Opinion
68357-8-I
01-07-2013
In the Matter of the Marriage of DANIEL P. MCMINN, Respondent, and LORI J. MCMINN, Appellant.
UNPUBLISHED OPINION
Schindler, J.
Lori J. McMinn filed a notice of registration of a 1997 Indiana child support order in Snohomish County Superior Court. Daniel P. McMinn contested registration and enforcement of the order. Lori appeals the order vacating registration and enforcement of the Indiana child support order. Because the superior court commissioner erred in failing to determine whether the child was emancipated under Indiana law and in ruling that the statute of limitations barred enforcement, we reverse and remand.
We refer to the parties by their first names for purposes of clarity and mean no disrespect by doing so.
FACTS
On February 12, 1997, the Indiana court entered a decree of dissolution of the marriage of Lori and Daniel McMinn. The decree incorporates by reference the terms of a "Child Custody, Support, Visitation and Property Settlement Agreement" (Agreement). The Agreement required Daniel to pay Lori $96.92 per week in child support for their minor son Aaron, born November 18, 1989, until he was emancipated or turned 21. The Agreement also required Daniel to pay "costs and expenses for the post-secondary education." After the divorce, Daniel moved to Washington.
Daniel's great aunt established a trust for Aaron and deposited $112,000 in the trust. Under the terms of the will, the trustee had the authority to disperse principal and income from the trust for "health, education and support needs." When Daniel's great aunt died in 1999, Aaron also inherited 200 shares in Pacific Power and Light and approximately $33,000. After Daniel's grandmother died, Aaron inherited $25,000.
In September 2008, Aaron left home to go to college in Wisconsin. After Aaron left home, Daniel stopped paying child support and the trust paid for Aaron's tuition, room, and board, as well as a down payment for a car.
On October 31, 2011, Lori filed the Indiana dissolution decree and Agreement in Snohomish County Superior Court. In the "Affidavit of Indebtedness for Child Support Arrearage, " Lori asserts that Aaron was emancipated when he turned 21 on November 18, 2010, and under the terms of the Indiana decree, Daniel owed her $19,394.72 for past due child support.
Specifically, the affidavit of indebtedness states, in pertinent part:
[T]he total amount of child support that I have received, to the best of my knowledge, is $ 50, 000.00.
[T]hat the total amount of child support that should have been paid $ 69, 394.72, less the total amount of child support that I have received $ 50, 000.00, equals $ 19, 394.72, which is the current principal amount of child support owed to me as of the date of this affidavit.Lori signed the affidavit on August 5, 2011.
On November 7, Lori served and filed a notice of registration of the Indiana child support order under the Uniform Interstate Family Support Act (UIFSA), chapter 26.21A RCW. The notice states that as of September 20, 2011, past due child support with interest totalled $30,565.25. The notice also states that failure to timely contest registration of the Indiana child support order will result in confirmation and enforcement of the alleged arrearage.
Daniel contested registration and enforcement of the Indiana child support order on the grounds that "all support has been paid." In his declaration, Daniel says that he paid child support under the terms of the decree and the Agreement. Daniel asserts he did not have an obligation to pay child support after Aaron left home to go to college in September 2008. Daniel states that after his son went to college, he did not live with Lori and "was totally supported by the trust that my Aunt established for his benefit." Daniel provided copies of statements from the trust account and cancelled checks for child support payments in 2007 and 2008.
In response, Lori claimed Daniel owed more in back child support than the amount she previously set forth in the affidavit of indebtedness. Lori alleged Daniel owed $11,015 and interest of $17,990 for unpaid support from March 1997 to February 2002, $11,015 and interest of $5,100 for unpaid support from September 2008 until November 18, 2010, for a total of $45,445. Lori attached a list of each payment she claimed Daniel had missed, and copies of checks she received from Daniel for child support from August 1997 to February 2002.
In his second declaration, Daniel states he and Lori agreed that the trust would pay post-secondary expenses and that Daniel would not pay child support after Aaron left home for college in September 2008, and all expenses were paid by the trust, the money Aaron inherited from Daniel's great aunt and Daniel's grandmother, and the money he earned working at his college fraternity. Daniel attached copies of cancelled checks he wrote to Lori for child support from February 2005 through August 2008. Daniel said he was unable to obtain copies of cancelled child support checks for the period before 2005 but "it was normal for me to pay each month."
On January 26, 2012, the superior court commissioner entered an order granting Daniel's motion to vacate registration and enforcement of the Indiana child support order. The order states, in pertinent part:
4) Notice of Registration gave notice of claimed debt of $30,565.25 inclusive of interest ($19,394.72) in principal.
5) Through pleadings parties are in agreement that all payments were made between Feb 2002 through Sept 2008 at which time Aaron went to and lived at college. No further weekly payments were made from Sept 2008 through Nov 2010 when Aaron turned 21 – a total of 117 weeks.
6) College expenses were paid by inheritance, trust and work by Aaron.
7) [M]other provided a declaration recalculating sums purported due to a total of $45,445.00 ($22,030 in principal ½ from prior to [February 2002]).
8) No amended Notice of Registration is on file.
9) There are no orders out of Indiana modifying child support or emancipating the child prior to age 21.
The court finds that per RCW 26.21A.530[(1)](g) the statute of limitations precludes enforcement of some of the alleged arrearages as recalculated in briefing (though unclear extent to which included in original notice of registration)
The court further finds per RCW 26.21A.530[(1)](e) a defense under the laws of this state exists (emancipation)
The court strikes the registration of the mother's order [without] prejudice upon determination by an Indiana [Court] of jurisdiction that a sum certain continues to be due & owing.
Under RCW 26.21A.530(1)(e), "[a] party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses: . . . There is a defense under the law of this state to the remedy sought."
Lori filed a motion to revise the commissioner's decision. The court denied the motion as untimely. Lori appeals.
ANALYSIS
Lori contends the commissioner erred by relying on Washington law in granting the motion to vacate registration and enforcement of the Indiana child support order.Lori argues that under the language of the child support order and controlling Indiana law, Daniel had an obligation to pay child support until Aaron turned 21. Lori also asserts the commissioner erred in ruling the statute of limitations barred claims for back child support. We review questions of law de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).
Daniel argues that because the order is without prejudice, Lori cannot appeal as a matter of right. We disagree. A party may appeal as of right any "written decision affecting a substantial right in a civil case that in effect determines the action and prevents a final judgment or discontinues the action." RAP 2.2(a)(3). " 'Where a dismissal without prejudice has the effect of determining the action and preventing a final judgment or discontinuing the action, the dismissal is appealable.' " Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481, 487, 200 P.3d 683 (2009) (quoting Munden v. Hazelrigg, 105 Wn.2d 39, 44, 711 P.2d 295 (1985)).
The UIFSA, chapter 26.21A RCW, governs the procedure for enforcing child support orders. In re Marriage of Owen, 126 Wn.App. 487, 494 n.4, 108 P.3d 824 (2005). The Full Faith and Credit for Child Support Orders Act of 1994 also applies. 28 U.S.C. § 1738B. Under the UIFSA, a support order issued by another state court may be registered and enforced by the state of Washington. RCW 26.21A.500. If the nonregistering party does not contest registration and enforcement by establishing a defense under RCW 26.21A.530(1), the order is confirmed by operation of law. RCW 26.21A.530(3). A registered child support order is enforceable in the same manner and subject to the same procedures as if it were entered by a court of this state. RCW 26.21A.510(2) ; see also Owen, 126 Wn.App. at 501.
The law of the issuing state governs the "nature, extent, amount, and duration of current payments under a registered support order, " as well as the "computation and payment of arrearages and accrual of interest on the arrearages, " and the "existence and satisfaction of other obligations." RCW 26.21A.515(1)(a)-(c). Accordingly, here, the law of Indiana governs the nature, extent, amount, and duration of support for the child support order and computation of arrearages in this case.
Former Indiana Code (IC) 31-16-6-6(a)(1) (2010) states that unless the child is emancipated, the duty to pay child support does not terminate until the child is 21. Unless otherwise expressly provided in the child support order under Indiana law, child support is terminated "by the emancipation of the child." IC 31-16-6-7(a)(1). Consistent with Indiana law, the Agreement, incorporated by reference in the Indiana decree, states, in pertinent part:
In 2012, the Indiana legislature amended IC 31-16-6-6 to change the age that child support is terminated from 21 years old to 19 years old. 2012 Ind. Acts 1590. We refer to former IC 31-16-6-6 throughout this opinion. IC 31-16-6-6(a)(3) states:
The duty to support a child under this chapter, which does not include support for educational needs, ceases when the child becomes twenty-one (21) years of age unless any of the following conditions occurs:
. . . .
(3) The child:
(A) is at least eighteen (18) years of age;
(B) has not attended a secondary school or postsecondary educational institution for the prior four (4) months and is not enrolled in a secondary school or postsecondary educational institution; and(C) is or is capable of supporting himself or herself through employment.
Under Indiana case law, a child support agreement that conflicts with the statute is void. Brokaw v. Brokaw, 398 N.E.2d 1385, 1388 (Ind.Ct.App. 1980) (citing Maddox v. Yocum, 31 N.E.2d 652 (Ind.Ct.App.1941)).
5. Child Support. Subject to further order of the Court,
Husband shall pay to Wife, as and for support of the minor child of the parties, the sum of Ninety Six dollars and Ninety Two Cents ($96.92) per week, directly to the Wife, the first payment being due on the first Friday of the week following the effective date of this Agreement and subsequent payments being due on the Friday of each week thereafter. Said payments shall continue until said child shall become emancipated, married or twenty-one (21) years of age.
Indiana case law establishes that the determination of whether a child has been emancipated is a question of fact. Brokaw v. Brokaw, 398 N.E.2d 1385, 1388 (Ind.Ct.App. 1980); Taylor v. Chaffin, 558 N.E.2d 879, 883 (Ind.Ct.App. 1990); Young v. Young, 654 N.E.2d 880, 883 (Ind.Ct.App.1995); Dennison v. Dennison, 696 N.E.2d 88, 90 (Ind.Ct.App. 1998). The party asserting emancipation has the burden of proving the child was emancipated by direct or circumstantial evidence. Young, 654 N.E.2d at 883.
The Indiana statute, IC 31-16-6-6(b), sets forth the criteria to determine emancipation:
For purposes of determining if a child is emancipated under subsection (a)(1), if the court finds that the child:
(1) is on active duty in the United States armed services;
(2)has married; or
(3) is not under the care or control of:
(A) either parent; or
(B) an individual or agency approved by the court; the court shall find the child emancipated and terminate the child support.
(Emphases added.)
In ascertaining whether the child is "not under the care or control" of either parent, the court must determine whether the child was supporting himself without the assistance of his parents. Young, 654 N.E.2d at 883. According to IC 31-16-6-6(b)(3), emancipation occurs when the child places himself beyond the control, custody, and care of either parent. Young, 654 N.E.2d at 883. The question under IC 31-16-6-6(b)(3), is whether the child is in fact supporting himself without the assistance of his parents. Young, 654 N.E.2d at 883.
We conclude the commissioner erred in failing to determine whether Aaron was emancipated under Indiana law after he left home to go to college in September 2008. We also note that it was error to vacate registration "[without] prejudice upon determination by an Indiana [Court] of jurisdiction that a sum certain continues to be due & owing." Under the UIFSA, Washington courts, applying the law of the issuing state, "shall recognize and enforce" foreign child support orders. RCW 26.21A.510(3); see also RCW 26.21A.510(2) ("A registered order issued in another state is enforceable in the same manner . . . as an order issued by a tribunal of this state."); RCW 26.21A.515(1)(a)-(b) (law of issuing state governs duration of current payments and computation of arrearages under registered support order).
Lori relies on the language of the Agreement and IC 31-16-6-6(a)(3) to argue that the Indiana court had to enter an order determining whether Aaron was emancipated. We disagree. The language used in the Agreement—"Subject to further order of the Court"—does not modify the provision that "[s]aid payments shall continue until said child shall become emancipated, married or twenty-one (21) years of age." Further, while IC 31-16-6-6(b) expressly addresses the factors the court must find in determining whether a child is emancipated, IC 31-16-6-6 does not require the court to make that determination before the child turns 21.
We conclude further the commissioner erred in ruling that under "RCW 26.21A.530[(1)](g) the statute of limitations precludes enforcement of some of the alleged arrearages as recalculated in briefing (though unclear extent to which included in original notice of registration)." Under the UIFSA, the longest statute of limitations applies. RCW 26.21A.515(2). Under the law of Indiana and Washington, Lori's action was timely. IC 34-11-2-10 requires filing the action no later than 10 years after the earlier of the child's 18th birthday or the child's emancipation. RCW 4.16.020(3) provides that a party seeking to collect past due child support must file an action within 10 years of the child's 18th birthday.
We reverse and remand to determine whether Aaron was emancipated under Indiana law. If Aaron was not emancipated before he turned 21, the commissioner shall then determine the amount, if any, of past due child support.
Because we remand to the commissioner to determine whether Aaron was emancipated under Indiana law, we do not reach Lori's argument that the superior court erred in denying the motion to revise.