Opinion
No. 12–P–1035.
2013-06-17
Shelley COHEN v. M. David COHEN.
By the Court (VUONO, CARHART & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
M. David Cohen (husband), appeals from a Probate and Family Court judge's order denying his motion for relief pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974).
Because this case implicates the Uniform Interstate Family Support Act (UIFSA), and the impact of UIFSA was not apparent from the judge's decision, we vacate the order and remand for clarification of the probate judge's orders. See G.L. c. 209D, inserted by St.1995, c. 5, § 87.
Shelley Cohen did not file a brief.
Background. This case involves a lengthy procedural history which is not necessary to recite in its entirety. Essential here is the following: On June 2, 2000, the Superior Court of California, Los Angeles County, issued a child and spousal support order to the husband. The order required the husband to pay Shelley Cohen (wife) $178 in monthly child support for the benefit of their daughter; $280 in monthly educational therapy costs; $477 in monthly spousal support; and $2,400 in attorney's fees. At some point after this order, the husband moved to Massachusetts.
On February 10, 2000, the California Child Support Services Department sent a request to the Massachusetts Department of Revenue to register and enforce its order, through income withholding and collecting arrearages (totaling $11,053.09).
The wife and child have been residents of California at all times throughout the proceedings in Massachusetts.
On June 20, 2003, the California Superior Court increased the husband's monthly child support obligations to $1,035 and spousal support obligations to $600. On March 16, 2004, the California Child Support Services Department requested that the Massachusetts Department of Revenue register, enforce, and collect $19,774.96 in child support arrearages and $45,252.58 in spousal support arrearages from the husband.
The transmittal sheet specifically excluded Massachusetts from making any modifications.
On March 31, 2004, the parties entered into a stipulated agreement, whereby the husband agreed to pay the wife support arrearages, certain college costs, and attorney's fees. On May 5, 2007, the parties entered into another stipulated agreement, whereby the husband agreed to pay the wife support arrearages, attorney's fees and travel expenses, and refrain from involvement in nonprofit organizations while he focuses on securing employment.
From 2004 to 2009, the Probate and Family Court judge found the husband in contempt on numerous occasions for his failure to comply with the stipulated agreements. The most recent contempt judgment was entered on December 31, 2009. On this date, the probate judge found the husband in contempt for his failure to pay spousal and child support arrearages and failure to comply with the terms of the stipulated agreements.
On August 4, 2010, the husband filed a motion for relief pursuant to rule 60(b), generally contending that the December 31, 2009, contempt judgment was void for want of jurisdiction. This motion was denied without comment on September 22, 2010. A notice of appeal was filed the same day.
Discussion. On appeal, the husband argues that the Probate and Family Court was without jurisdiction to enforce the parties' stipulated agreements and calculate arrearages. The parties did not stipulate to vest Massachusetts with exclusive jurisdiction over the support orders. Compare Weekley v. Weekley, 604 N.W.2d 19, 23–24 (S.D.1999). Rather, the parties made agreements and presented them to the Probate and Family Court for enforcement. The husband's present attack on these agreements comes years after they were made. We therefore deem his arguments in this regard as waived and the stipulations dated March 31, 2004, and May 5, 2007, are enforceable.
Further, we find no error in the probate judge's enforcement of the California order through contempt proceedings, as “States [need not] adopt the practices of other States regarding the time, manner, and mechanisms for enforcing judgments.” Hamilton v. Hamilton, 914 N.E.2d 747, 752 (Ind.2009), quoting from Baker v. General Motors Corp., 522 U.S. 222, 235 (1998). Nor was it error for the probate judge to award attorney's fees and costs to the wife. See G.L. c. 209D, § 3–313. See also Linn v. Delaware Child Support Enforcement, 736 A.2d 954, 970–971 (Del.Supr.1999) (applying UIFSA § 313 [c] ).
We note, however, that on February 23, 2009, the Massachusetts Department of Revenue notified the husband that, upon request of California, the California Child Support Services Department had purged his child support arrearages balance. The letter from the Massachusetts Department of Revenue indicates that California is now enforcing the child support order through wage garnishment of the husband's social security benefits. The UIFSA was designed, in part, to ensure that only one State at a time will have jurisdiction to enforce a child support order. See G.L. c. 209D, § 2–207( b ) .
Therefore, we conclude that the Massachusetts Probate and Family Court was without authority to enforce the husband's child support order beyond February 23, 2009.
.Section 2–207( b ) essentially mirrors § 207 of the 1996 version of UIFSA. The comment to the corresponding section states the following: “In choosing among existing multiple orders, none of which can be distinguished as being in conflict with the principles of UIFSA, Subsection [207](b)(1) gives first priority to the order issued by the only tribunal that is entitled to continuing, exclusive jurisdiction under the terms of UIFSA....” Comment to Uniform Laws Annotated UIFSA (1996) Art. 2, § 207.
On June 16, 2011, the Los Angeles Superior Court ruled that the husband's spousal support award is $0, but that he still owes arrearages and until his contempt judgments are purged, the spousal support order cannot be modified. Although California has exclusive jurisdiction to modify the spousal support order, it appears no modification has occurred. Under the UIFSA, Massachusetts has authority to determine spousal support arrearages, but only in accordance with California law. See G.L. c. 209D, §§ 3–305( b )(4), 6–604( a ).
Lastly, we note that in the record before us, the husband never stipulated to payment of uninsured medical expenses or restricting his involvement in his temple. The orders in this regard are improper modifications of the California order. See Stone v. Davis, 148 Cal.App. 4th 596, 601 (2007). See also G.L. c. 209D, § 2–205( a ).
Order denying motion pursuant to rule 60 vacated. Matter remanded for further proceedings consistent with the memorandum and order of the Appeals Court.