UIFSA: Modifying Out of State Child Support
The Uniform Interstate Family Support Act (UIFSA) has been enacted in every state. Illinois adopted it in 1994 and incorporated amendments in 2004. Most practitioners are familiar with it to the extent that it authorizes the establishment, enforcement and modification of child support orders between two states.
As UIFSA actions involve litigants in different states, it therefore presents practitioners with jurisdictional issues. For example, if one seeks to establish, enforce or modify a child support in Illinois, how can one obtain personal jurisdiction of an out-of-state party? Perhaps one can seek "long-arm jurisdiction" over the out-of-state party pursuant to 735 ILCS 5/2-209.
The UIFSA, however, specifically provides for "bases for jurisdiction over nonresident[s]" at 750 ILCS 22/201. In fact, it provides for language similar to the long-arm statute [735 ILCS 5/2-209(b)(1)], stating that "… a State may exercise personal jurisdiction over a nonresident individual … if: (1) the individual is personally served with notice within this State." 750 ILCS 22/201(a)(1).
Based upon these statutes, consider a typical fact pattern wherein an Illinois resident seeks a modification of a child support order, where the payor is a resident of another state. The recipient seeks to register the out-of-state Judgment for Dissolution of Marriage, and subsequently files a Petition to Modify Child Support. The payor comes to Illinois to pick up the children for visitation and the recipient has the payor personally served. I think that most practitioners would agree that the payor has properly filed the action and has obtained "personal jurisdiction" over the payor.
While those are the factual basis for an actual case, the holding surprised me. In IRMO: Vailis, --- N.E.2d ---, 2010 WL 4643634 (Ill.App. 1 Dist.), the wife sought to modify a Texas child support order in Illinois, pursuant to 750 ILCS 22/611 [UIFSA – Modification of child-support order of another state]. The wife, an Illinois resident, had the husband, a Texas resident, personally served in Illinois while he was visiting the children. The wife asserted that service was sufficient pursuant to 750 ILCS 22/201(a)(1) [UIFSA – Bases for jurisdiction over nonresident].
The payor-husband sought to dismiss the recipient-wife's petition for lack of jurisdiction.
The appellate court considered, as a matter of first impression whether Illinois had jurisdiction (personal and subject matter) to modify the foreign child support order. The appellate court correctly focused on 750 ILCS 22/201(b) [UIFSA] which states that the "bases of jurisdiction set forth in [750 ILCS 22/201(a)] or in any other law of this State may not be used to acquire personal jurisdiction for a tribunal of this State to modify a child support order of another state unless the requirements of Section 611 [UIFSA] are met". IRMO: Vailis, --- N.E.2d ---, 2010 WL 4643634 (Ill.App. 1 Dist.).
The original Act did not include the requirements of Section 201(b). IRMO: Vailis, citing Uniform Interstate Family Support Act §611, 9 U.L.A. 442 (1996). The court also noted that Illinois had adopted, in 2004, the 2001 amendments to the UIFSA, and that the UIFSA committee comments specifically addressed the long-arm jurisdiction issue, in cases of modification. The committee comments stated that "[T]he addition of new Subsection (b) [is] designed to preclude a tribunal of the forum from ignoring the restrictions on modification of child-support orders established by UIFSA. The limitations on the exercise of subject matter jurisdiction provided by Section [ ] 611 *** must be observed irrespective of the existence of personal jurisdiction over the parties. *** Subsection (b) is intended to cement the principle that modification of an existing order is not subject solely to the usual rules of personal jurisdiction over both parties." Unif. Interstate Family Support Act § 201 comment, 9 U.L.A. 187 (2001).
Because this action for modification was brought pursuant to the UIFSA, the court stated: "In order to determine whether the circuit court had personal jurisdiction over respondent under section 201(b), we must simultaneously determine whether the circuit court had subject matter jurisdiction over this action pursuant to section 611." Section 611 addresses "modification of child support order[s] of another state" and requires that "the respondent is subject to the personal jurisdiction of the tribunal of this State." 750 ILCS 22/611 (a)(1)(c).
In determining whether "long-arm jurisdiction" methods were sufficient, under the UIFSA, the court addressed personal jurisdiction issues, citing Burnham v. Superior Court, 495 U.S. 604 (1990). As the U.S. Supreme Court noted in Burnham, "[a]mong the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State." Burnham v. Superior Court, 495 U.S. 604 (1990). However, states may choose to limit their own jurisdictional reach to something less than that allowed by the due process clause, as Illinois law did prior to 1989. See Cook Associates, Inc. v. Lexington United Corp., 87 Ill.2d 190, 197 (1981)." "With the enactment of the Family Support Act in 2004, however, Illinois elected to limit its jurisdiction over petitions for modification of child-support orders." IRMO: Vailis.
The Appellate Court stated that the comments specifically addressed this type of fact pattern stating: "For example, an obligor visiting the children at the residence of the obligee cannot be validly served with citation accompanied by a motion to modify the support order. Even though such personal service of the obligator in the obligee's home State is consistent with the jurisdictional requisites of Burnham v. Superior Court, 495 U.S. 604 (1990), the motion to modify does not fulfill the requirement of being brought by 'a [petitioner] who is a nonresident of this State.' "Unif. Interstate Family Support Act § 611 comment, 9 U.L.A. 256 (2001)."
The Vailis court therefore held that "personal service within Illinois, while constitutionally sufficient for jurisdiction under Burnham in other instances, does not confer either personal or subject matter jurisdiction in modification cases absent compliance with section 611." Section 201(b) provides that the methods used to obtain personal jurisdiction in Section 201(a) cannot be used unless the requirements of Section 611 or 615 are met.
Practitioners may also consider what might occur if the Illinois Department of Healthcare and Family Services (IDHFS) seeks to register a foreign judgment and Petition to Modify Child Support, where the payor resides in Illinois. In IDHFS v. Heard, 394 Ill.App.3d 740, 916 N.E.2d 61, 334 Ill.Dec. 28, the German court had previously entered a child support order. The father, an Illinois resident, objected to the registration of foreign judgment and argued that Germany did not have personal jurisdiction over him. IDHFS had served the payor in Illinois with a Notice of Registration of Foreign Order, (a proceeding that the former spouse had commenced in Germany), and sought to enforce it.
The Appellate Court held that the German court did not have personal jurisdiction over the Illinois resident in the (UIFSA) child support proceedings and stated that "for minimum contacts to exist, it is essential 'that there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.' Boyer v. Boyer, 73 Ill.2d 331, 337, 22 Ill.Dec. 747, 383 N.E.2d 223, 225 (1978), quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed 2d 1283, 1298 (1958). The Illinois resident's contacts with Germany did not rise to the level of minimum contacts and thus did not meet the constitutional due process requirements. The trial court's ruling to register and enforce the German order was reversed. IDHFS v. Heard, 394 Ill.App.3d 740, 916 N.E.2d 61, 334 Ill.Dec. 28.
When faced with UIFSA support issues, our understanding of the concepts of personal jurisdiction and subject matter jurisdiction must conform to the specific jurisdictional provisions of the UIFSA. Section 613 provides that if all parties now reside in this State [Illinois], "this State has jurisdiction to enforce and to modify the issuing state's child support order in a proceeding to register that order."
However, many parties now reside in separate states. When one party resides in Illinois, but the other party lives in another state, personal jurisdiction must be established pursuant to 750 ILCS 22/201, and the court must also determine if it has subject matter jurisdiction pursuant to 750 ILCS 22/611.