2013 VT 11


OCS/Pappas v. O’Brien (2010-398)
and Bernheim v. Pappas (2011-165)
 
2013 VT 11
 
[Filed 01-Mar-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 
 

2013 VT 11

 

Nos. 2010-398 & 2011-165

 

OCS/Glenn Pappas


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Family Division


 


 


Nan O’Brien


December Term, 2011


 


 


Nancy Bernheim p/k/a Nan O’Brien
 
    v.
 
Glenn Pappas
 
 


 


M.
  Patricia Zimmerman, J. (10-398)


Thomas
  J. Devine, J. (11-165)
 

Mary Billings Munger, Office of
Child Support, Burlington, for Plaintiff-Appellee (10-398)/
  Defendant/Appellee (11-165).
 
Nancy P. Bernheim p/k/a Nan
O’Brien, Pro Se, Essex Junction, Defendant-Appellant (10-398)/
  Plaintiff-Appellant (11-165).
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.   These consolidated cases present disputes
over child support  so stale that the parties’
children are now in and approaching their thirties.  The basic questions
are whether father can register and enforce a child support order obtained in
Oklahoma against mother and, inversely, whether mother can register and enforce
an earlier child support order obtained in Georgia against father.  We
conclude that mother’s various jurisdictional challenges to the Oklahoma order
are without merit and are, in any event, precluded by the unappealed
adjudication in Oklahoma.  We further conclude that the Vermont court has
personal jurisdiction over father with respect to mother’s child support claims
against him and a statutory immunity provision in the Uniform Interstate Family
Support Act (UIFSA) does not apply.  As a result, we affirm the superior
court’s dismissal of mother’s enforcement action (Supreme Court Docket Number
2011-165), we affirm the superior court’s jurisdictional holdings with regard
to the Oklahoma order (Supreme Court Docket Number 2010-398), but we remand the
adjudication of father’s enforcement action (Supreme Court Docket Number
2010-398) for consideration of counterclaims raised by mother.  
¶ 2.            
Mother and father were married in Oklahoma in 1979.  They had two
sons, P.P. and A.P.  The couple moved to New York in 1983, where they
lived until they separated in 1985.  The parties were divorced in Los
Angeles County, California, in October 1986.  Pursuant to the California
divorce order, the parties were awarded joint legal custody of the children,
then ages three and five.  Primary physical custody was awarded to mother,
and father was ordered to pay child support in the amount of $237 per month for
each child.  Eventually, father returned to Oklahoma, and mother moved
with the children to Atlanta, Georgia.  In October 1994, the Superior
Court of Gwinnett County, Georgia, issued an order domesticating the California
divorce order and modifying the child support obligation.  Finding that father’s
financial condition had improved and that the needs of the children had
increased, the court ordered father to pay $350 per month for each child, as
well as a percentage of any bonuses father should receive in addition to his
salary.  This order stated that child support would cease if “custody is
changed by a Court of competent jurisdiction.”  In 1996, mother moved with
the children to New York.  
¶ 3.            
Beginning in July 1998, the younger child, P.P., moved from his mother’s
home in New York to his father’s home in Oklahoma.  In November 1998, the
older child, A.P. turned eighteen years of age.  In April 1999, father
filed documents to initiate a child custody proceeding in Oklahoma under the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  43 Okla. Stat. Ann. § 551-101 et seq.  Father
initially petitioned to have custody of P.P. transferred to him and to have his
child support obligation for both children ended—for A.P. because he had
attained the age of majority and for P.P. because he was residing with
father.  Mother moved to bifurcate the issues of
custody and child support.  A hearing was held in October 1999, at which
mother attempted to make a limited appearance for the purposes of the child
custody determination.  During the hearing, father requested an order
obligating mother to pay him child support for P.P. in addition to changing the
child’s custody.  The Oklahoma court awarded custody to father and
retroactively relieved him of any child support obligation as of April 22,
1999, the date he moved for a change of custody.  Furthermore, the court
ordered mother to pay child support to father in the amount of $338.50 per
month, retroactive to April 22, including an arrearage of $2724.00. 
Mother made two motions for new trials in the Oklahoma court raising
jurisdictional concerns.  The court denied the first, and mother withdrew
the second, after P.P. returned to her custody.[1]  She did not appeal either the
initial Oklahoma order or the denial of her motion for a new trial.  
¶ 4.            
In early July 2000, P.P. returned to live with mother in Georgia. 
At that time, father sought enforcement of the child support judgment for the
time when P.P. had been in his custody.  On July 18, 2000, an Oklahoma
Administrative Law Judge issued an administrative order awarding judgment to
father in the amount of $2369.50 for child support for the period from January
through July of 2000.  When this amount was added to the previous judgment,
the total arrearage became $5093.50.  That amount was reduced in June 2001
by an involuntary payment of $1366.46 made by an administrative offset. 
Under Oklahoma law, interest on arrears accumulated at a rate of 10% per
year.  Including the interest and principal, the total amount due through
December 31, 2009 comes to $7611.30.  The parties do not dispute this
calculation.  
¶ 5.            
Mother is now a resident of Vermont; father continues to reside in
Oklahoma.  In 2008, the Oklahoma Department of Human Services sought to
collect the outstanding child support from mother.  These enforcement
efforts were transferred to Vermont, and, on September 4, 2009, Vermont’s
Office of Child Support (OCS) filed a petition to register the Oklahoma support
order in Vermont, pursuant to UIFSA.  Mother responded on October 16,
2009, by filing a motion to set aside the Oklahoma order, contesting inter alia
the subject matter jurisdiction, personal jurisdiction, and notice in the
Oklahoma proceedings.  After three days of hearings, a magistrate issued
an order registering the Oklahoma support order and granting judgment against
mother in the amount of $7611.30.  Mother appealed the magistrate’s order
to the Chittenden Superior Court, Family Division, pursuant to Vermont Rule for
Family Proceedings 8(g).  On September 15, 2010, the superior court
affirmed, concluding that collateral estoppel barred mother from challenging
the Oklahoma court’s subject matter jurisdiction, that
Oklahoma had personal jurisdiction in light of mother’s physical presence and
participation, and that mother had received adequate notice of the Oklahoma
hearings.  
¶ 6.            
Mother also responded to father’s enforcement action by pursuing her own
enforcement.  She filed three documents simultaneously on April 21, 2010,
within thirty days from the date of the magistrate’s decision: (1) an appeal of
the magistrate’s decision to the family court; (2) a request for a stay of the
magistrate’s decision; and (3) an application to register and enforce the
Georgia child support order to collect support owed by father to mother under
that order.  The stay request argued that father owed back child support
to mother[2]
and it would be inequitable for father to collect back child support owed to
him, without paying the child support he owed to mother.  The application
to enforce the Georgia order was to have the Vermont court determine the amount
of back support owed to mother.[3] 
She claimed that the amount due under the Georgia order, with interest,
amounted to $34,093.50.  On May 12, before the application was accepted as
a separate case, the court denied the stay saying: “If [mother] is entitled to
collect past due child support from [father], she may seek appropriate
enforcement.”   
¶ 7.            
Mother served father with the application, and, in addition, the court
notified OCS of the filing.  OCS intervened and moved to dismiss.  On
August 11, 2010, the magistrate granted OCS’s motion and dismissed mother’s
petition, concluding that Vermont courts lacked personal jurisdiction over
father under UIFSA.  The magistrate added: “Proper forum more likely state
of [father]’s residence.  Case could have been initiated in this court but
transferred to proper forum to be heard.”  Mother appealed the
magistrate’s order to the family division of the superior court, challenging
both the determination that personal jurisdiction was absent and the
participation of OCS.  In an April 18, 2011 order, the Family Division
affirmed the magistrate’s decision.  
¶ 8.            
Mother appeals from both adverse decisions—one allowing registration of
the Oklahoma order and one denying her attempt to register and enforce the
Georgia order.  We have consolidated these matters on appeal.  In
both cases, the primary question is whether Vermont has the authority under
UIFSA to register and enforce an out-of-state child support order.  This
is a question of law, and we consider it de novo.  See Office of Child
Support ex rel. Lewis v. Lewis, 2004 VT 127, ¶ 6, 178 Vt. 204, 882 A.2d 1128.  In doing so, we accept the magistrate’s
findings of fact unless they are clearly erroneous.  See Cavallari v. Martin, 169 Vt. 210, 220-221,
732 A.2d 739, 746-47 (1999).
¶ 9.            
Before we address the legal issues, we make one observation to explain,
in part, the length and coverage of this opinion.  Although the facts may
seem commonplace at first, they are not when understood in the context of the
applicable law.  The combination of three factual elements complicates the
analysis of the legal issues: (1) at the time that father sought child support,
neither he nor mother nor either of the children resided in the state in which
the original child support order was created—California—or in the state in
which it was domesticated and modified—Georgia; (2) one of the children moved
from the custody of one parent to the custody of the other; and (3) each party
alleges that the other party owes back child support.  The first factual
element has been the subject of a number of decisions from other jurisdictions
as we discuss below.  The second factual element is rarely present in the
reported decisions, and its significance is largely unexplored.  The same
is true of the third factual element.  We can find few reported child
support decisions under the governing law where the first element is present
with either of the other two, and the few that exist are distinguishable. 
¶ 10.        
The three elements of factual complexity are combined with an element of
particular legal complexity.  There are two legal regimes governing
interstate enforcement and modification of child support orders and each, read
in isolation from the other, would not likely produce the same result on some
of the legal issues in this case.  The two are UIFSA, 15B V.S.A. §§
101-904, and the Full Faith and Credit for Child Support Orders Act (FFCCSOA),
28 U.S.C. § 1738B.  We explored these legal regimes to some degree in
Cavallari, 169 Vt. at 216-220, 732 A.2d at 743-46.  In doing so, we noted at the
outset: “The simple question raised by this case requires the Court to confront
the legal jigsaw puzzle of state and federal statutes applicable to the
interstate enforcement of child support orders.”  Id. at 211, 732 A.2d at 740.  In this case, we have to apply the
“legal jigsaw puzzle” to a complex factual scenario as noted above.
¶ 11.        
In addressing the questions of law in this case, we generally apply
Vermont law.  With limited exceptions that do not apply here, both UIFSA
and FFCCSOA mandate that the law of the forum state governs child support
enforcement actions.  See 28 U.S.C. § 1738B(h) (“In a proceeding to
establish, modify, or enforce a child support
order, the forum State’s law shall
apply . . . .”); 15B V.S.A. § 303 (“Except as
otherwise provided by this title, a responding tribunal of this state
. . . shall apply the procedural and substantive law, including the
rules of choice of law, generally applicable to similar proceedings originating
in this state . . . .”); Official Comment, 15B
V.S.A. § 303 (“To insure the efficient processing of the huge number
of interstate support cases, it is vital that decision-makers apply familiar
rules of local law to the maximum degree possible.”).  Accordingly,
insofar as there are differences between Vermont law and that of Oklahoma, our
decision is based on Vermont law.
I.
¶ 12.        
We begin by considering the validity of the Oklahoma child support
order, which mother contests on several grounds under UIFSA.  In
considering mother’s arguments, we focus primarily on UIFSA, only occasionally
touching upon the application of FFCCSOA,[4]
because this is how the parties framed the issues.  Mother’s first and
major argument is that the Oklahoma court lacked subject matter jurisdiction to
issue the order.  The essence of this argument is that, under UIFSA, the
Oklahoma court could not decide the issue of child support unless father
registered the Georgia child support order in Oklahoma and then petitioned in
Oklahoma to modify the Georgia order.  But the argument runs father into a
dead end because under UIFSA the Georgia order could not be modified in
Oklahoma on father’s request and over mother’s objection because Oklahoma was
his state of residence.  See 43 Okla. Stat. Ann. §
601-611(A) (describing requirements for modifying child support order from
another state including either nonresidence of
petitioner or residence of child and consent of all parties); see also U.L.A. 
Unif.
Interstate Family Support Act, Refs & Annos,
Prefatory Note II.D.2 (1996) (“Except for modification by agreement or when the
parties have all moved to the same new State, the party petitioning for
modification must submit himself or herself to the forum State where the
respondent resides.”).  Because Oklahoma was not authorized under UIFSA to
modify the Georgia order, mother contends that its order is void for lack of
subject matter jurisdiction.
¶ 13.        
Father, through OCS, responds that the Georgia order “terminated
automatically” when custody was changed due to language in the order stating
that “monthly payments shall be made on the first (1st) day of each consecutive
month thereafter until . . . custody is changed by a Court of competent jurisdiction.”
 It is the position of father and OCS, therefore, that there was no longer
anything to modify—that the Georgia order had expired.  Mother responds,
however, that even if father’s payment obligations terminated, this does not
mean that the order itself ceased to exist so as to extinguish child support
owed to her and to excuse an Oklahoma proceeding from UIFSA requirements. 
Insofar as the Georgia order continued to exist, mother argues, the Oklahoma
court was required to abide by the UIFSA modification requirements. 
Because the court did not abide by these requirements, she concludes that the
Oklahoma court lacked subject matter jurisdiction.[5]  
¶ 14.        
UIFSA—which has also been adopted in Vermont—contains
only a short list of allowable defenses for a party seeking to contest the
registration of an out-of-state order.  See 15B V.S.A.
§ 607(a).  As the official comment explains,
the statute “places the burden on the nonregistering
party to assert narrowly defined defenses to registration of a support
order.”  Official Comment, 15B V.S.A. § 607. 
Although the list specifically includes, among other things, a lack of personal
jurisdiction, 15B V.S.A. § 607(a)(1), it
does not include a lack of subject matter jurisdiction.  But cf.
FFCCSOA, 28 U.S.C. § 1738B (requiring that states recognize other states’
child support orders so long as there was subject matter jurisdiction, personal
jurisdiction, and proper notice).  Although this omission is noteworthy,
it is not necessarily decisive.  Section 603, which describes the effect
of registering a child support order, states, “a tribunal of this state and the
office of child support shall recognize and enforce . . .
a registered order if the issuing tribunal had jurisdiction.”  15B V.S.A. § 603(c).  This language suggests that,
although not listed as a defense, a lack of subject matter jurisdiction in the
issuing tribunal is a barrier to registering and enforcing an order.
¶ 15.        
Nevertheless, we reject mother’s attempt to contest the validity of the
Oklahoma order on the basis that the Oklahoma court lacked subject matter
jurisdiction.  Her argument fails for two reasons.  First, we
conclude that mother is precluded from challenging subject matter jurisdiction
because she thoroughly litigated that issue in the Oklahoma proceeding. 
Second, mother’s argument fails on the merits insofar as we conclude that the
Oklahoma court’s child support order was not a modification for the purposes of
UIFSA.   
A.
¶ 16.        
The superior court concluded that mother is collaterally estopped from
raising subject matter jurisdiction.[6] 
We affirm the court’s conclusion.  Because the issue of subject matter
jurisdiction was decided by the Oklahoma court after having been litigated
there, we must give that determination full faith and credit. 
¶ 17.        
The conclusion that mother is precluded from collaterally challenging
the Oklahoma court’s subject matter jurisdiction may appear to fly in the face
of the traditional notion that subject matter jurisdiction can be raised at any
time as a collateral challenge to a judgment.  See, e.g., In re Taft
Corners Assocs., 162 Vt. 638, 639, 650 A.2d 520, 521 (1994) (mem.) (“Subject matter jurisdiction may not be waived . . .
.”).  Mother relies on this legal principle.  This understanding
would seem to overcome any obstacle raised because subject matter jurisdiction
was litigated previously.  Cf. Boisvert
v. Boisvert, 143 Vt. 445, 447, 466 A.2d 1184,
1185 (1983) (“It is well settled that a court’s lack of subject matter jurisdiction
may be raised at any time.”). 

¶ 18.        
The conception of subject matter jurisdiction as perpetually open to
collateral attack is not entirely correct and is contrary to the modern
understanding, particularly in this jurisdiction, and is incorrect in the
context before us.  When a court of another state has fully and fairly
litigated an issue—including an issue of jurisdiction—and has reached a final
judgment, we are required to give full effect to that state’s
determination.  See Durfee v. Duke,
375 U.S. 106, 111-13 (1963).  Although we may inquire into whether a court
of another state had jurisdiction before giving that state’s judgment full
faith and credit, we are required to give credit to that court’s determination
that it had jurisdiction where the issue was fully contested.  See Driver
v. Driver, 148 Vt. 560, 562, 536 A.2d 557, 558 (1987) (“[T]he jurisdiction
of [another state’s] court may be subject to collateral attack in Vermont if
jurisdiction had not been contested and determined by the [other]
court.”).  This principle, derived from the Full Faith and Credit Clause
of the United States Constitution, U.S. Const. art. IV, § 1, has been
established in a number of United States Supreme Court decisions.  See,
e.g., Treinies v. Sunshine Mining Co.,
308 U.S. 66, 78 (1939) (“One trial of an issue is enough.  The principles of res judicata apply to
questions of jurisdiction as well as to other issues, as well to jurisdiction of the subject matter as of
the parties.” (citation and quotation omitted)).
¶ 19.        
Notable among these decisions was a reversal of this Court in Cook v.
Cook, 342 U.S. 126 (1951), rev’g 116 Vt.
374, 76 A.2d 593 (1950).  We had held that a party could collaterally
attack the subject matter jurisdiction of a Florida divorce decree on the
grounds that the divorcing party was not properly domiciled in Florida as
required by Florida law.  See Cook, 116 Vt. at
377-79, 76 A.2d at 595-96.  The United States Supreme Court held
that “[a] judgment presumes jurisdiction over the subject matter and over the
persons,” and that “[t]he Florida decree is entitled to that
presumption.”  342 U.S. at 128.  The Court
went on to explain that the jurisdiction of the Florida court would be open to
collateral attack only if it was demonstrated that the jurisdictional issues
were not adequately contested in Florida.  The Court explained, 
That
presumption [of jurisdiction] may of course be overcome by showing, for
example, that [the husband] never . . . made
an appearance in the case either generally or specially to contest the
jurisdictional issues. . . . [I]t is essential that the court
know what transpired in Florida before this collateral attack on the Florida
decree can be resolved.  For until Florida’s
jurisdiction is shown to be vulnerable, Vermont may not relitigate
the issue of domicile on which the Florida
decree rests.
 
Id.
at 128-29.  On remand, we summarized, “It now appears to be the law
that when the petitionee in a divorce case appears
and has the opportunity to contest the jurisdiction . . . the Full
Faith and Credit Clause precludes their attacking it in the courts of a sister
state.”  Cook v. Cook, 117 Vt. 173, 174-75, 86
A.2d 923, 924 (1952). 
¶ 20.        
Twelve years later, in Durfee, the
Supreme Court reinforced the principle that even jurisdictional determinations
are res judicata so long as they were adequately contested in the original
state.  The Court explained,
[W]hile it is established that a court in one State, when
asked to give effect to the judgment of a court in another State, may
constitutionally inquire into the foreign court’s jurisdiction to render that
judgment, the modern decisions of this Court have carefully delineated the
permissible scope of such an inquiry.  From these decisions there emerges
the general rule that a judgment is entitled to full faith and credit—even as
to questions of jurisdiction—when the second court’s inquiry discloses that
those questions have been fully and fairly litigated and finally decided in the
court which rendered the original judgment.
 
375 U.S. at 111.  Thus, it has
become the settled rule that jurisdictional determinations of another state do
have preclusive effect so long as they were “fully and fairly litigated.” 
See Restatement (Second) of Judgments § 12 cmt. c
(1982) (“When the question of the tribunal’s jurisdiction is raised in the
original action, in a modern procedural regime there is no reason why the
determination of the issue should not thereafter be conclusive under the usual
rules of issue preclusion.”); see, e.g., Tomai-Minogue
v. State Farm Mut. Auto. Ins. Co., 770 F.2d 1228,
1233 n.7 (4th Cir. 1985) (“[W]here the defendant makes a special appearance,
and the jurisdictional issue has been fully and fairly litigated and finally
decided in the original forum, the resulting judgment is entitled to full faith
and credit even as to the existence of personal and subject
matter jurisdiction.”). 
¶ 21.        
The teachings of the United States Supreme Court precedents are well
summarized in the Restatement (Second) of Judgments § 12.  The Restatement
provides the general rule that a judgment after an issue was litigated
precludes parties challenging the issuing court’s subject matter jurisdiction
in a subsequent action unless one of three exceptions is present: 
(1)
The subject matter of the action was so plainly beyond the court’s jurisdiction
that its entertaining the action was a manifest abuse of authority; or (2)
Allowing the judgment to stand would substantially infringe the authority of
another tribunal or agency of government; or (3) The judgment was rendered by a
court lacking capability to make an adequately informed determination of a
question concerning its own jurisdiction and as a matter of procedural fairness
the party seeking to avoid the judgment should have opportunity belatedly to
attack the court’s subject matter jurisdiction.  
 
Restatement
(Second) of Judgments § 12 (1982).  Clearly neither the second nor
the third alternative is present in this case.  Enforcing the Oklahoma
judgment does not infringe on the authority of another tribunal or agency, and
the Oklahoma court was fully capable of determining its own jurisdiction. 
Whether the decision was right or wrong, we cannot conclude that the subject
matter of the Oklahoma action was so plainly beyond the court’s jurisdiction
that the court manifestly abused its authority.  See Wall v. Stinson,
983 P.2d 736, 742-43 (Alaska 1999); see also B.C., 169 Vt. at 8, 726
A.2d at 50 (“Unless a court has usurped power not accorded to it, its exercise
of subject matter jurisdiction is binding in subsequent proceedings as long as
the jurisdictional question was litigated and decided or the parties had an
opportunity to contest subject-matter jurisdiction but failed to do
so.”).  In this case, therefore, the Oklahoma court’s judgment is not
subject to collateral attack in Vermont regarding issues that were fully and
fairly litigated in Oklahoma.[7]

¶ 22.        
In this case, the issue of subject matter jurisdiction was sufficiently
litigated that we must afford Oklahoma’s determination full faith and
credit.  Mother was a party in the Oklahoma action, and she raised the
issue of subject matter jurisdiction in that proceeding.  In particular,
mother filed a written response to father’s petition in which she challenged
the court’s authority to address child support issues in the context of a
UCCJEA case.  Before the hearing, in the context of a motion to continue
the hearing or bifurcate the custody and child support issues, she reiterated
her argument that “the UCCJEA is an improper jurisdictional vehicle for child
support determinations of a foreign support Order, and that the Oklahoma
District Court was not vested with the jurisdictional authority to make
monetary rulings under the auspices of the UCCJEA.”  In the Oklahoma
hearing, mother, representing herself, and father’s lawyer both argued to the
judge about the applicability and impact of UIFSA with respect to the
jurisdictional issues.  After this briefing and argument, the Oklahoma
court determined that it had subject matter jurisdiction.[8]  After the court’s ruling, mother
moved for a new trial and extensively briefed her jurisdictional arguments.
 The court denied the motion.  She could have appealed the court’s
underlying ruling or the court’s denial of her motion for a new trial, but she
did not.  We acknowledge that mother’s effort to challenge the Oklahoma
order might have continued had her son not returned to her custody, but on this
record we conclude that the issue of subject matter jurisdiction was fully and
fairly litigated.
B.
¶ 23.        
Even if we were to conclude that mother could renew her jurisdictional
challenge in this Court, we are not convinced that the UIFSA jurisdictional
requirements were violated in this case.  The UIFSA requirement that the
petitioner not reside in the forum state applies only to modifications of prior
custody orders.  See 15B V.S.A. § 611(a)(1)(B). 
Thus, mother’s contention that the Oklahoma court lacked subject matter
jurisdiction to issue its support order is premised on the notion that father
was seeking a modification of the prior Georgia support order.  We
conclude that the Oklahoma order was not a modification of the preexisting
Georgia order for the purposes of UIFSA.
¶ 24.        
As noted, the Georgia order explicitly stated that child support would
cease if “custody is changed by a Court of competent jurisdiction.”  Here,
there is no dispute that custody was changed by a court of competent
jurisdiction.  As a result, father’s ongoing support obligation
expired.  This does not mean that the Georgia support order no longer
exists or cannot form the basis for an arrearage or other claim.  But
though the Georgia order still governs the parties’ support obligations from
before the change of custody, it has expired in the sense that it has no
prospective effect with respect to support obligations.  Once the Oklahoma
court, a court of competent jurisdiction, entered an order transferring custody
of the only remaining minor child from mother to father, father’s support
obligation expired under the terms of the Georgia support order.  Having
modified custody, and with the Georgia support obligation no longer in effect
by its own terms, the Oklahoma court had jurisdiction to address father’s new
and independent request for child support.
¶ 25.        
In short, by its own terms, the Georgia order expired when father
obtained custody of P.P., thereby ending both parents’ prospective child
support obligations under the order.  Absent the automatic termination
provision of the Georgia order, father’s obligation to pay mother child support
would have continued—even after he was awarded custody of the child—until the
Georgia order was modified by court decision.  Thus, without a provision
automatically terminating child support upon change of custody, an award of
child support to the new custodian would have been a modified order necessarily
terminating the former custodian’s right to child support under the preexisting
order and would therefore have been subject to the jurisdictional requirements
for modification under UIFSA.  This case is different, however, because,
for the reasons stated above, the Georgia support order expired when the
Oklahoma court transferred custody to father.[9]
¶ 26.        
This case is not controlled by the line of cases culminating in Spencer
v. Spencer, 882 N.E.2d 886 (N.Y. 2008), a decision that is factually very
different, but provides some context and a basis for comparison.  Spencer
was the final resolution of a series of New York cases where the prospective
obligation to pay child support had reached an end point because the child
covered by the order had reached the age of majority in the state where the
order was issued.  Some New York courts had held that in the case of an
order from another state that had expired due to the age of the minor, they
could extend the duration of the previous obligation at the request of the obligee because the age of majority was higher in New York
than in the state where the order was issued.  They held that such an
extension was not a modification of the initial order because that order had
expired by its terms.  See, e.g., Ferraro v. Nash,
739 N.Y.S.2d 838, 839 (App. Div. 2002).
¶ 27.        
The “only issue” in Spencer, however, was whether the New York
child support petitions that were filed after the termination of the initial
out-of-state child support obligation “because the child reached the issuing
state’s age of majority [sought] a ‘modification’ of the issuing state’s
order.”  882 N.E.2d at 889-90.  The Spencer
court answered in the affirmative for three reasons.  First, the New York
orders fit within FFCCSOA’s broad definition of “modification” because they
changed the amount, scope, and most particularly the duration of the
out-of-state order.  Id. at 890; see 28 U.S.C. § 1738B(b) (defining
“modification” as “a change in a child support order that affects the amount,
scope, or duration of the order and modifies, replaces, supersedes, or
otherwise is made subsequent to the child support order”).  Second,
drafters of UIFSA made explicit in comments and amendments to the model act that
subsequent orders extending the duration of initial support orders that had
expired because of the original issuing state’s lower age limit on such orders
should be considered a modification of the original order for purposes of
UIFSA.  Spencer, 882 N.E.2d at 890-91; see U.L.A. Unif. Interstate Family Support Act
§ 611(c) cmt. (1996); id.
§ 611(d) (2001).  Third, allowing New York courts
to enter support orders extending the duration of support beyond the age limit
in the original issuing courts’ orders undermined the principle of comity
critical to the policies underlying FFCCSOA and UIFSA.  Spencer, 882 N.E.2d at 891.
¶ 28.        
This case is plainly distinguishable.  In the cases governed by Spencer,
the New York orders were inconsistent with, and therefore a modification of,
the original issuing courts’ support orders.  In contrast, the Oklahoma
order in this case was entirely consistent with the expired Georgia order,
which, by its own terms, ended father’s ongoing child support obligations upon
a change of custody, which occurred before the Oklahoma court issued its
support order.  This is not a situation in which one court extended the
duration of the original child support obligation.  In this case, the
support obligation no longer had any prospective effect based on the original
order’s own terms following a change of custody.  Thus, as explained
above, the Oklahoma court’s order was a new and independent order rather than a
modification of the expired Georgia order.  Cf. Andree,
2007-NMCA-156, ¶¶ 37-38 (concluding that Texas support order did not “modify”
prior New Mexico support order because New Mexico order concerned arrearages
father owed to state agency while Texas order concerned prospective support
owed to mother).
¶ 29.        
We do not consider this result to be at odds with UIFSA’s one-order
philosophy.  The primary aim of UIFSA is to ensure that states do not
second-guess the support orders of other states, thereby opening the door to
forum shopping and the proliferation of conflicting orders.  See generally
K. Kemper, Annotation, Construction and Application of Uniform Interstate
Family Support Act, 90 A.L.R.5th 1, §§ 2, 2.5 (2001).  That is not
what occurred in this case.
¶ 30.        
Allowing father to proceed in Oklahoma also makes practical sense. 
Having obtained custody of P.P., father was in no different position than a
custodial parent who was seeking a support order for the first time against the
other parent residing in another state.  In general, if there is no child
support order in place, then the custodial parent can initiate a proceeding in
his or her state of residence—assuming the custodian has personal jurisdiction
over the non-custodial parent under UIFSA’s liberal personal jurisdiction
rules—and then seek an enforcement order in the state of the non-custodial
parent.  See 15B V.S.A. § 201.  In the present case, when father
obtained custody of P.P., there was no order in effect providing child support
for the ongoing costs of P.P.’s living expenses.  If we define the Oklahoma
court’s action as a modification of the Georgia order in this case, father is
denied the normal UIFSA avenue to obtain child support
through the courts of his home state.  Father would have fewer options for
obtaining child support essentially because he was previously a non-custodial
parent.  
¶ 31.        
This additional hurdle may have practical significance for parents like
father.  Given the age of the child and the temporary nature of father’s
custody, the cost of pursuing establishment and enforcement of a support order
in Vermont, or Georgia if jurisdiction there is still available, is likely
prohibitive in relation to the amount of support to be obtained.  Thus,
the consequence of accepting mother’s argument is very likely no support order
at all for a period in which the child is undeniably entitled to support from
the non-custodial parent.  While we have become consumed by jurisdictional
challenges, mother has no apparent defense to a claim that she should pay some
amount of child support during the period father was the custodial parent.[10]  We cannot view there being no
support order for that period as consistent with the intent of UIFSA.
II.
¶ 32.        
Mother’s second argument is that the Oklahoma court lacked personal
jurisdiction over her for the purposes of determining child support.[11]  Unlike subject matter
jurisdiction, a lack of personal jurisdiction is one of the listed defenses
under UIFSA.  15B V.S.A. § 607(a)(1). 
In this case, mother contends that her participation was strictly for the
purposes of the UCCJEA proceeding to determine custody and that she
consistently denied the personal jurisdiction of the Oklahoma court to
determine child support.  Father, through OCS, argues that mother’s
participation in the Oklahoma proceedings, availing herself of the benefits and
laws of Oklahoma, established personal jurisdiction over mother.  Father
also contends that the issue of personal jurisdiction was litigated already and
is res judicata.  The superior court agreed, explaining:
[Mother]
was physically present in Oklahoma for the purpose of attending and
participating in hearings.  She filed pleadings, testified in court, and
otherwise availed herself of the benefits and laws of Oklahoma.  In
December of 2000, [mother] filed a motion in the Oklahoma court to transfer
custody of the parties’ younger son back to her, thereby purposefully taking
advantage of services in that state.  The Oklahoma court made a finding that
it had personal jurisdiction over [mother], and [mother] did not appeal this
order.
 
Taking these findings to be true, the central question is
whether any of these facts prevent mother from raising personal jurisdiction as
a defense.  We conclude that the last of the listed findings achieves this
purpose.  
¶ 33.        
Contrary to father’s primary argument, physical presence and active
participation at a UCCJEA proceeding does not establish personal jurisdiction
for the purposes of ordering child support.  The UCCJEA—and thus Oklahoma
law—contains a specific immunity provision, which states: 
A
party to a child custody proceeding, including a modification proceeding, or a
petitioner or respondent in a proceeding to enforce or register a child custody
determination is not subject to personal jurisdiction in this state for another
proceeding or purpose solely by reason of having participated, or having been
physically present for the purpose of participating, in the proceeding.
 
43 Okla. Stat. Ann. § 551-109. 
This immunity provision means that a party may make a limited appearance for
the purposes of determining custody without acquiescing to personal
jurisdiction with regard to child support.  See Hollowell
v. Tamburro, 991 So. 2d 1022, 1025 (Fla. Dist.
Ct. App. 2008) (“The father concedes that the circuit court has subject matter
jurisdiction to address the issues of custody and visitation, that the court
may make a ‘child custody determination’ under the UCCJEA. Under [the UCCJEA],
the father has the right to participate in the proceedings concerning those
issues without waiving his objection to personal jurisdiction over financial
issues.”); cf. Kulko v. Superior Court of
Cal., 436 U.S. 84, 97-98 (1978) (“[A]ppellant did
no more than acquiesce in the stated preference of one of his children to live
with her mother in California.  This single act is surely not one that a reasonable parent
would expect to result in the substantial financial burden and personal strain
of litigating a child-support suit in a forum 3,000 miles away, and we
therefore see no basis on which it can be said that appellant could reasonably
have anticipated being ‘haled
before a [California] court.’ ” (quoting Shaffer v. Heitner,
433 U.S. 186, 216 (1977)).  Mother raised this immunity before the
Oklahoma court.  Mother was therefore not subject to personal jurisdiction
for the purposes of child support by virtue of her participation in the child
custody hearing.  
¶ 34.        
Father, through OCS, argues in the alternative that mother waived her
limited appearance by requesting substantive relief and not cabining herself to
contesting jurisdiction.  After examining mother’s filings, we find
nothing to support the suggestion that she ever deviated from arguing that the
Oklahoma court lacked jurisdiction.[12]
¶ 35.        
Finally, father argues that the Oklahoma court had personal jurisdiction
on the grounds that mother and father had sexual intercourse in Oklahoma and
P.P. may have been conceived as a result of that intercourse.  Under
UIFSA, this is a valid basis for personal jurisdiction.  43 Okla. Stat. Ann. § 601-201(6).  Mother
responds, however, that UIFSA was not in effect at the time of her pregnancy
and cannot be applied retroactively.  Whether or not this argument is
correct as a matter of statutory effect,[13] mother’s response mistakenly treats
personal jurisdiction as though it were a statutory requirement.  Assuming
that conception within the state satisfies the “minimum contacts” requirement
of the Constitution, see Int’l Shoe Co. v. Washington, 326 U.S. 310
(1945), then Oklahoma could have asserted jurisdiction over mother on the basis
of her pregnancy regardless of the enactment of UIFSA.  This suggests a
potentially valid basis for personal jurisdiction, but ultimately we need not
decide this question.  
¶ 36.        
We reject mother’s attempt to contest the Oklahoma order for lack of
personal jurisdiction for a more basic reason: she thoroughly litigated the
issue of personal jurisdiction in Oklahoma and cannot, whatever the merits, relitigate it here.  As noted above, see supra
I.A., ¶¶ 16-22, even on jurisdictional questions, another state’s
judgments may have preclusive effect under the Full Faith and Credit
Clause.  See Durfee, 375 U.S. at 111
(“[A] judgment is entitled to full faith and credit—even as to questions of
jurisdiction—when the second court’s inquiry discloses that those questions have
been fully and fairly litigated and finally decided in the court which rendered
the original judgment.”).  
¶ 37.        
In this case, mother extensively argued a lack of personal jurisdiction
in multiple and lengthy court filings, the Oklahoma court concluded that it had
personal jurisdiction, and mother did not appeal.  There is nothing so unique about personal jurisdiction as to allow mother to relitigate the issue here in Vermont.  See Ins.
Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706-07 (1982) (“This argument
again assumes that there is something unique about the requirement of personal
jurisdiction, which prevents it from being established or waived like other
rights.  A defendant is always free to ignore the judicial proceedings,
risk a default judgment, and then challenge that judgment on jurisdictional
grounds in a collateral proceeding.  By submitting to the jurisdiction of
the court for the limited purpose of challenging jurisdiction, the defendant
agrees to abide by that court’s determination on the issue of jurisdiction:
That decision will be res judicata on that issue in any further proceedings.”
(citation omitted)); Sherrer v. Sherrer, 334 U.S. 343, 348 (1948) (“It is clear that
respondent was afforded his day in court with respect to every issue involved
in the litigation, including the jurisdictional issue of petitioner’s domicile.
 Under such circumstances, there is nothing in the concept of due process
which demands that a defendant be afforded a second opportunity to litigate the
existence of jurisdictional facts.”).
III.
¶ 38.        
Mother’s final collateral challenge to the Oklahoma child support order
is that she did not receive proper notice.  She makes two separate
arguments in this regard.  First, she contends that, because father’s
initial petition in the Oklahoma court did not include a prayer for child
support, she was not on notice that child support would be addressed in the
Oklahoma child custody hearing.  Second, she argues that she was not given
notice of a July 2000 administrative hearing at which an Oklahoma
administrative court issued a default judgment against her.  
¶ 39.        
In her first argument, she claims that the failure of father or the
court to notify her that child support was in issue denied her due process of
law under the Fourteenth Amendment.  Where a lack of notice violates the
due process rights of a party, a judgment may be unenforceable for that
reason.  See Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950) (“An elementary and
fundamental requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.”); Pizzano
Constr. Co. v. Hadwen, 133 Vt. 495, 499, 346 A.2d
224, 226 (1975) (“We hold that the court’s action imposing liability upon the
defendants under the circumstances disclosed by the record deprived them of
their due process right to meaningful notice and opportunity to be heard,
making the initial judgment void.”).  It is true that father’s petition
never stated that father would be seeking child support, although it did
request that father’s child support obligations be eliminated.  See Petition of Green Mountain Power Corp., 131 Vt. 284,
293, 305 A.2d 571, 577 (1973) (“The question on review is not the adequacy of
the original notice or pleading but is the fairness of the whole procedure.
 Critical to a determination of whether the procedure was fair is whether
or not the parties were given an adequate opportunity to prepare and respond to
the issues raised in the proceeding.” (emphasis
added)).  Essentially mother’s argument is that the notice provided to her
prior to the Oklahoma proceeding was so inadequate as to deny her a meaningful
opportunity to be heard.
¶ 40.        
The short answer to this argument, as with the arguments that the
Oklahoma court lacked subject matter and personal jurisdiction, is that the
Oklahoma judgment cannot be collaterally attacked on this basis where mother
litigated the issue in Oklahoma, the Oklahoma court rejected her position, and
she failed to appeal.  See, e.g., Nacorra
v. INS, 52 F. App’x. 896,
897 (9th Cir. 2002) (mem.) (holding
that “general principles of res judicata prevent relitigating”
lack of notice where it was decided previously); Brownlee v. W. Chain Co.,
364 N.E.2d 926, 929 (Ill. App. Ct. 1977) (“Defendant was afforded the
opportunity to litigate the notice and due process issue in [another state].
 We therefore believe the doctrine of res judicata bars defendant from
attacking collaterally the [out-of-state] judgment in Illinois.”).
¶ 41.        
Even if mother’s argument were not precluded, we would reject it on the
merits.  Father raises two persuasive responses: (1) the Oklahoma court
was required to enter a child support order against mother, when it changed
custody of P.P., and no specific notice was required under those circumstances;
and (2) mother had adequate notice to allow her to meaningfully participate in
the proceedings that resulted in the Oklahoma child support order. 
According to father, mother had sufficient notice both as a matter of law and
as a matter of fact.
¶ 42.        
The first response claims that the omission is not consequential because
mother is charged with the knowledge of the law.  This argument relies
upon State ex rel. Huffman v. Robertson, 853 P.2d 249, 251-52 (Okl. Civ. App. 1993), which held in a factually similar
case that the legal requirement that the trial court issue a child support
order when modifying custody gave adequate notice to answer a due process
challenge:
[T]he
crux of the matter is that upon receiving notice of the father’s motion to
modify custody, the mother was charged with notice that if the motion was
granted the court had a statutory duty to make appropriate provisions for the
child’s support as a necessary incident to the new custodial arrangement. 
And she also knew, or should have known from her earlier experience in court,
that both parents are responsible for the support of their child and that as a
non-custodial parent she could expect to have to contribute to its support.
. . . [O]nce jurisdiction of a court is
invoked with respect to child custody matters, the statutes kick in and
prescribe what issues the court shall decide.
 
We take the applicable Oklahoma law from Huffman and
agree that based upon that law there is no due process violation.
¶ 43.        
We also agree with father’s second response that mother had actual
notice, which, even if legally inadequate, was sufficient to avoid a violation
of due process.  As the superior court points out, mother was able to file
a nine-page motion requesting that issues of custody and child support be
bifurcated.  She was, therefore, clearly on notice that child support
would be discussed.  In fact, at the hearing, mother explained, “In that
Mr. Pappas raised the issue of support, I had no
choice but to address it.”  Although this demonstrates only notice that
the court would address child support owed to her—not child support owed
by her—we conclude that owing and being owed child support are
sufficiently related that the lack of notice concerning the potential
imposition of child support does not rise to the level of a due process
violation.  See In re Vt. Health Serv. Corp., 155 Vt. 457, 460, 586
A.2d 1145, 1147 (1990) (“For notice to be adequate, it is enough ‘that the
parties be sufficiently apprised of the nature of the proceedings so that there
is no unfair surprise.’ ” (quoting N. State Tel. Co. v. Alaska Pub. Utils. Comm’n, 522
P.2d 711, 714 (Alaska 1974))).  Examining the record in this case,
one can infer not only that mother was not entirely surprised by what
transpired but that she likely had an ominous inkling of what the Oklahoma
court might do.  Furthermore, even if she was not adequately apprised
ahead of time, mother definitely had adequate notice to file an appeal. 
See Hughes v. Calabrese, 2002-Ohio-2217, ¶ 14, 767 N.E.2d 725
(holding that collateral attack based on inadequate notice was unavailable
because “this claim is usually raised by appeal” and the party “could raise
these claims in a postjudgment appeal”). 
Overall, mother was present, argued lack of notice, and had an opportunity to
appeal.  See United Student Aid Funds, Inc. v. Espinosa, 559 U.S.
260, ___, 130 S.Ct. 1367, 1378 (2010) (holding that
receipt of actual notice allowing an opportunity to “timely object[]
. . . and appeal[] from an adverse ruling on its objection . . . . more than satisfied [the party’s] due process
rights”).  Under these circumstances, the lack of notice did not entirely
frustrate mother’s opportunity to be heard and to present her objections. 

¶ 44.        
We also reject mother’s second argument—that she received inadequate
notice of the July 2000 administrative hearing—as irrelevant to the issues
before the court.  Oklahoma has an administrative process through which a
child support arrearage under a court order can be entered into a judgment, and
in this case the father through OCS registered both the court order and the
administrative order.  The administrative order determined the amount owed
from January 2000 through July 2000, and rendered a judgment for that amount
combined with the amount of arrearage specified in the court order plus
interest.  Subsequently, a part of the arrearage was paid through an
administrative offset.  In its request for enforcement, OCS sought an
amount of arrearage that reflected the court order, the administrative order,
the amount paid and an up-to-date calculation of interest.  Pursuant to
UIFSA, 15B V.S.A. § 606, mother could have contested “the remedies being sought
or the amount of any alleged arrearages.”  She did not do so, instead
limiting her challenge to the validity of the Oklahoma orders.  In other
words, she did not raise a defense under § 607 as to the amount of the
arrearage.  On this basis, the magistrate found “[t]he parties do not
dispute the calculation [of the arrearage].”  Mother did not appeal this
conclusion to the superior judge or raise any issue of the amount of the
arrearage, nor has she raised any issue about it here.
¶ 45.        
In view of the lack of a contest of the amount of the arrearage, the
administrative order is irrelevant to any issue before the superior court or
this Court.  Even if we assume that the notice of the administrative
hearing was inadequate, the order of the administrative agency has no effect on
the registration order and child support arrearage judgment issued by the
magistrate and affirmed by the superior court judge.  
¶ 46.        
Because we conclude that mother does not have a defense to the
registration and enforcement of the Oklahoma child support order, we affirm the
decision of the superior court in docket number 2010-398.  We remand,
however, for proceedings consistent with the final section of this opinion.
IV.
¶ 47.        
We turn now to mother’s appeal from the superior court’s denial of her
separate attempt to register and enforce the Georgia child support order.[14]  Mother contends that, if father is
able to register and enforce the Oklahoma order against her in Vermont, then
she should be able to register and enforce the Georgia order against him in
Vermont.  OCS responded on father’s behalf, arguing that Vermont lacks
personal jurisdiction over father for the purposes of collecting child support.[15] 
The magistrate accepted this assessment, and the superior court affirmed the
magistrate.
¶ 48.        
As we understand mother’s petition, there are three components to her
child support claim.[16] 
First, mother alleges that father failed to pay child support under the Georgia
order for the period when P.P. was living with father but before father moved
to modify custody.[17] 
Second, mother alleges that father failed to pay support under the order from
the date when P.P. moved back to live with mother until he reached the age of
majority.[18] 
Third, mother alleges that father failed to pay the child support amount with
respect to the oldest son, A.P., in part of 1996 and for one month in 1998.[19] 
¶ 49.        
Mother’s central argument is that, by choosing to register the Oklahoma
order in Vermont, father thereby subjected himself to the personal jurisdiction
of Vermont.  She contends that the Oklahoma order incorporates the Georgia
order, that father therefore necessarily registered the Georgia order alongside
the Oklahoma order, and that he has therefore waived any objection to personal
jurisdiction.  Father’s argument is that, under UIFSA, mother is required
to bring an enforcement action not in her home state but in his home
state.  The superior court concluded that father was entitled to a limited
immunity under UIFSA affording him the ability to petition to enforce child
support without submitting to personal jurisdiction “in another proceeding.” 
15B V.S.A. § 314.  Both these arguments are
somewhat ironic, of course, insofar as they rely on essentially the same
statutory requirements that mother unsuccessfully attempted to avail herself of
in Oklahoma.
¶ 50.        
We conclude the trial court erred in ruling that mother’s application
could not go further because of lack of personal jurisdiction over
father.  Two provisions of Vermont’s UIFSA potentially establish personal
jurisdiction.  Section 201 grants personal jurisdiction over a nonresident
where “the individual submits to the jurisdiction of this state by consent or
by filing with the tribunal a responsive document having the effect of waiving
any contest to personal jurisdiction,” and also where “there is any other basis
consistent with the constitutions of this state and the United States for the
exercise of personal jurisdiction.”  15B V.S.A.
§ 201(2), (7).  It is well established that initiating a legal
proceeding in a state is sufficient to waive any challenge to personal
jurisdiction for the purposes of a countersuit.  See, e.g,
Adam v. Saenger, 303 U.S. 59, 67-68 (1938)
(“The plaintiff having, by his voluntary act in demanding justice from the
defendant, submitted himself to the jurisdiction of the court, there is nothing
arbitrary or unreasonable in treating him as being there for all purposes for which justice to the
defendant requires his presence.  It is the price which the state may
exact as the condition of opening its courts to the plaintiff.”).  As one
court characterized it, “appearing and seeking affirmative relief from the
Court is the paradigm of such a waiver.”  Andros Compania Maritima, S.A. v. Intertanker Ltd., 718 F. Supp. 1215, 1217 (S.D.N.Y.
1989).
¶ 51.        
The waiver of personal jurisdiction here is somewhat complicated by the
fact that Vermont OCS has been litigating this case on father’s behalf. 
It was OCS, not father, who filed the request to register the Oklahoma
order.  UIFSA explicitly fails to resolve whether the relationship between
a state enforcement agency and a petitioner constitutes legal
representation.  See 15B V.S.A. § 307(c) (“This title does not create
or negate a relationship of attorney and client or other fiduciary relationship
between a support enforcement agency or the attorney for the agency and the
individual being assisted by the agency.”); see also Official Comment, 15B
V.S.A. § 307(c) (“This highly controversial issue is left to otherwise
applicable state law.”); cf. McSweeney v. McSweeney, 159 Vt. 629, 631, 618 A.2d 1332, 1334 (1992)
(mem.) (“In URESA proceedings, the state’s attorney
and obligee do not have a traditional attorney/client
relationship; the obligee has no say
about what legal action to pursue.”).  
¶ 52.        
We need not decide this question.  Irrespective of whether the
relationship between OCS and a nonresident obligee is
one of attorney and client, we hold that father’s initiation of the present
enforcement action is sufficient to constitute a waiver of personal
jurisdiction.  Technically, father is the plaintiff in the present
action.  Furthermore, UIFSA authorizes OCS involvement only “upon
request.”  15B V.S.A. § 307(a).  In
this sense, the rationale for finding waiver in the traditional context—namely,
that a petitioner has deliberately availed himself of the forum state’s
courts—applies just as well when litigation is carried out by an enforcement
agency that is acting at the request of the petitioner.  Finally, UIFSA’s
limited immunity provision grants immunity for “[p]articipation
by a petitioner in a proceeding before a responding tribunal, whether in
person, by private attorney, or through services provided by the support
enforcement agency,” presupposing that participation through OCS would
waive personal jurisdiction normally.  15B V.S.A. § 314(a); see Hall
v. Tucker, 2005-Ohio-2674, ¶ 30, 829 N.E.2d 1259 (Ct. App.) (“This
legislative grant of limited immunity demonstrates the General Assembly’s understanding that, generally, the use of Ohio’s
courts to enforce a foreign judgment confers personal jurisdiction over the
person seeking such enforcement.”).
¶ 53.        
Implicitly accepting that there would otherwise be personal jurisdiction
over father, the superior court held that the UIFSA immunity provision
prevented finding personal jurisdiction in this case.  UIFSA’s immunity
provision entitles father to appear specially for the purpose of enforcing
child support without submitting to personal jurisdiction “in another
proceeding.”  15B V.S.A. § 314. 
Father’s initiation of this UIFSA proceeding would not, for example, create
personal jurisdiction in an unrelated dispute about marital property—the
marital property dispute is “another proceeding.”  See, e.g., Chaisson v. Ragsdale, 914 S.W.2d 739, 741
(Ark. 1996) (“UIFSA actions are not intended to open up for renewed scrutiny
all issues arising out of a foreign divorce.  The purpose of UIFSA is
support of the child and enforcement of the same.  Other issues such as
visitation and payment of debts under the divorce decree are collateral matters
which necessarily burden the child support determination and run counter to the
goal of streamlining these proceedings.”); Lichtenstein v. Barbanel, 322 S.W.3d 27, 37 (Ky. 2010) (“There is not room in the UIFSA for litigation of matters collateral to
child support or spousal support, such as reimbursement of marital debt. 
It will simply complicate the issue, as well as hamper the courts’ remedies on
contempt.  Therefore, an order for reimbursement of a marital debt paid is
not child ‘support’ under Kentucky’s UIFSA . . . .”). 
Nor would it create jurisdiction over a dispute over child custody or
jurisdiction.  See Official Comment, 15B V.S.A. § 314 (“The primary
objective of this prohibition is to preclude joining disputes over child custody
and visitation with the establishment, enforcement, or modification of child
support”).  The policy of enforcing child support obligations without
considering custody or visitation issues started in URESA.  See Hood v.
Hood, 146 Vt. 195, 197, 499 A.2d 772, 774 (1985).
The superior court ruled that mother’s attempt to raise father’s alleged child
support arrearage was similarly barred.
¶ 54.        
We conclude that this determination was incorrect.  We hold that
the UIFSA immunity provision does not operate to prevent personal jurisdiction
over a claim of outstanding child support between the same parties.  See In
re Marriage of Haddad, 93 P.3d 617, 620 (Colo. App. 2004) (“[A] petition
for affirmative relief under UIFSA limits the jurisdiction of the tribunal to
the boundaries of the support proceeding.  But a claim of overpayment of
child support is within the boundaries of a support proceeding . . . .”
(citation omitted)); Largent v. Largent, 2008
WY 106, ¶ 22, 192 P.3d 130 (holding that husband is entitled to credit for
payments made in adjudicating UIFSA enforcement action).  That is, we read
UIFSA’s grant of immunity “in another proceeding” as not including immunity
regarding claims of child support that are sufficiently connected with the
proceeding initiated by the petitioner.  15B V.S.A.
§ 314(a).  This includes, as here, not only claims involving
the same parents and the same child, but also claims involving the same parents
and a different child.  This reading is based on the understanding that a
dispute concerning outstanding support obligations is not a collateral issue,
which the official comment describes as “[t]he primary object of this
prohibition.”[20] 
Official Comment, 15B V.S.A. § 314.  
¶ 55.        
For two reasons, we conclude that mother’s claim in this case is not
collateral and therefore that adjudicating it would not involve the kind of
proceeding cognized by the immunity provision.  First, the child support
obligation ultimately exists for the benefit of the child, not the obligee.  See 15 V.S.A. § 650 (“The legislature
further finds and declares as public policy that parents have the
responsibility to provide child support, and that child support orders should
reflect the true costs of raising children and approximate insofar as possible
the standard of living the child would have enjoyed had the family remained
intact.”); id. § 654 (“The rule shall be based on the concept that
children should receive the same proportion of parental income after separation
or divorce of their parents as they would receive if their parents were living
together in one household.”); C.D. v. N.M., 160 Vt. 495, 500, 631 A.2d
848, 851 (1993) (“Although the court has discretion, the amount of child
support should be based on the policy of meeting the needs of the children and
having them share in family income.”).  Even in a case like this where the
children have long ago reached the age of majority and only an arrearage is
involved, it is important to create the expectation for parents who share an
unfair burden of the costs of supporting children that they will be able
eventually to obtain reimbursement for the other parent’s share of those
costs.  That expectation inures to the benefit of the children.  
¶ 56.        
In this light, father’s obligations under the Georgia order and mother’s
obligations under the Oklahoma order both relate to the parents’ joint duty to
ensure that the needs of their children are met.  That is, both orders
established ways to discharge partially the overarching shared duty to the
children.  Mother has not paid her share of what was allocated under the
Oklahoma order.  Mother is entitled to have this failure balanced against
previous or later stretches during which father allegedly failed to pay his
share and she was forced to pick up the financial slack.  Cf. Louko v. McDonald, 2011 VT 33, ¶ 11, 189
Vt. 426, 22 A.3d 433 (“[A]llowing the credit should
be viewed as permitting payment of arrears from an alternative source . . . .”).  This is because,
in the broader picture, any dispute over arrearages is a dispute over equitably
allocating the burdens of a shared obligation to the child.  “[I]t makes
more sense, and on balance is fair to both parties, to resolve both matters in
the registering court.  Support is support . . . and one would reasonably
expect to air and resolve all support claims in a single forum.”  In re Marriage of Aron, 274 Cal. Rptr. 357, 363 (App. Ct. 1990).  As a result,
father’s alleged arrearages are not an issue collateral to mother’s arrearages—in
the way that a separate marital obligation or contractual liability would
be—and they are therefore not the subject of “another proceeding” for the
purposes of UIFSA’s immunity provision.
¶ 57.        
Second, at least in a case where the only amounts in issue are
arrearages, it is in everyone’s interest to resolve all related claims in one
proceeding in one location.[21] 
The underlying purpose of UIFSA is “to cure the problem of conflicting support
orders entered by multiple courts.”  Brenckle,
675 N.E.2d at 392.  It is wholly inconsistent
with this purpose for father to pursue his arrearage in one jurisdiction while
mother pursues her arrearage in another jurisdiction.  In a controversy
where it is likely that the transactional costs have already greatly exceeded
the amount in controversy, the need for an efficient, final, and complete
resolution is compelling.  Thus, the policy considerations behind the
limited immunity provision of § 314 are entirely different when we are
dealing with disputes over child support arrearages involving the same
parents.  Introducing other issues into a child support proceeding
interferes with the compelling purpose that the children have the protection of
a child support order and it is enforced.  There is no interference when
all issues involve child support.  
¶ 58.        
The discussion above answers the specific holding of the trial court
dismissing mother’s petition for lack of personal jurisdiction over
father.  The case must be remanded for consideration of the merits of
mother’s claims and any other defenses father may have.  Since the
petition was denied on the very initial issue of personal jurisdiction, there
is no record yet for this Court or the trial court to address the strength of
mother’s claims.
¶ 59.        
Because the issue will arise on remand, we do address the procedural
posture of this case.  Mother never raised her claims that father owed her
child support until the magistrate issued a decision concluding that the
Oklahoma child support judgment against her was valid and enforceable. 
She first filed her child support petition and her registration of the Georgia
order in connection with her request for a stay of the magistrate’s order and
her notice of appeal of that order to the superior court.  Apparently, the
magistrate directed that mother’s petition be treated as a separate case.
¶ 60.        
As our discussion above suggests, it is highly desirable that father’s
claims against mother be involved in the same proceeding as mother’s claims
against father.  It would make no sense to proceed to coercive collection
of father’s arrearage judgment while mother’s claims are in adjudication and
may result in an offsetting or even larger arrearage judgment.
¶ 61.        
Rather than treating mother’s petition as opening a separate case, the
more desirable course of action for the magistrate was to treat mother’s
petition as a counterclaim to father’s action to register and enforce the
Oklahoma order.  Although permissive, counterclaims are authorized in
family division proceedings.  See V.R.F.P 4(f).  By cross-reference,
they are allowed in magistrate child support proceedings.  Id.
8(b).  Although raised late, mother’s claims could have been allowed as
counterclaims by the magistrate and the superior court.  See id.
4(f); V.R.C.P. 13(f) (“[W]hen justice requires, the
pleader may by leave of court set up the counterclaim
by amendment.”).  In these circumstances, we hold that the magistrate
should have allowed the claims as counterclaims in father’s action.  On
remand, they should be treated in this way procedurally.  Thus, we affirm
the dismissal of mother’s separate petition, but with the condition that mother
can resubmit her claims as counterclaims to father’s action.
The superior
court decision in docket number 2011-165 is affirmed.  The decision in
docket number 2010-398 is affirmed in part, reversed in part, and remanded for
further proceedings consistent with this opinion.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]  Mother contends that her motions were not
considered in an adequate or timely fashion.  We do not assess these
arguments except insofar as they might suggest that mother was denied a full
and fair opportunity to litigate the issues of jurisdiction and notice. 
In this regard, it is significant that, although mother filed these motions for
new trials, she did not appeal the initial Oklahoma order.


[2]  Mother alleges that she raised the issue of the support owed her to the magistrate,
but the magistrate indicated that she had to file a separate request.  We
can find no record that she raised the issue before the magistrate entered the
judgment against her.  The first time her claim for support owed her
appears is in the request for a stay.
 


[3]  Mother alleges that she filed the
application, and the clerk decided, after consulting the magistrate, that the
filing had to be treated as a separate action.  


[4]  There is a significant question
concerning whether FFCCSOA preempts UIFSA, which we note here, but do not
decide.  FFCCSOA has many of the same purposes as UIFSA, particularly “to
establish national standards under which the courts of the various States shall
determine their jurisdiction to issue a child support order and the effect to
be given by each State to child support orders issued by the courts of other
States,” FFCCSOA, Pub. L. No. 103-383, § 2(b), 108
Stat. 4064 (1994), and “to avoid jurisdictional competition and conflict among
State courts in the establishment of child support orders.” Id. §
2(c)(3).  FFCCSOA and UIFSA “are for the most
part ‘complementary or duplicative and not contradictory.’ ”  Cavallari, 169 Vt.
at 218, 732 A.2d at 745  (quoting State ex rel. George v. Bray, 503
S.E.2d 686, 689 (N.C. Ct. App. 1998)).  We noted in Cavallari,
however, that where it applies, FFCCSOA “preempts any inconsistent provision of
state law.”  Id.; see Wilkie v.
Silva, 685 A.2d 1239, 1241 (N.H. 1996). 
 
In this case, the UIFSA
prohibition on modifying the Georgia child support order on motion of a
resident of Oklahoma, see 43 Okla. Stat. Ann. § 601-611(A) (describing
requirements for modifying child support order from another state including
either nonresidence of the petitioner or residence of
the child and consent of all parties); see also U.L.A. Unif.
Interstate Family Support Act, Refs & Annos,
Prefatory Note II.D.2 (1996) (“Except for modification by agreement or when the
parties have all moved to the same new State, the party petitioning for
modification must submit himself or herself to the forum State where the
respondent resides.”), is arguably in tension with FFCCSOA, 28 U.S.C.
§ 1738B.  The UIFSA section provides that the forum court “may
modify” the foreign order only if the petitioner is a nonresident of the forum
state or obtains written consent.  15B V.S.A. § 611(a)(1)(A)-(C), (2).  FFCCSOA has a provision that covers
the same subject, listing three requirements for when “a State may modify” a
child support order from another state, none of which require nonresidency of the petitioner.  See 28 U.S.C. § 1738B(e).  In short, FFCCSOA does not require the same
preconditions for modification as UIFSA—in particular, it does not include the nonresidency requirement that mother argues father failed
to meet in the Oklahoma court.
 
A number of courts have
addressed this tension and have split on its consequence.  Some courts
have refused to find preemption on the grounds that Congress almost certainly
did not intend that FFCCSOA preempt UIFSA.  See Hamilton v. Hamilton,
914 N.E.2d 747, 751 (Ind. 2009); Basileh v.
Alghusain, 912 N.E.2d 814, 818-820 (Ind. 2009); Letellier v. Letellier,
40 S.W.3d 490, 497 (Tenn. 2001).  Other courts have found preemption,
concluding that the nonresidency requirement is
inconsistent with the purposes of FFCCSOA and the FFCCSOA cannot be read to
accommodate it.  See Draper v. Burke, 881 N.E.2d 122 (Mass. 2008); Bowman
v. Bowman, 917 N.Y.S.2d 379 (App. Div. 2011).  This issue was not
raised or briefed by either party and we do not decide it here.   


[5]  The fact that the UIFSA requirements
were not followed does not necessarily mean that the court lacked subject
matter jurisdiction.  See In re B.C., 169 Vt. 1, 7, 726 A.2d 45, 50
(1999) (“[W]hen a court has jurisdiction over a general category of case, the
fact that the court errs in exercising its jurisdiction in a particular case
within that general category ‘is generally not sufficient to make the resulting
judgment void for lack of subject-matter jurisdiction.’ ”  (quoting
12 J. Moore et al., Moore’s Federal Practice § 60.44[2][b], at 60-142 (3d
ed. 1998))); see also Burnet v. Desmornes y
Alvarez, 226 U.S. 145, 147 (1912) (explaining that whether “conditions
precedent” for suit have been met is not the same thing as whether general
jurisdiction exists and that “[w]hen a court has general jurisdiction . . . [i]ts judgment . . . cannot be
impeached collaterally by proof that the judgment was wrong”); State v. Mandicino, 509 N.W.2d 481, 483 (Iowa 1993) (“[W]here
subject matter jurisdiction exists, an impediment to a court’s authority
can be obviated by consent, waiver, or estoppel.”); Marley v. Dep’t of Labor
& Indus., 886 P.2d 189, 193 (Wash. 1994) (en banc) (“A court or agency
does not lack subject matter jurisdiction solely because it may lack authority
to enter a given order.”).  There is an open question among courts as to
whether a failure to abide by the statutory requirement in UIFSA truly constitutes
a lack of subject matter jurisdiction or simply a procedural defect. Compare McCarthy
v. McCarthy, 785 So. 2d 1138, 1140 (Ala. Civ. App. 2000) (finding that
violation of requirement that petitioner be out-of-state resident meant that
Alabama court lacked subject matter jurisdiction for UIFSA proceeding and that
contempt order was therefore void), Stone v. Davis, 55 Cal. Rptr. 3d 833, 836-37 (Ct. App. 2007) (“[UIFSA petitioner]
resides in the issuing state, and all of the parties have not filed consents
here.  Alabama had no jurisdiction to modify the 1997 order. . . .  Subject matter
jurisdiction cannot be conferred by estoppel.”), State ex rel. Harnes v. Lawrence, 538 S.E.2d 223, 228 (N.C. Ct. App.
2000) (finding that a North Carolina court’s attempted modification and
subsequent contempt order were void because New Jersey had continuing,
exclusive jurisdiction under FFCCSOA and UIFSA), and State ex rel. Freeman
v. Sadlier, 1998 SD 114, ¶¶ 9-10, 586 N.W.2d 171
(concluding that modification order that was not timely appealed was
nevertheless void for lack of subject matter jurisdiction because modification
was pursued in petitioner’s home state in violation of UIFSA requirements),
with State ex rel. Children, Youth & Families Dep’t v. Andree G.,
2007-NMCA-156, ¶ 23, 174 P.3d 531 (“Although [the appellant] claims that the
Texas court’s order is void because the Texas court acted contrary to its
authority under the UIFSA and the FFCCSOA, [the appellant] does not, and
cannot, claim that the Texas court lacked jurisdiction in the fundamental sense
to hear and determine a child support action pursuant to Texas law. . . .
 Thus, [the appellant’s] claim of jurisdictional error is subject to
ordinary principles of waiver, estoppel, disfavor of collateral attack, and res
judicata.”), and In re Schneider, 268 P.3d 215, 219 (Wash. 2011) (“The
legislature has limited the superior courts’ authority—not the superior
courts’ jurisdiction—to modify another state’s child support order by
adopting the UIFSA.”).  We do not reach this question here.


[6]  The superior court rested its
conclusion on the fact that the traditional elements of issue preclusion were
satisfied in this case.  The five elements of issue preclusion are set out
in Trepanier v. Getting Organized, Inc.,
155 Vt. 259, 265, 583 A.2d 583, 587 (1990):
 
(1) preclusion is asserted against one
who was a party or in privity with a party in the
earlier action; (2) the issue was resolved by a final judgment on the merits;
(3) the issue is the same as the one raised in the later action; (4) there was
a full and fair opportunity to litigate the issue in the earlier action; and
(5) applying preclusion in the later action is fair.
 
As discussed
in the main text, infra, ¶¶ 17-21, these conditions, especially
condition (4), may not be sufficient conditions in the context of subject
matter jurisdiction, but they are still necessary conditions.  And we
accept the superior court’s conclusion that they were satisfied in this
case.  Mother was a party in the Oklahoma action, she raised the issue of
subject matter jurisdiction at the Oklahoma proceedings, and the Oklahoma court
determined that it had subject matter jurisdiction.  This was a final judgment
on the same issue raised in this case.  After the court denied her motion
to dismiss for lack of jurisdiction, mother moved for a new trial raising again
her jurisdictional concerns, and the court denied this motion.  She could
have appealed either of these rulings.  Although mother did unsuccessfully
seek a new trial, raising a number of these alleged errors, this is not
equivalent to bringing an appeal.  We see no error in the superior court’s
conclusion that mother had a full and fair opportunity to litigate the
jurisdictional issues in Oklahoma.  Finally, applying collateral estoppel
is arguably fair in this case.  Father had custody of P.P. for a period of
time during which it was appropriate for mother to pay child support.  Cf.
McCormick v. McCormick, 150 Vt. 431, 437, 553 A.2d 1098, 1102-03 (1988)
(“Ordinarily . . . child support should be paid through the custodial parent . . .
.”).  Mother’s objections are primarily to the form rather than the
content of the order, and that is something more appropriately addressed
directly on appeal.
 


[7]  We note a contrast with our decision
in Lewis, 2004 VT 127, ¶ 15 (“Although UIFSA is a uniform law that
purports to facilitate long-distance enforcement of child support, each state has
enacted its own procedures for the establishment of child support orders.
 If the order is established according to law in one state, the order can
be enforced through this interstate mechanism.  If, on the other hand, the
order is not established according to law, UIFSA enforcement procedures cannot
overcome the defect and expand a court’s jurisdiction.”).  In that case,
there was no order from Iowa to be enforced in Vermont.  In this case, an
out-of-state order indisputably exists, and the question is merely whether the
appropriate procedures were followed in obtaining it.  
 


[8]  The Oklahoma court’s decision in this
regard is somewhat puzzling.  The court’s order stated that the court
“ha[d] personal jurisdiction over each of the parties pursuant to [UIFSA] and
subject matter jurisdiction pursuant to the [UCCJEA], in [that] this state is
the ‘home state’ of the minor child.”  As mother rightly pointed out at
the time and reiterated now, what is not stated is that the court had subject
matter jurisdiction pursuant to UIFSA, which is precisely what mother
denies.  This language aside, given the briefing and argument noted above,
we conclude that the Oklahoma court clearly intended to address all arguments,
including those involving UIFSA, and render a decision on them.  Thus, it
necessarily determined that it had subject matter jurisdiction in reaching the
order that it did and denying mother’s motion to dismiss for lack of
jurisdiction.
 


[9]  Mother notes that the Georgia order
had not expired as to coverage of health expenses because those expenses were
covered by a different paragraph of the order with a different expiration
trigger.  Under Part 4 of the Georgia order, mother was required to
provide health insurance for the children until a child “attains his majority,
becomes emancipated, dies, marries or until further Order from a Court of
competent jurisdiction.”  It goes on to provide that for “reasonable and
necessary medical, dental and orthodontic costs not covered by insurance
[father] shall be responsible to reimburse [mother] for two-thirds (2/3) of
said uncovered expenses.”  The reimbursement is to occur after mother
sends father “proper supporting documents indicating the amount to be
reimbursed.”  The language contains no explicit expiration trigger by
changed custody.
 
Although not mentioned by
mother, the Oklahoma order contains a new medical expense payment requirement
making father responsible for obtaining health insurance for the child, and
further making both father and mother responsible on a 50/50 basis for
uncovered health-related expenses.  There is no indication that father
failed to comply with the Oklahoma order, that mother continued to purchase health
insurance for P.P., or that the parties shared any uncovered health
expenditures.  The amount of back-due support father seeks contains no
amount for health expenses, nor does the amount mother seeks contain any claim
for health expenses.  In general, the Oklahoma order is more favorable to
mother than the Georgia order, and we may presume that mother benefitted from
that advantage. Thus, there is no necessity for us to construe the Georgia
provision.
 
If we were to reach the issue
of the health expenses, we note that the term “Court of competent jurisdiction”
is ambiguous in the Georgia order.  The ambiguity particularly comes from
the language on uncovered expenses, which assumes that mother as custodian is
arranging for the uncovered medical care and is initially paying for it,
subject to her right to bill father for a share of those expenses.  The
language does not make sense if father is custodian.  Sense can be
restored if “Court of competent jurisdiction” in Part 4 governing health
expenses means the same as it does in Part 5 on child
support—that is, a court with jurisdiction to change custody.  That
meaning makes Part 4 internally consistent.  Under that meaning, the
Oklahoma order on health expenses is specifically provided for in the Georgia
order and is not a modification of the Georgia order.  


[10]  Indeed, to the extent we can
determine why this conflict has escalated over a relatively small amount of
money, it is because mother believes she is owed child support in an amount at
least as great as the amount claimed by father.  As we hold infra,
the reasonable response is to allow mother to litigate all her claims against
father as the same time his are litigated against her in the hope that the
whole dispute can finally be resolved.
 


[11]  Although the Oklahoma court clearly
determined that it had personal jurisdiction to order child support, the record
is not altogether transparent on the court’s reasoning.  The minute book
from the Oklahoma court includes the following entry: “Court finds it has
jurisdiction to modify child custody and child support follows under the
law.”  The transcript of the hearing provides little further clue, with
the court stating: “Well, let me just say that we have resolved the issue of
jurisdiction for this Court to consider the motion to modify custody.  And
I believe that with that determination, the Court clearly has the authority to
assess child support as part of a prospective child support—or a child custody
order.”  And further: “I believe that this Court has jurisdiction to
modify custody and to levy an award of child support.  I have the right to
do that under Oklahoma law.”  These formulations seem to imply that
jurisdiction to order child support follows from jurisdiction to alter custody
without an additional finding of personal jurisdiction—a proposition that is
incorrect.  See, e.g., In re Paternity of Carlin L.S., 593 N.W.2d
486, 490 (Wis. Ct. App. 1999) (“[W]hile support is
often an incident of custody, a court with
jurisdiction . . . to determine custody, may nevertheless
lack personal jurisdiction over a nonresident parent for the purposes of
setting support.”).  Regardless, the court’s findings specifically
included a determination that the court had personal jurisdiction pursuant to
UIFSA, even though the reasoning behind this finding is difficult to
understand.  As the important question for our purposes is whether mother
can show a lack of personal jurisdiction—not whether the court’s rationale for
finding personal jurisdiction was correct—determining the court’s actual
reasoning is unnecessary.  


[12]  Both father and the superior court
suggest that personal jurisdiction was established, in part, when mother filed
a custody motion in December 2000.  This motion was filed after the
original custody hearing took place—October 1999—and the order had issued—April
2000.  It therefore could not have established personal jurisdiction for
that order, and the superior court’s reference to that filing in this case does
not persuade us that it established personal jurisdiction for the order in
issue.  
 


[13]  The Massachusetts Supreme Judicial
Court addressed this question in Child Support Enforcement Div. of Alaska v.
Brenckle, 675 N.E.2d 390, 393 (Mass. 1997): “As a
remedial statute, and one not affecting substantive rights, it is proper that
UIFSA should be applied retroactively.”


[14]  We recognize that the Oklahoma order
purported to find that father was current with his child support
obligations.  Insofar as we are accepting the validity of that order, it
might be thought that the order necessarily eliminated any arrearages
potentially owed under the Georgia order.  Even if the Oklahoma order were
a modification of the Georgia order, but see, supra, part I.B., the
Oklahoma order could not have removed Georgia’s authority to enforce “amounts
accruing before the modification.”  See Ga. Code Ann. §§ 19-11-114,
19-11-171 (1997).  We note that this understanding was clearly advanced by
father’s attorney during the Oklahoma proceeding.  On remand, the court is
not bound by the alleged findings of the Oklahoma court concerning any
arrearages under the Georgia order.  
 


[15]  Mother argued below that OCS is
acting outside its statutory authority in making an appearance to argue against
jurisdiction over father.  The superior court observed that, under 15B
V.S.A. § 307(b)(6), OCS has a duty to “notify the
petitioner if jurisdiction over the respondent cannot be obtained.”  We
note that OCS has this duty only “upon request,” and that the superior court’s
reading of the statute would imply that OCS is “provid[ing] services to [the] petitioner” in this case by
litigating against her.  See id.  We need not decide this
question, however, because mother has not pursued it on appeal.  
 


[16]  There is actually a fourth component
because she alleges that father was supposed to pay as child support a share of
any bonuses he paid himself from his business, as shown on his tax
return.  She claimed that he failed to provide his annual tax return, as
required by the Georgia order, so she could not specify how much additional
support was due for the bonuses, if any.  She sought disclosure of the
bonus amounts and further payments based on those amounts.
 


[17]  Mother alleges that father continued
to be obligated to pay child support to her for P.P. up until April 2000, the
date of the Oklahoma order.  Her position appears to be that the Oklahoma
court could not make the custody modification, and the extinguishment of
father’s prospective child support obligation, retroactive to the date of the
modification motion.  Mother alleges that father failed to pay her child
support for P.P. from the date that P.P. moved to Oklahoma in July 1998, up
until father moved for modification of custody in April 1999. The Oklahoma
court decision found that father was current in payment of child support
through July 1998.  Mother disputes that father fully paid for July. 
On remand, the court will have to determine whether the preclusive effect of
the 2000 Oklahoma order prevents mother’s claim in whole or in part.
 


[18]  She alleges that P.P. moved back to
live with her in July 2000 and reached majority fourteen months later. 
Apparently, custody remained with father under the Oklahoma order.  Mother
alleges that father paid her no child support for this period.  We have
generally stated that mother’s claims are based upon the Georgia order. 
It is arguable whether this claim is based on the Georgia order.  We also
note that part of her first claim involves child support for the period P.P.
resided in Oklahoma with father but before custody was changed.  Her claim
that father owes her child support for this period appears to be inconsistent
with her claim that he owes child support for the period in which P.P. returned
to live with her.
 


[19]  A.P. reached the age of majority in
1998.


[20]  This is the reasoning of the Colorado
Court of Appeals in Haddad, which we develop more fully.  We do
note one court that has apparently come to an opposite conclusion.  See In
re Marriage of Grant, 1998 OK CIV APP 127, ¶ 10, 964 P.2d 963 (holding
that mother was immune from personal jurisdiction founded on her contacting
state enforcement agency for the purposes of father’s attempt to domesticate
out-of-state judgment).  That court, however, never considered the
argument from Haddad that competing child support disputes are not
covered by the immunity provision.  We are not convinced that court would
reach the same conclusion if faced with the present arguments.  That case
was also procedurally distinct.  The enforcement agency had not initiated
a court proceeding in which the obligee’s claims
might have been raised as counterclaims; instead, the contact with the
enforcement agency would have been used to establish personal jurisdiction in
the obligee’s offensive action.  For these
reasons, we do not find this case authoritative here.  


[21]  Perhaps making our hope illusory, we
recognize that mother alleges that there is pending in Georgia a separate
proceeding initiated by her to obtain an order based on some of the same claims
she makes here.  As sometimes occurs in appellate review, we are acting
based on a record that may have become incomplete by the occurrence of events
after judgment was reached in the trial court.  Thus, the record does not
tell us what occurred, or what is likely to occur, in the Georgia case, and
mother raised no specific issue on appeal about the effect of action of that
court.  Since we are remanding, either party is free to show further
events in Georgia, and argue the significance of those events, in the remand
proceeding.



