Office of Child Support v. Sholan

Office of Child Support v. Sholan (2000-434); 172 Vt. 619; 782 A.2d 1199

[Filed 11-Sept-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-434

                               JUNE TERM, 2001


Office of Child Support, and	       }      APPEALED FROM:
Elizabeth Schwebler	               }
                                       }
     v.	                               }      Caledonia Family Court
                                       }	
                                       }
Randall Sholan	                       }      DOCKET NO. 104-9-44 Cadm

                                              Trial Judge: Walter M. Morris, Jr.


             In the above-entitled cause, the Clerk will enter:


       In this international child support case, appellant and father Randall
  Sholan challenges the  Caledonia Family Court's jurisdiction to enforce a
  child support order entered against him in the  Federal Republic of
  Germany.  We hold that the family court has jurisdiction to enforce the
  order,  and affirm.

       On November 8, 1995, in the Federal Republic of Germany, father signed
  a document  acknowledging his paternity of Bianca Schwebler, daughter of
  Elisabeth Schwebler, and also  acknowledging his obligation to support
  Bianca.  The Schweblers are residents of Germany.  On  April 4, 1999,
  mother filed a complaint against father in Caledonia Family Court, seeking 
  registration and enforcement of the foreign document as a child support
  order.   The Vermont Office  of Child Support joined in the action.  Father
  responded with a motion to dismiss, claiming the  family court lacked
  subject matter jurisdiction over the issue. The motion was denied, and
  after the  June 15, 2000 enforcement hearing the magistrate entered an
  order enforcing the foreign child  support order. (FN1)  Father appealed
  this order to the family court, which sustained the magistrate's  decision. 
  This appeal followed.

       Father claims that the Federal Republic of Germany has not been
  declared by the United States  Secretary of State to be a "foreign
  reciprocating country" pursuant to 42 U.S.C. § 659a(a)(1), and  Vermont has
  not entered into a reciprocal arrangement with it for the establishment and
  enforcement  of support obligations, pursuant to 42 U.S.C. § 659a(d).  He
  further claims that these are the only  remedies available for the
  enforcement of foreign child support orders, based on the constitutional 

 

  principles of the exclusive power of the federal government to enter into
  relationships with foreign  nations, the prohibition on states entering
  into treaties or alliances with foreign nations, and the  exclusive right
  of the federal government to regulate commerce with foreign nations. 
  Therefore, he  argues, Vermont courts lack subject matter jurisdiction to
  enforce the foreign child support order.     We note that, as the issue
  presented is a question of law, we review the family court's decision de 
  novo.  State v. Longe, 170 Vt. 35, 36, 743 A.2d 569, 570 (1999).

       Passed by Congress in 1996, 42 U.S.C. § 659a provides that the United
  States Secretary of  State is authorized to declare any foreign country a
  "foreign reciprocating country" if "the foreign  country has established,
  or undertakes to establish, procedures for the establishment and
  enforcement  of duties of support owed to obligees who are residents of the
  United States."  42 U.S.C. §  659a(a)(2).  Subsection (d) provides that
  "[s]tates may enter into reciprocal arrangements for the  establishment and
  enforcement of support obligations with foreign countries that are not the
  subject  of a declaration pursuant to subsection (a) of this section, to
  the extent consistent with federal law."   Id. § 659a(d).  The statute was
  passed in recognition of the difficulties present in pursuing support 
  orders across national boundaries, with the purpose of "allow[ing] and
  encourag[ing] the Secretary of  State to pursue reciprocal support
  agreements with other nations."  1996 U.S.C.C.A.N. 2495. 

       It is uncontested by the parties that no formal declaration by the
  Secretary of State has been  made under the authority of 42 U.S.C. § 659a
  recognizing the Federal Republic of Germany as a  foreign reciprocating
  country.  Nor is it contested that Vermont has not entered into a
  reciprocal  arrangement, pursuant to 42 U.S.C. § 659a, with that country. 
  This does not, however, preclude  Vermont from giving effect to foreign
  child support orders under the doctrine of comity.  See State  ex. rel.
  Desselberg v. Peele, 523 S.E.2d 125, 128-29 (N.C. Ct. App. 1999)
  (recognizing state courts  may recognize and enforce orders from foreign
  countries under principle of "comity of nations"); see  also Restatement
  (Third) of Foreign Relations Law of the United States § 486(1) (1986) ("A
  court in  the United States will recognize and enforce an order of a
  foreign court for support, valid and  effective under the law of the state
  where it issued."). 

       "State laws which 'interfere with, or are contrary to the laws of
  Congress' are invalidated by the  Supremacy Clause of the United States
  Constitution."  Trustees of the Diocese of Vermont v. State,  145 Vt. 510,
  514, 496 A.2d 151, 153 (1985) (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.)
  1, 211  (1824); U.S. Const. art. VI).  "When Congress chooses to legislate,
  pursuant to its constitutional  powers, courts must find that local laws
  have been preempted by federal regulation if they stand as  an obstacle to
  the accomplishment and execution of the full purposes and objectives of
  Congress."   Id. (citing Hines v. Davidowitz, 312 U.S. 52, 67 (1941)
  (internal quotations omitted)).  However,  because domestic relations are
  "preeminently matters of state law," the United States Supreme Court  has
  "consistently recognized that Congress, when it passes general legislation,
  rarely intends to  displace state authority in this area."  Mansell v.
  Mansell, 490 U.S. 581, 587 (1989).  "Federal  preemption of state family
  law mechanisms occurs where Congress has "positively required by direct 
  enactment that state law be pre-empted."  Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)  (internal quotation omitted).  For preemption to
  exist, "[a] mere conflict in words is not sufficient.   State family and
  family-property law must do major damage to clear and substantial federal
  interests 

 
 
  before the Supremacy Clause will demand that state law be overridden."  Id.
  (internal quotations  omitted).

       In the present case, there is neither an express preemption clause nor
  a conflict of words  preventing Vermont from applying principles of comity
  to recognize and give effect to the foreign  child support order at issue.
  The language of section 659a does not reflect in any way an intent by 
  Congress to preempt state-level efforts at enforcement of foreign support
  orders.  Cf. Shute v. Shute,  158 Vt. 242, 246, 607 A.2d 890, 893 (1992)
  (recognizing language of Parental Kidnapping  Prevention Act, 28 U.S.C. §
  1738A, indicated Congress's intent to preempt field of custody 
  jurisdiction).  Section 659a does not provide the sole mechanism by which
  foreign support orders  may be enforced in state courts.  The purpose of
  the statute, as reflected in its express language and  the legislative
  history behind its passage, is to provide the United States Secretary of
  State with the  power to enter into reciprocal agreements with foreign
  nations so as to promote the recognition and  enforcement of foreign
  support orders, and not to prevent states from giving effect to foreign
  support  orders.  See 42 U.S.C. § 659a; 1996 U.S.C.C.A.N. 2495.  Nor does
  the statute require states to enter  into reciprocal enforcement
  arrangements with the foreign nations from which the orders originated 
  before seeking to enforce those orders.  We also note that father has not
  argued that any clear and  substantial federal interests will suffer major
  damage by the family court's recognition and  enforcement of this child
  support order.  

       As section 659a does not preempt state law jurisdiction over this
  foreign support order, we  next examine whether the family court properly
  applied the principles of comity in recognizing and  enforcing the foreign
  support order.  As a general matter, under principles of comity, final
  judgments  of courts of foreign nations which concern recovery of sums of
  money, the status of a person, or  determine interests in property, are
  conclusive between the parties to the action and are entitled to 
  recognition in United States courts.  Restatement (Third) of Foreign
  Relations Law of the United  States § 481 (1986).  The Restatement further
  refines the principle of comity, providing that "[a]  foreign judgment is
  generally entitled to recognition by courts in the United States to the
  same extent  as a judgment of a court of one State in the courts of another
  State."  Id.  Reciprocity between the  foreign state which issued the order
  and the domestic state which seeks to recognize and enforce it is 
  unnecessary for the order to be recognized or enforced in the domestic
  state.  Id.;  see also id.  reporter's note 1 (discussing judicial movement
  in majority of jurisdictions away from requiring  reciprocity).  For a
  court to recognize and give effect to a foreign order, the judgment must
  have been  rendered under a judicial system which provides impartial
  tribunals and procedures compatible with  due process of law, and the
  issuing court must have had jurisdiction over the defendant sufficient to 
  support rendering such a decision in the state in which the order is sought
  to be enforced.  Id. §  482(1).  If these prerequisites have been met, the
  state court may still decline to recognize the foreign  order, if the
  issuing court lacked subject matter jurisdiction over the action; the
  defendant was not  accorded adequate notice of the proceeding; the judgment
  was obtained by fraud; the original action  or judgment is in conflict with
  state or federal public policy; the judgment conflicts with another 
  judgment entitled to recognition; or the foreign proceeding was contrary to
  an agreement by the  parties to submit the controversy to another forum for
  resolution.  Id. § 482(2).

 

       In assessing whether the foreign order met these requirements, the
  family court had before it  evidence that the Federal Republic of Germany
  has enacted laws and procedures similar to Vermont  laws concerning child
  support, and are compatible with due process; that defendant was under the 
  jurisdiction of the body which issued the order, and that body also had
  jurisdiction over the action;  that the cause of action was consistent with
  Vermont public policy, "ensuring that parents make their  best efforts to
  provide monetary support for their minor children;" and that there was no
  indication or  contention by either party that the judgment against
  defendant was obtained by fraud or was in  conflict with another judgement. 
  Based on the evidence presented concerning these factors, the court 
  properly found that the fairness requirements of the Restatement § 482 had
  been met, and correctly  concluded that it was required to recognize and
  enforce the support order at issue. 


       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  The family court found that the foreign document fit within the
  "broad definition of a  'support order'" and that it was "clearly
  enforceable as a court order under the provisions of  German law."