FILED
5/20/2019
Court of Appeals
Division |
State of Washington

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RONALD BRETT,
DIVISION ONE
Appellant,
No. 79076-5-I
V.
UNPUBLISHED OPINION
CAROLINE MARTIN, and
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,

FILED: May 20, 2019

 

Respondents.

Dwyer, J. — In 1983, the Supreme Court of Ontario imposed upon
Ronald Brett spousal and child support obligations arising from his dissolved
marriage to Caroline Martin. In 2011, the State of Washington, Department of
Social and Health Services, sought to enforce the Ontario court’s order against
Brett, who is currently a Washington resident. Brett objected, averring that
manifest incompatibility of Ontario and Washington’s public policy forbade
registration and enforcement of the order. Following a hearing, the Department
issued a decision rejecting his arguments. The superior court affirmed this
decision. Brett now appeals to us. Because his challenges to registration and
enforcement of the order are without merit, we affirm.

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Ronald Brett and Caroline Martin were married on May 18, 1963, and had

two children together. On July 19, 1983, the marriage was terminated by a
No. 79076-5-I/2

decree of dissolution entered by the Superior Court of Vanderburgh County,
Indiana. However, as that court did not have personal jurisdiction over Martin
(who had moved to Ontario), the decree did not address spousal or child support
obligations. Subsequently, these matters were tried in the Supreme Court of
Ontario, which resulted in the issuance of the following order:

THIS COURT DOTH ORDER AND ADJUDGE that the Respondent

[Brett] shall pay to the Applicant [Martin] who has custody of the

child, DEBBIE CAROL BRETT, born December 12, 1967, on the

first day of each and every month commencing September 1, 1983

the sum of $1,300.00 (Canadian Dollars) support until January,

1986, at which time the payment will be reduced to $800.00 per

month for support and maintenance of the wife in accordance with

Section 71 of the Internal Revenue Code of 1954. Such payments

will continue until the death of the wife or until the Court otherwise
orders.

(Emphasis added.)

After making one payment of $1,300 in September 1983, Brett made no
further spousal or child support payments. However, in November 1987, Brett
and Martin agreed that Brett's attorney would transfer to Martin $6,000 of the
proceeds Brett was to receive from unrelated litigation. Brett also agreed to drop
his application to the Ontario court for relief from paying back child and spousal
support. For her part, Martin agreed to withdraw the garnishment notice that she
had served on Brett’s employer. That same month, Martin remarried. She
remained married until September 2001. She has not remarried since.

On October 13, 2011, the Washington State Department of Social and
Health Services’ Division of Child Support (DCS) received a request from the
Canadian Family Maintenance Enforcement Program to enforce Brett’s ongoing

spousal support obligation as well as his back child and spousal support
No. 79076-5-1/3

obligations. The Canadian agency’s record reflected no support payments
having been made since the initial $1,300 Brett paid in September 1983. Indeed,
Brett does not assert that he made any further payments except for the $6,000
payment made through his attorney.

On December 29, 2011, DCS served a notice and demand for payment on
Brett. This notice and demand included only the amount due for spousal, and
not child, support. When Brett challenged the amount due under the Canadian
order, DCS made an internal review of the arrearage calculation. This review
produced a figure of $287,900 owed through April 2012, which included the
arrearages for both spousal and child support. This figure credited to Brett his
original $1,300 payment, but did not credit the $6,000 payment made through his
attorney in 1987.

On January 25, 2016, Brett requested an opportunity to administratively
challenge DCS’s efforts to enforce the order. On March 7, 2016, DCS served
Brett with a notice of support debt and registration to which Brett objected. After
an evidentiary hearing on June 30, 2016, an administrative law judge confirmed
registration of the order and entered conclusions of law, including the following:

5.7 Mr. Brett was given proper notice of the request to

administratively register the Order. Mr. Brett has an ongoing

obligation to provide spousal support as required under the Order,

as well as to pay the accrued support arrears. The clear language

in the Order requires Mr. Brett to pay spousal support until the

death of Ms. Martin or until the Order is modified. The Order for

child and spousal support entered on September 30, 1983, in the

Supreme Court of Ontario, Canada is the controlling order. Mr.

Brett did not present any valid defense to nonpayment of arrears

pursuant to WAC 388-14A-7125 or RCW 26.21A.530(1).

Therefore, the registration of the Order should be confirmed. The
Department should collect current spousal support under the terms
No. 79076-5-1/4

of the Order as well as past due spousal and child support.

5.8 Mr. Brett wants to remove the support arrears that have
accumulated under the Order, and his ongoing obligation for
spousal support. | do not have the authority under the
Department's laws and rules to modify the support obligation in the
parties['] Order. Because Mr. Brett did not establish a defense
under subsection (1) of RCW 26.21A-530, this tribunal must issue
an order confirming DCS’ Notice of Support Debt and Registration.

Brett’s request for reconsideration of the administrative order was denied.
Brett appealed to the Lewis County Superior Court, which affirmed the
administrative order, concluding that Brett failed to meet his burden of
establishing a permissible defense under RCW 26.21A.530 or the Washington or
United States Constitutions.
Here, Mr. Brett admitted during the administrative hearing
that he does not have any of the statutory defenses required to
prove invalidity of the order. Mr. Brett further admitted the
Canadian court maintains personal jurisdiction over him. . . .
Additionally, Mr. Brett has provided no evidence the order
was obtained by fraud, as Mr. Brett was present for the hearing
when the order was issued, was represented by counsel, and
agreed to the order. The Canadian order is the controlling order
with an ongoing maintenance obligation, and the order has never
been vacated[,] suspended or modified.
Furthermore, any argument by Mr. Brett regarding the
amount or duration of maintenance would need to be addressed by
the Canadian Court, as this court lacks jurisdiction to authorize
those modifications.
Brett now appeals from this ruling.
II
Brett's principal argument is that, because Washington courts presume a

spousal support obligation will terminate on remarriage of the support recipient,

enforcement of an order from a jurisdiction that does not employ such a
No. 79076-5-I/5

presumption is barred by public policy considerations. However, the difference
between Washington and Ontario law regarding the duration of a spousal support
obligation does not amount to a manifest incompatibility of Ontario’s rule with
Washington’s public policy.

Brett’s appeal is governed by Washington’s Administrative Procedure Act,
chapter 34.05 RCW, which establishes the exclusive means for obtaining judicial
review of an agency action. RCW 34.05.010. The party challenging a final
agency order bears the burden of demonstrating that it should be overturned.
RCW 34.05.570(1)(a). We review the order based on the agency record, sitting
in the same position as the superior court, and do not defer to the superior court
ruling. Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm'n, 123 Wn.2d 621,
633, 869 P.2d 1034 (1994).

Only when the petitioner demonstrates that one of the standards
enumerated in RCW 34.05.570(3) is met may an agency’s order be overturned.
Brett does not articulate the grounds under RCW 34.05.570(3) on which he
challenges the order. The State understands, and we interpret, Brett’s challenge
to be that the agency erroneously interpreted or applied the law. See RCW
34.05.570(3)(d). When an agency order is challenged on the basis of an error of
law, we review the order de novo, although substantial weight will be given to an

agency’s interpretation of the law within its area of expertise. Verizon Nw., Inc. v.

 

Emp’t Sec. Dep't, 164 Wn.2d 909, 915-16, 194 P.3d 255 (2008).
The Uniform Interstate Family Support Act (UIFSA), chapter 26.21A RCW,

as adopted by the Washington legislature, grants the Department of Social and
No. 79076-5-I/6

Health Services’ Division of Child Support (DCS) the authority to administratively
enforce a foreign support order. RCW 26.21A.500. DCS is authorized to enforce
a support order to the extent not prohibited by other law. RCW 26.21A.220(2)(a).
Upon registration of a foreign support order, it is enforceable in the same
manner, and subject to the same procedures, as an order issued by a

Washington tribunal, with the exception that it may not be modified by
Washington courts. RCW 26.21A.510.

The law of the issuing jurisdiction 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). The UIFSA is designed to ensure that only one controlling
support order exists at a given time, permitting the issuing jurisdiction to retain
continuing and exclusive jurisdiction, and preventing an enforcing state from
altering the order. RCW 26.21A.150(2). The 2008 amendments to the UIFSA
extended its reach to foreign provinces and countries with which the United
States has a reciprocal enforcement agreement. Ontario is one such province.'

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). Thus, to bar enforcement of an order,

there must be a legal basis preventing the State from registering it for

 

1 Off. of Child Support Enforcement, Canada — Foreign Reciprocating Country: Official
Reference Documents, U.S. DEP’T OF HEALTH & HUM. SERVS.,
https://www.acf.hhs.gov/css/resource/canada-fre (published Feb. 4, 2013; last reviewed May 9,
2019).
No. 79076-5-I/7

enforcement. During the adoption of the 2008 UIFSA amendments, the

legislative history of our Senate’s consideration of the bill noted that:

A Washington court may refuse to register a foreign court order for
the following reasons:

recognition and enforcement of the order is manifestly
incompatible with public policy, including the failure of the
issuing foreign tribunal to observe minimum standards of due
process, which include notice and an opportunity to be heard:
the issuing foreign tribunal lacked personal jurisdiction;

the foreign order is not enforceable in the issuing country;

the foreign order was obtained by fraud in connection with a
matter of procedure;

a record transmitted from the foreign CSE agency lacks
authenticity or integrity;

a proceeding between the same parties and with the same
purpose is pending before a Washington court and that
proceeding was the first to be filed;

the foreign order is incompatible with a more recent support
order involving the same parties and having the same purpose if
the more recent support order is entitled to recognition and
enforcement under Washington law;

the paying parent has already paid, i.e. the alleged arrears have
been paid in whole or in part;

the respondent neither appeared nor was represented in the
proceeding in the issuing foreign country, if the law of that
country (1) provides for prior notice of proceedings, and the
respondent did not have proper notice of the proceedings and
an opportunity to be heard; or (2) does not provide for prior
notice of the proceedings.

Washington presumes any foreign order is manifestly incompatible
with public policy when enforcement of the order would result in a
violation of any right guaranteed by the state or federal
constitutions.

FINAL B. REP. ON ENGROSSED SUBSTITUTE S.B. 5498, 64th Leg., Reg. Sess.

(Wash. 2015).

The statute as enacted, RCW 26.21A.530, codifies several of these

defenses to registration and enforcement of an order, including when a party has

made full or partial payment of an arrearage. In turn, a tribunal confronted with

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No. 79076-5-1/8

evidence establishing a full or partial defense “may stay enforcement of a
registered support order, continue the proceeding to permit production of
additional relevant evidence, and issue other appropriate orders.” RCW
26.21A.530(2).

RCW 4.24.820(1) bars the enforcement by Washington courts or
administrative agencies of “any order issued under foreign law, or by a foreign
legal system, that is manifestly incompatible with public policy.” As stated above,
an order is presumed to be manifestly incompatible with public policy when it
does not grant parties the same rights as the parties are granted under the
Washington or United States Constitutions. RCW 4.24.820(2). This statute was
enacted in conjunction with the most recent amendments to the UIFSA. LAWS OF
2015, ch. 214 § 61.

It is apparent that the chief constitutional concern embodied by the public
policy exception is the right to due process.*? While a dearth of case authority
exists as to what nonconstitutional issue could amount to a manifest
incompatibility of public policy, the phrase also appears in article 22(a) of the
Hague Convention on the International Recovery of Child Support and Other
Forms of Maintenance—a treaty that the United States, but not Canada, has

ratified.* Commentators have sought to provide a coherent definition. An

 

2 OFFICE OF CHILD SUPPORT ENF’T, U.S. DEP’T OF HEALTH & HUMAN SERVS., HAGUE CHILD
SUPPORT CONVENTION: JUDICIAL GUIDE 32 (May 2018),
https:/Awww.acf.hhs.gov/sites/default/files/programs/css/ocse judicial guide.pdf
[https://perma.cc/3958-GJW8].

3 Status Table: Convention of 23 November 2007 on the International Recovery of Child
Support and Other Forms of Family Maintenance, HAGUE CONF. ON PRIV. INT'L L.,
httos://www.hech.net/en/instruments/conventions/status-table/?cid=131 [https://perma.cc/C4XZ-
FK6M].
No. 79076-5-1/9

applicable example, provided by the State Department to the Senate in
facilitation of the Hague Convention's ratification, was as follows:

“{[A] U.S. competent authority could decline to recognize and

enforce a decision against a left-behind U.S. parent in an abduction

case where the child had been wrongfully taken or retained, on the

grounds that recognition and enforcement of such decision would

be manifestly incompatible with the U.S. public policy of

discouraging international parental child abduction.”

Robert Keith, Ten Things Practitioners Should Know About The Hague
Convention of 23 November 2007 on the International Recovery of Child Support
and Other Forms of Family Maintenance, 51 Fam. L.Q. 255, 262 (2017) (quoting
S. TREATY Doc. No. 110-21, at 16 (2008)).

It follows that a constitutional concern that a party raises as part of its
public policy defense should be of equal importance to the provision of due
process in ensuring the integrity of the proceeding that produced the order.
Similarly, if a party believes a public policy exists that conflicts with another
sovereign’s law, it should be shown to be on the order of magnitude of the policy
against parental abduction of children (a public policy that we unhesitatingly
recognize as extant in Washington).

The law of Ontario, the jurisdiction issuing the contested support order
herein, provides that, when a support order is silent as to the effect of a support
recipient’s remarriage, it will remain in effect either until the recipient dies or until

the order is changed by the issuing court. This contrasts with Washington law,

which presumes that an order will terminate upon the support recipient's

 

4 See Bhupal v. Bhupal, (2009) 97 O.R. (3d) 230 (Can. Ont. C.A.).

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No. 79076-5-1/10

remarriage unless it contains language to the contrary.° RCW 26.09.170(2).

In a spousal support order, the effect of remarriage is simply a durational
requirement. In Washington, courts are not bound to terminate the requirement
of spousal support upon the recipient’s remarriage; it is simply the presumption
when no language to the contrary provides otherwise. Similarly, in Ontario,
courts have the discretion to provide for the termination of spousal support
payments upon the recipient’s remarriage.

Brett does not identify any right under the Washington or United States
Constitutions that is violated by the Ontario order's continuing applicability.
Neither does he identify any Washington public policy that is contravened by
Ontario’s law. These are his burdens in order to avail himself of the defense of
manifest incompatibility with public policy.

Nevertheless, Brett insists, notwithstanding UIFSA’s choice of law
provision and the paucity of his constitutional argument, that enforcement of the
order must be barred by public policy. In support of his contention, he relies
entirely on the decision in In re Marriage of Williams, 115 Wn.2d 202, 206, 796
P.2d 421 (1990), which applied RCW 26.09.170(2) to hold that, absent specific
language to the contrary in a support order, spousal maintenance terminates
upon remarriage in Washington. But this, the lone case citation in Brett’s entire
brief, is insufficient. The Ontario court’s support order explicitly states that
spousal support payments will continue until Martin’s death or modification of the

order in Ontario. Ontario law governs. Brett has not provided a valid reason why

 

5 Thus, each state provides for judicial alteration of the otherwise-presumed duration. In
this regard, the two provisions are entirely compatible.

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it should not. No Washington public policy is offended by the requirement that he
petition the Ontario court for modification of its order.
III

Brett makes a second public policy argument, unsupported by any citation
to any pertinent statutory or case authority, that enforcement of the 1983 support
order is time-barred by the expiration of Ontario’s formerly applicable statutory
limitation period regulating support actions. For several reasons, this argument
is without merit.

Washington law anticipates differences between jurisdictions as to
statutes of limitations concerning support orders. It thus provides that, “[i]n a
proceeding for arrears under a registered support order, the statute of limitation
of this state or of the issuing state or foreign country, whichever is longer,
applies.” RCW 26.21A.515(2); see In re Marriage of Waters, 116 Wn. App. 211,
215 n.4, 63 P.3d 137 (2002).

Ontario’s statutory limitation period applicable to support actions,
previously 20 years, was eliminated entirely as of January 1, 2004. Limitations
Act, S.0. 2002, c 24, sched. B, §§ 16, 24 (Can.). Thus, all of Brett’s arrearages
accruing after January 1984 are fully enforceable. This is because they never
were barred prior to the repeal of the statute of limitation. Each installment of a
family maintenance obligation becomes a separate judgment upon its due date.

In re Marriage of Sanborn, 55 Wn. App. 124, 129, 777 P.2d 4 (1989). The only

 

6 The State cites to Schmitke v. Schmitke, 87 B.C.L.R. 2d 377 (B.C. Ct. App. 1993), for the
proposition that the statute of limitation does not begin to run on child support arrears until the child
reaches the age of majority. While this may be the law in British Columbia, it is not the law in
Ontario. See Cooney v. Neave, (2016) O.N.S.C. 525 (Can. Ont. Sup. Ct.).

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No. 79076-5-1/12

portion of Brett’s arrearage that would not be enforceable is the sum of those
accrued prior to January 1984.

Brett owed a total of $3,900 in missed spousal and child support payments
accruing from October to December 1983. Through his attorney, he paid Martin
$6,000 at the end of 1987. At the time of that payment, his monthly obligation
had been reduced to $800. Thus, a $5,200 excess over his current support
obligation existed at the time the payment was made. This excess over current
support at the time the payment was made would apply to his oldest accrued
arrears,” §

No limitation period applies to the remainder of Brett’s arrearage. Nor is
the difference between Ontario's and Washington's law regarding the statutory
limitation period applicable to support enforcement actions a manifest
incompatibility of public policy such as must be shown to bar registration and
enforcement of the order. The UIFSA assumes that different sovereigns will
have differing laws regarding limitation periods. It resolves this dispute by
requiring deference to the law of the issuing forum. To establish a difference in

limitation periods as a manifest incompatibility of public policy, Brett must do

 

7 It is unclear whether this $6,000 payment has been credited toward Brett's arrearages.
For some reason, Brett did not request that this amount be credited, either in the administrative
hearing or before the superior court. As stated above, full or partial payment of an arrearage is a
valid defense to enforcement of a registered support order pursuant to RCW 26.21A.530(1). The
same statute also recognizes the bar of a statute of limitation precluding enforcement of some or
all of an arrearage as a valid defense. RCW 26.21A.530(g). However, the proper forum in which
to assert these defenses is at an administrative proceeding or trial, not in this court. As a general
rule, we do not consider an issue raised for the first time on appeal except when such issue is a
manifest error affecting a constitutional right. RAP 2.5(a); State v. McFarland, 127 Wn.2d 322,
332-33, 899 P.2d 1251 (1995). Brett had the opportunity to assert such defenses at the
administrative hearing and did not do so.

8 The State concedes that all arrearages arising from missed payments predating
January 1984 have been satisfied and are “uncollectable.” Br. of Resp't (State) at 22.

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No. 79076-5-1/13

more than simply identify the variance. He does not. At its core, this dispute is
simply about a durational provision. Brett does not establish that such a
difference in a durational provision amounts to a manifest incompatibility with
public policy or a denial of his constitutional rights.
IV

Martin contends that she is entitled to an award of attorney fees and costs
pursuant to RAP 18.9(a), which permits this court to award such fees and costs
as a sanction for filing a frivolous appeal. “An appeal that is affirmed simply
because an appellant's arguments are rejected is not frivolous.” In re Estate of
Pesterkoff, 37 Wn. App. 418, 424, 680 P.2d 1062 (1984). That Brett does not
prevail in his appeal is not due to the strength of Martin’s arguments. Indeed, at
oral argument, neither Martin nor the State were able to articulate a standard for
determining manifest incompatibility with public policy. Rather, it is due to the
weakness of Brett’s own argument which, nevertheless, does not fall within the
realm of frivolousness. We decline to award fees under RAP 18.9.

Affirmed.

We concur:

 

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