they have an OR case via CA. I'm sure
she'll
be around here soon. One gotcha I can see is that all the parties are now in
CA which may
give some judge the discretion to transfer to full CA jurisdiction.
Jurisdiction frequently
follows the child.

"Gini" wrote in message
news:xUvsi.10808$ug4.6092@trndny07...

"Bob Whiteside" wrote

wrote in message

..............................

The bulk of case precedent seems to indicate that when modifying
another states CS order in a new state, the CS guidelines in the new
state are applied, but certain "non-modifiable" elements of the
original order cannot be modified by the new state. I'm still not
exactly clear on which elements of an order are "modifiable" and which
are "non-modifiable," but the example given in almost every case is
the duration of the CS order. I.e, if the original state orders CS to
age 18, the new state cannot extend it to age 21.

Got it! Here is the Oregon law which lays out my states implementation
of UIFSA covering the way another state's law can be modified. Since
this is a recitation of the federal low I would assume CA has a similar
provision in CA law.

110.411 Choice of law. (1) The law of the issuing state governs the
nature, extent, amount and duration of current payments and other
obligations of support and the payment of arrearages under the order.

(2) In a proceeding for arrearages, the statute of limitation under
the laws of this state or of the issuing state, whichever is longer,
applies.

So to answer your question, the non-modifiable portions of the original
state court order are those provisions regarding the "nature, extent,
amount, and duration of current payments." What is not clear, and good
questions to ask an attorney in CA are - Does CA have a "long-arm"
statute where they can reach out over-ride the origin state in some way?
Does the original CS order have to be "registered" in CA before they will
initiate a review of that order? Does the fact the order will no longer
be an Interstate CS order change what CA can do in a subsequent
modification? I'm sure those types of questions have been answered
through appeals and should be clearly defined by case law.
==
TM might have some info for him since they have an OR case via CA. I'm
sure she'll
be around here soon. One gotcha I can see is that all the parties are now
in CA which may
give some judge the discretion to transfer to full CA jurisdiction.
Jurisdiction frequently
follows the child.

That's right. And there can be no basis to object to a jurisdiction change
to CA when the obligor is also from CA. Ergo my point - UIFSA may no longer
apply in all aspects of an existing order if all parties and the child are
now residents of CA. A CA judge can rule that TX no longer has a
controlling interest in this case, and presto, it's a CA case. The language
cited by the OP was put into UIFSA to cover the two-state circumstances. If
the case is now a one-state case UIFSA could be a moot point.

"Bob Whiteside" wrote

"Gini" wrote
.....................
==
TM might have some info for him since they have an OR case via CA. I'm
sure she'll
be around here soon. One gotcha I can see is that all the parties are now
in CA which may
give some judge the discretion to transfer to full CA jurisdiction.
Jurisdiction frequently
follows the child.

That's right. And there can be no basis to object to a jurisdiction
change to CA when the obligor is also from CA. Ergo my point - UIFSA may
no longer apply in all aspects of an existing order if all parties and the
child are now residents of CA. A CA judge can rule that TX no longer has
a controlling interest in this case, and presto, it's a CA case. The
language cited by the OP was put into UIFSA to cover the two-state
circumstances. If the case is now a one-state case UIFSA could be a moot
point.
==
Uh huh. I can hear the CA judge mumbling something about TX being an
"inconvenient forum."
Heh, then the NCP might mumble to the judge "You can't do that" and the
judge might respond "prove it."
Next comes the ca-ching, ca-ching of an appellate lawyer. (Hope the OP has
already gone to bed for the night
so he doesn't lie awake pondering this little potential bump in the road.)

On Aug 2, 9:32 pm, "Gini" wrote:
"Bob Whiteside" wrote

"Gini" wrote

....................

==
TM might have some info for him since they have an OR case via CA. I'm
sure she'll
be around here soon. One gotcha I can see is that all the parties are now
in CA which may
give some judge the discretion to transfer to full CA jurisdiction.
Jurisdiction frequently
follows the child.

That's right. And there can be no basis to object to a jurisdiction
change to CA when the obligor is also from CA. Ergo my point - UIFSA may
no longer apply in all aspects of an existing order if all parties and the
child are now residents of CA. A CA judge can rule that TX no longer has
a controlling interest in this case, and presto, it's a CA case. The
language cited by the OP was put into UIFSA to cover the two-state
circumstances. If the case is now a one-state case UIFSA could be a moot
point.

==
Uh huh. I can hear the CA judge mumbling something about TX being an
"inconvenient forum."
Heh, then the NCP might mumble to the judge "You can't do that" and the
judge might respond "prove it."
Next comes the ca-ching, ca-ching of an appellate lawyer. (Hope the OP has
already gone to bed for the night
so he doesn't lie awake pondering this little potential bump in the road.)

Thanks for all the input. I do expect CA to assume full jurisdiction
and modify based on their guidelines. CA does have a registration
requirement (she hasn't done it). I'll check to see if the CA Family
code has anything in it like OR spelling out choice of law. Again,
thanks.