                                                     130 Nev., Advance Opinion   SI
                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                 PAMELA HOLDAWAY-FOSTER, A/K/A                        No. 61655
                 PAMELA JANE BRUNELL,
                 Appellant,                                                FILED
                 vs.
                 ROBERT GENE BRUNELL,                                       JUN 2 6 2014
                 Respondent.                                               TRACIE K. LINDEMAN
                                                                                        Mt L.
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                                                                                          ERN




                             Appeal from a post-divorce decree district co i t order
                 declining to take jurisdiction in a child support matter. Eighth Judicial
                 District Court, Family Court Division, Clark County; Jennifer Elliott,
                 Judge.
                            Reversed and remanded.


                 Greenberg & Nguyen, Attorneys, and Mike H.T. Nguyen, Las Vegas,
                 for Appellant

                 Joseph W. Houston, II, Las Vegas,
                 for Respondent.




                 BEFORE THE COURT EN BANC.

                                                OPINION


                 By the Court, DOUGLAS, J.:
                            In this opinion we consider whether a 1989 Nevada child
                 support order is controlling under the Full Faith and Credit for Child
                 Support Orders Act, 28 U.S.C. § 1738B (2012), when the mother and

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                   children continuously resided in Nevada and the parents did not consent
                   to the assumption of jurisdiction over and modification of the order by a
                   court in Hawaii, the father's new state of residence. To do so, we must
                   determine whether the Act applies retroactively. We hold that the Act
                   applies retroactively, and that under it, Nevada has continuing, exclusive
                   jurisdiction. Consequently, we conclude that the 1989 Nevada child
                   support order controls.

                                                     FACTS
                               Appellant Pamela Holdaway-Foster and respondent Robert
                   Brunell divorced in Nevada in 1985. In the divorce decree, the district
                   court granted Pamela custody of the parties' two children and ordered
                   Robert to pay Pamela $200 per month in child support. In 1989, the
                   district court increased Robert's child support obligation to $625 per
                   month. Subsequently, Robert relocated to Hawaii and allegedly ceased
                   making the child support payments.
                               After Robert's relocation to Hawaii, Pamela filed a uniform
                   support petition in the Nevada district court, seeking to register the 1989
                   Nevada child support order in Hawaii, under the Uniform Interstate
                   Family Support Act (UIFSA). The Hawaii court issued an administrative
                   order that continued the 1989 Nevada child support order, mandating
                   Robert to pay $625 per month in support and $50 per month toward
                   arrears. Subsequently, Robert filed a motion in Hawaii contesting the
                   child support order and asserting that he could not pay the requisite
                   amount. In 1992, after holding a hearing on the matter, the Hawaii court
                   entered an order reducing Robert's child support obligation to $350 per
                   month, determining that Robert had already paid $15,000 toward child


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                support, and directing him to pay $10 per month toward the remaining
                arrears. The Hawaii court notified Pamela of its decision.
                            Pamela sent a letter to the Clark County District Attorney's
                office in which she asserted that Robert did not make $15,000 in child
                support payments. The District Attorney's office forwarded the letter to
                the Hawaii Child Support Enforcement Agency, and a representative from
                the agency informed Pamela that she had 30 days to appeal the Hawaii
                court order and that although the Hawaii order did not supersede the
                Nevada order, Hawaii would nevertheless enforce its order. The
                representative also informed Pamela that she could pursue an action in
                Nevada to recoup the difference between the orders. Pamela did not
                appeal the 1992 Hawaii order.
                            In 1996, the Hawaii court entered another order further
                reducing Robert's child support obligation to $100 per month, but
                increasing his arrears payment to $50 per month. The Hawaii court once
                again notified Pamela of its decision, and again, she did not appeal.
                            Several years later, after the children reached majority,
                Pamela filed a motion for a controlling order determination and for a
                judgment of arrears in the Nevada district court. In the motion, Pamela
                requested the Nevada court to determine that the 1989 Nevada child
                support order was controlling and to reduce to judgment the child support
                arrears that had accrued under the order. Robert argued that Pamela
                should have brought her motion in the Hawaii district court, not in
                Nevada. Robert also asserted that waiver and estoppel barred Pamela
                from collecting arrears.
                            The Nevada district court determined that it had lost
                jurisdiction over the matter and could not review or modify the Hawaii

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                     court's orders because Pamela failed to contest the orders within ten days
                     of their issuance. Alternatively, the Nevada district court determined that
                     even if it had jurisdiction to review the Hawaii orders, Pamela implicitly
                     waived her right to challenge them because she received proper notice of
                     the orders and failed to timely contest their validity. Consequently, the
                     district court denied Pamela's request to reduce the unpaid amount under
                     the 1989 Nevada child support order to a judgment. Pamela then filed
                     this appeal challenging the district court's decision, asserting that the
                     Nevada support order is controlling under federal law.'

                                                     DISCUSSION
                     Standard of review
                                 This appeal requires us to address whether the district court
                     had continuing, exclusive jurisdiction to enforce and modify its child
                     support order. This court reviews a district court's decision regarding
                     subject matter jurisdiction de novo. Ogawa v. Ogawa, 125 Nev. 660, 667-
                     68, 221 P.3d 699, 704 (2009).
                     Retroactive application of the federal law
                                 Congress enacted the Full Faith and Credit for Child Support
                     Orders Act in 1994 to regulate multiple and inconsistent child support
                     orders from different states.   Twaddell v. Anderson, 523 S.E.2d 710, 717
                     (N.C. Ct. App. 1999). The Act also provides guidelines for recognizing
                     which state has continuing, exclusive jurisdiction. 28 U.S.C. § 1738B(d).



                           'Pamela also contends that Hawaii lacked jurisdiction to alter the
                     Nevada support order under the UIFSA and the Revised Uniform
                     Reciprocal Enforcement of Support Act. In light of our conclusion that the
                     Act governs here, we need not address these issues.

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                 Under the Act, a court that has issued a child support order has
                 continuing, exclusive jurisdiction and courts in other states are prohibited
                 from modifying the child support order unless certain jurisdictional
                 criteria are met. 28 U.S.C. § 1738B(e).
                              Under the Supremacy Clause of the United States
                 Constitution, the Act preempts any contrary or inconsistent state law, see
                 U.S. Const. art. VI, cl. 2, thus, it is the controlling authority in this matter.
                 Because the Act became effective after the Nevada child support orders
                 and the Hawaii court's initial modification were entered, we must decide
                 whether it should apply retroactively, which poses an issue of first
                 impression in Nevada.
                              Pamela asserts that this court should apply the Act
                 retroactively and determine that the Nevada child support order controls
                 in this matter. To support this assertion, Pamela notes that other courts
                 have applied the federal statute retroactively. In response, Robert does
                 not address the Act's application directly, but instead maintains that the
                 Hawaii orders control because Pamela did not seek to enforce the Nevada
                 support order in Hawaii; rather, she established a new order in the
                 Hawaii court, thereby providing Hawaii with jurisdiction over the matter.
                 Robert's argument is without merit because the Hawaii court order
                 expressly stated that it was modifying the Nevada child support
                 obligation. Accordingly, we turn to the issue concerning the Act's
                 retroactive application.
                              Generally, courts apply statutes prospectively unless the
                 legislature clearly manifests an intent for retroactive application or the
                 statute's purpose cannot otherwise be satisfied.        Landgraf v. USI Film
                 Prods., 511 U.S. 244, 271 (1994); McKellar v. McKellar, 110 Nev. 200, 203,

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                871 P.2d 296, 298 (1994). We have also held that courts should apply
                statutes retroactively when the statute affects only remedies and
                procedure and does not create new substantive rights.        Valdez v. Emp'rs
                Ins. Co. of Nev., 123 Nev. 170, 179-80, 162 P.3d 148, 154 (2007).
                            The Act is silent as to whether it applies retroactively; so, we
                must look to the purposes behind the Act, which we conclude mandate
                retroactive application. The Act has three purposes: "(1) to facilitate the
                enforcement of child support orders among the [s]tates; (2) to discourage
                continuing interstate controversies over child support . . . ; and (3) to avoid
                jurisdictional competition and conflict among [s]tate courts [when
                establishing] child support orders[.]" Full Faith and Credit for Child
                Support Orders Act, Pub. L. No. 103-383, 108 Stat. 4063 (1994). A strict
                prospective application would frustrate the Act's purposes because the
                very issues that Congress designed the Act to resolve would persist.
                Interstate conflicts and controversies would continue regarding child
                support orders entered before enactment. Further, a prospective
                application likely would make enforcing child support orders more difficult
                because orders entered before the Act's effective date would be subject to
                different procedural rules than those entered after that date.
                Additionally, the Act is remedial in nature because it was designed to
                assist in collecting past child support arrears.     See Ga. Dep't of Human
                Res. v. Deason, 520 S.E.2d 712, 720 (Ga. Ct. App. 1999) (holding that the
                Act did not create a new right, rather it provided an avenue to enforce an
                existing obligation). Therefore, we determine that the Act must be
                retroactively applied. We note that this determination is consistent with
                other jurisdictions that have considered this same issue.       See, e.g., In re
                Marriage of Yuro, 968 P.2d 1053, 1057 (Ariz. Ct. App. 1998); In re

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                 Marriage of Lurie, 39 Cal. Rptr. 2d 835, 844 (Ct. App. 1995); Deason, 520
                 S.E.2d at 719; Twaddell, 523 S.E.2d at 717.

                 Jurisdiction under the Act
                             Having concluded that the Act applies retroactively, we must
                 now determine whether Nevada has jurisdiction over child support in this
                 case. Under the Act, "a [state] court. . . that has made a child support
                 order consistent[] with [the Act] has continuing, exclusive jurisdiction
                 over the order if the [s]tate is the child's [s]tate or the residence of any
                 individual contestant. . . ," unless another state court has modified the
                 order in accordance with the Act. 28 U.S.0 § 1738B(d). A state court may
                 modify an existing support order of another state if the parties file written
                 consent to the modification. 28 U.S.0 § 1738B(e)(2)(B).
                             Here, the district court erred in determining that Nevada
                 lacked jurisdiction over this matter. Nevada has continuing, exclusive
                 jurisdiction over the child support matter because it had jurisdiction when
                 it issued the original order, and Pamela and the children have
                 continuously resided in Nevada, including the time during which the
                 Hawaii court modified the order. And no evidence suggests that the
                 Nevada child support order and its subsequent modification did not
                 comply with the federal law. Therefore, the Hawaii court could have
                 properly modified the Nevada order only if Pamela and Robert filed
                 written consent in Nevada to give Hawaii exclusive, continuing
                 jurisdiction over the Nevada order.       See 28 U.S.C. § 1738B(e)(2)(B).
                 Neither party filed such consent; thus, Hawaii did not have jurisdiction to
                 modify the 1989 Nevada child support order. Consequently, the Hawaii
                 court's orders have no legal effect. See Swan v. Swan, 106 Nev. 464, 469,


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                 796 P.2d 221, 224 (1990) (holding that a district court's custody ruling was
                 void because the court lacked subject matter jurisdiction).
                             Pamela's failure to formally object to the Hawaii modifications
                 is immaterial because a challenge to a court's subject matter jurisdiction is
                 not waivable, unless by written consent, and can be raised at any time, or
                 reviewed sua sponte by an appellate court.             Id.    Moreover, our
                 determination that Nevada never lost continuing, exclusive jurisdiction
                 over this matter necessitates a finding that the 1989 Nevada order
                 controls for the purpose of determining Robert's child support arrears. See
                 28 U.S.C. § 1738B(f)(2) (providing that when two courts issue a child
                 support order but only one has continuing, exclusive jurisdiction under the
                 Act, that court's order must be recognized).
                             Although we conclude that the 1989 Nevada child support
                 order controls, the district court still must determine whether Pamela can
                 collect arrears from Robert under the order. We have held that an obligor
                 may assert equitable defenses, such as waiver and estoppel, in a
                 proceeding to reduce child support arrearages to judgment. See Parkinson
                 v. Parkinson, 106 Nev. 481, 483, 796 P.2d 229, 231 (1990), abrogated on
                 other grounds by Rivera v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009). Due
                 to its jurisdictional error, the district court never addressed Robert's
                 arguments that Pamela waived or was estopped from recovering arrears
                 under the Nevada order.




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                               Accordingly, we reverse the district court's order concluding
                 that it lacked jurisdiction over the child support matter, and we remand
                 this case to the district court to conduct a new hearing as to the child
                 support arrears and for any other proceedings consistent with this
                 opinion.

                                                  C77-

                                                          i        i as            J.
                                                         Douglas

                 We concur:



                                                C.J.
                 Gibbons



                 Pickering
                          A eigeoA 7             J.



                                                 J.
                 Harpy


                                                 J.
                 Parraguirre




                 Saitta



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