FAMILY LAW (CHILD SUPPORT): GIBSON V. GIBSON; COA 12/12/2006

GIBSON V. GIBSON
FAMILY LAW: CHILD SUPPORT ARREARAGES
2004-CA-000313
PUBLISHED:  AFFIRMING IN PART, REVERSING IN PART, VACATING IN PART, AND REMANDING; JOHNSON
DATE RENDERED: 12/22/2006

Issue: If both parents and child relocate from Kentucky where the original orders of custody and child support were entered, does Kentucky retain jurisdiction to then modify the orders and/or to enforce the orders?

The Uniform Interstate Family Support Act (UIFSA)states as follows: (1) A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order: (a) As long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or (b) Until all of the parties who are individuals have filed written consents with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.

The purpose of UIFSA is to prevent a party from obtaining a local advantage by requiring that the moving party must be a nonresident of the state where the motion is filed. Also, the state where the action is brought must have personal jurisdiction over the nonmoving party. Once the issuing state has lost continuing, exclusive jurisdiction and a motion to modify child support is filed, upon proper motion, the order for child support should be forwarded to an appropriate tribunal, e.g. to a state: (1) where the movant is a nonresident and (2) that has jurisdiction over the nonmoving party. . . . If the parties and child no longer reside in the issuing state, except for modification by agreement, the party petitioning to modify an existing child support order must submit himself or herself to the jurisdiction of the state where the nonmoving party resides.

Thus, the court of the issuing state retains jurisdiction to enforce its order, but not to modify the order. If either party desires modification, the burden is on that party to take appropriate action in the appropriate state. When the obligor wishes to reduce his or her obligation, the reduction must be sought in the obligee’s state of residence; when the obligee wishes an increase in support, that increase must be sought in the obligor’s state of residence. Thus, for Kentucky to have continuing, exclusive jurisdiction over the child support order, either Mom, Dad, or the children would have had to remain as a resident of Kentucky.

However, Kentucky retains jurisdiction for the purpose of enforcing child support orders. Child support payments become vested when due, so each installment of child support becomes a lump sum judgment, unchangeable by the trial court when it becomes due and is unpaid. A trial court has no authority to forgive or to retroactively eliminate a past-due child support arrearage. Child support is a statutory duty intended to benefit the children, rather than the parents. The right to child support belongs to the child not the parents. Where no modification is sought or obtained, courts have consistently held that the UCCJA does not apply to contempt proceedings. The reason is fundamental and makes sense. The UCCJA explicitly applies to child custody determinations by initial or modification decree. An order for contempt is simply not a custody determination in any way, shape or form.

digested by Michelle Eisenmenger Mapes

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