Reciprocal Enforcement of Support Action; Child Support; Registration of Foreign Support Orders

August 28, 1979

Subject:

Requested By:

Mr. Larry T. Black District Court Judge 26 Judicial District

Question:

Do the registration provisions of the North Carolina Uniform Reciprocal Enforcement of Support Act (G.S. 52A-25 through 30) apply so as to allow enforcement in North Carolina of foreign state support orders entered prior to October 1, 1975?

Conclusion:

Yes.

G.S. Chapter 52A, the Uniform Reciprocal Enforcement of Support Act (hereinafter URESA) was first enacted in North Carolina law in 1951. In 1975 the act was rewritten in its entirety to substantially conform to the 1968 revisions of URESA by the National Conference of Commissioners on Uniform State Laws which include a new procedure for the registration and enforcement of foreign support orders. Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d 633 (1977). The new registration provisions are codified as G.S. 52A-25 through 30.

The UERSA, including the registration procedure established thereunder, creates no new substantive rights between the party seeking support and the party from whom support is being sought. The act merely sets up new procedural mechanisms whereby through substantially uniform legislation establishing reciprocity states have created a new and more efficient way of enforcing support obligations. 2 Lee, N.C. Family Law 3d § 169 (1963). By enacting substantially similar Uniform Reciprocal Enforcement of Support Acts, all fifty states have sought to avoid support enforcement problems previously experienced because of the inapplicability of the full faith and credit clause of Article IV, Section 1 of the United States Constitution to foreign state support orders deemed to be non-final. Brockelbank and Infausto, Interstate Enforcement of Family Support, pp. 77-90 (2d ed. 1971).

The bill (Senate Bill 357) passed in 1975 revising the Uniform Reciprocal Enforcement of Support Act is entitled:

"AN ACT TO REWRITE CHAPTER 52A OF THE GENERAL STATUTES ENTITLED "UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT"." N.C. Sess. Laws 1975 c. 656, s.1.

After completely rewriting the text of the Uniform Reciprocal Enforcement of Support Act in Section 1 of the bill, the General Assembly went on in Section 2 of the bill to state as follows:

"This act shall not apply to pending litigation including proceedings which have been initiated in a state other than North Carolina." N.C. Sess. Laws 1975 c. 656 s.2.

The foregoing statement by the General Assembly in Section 2 of the bill relating to the applicability of the rewritten URESA raises the present issue as to whether the newly established registration provisions may be used to obtain interstate enforcement of a support order of another state predating the effective date (October 1, 1975) of Senate Bill 357.

In an analogous case the North Carolina Supreme Court has addressed the effect of applicability language virtually identical to the language used in Section 2 of Senate Bill 357. Spencer v. McDowell Motor Company, 236 N.C. 239, 72 S.E.2d 598 (1952). In the Spencer case the defendant Motor Company was contesting the effect of the General Assembly’s enactment of an evidentiary statute after the point in time when the plaintiff’s cause of action arose. In addressing the defendant’s allegation that the statute should not be retroactively applied because of language of non-applicability to "pending litigation", the court in relevant part states:

"While appellant motor company does not contend that the Legislature is without authority to change the rules of evidence . . ., it contends that under rules of interpretation the Act should not be given retroactive effect, that is, as to existing causes of act, . . . It seems clear, however, from the language of the Act that the Legislature intended that on and after 1 July 1951, the only limitation upon the applicability of the Act is that it shall not apply to pending litigation, that is, litigation then pending. It is so expressly provided.

An action is pending from the time it is commenced until its final determination. And a civil action is commenced by the issuance of a summons.

Moreover, the maxim expressio unius est exclusio alterius, that is, that the expression of one thing is the exclusion of another applies. From the fact that the Legislature expressly provided that the provisions of the Act shall not apply to pending litigation, it may be implied that it should apply in all other cases.

. . . (L)aws which change the rules of evidence relate to the remedy only, and are at all times subject to modification and control by the Legislature, and . . . changes thus made may be made applicable to existing causes of action. . . .. Retrospective laws would certainly be in violation of the spirit of the Constitution if they destroyed or impaired vested right, but . . . one can have no vested right in a rule of evidence when he could have no such right in the remedy, and . . . there is no such thing as a vested right in any particular remedy." Spencer v. McDowell Motor Company, supra, 236 N.C. at 246. (quotations and citations omitted) (emphasis supplied)

Similarly, the Act in question, N.C. Sess. Laws 1975 c. 656, and specifically the registration provisions codified as G.S. 52A-26 through 30 are purely remedies. Referring to the URESA as a whole G.S. 52A-4 reads:

"These remedies herein are in addition to and not a substitution for any other remedies."

In addition to the foregoing provision concerning remedies, the section of the Act immediately preceding the registration provisions states:

"If the duty of support is based on a foreign support order, the obligee has the additional remedies provided in the following sections". G.S. 52A-25. (emphasis supplied) Accordingly, the URESA as rewritten in 1975 does not affect any vested right of a potential defendant from whom support is sought. A defendant has no vested right in limiting an obligee to pre-URESA remedies for interstate enforcement of support duties, to wit: following a defendant obligor into a foreign state forum for purposes of lawsuit de novo there or after reducing any preexisting initiating state support order to final judgment, pursuing the defendant obligor to a foreign state for suit on the final judgment obtained under the doctrine of full faith and credit.

A plaintiff’s cause of action for failure to support, including that under the URESA, is based on attempted enforcement of a duty of support. Under the URESA this term is defined as follows:

""Duty of Support" means a duty of support whether imposed or imposable by law or by order, decree, or judgment of any court whether interlocutory or final or whether incidental to an action for divorce, separation, separate maintenance, or otherwise and includes the duty to pay arrearages of support past due and unpaid".

G.S. 52A-3(2). (emphasis supplied)

Oftentimes, the obligee in an interstate support case has previously obtained a support order in a state from which an obligor has fled. Under the terminolgoy of the URESA, when the registration remedy (52A-25 through 30) is attempted to be invoked, the state in which the order was initially obtained would be termed the "rendering state". G.S. 52A-3(11).

Whenever a support order is outstanding in the state from which the obligor has fled, the obligee could in the alternative choose to use the traditional URESA remedy. (G.S. 52A-1 through 52A-24). 2 Lee N.C. Family Law 3d § 169 nn. 264-5(1963); Brockelbank and Infausto, Interstate Enforcement of Family Support, p. 80 nn. 189-190 (2nd ed. 1971). When proceeding under the traditional URESA remedy, the state in which a support order was originally obtained is termed the "initiating state". G.S. 52A-3(4).

Whenever there is a preexisting support order in a "rendering state" of "initiating state", it may be argued there exists "pending litigation" or "proceedings which have been initiated in a state other than North Carolina" as the terms are used in N.C. Sess. Laws 1975 c. 656 s.2. In support matters litigation is always pending for the cause of action remains in the continuing jurisdiction of the court and motions may always be made therein. Barber v. Barber, 216 N.C. 232, 4 S.E.2d 447 (1939).

Nevertheless, a preexisting order in another state cannot be logically interpreted to be "pending litigation" or "proceedings initiated in another state" so as to bar use of the registration procedures for foreign state support orders obtained prior to October 1, 1975, the effective date of the legislation. Because Section 2 of Senate Bill 357 says "(t)his act shall not apply to pending litigation including proceedings which have been instituted in a state other than North Carolina", such an interpretation would arguably make the totally rewritten URESA mechanism, be it the traditional method or the new registration method, unavailable to any obligee having, as is often the case, a support order outstanding in an "initiating state" or "rendering state" predating October 1, 1975.

A statutory construction of this nature would operate to defeat the objects of the URESA and "must be avoided if that can be reasonably done without violence to the legislative language". 12 N.C. Index 3d, Statutes § 5.9. The URESA contains two sections relating to the objects of this Legislative Act which state:

"The purposes of this Chapter are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto."

G.S.: 52A-32.

Consequently, it would be an illogical construction of Section 2 of Senate Bill 357, rewriting the URESA in its entirety, for the words "pending litigation" or "proceedings initialed in another state" to include a preexisting order of another state used as a basis to establish the duty of support under G.S. 52A-3(2) and a concomitant basis for invoking either the traditional or registration remedies of the Act. If the construction was otherwise, all URESA remedies would arguably be barred for all cases involving a pre-October 1, 1975, order entered in a state other than North Carolina while URESA cases for the same time frame but based on the mere existence of a legal relationship like parent/child would be proper. This alternative construction steadfastly holding to a literal interpretation of the statute would lead to an anomalous, absurd result both unintended by the General Assembly and properly avoidable. In general see 12 N.C. Index 3d Statutes § 5.9 (1978).

Moreover, there is yet another reason why the language in question was not intended to encompass preexisting orders of other states; that is, the North Carolina "act" as rewritten obviously could not "apply" to pure orders of foreign states. With the exception of proceedings or pending litigation instituted under a foreign URESA with a view towards obtaining a support order in North Carolina through the procedures established under the North Carolina URESA, pending foreign proceedings or litigation are beyond the jurisdiction of our legislative enactments. Therefore, the words in question must logically refer to "pending URESA litigation" or URESA proceedings which have been initiated in a state other than North Carolina.

For these reasons it is the opinion of this Office that the existence of foreign state orders for support predating October 1, 1975, do not bar the use of the URESA registration procedures (G.S. 52A-26 through 30) for purposes of registering and seeking enforcement of such preexisting orders.

Rufus L. Edmisten Attorney General

R. James Lore Associate Attorney