Edward A. Kubisty v. Office of Child Support Enforcement

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ca04-541

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-541

April 13, 2005

EDWARD A. KUBISTY AN APPEAL FROM FAULKNER COUNTY

APPELLANT CIRCUIT COURT

[E-2001-1124]

v.

HONORABLE CHARLES E. CLAWSON,

OFFICE OF CHILD SUPPORT CIRCUIT JUDGE

ENFORCEMENT

APPELLEE REVERSED and REMANDED

Olly Neal, Judge

This is a pro se appeal from an order confirming the registration of a foreign decree setting the amount of child support. Appellant Edward Kubisty raises four points of error. Error is conceded by the appellee Office of Child Support Enforcement (OCSE) on Kubisty's first two points. We agree, and reverse and remand for a hearing.

The facts are undisputed. Edward Kubisty and Monica Urie were divorced in California in 1980. The California court ordered Kubisty to pay $100 per month in child support for the parties' then minor child. It appears that the support was set based upon the parties' agreement. On December 4, 2001, OCSE filed a petition seeking to register the California decree in the Faulkner County Circuit Court. The petition alleged an arrearage of $20,475. A notice was also prepared, informing Kubisty that he had twenty days from the date of service to request a hearing to contest the validity or enforcement of the registered order. The notice also provided that, in the event that Kubisty did not timely request a hearing, the registration would be confirmed by operation of law and he would be precluded from further contesting the registered order. Kubisty was served with the petition and notice on December 13, 2001. On January 2, 2002, Kubisty filed a "Request for Hearing and Response to Petition to Register Foreign Judgment," requesting a hearing, generally denying the factual allegations of the petition, asserting certain defects in the petition, and asserting affirmative defenses.1 Kubisty also filed a "Motion to Vacate Registered Orders and Combined Brief" alleging further defects in the petition and Urie's lack of standing to pursue the petition.

A hearing was set for April 15, 2002, but was continued until Monday, May 13, 2002. On Friday, May 10, 2002, Kubisty filed for relief under Chapter 13 of the Bankruptcy Code. Notice of the bankruptcy filing was given to OCSE and the trial court the same day. Kubisty did not appear at the hearing on May 13, 2002, and an order was entered on May 20, 2002, confirming registration of the California support order, awarding judgment for arrearages of $20,475 and authorizing OCSE to enforce the order by withholding from Kubisty's income, workers' compensation benefits, or unemployment benefits.

On November 4, 2003, the United States Bankruptcy Court found that the May 20, 2002, order entered by the trial court was void because it was entered in violation of the automatic stay and authorized withholding from Kubisty's income, workers' compensation benefits, and unemployment benefits. The bankruptcy court granted OCSE relief from the automatic stay conditioned on Kubisty being given an opportunity to raise his defenses to registration in the trial court.

Following the order of the bankruptcy court, the trial court held a hearing on January 9, 2004. At that hearing, OCSE argued that the California support order was confirmed by operation of law when, after Kubisty requested a hearing, he failed to appear for the May 13, 2002, hearing and made no further requests for a hearing. Kubisty argued that the effect of the automatic stay and the bankruptcy court's order was to preserve the defenses he had raised prior to the bankruptcy filing. The trial court recognized that the issue was whether a hearing was necessary to determine whether the California order should be registered. The court also expressed concern with whether it could entertain a collateral attack on the California order. Ultimately, the trial court found that the California order was confirmed by operation of law. On January 15, 2004, an order was entered finding that the California order was confirmed by operation of law. This appeal followed.

On appeal, Kubisty argues that he was entitled to a hearing on the defenses permitted by Ark. Code Ann. § 9-17-606 (Repl. 2002) and that the effect of the automatic stay was to deprive the trial court of jurisdiction until the stay was lifted. We agree. We do not address Kubisty's third and fourth points because they were not presented to the trial court.

Kubisty argues that he timely requested a hearing and that the order of the bankruptcy court voiding the original order of confirmation had the effect of preserving his right to contest registration of the California support order. OCSE concedes error on these points. Arkansas Code Annotated section 9-17-606 (Repl. 2002) states:

(a) A nonregistering party seeking to contest the validity or enforcement of a registered order in this state shall request a hearing within twenty (20) days after notice of the registration. The nonregistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages pursuant to § 9-17-607 (Contest of registration or enforcement).

(b) If the nonregistering party fails to contest the validity or enforcement of the registered order in a timely manner, the order is confirmed by operation of law.

(c) If a nonregistering party requests a hearing to contest the validity or enforcement of the registered order, the registering tribunal shall schedule the matter for hearing and give notice to the parties of the date, time, and place of the hearing.

Therefore, under section 9-17-606, the only method for contesting the validity of a foreign support order is to request a hearing within twenty days after notice of registration. State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999); Office of Child Support Enfcm't v. Neely, 73 Ark. App. 198, 41 S.W.3d 423 (2001). Kubisty complied with the requirements in order to contest registration of the California support order. After such a request was made, the trial court was required to schedule a hearing and give notice to the parties of the hearing's date, time, and place. Ark. Code Ann. § 9-17-606(c). The supreme court held the use of the term "shall" in this section is mandatory. Thompson, supra. The fact that Kubisty did not appear at the May 13, 2002, hearing is of no moment because the automatic stay in bankruptcy prevented the trial court from proceeding.

The bankruptcy court's voiding of the original confirmation order left Kubisty in the position of having contested registration of the support order so that the order could not be confirmed by operation of law. There is no provision in section 9-17-606 allowing the underlying support order to be confirmed by operation of law if the party objecting to the registration does not take further action beyond requesting a hearing. In fact, such a construction is precluded by section 9-17-606(c), placing the burden on the trial court to set the hearing and notify the parties.

We reverse and remand for a hearing to allow Kubisty to present the defenses raised in his pleadings requesting a hearing and seeking to vacate registration. We express no opinion on those defenses.

Reversed and remanded.

Pittman, C.J., and Robbins, J., agree.

1 Kubisty later amended his "Request for Hearing and Response to Petition to Register Foreign Judgment."