Burke v Torwal [1996] FMSC 7; 7 FSM Intrm. 531 (Pon. 1996) (24 July 1996)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Burke v Torwal, [1996] FMSC 7; 7 FSM Intrm. 531 (Pon. 1996)

TRACY BURKE,
Plaintiff,

vs.

SCOTT TORWAL,
Defendant.

___________________________________

CIVIL ACTION NO. 1995-119

ORDER

Andon L. Amaraich
Chief Justice

Decided: July 24, 1996

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HEADNOTES

Transition of Authority
Whether carryover provisions from the Trust Territory Code are state or national laws must be determined on a statute-by-statute, or a section-by-section, basis. Burke v. Torwal, [1996] FMSC 7; 7 FSM Intrm. 531, 534 (Pon. 1996).

Domestic Relations; Transition of Authority
The reciprocal child support enforcement provisions of chapter 17 of Title 6 of the FSM Code remain in effect as part of state law. Burke v. Torwal, [1996] FMSC 7; 7 FSM Intrm. 531, 534 (Pon. 1996).

Domestic Relations; Transition of Authority
A proceeding for enforcement in the FSM of a CNMI child support order is properly filed in state court by the state attorney general, not in national court by the FSM Attorney General. Burke v. Torwal, [1996] FMSC 7; 7 FSM Intrm. 531, 535-36 (Pon. 1996).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

INTRODUCTION

On July 7, 1988, the trial court of the Commonwealth of the Northern Mariana Islands (CNMI) issued a divorce decree in Civil Action 88-470, Tracy J. Torwal v. Scott R. Torwal. The Court's decree awarded custody of the couple's minor child to plaintiff, and directed defendant to pay $150.00 per month in child support, plus one-half of certain medical expenses, to plaintiff until his son reached the age of eighteen. On February 1, 1990, the parties' divorce decree was amended to restore plaintiff's name to Tracy Joan Burke.

In April 1995, Tracy Burke filed a Uniform Support Petition, General Testimony for URESA, and a notarized Declaration of Arrears with the Superior Court of the CNMI, seeking enforcement of the 1988 decree. She alleges that her former husband has failed to make the required child support payments and has relocated from the CNMI to Pohnpei. As of April 21, 1995, she alleges, he was $14,186.00 behind in his payments.

The Superior Court of the CNMI referred these documents to the FSM Attorney General's Office, pursuant to the CNMI's reciprocal support statute, 8 N. Mar. I. Code § 1511 et seq., andestquested that the existing child support order against the defendant be enforced in Pohnpei. The FSM Attorney General's Office delivered these documents to the FSM Supreme Court pursuant to 6, Chapter 17 of the FSM CFSM Code, and served a copy of these pleadings on the defendant on October 2, 1995.

Based on the traditional jurisdiction of the states over matters of domestic relations, and the language and history of the applicable statutory provisions, the Court finds that this proceeding for enforcement of a foreign support order is properly commenced in the state court in which the defendant resides, rather than in the FSM Supreme Court. For the same reasons, the Court finds that these cases are properly prosecuted by the Pohnpei State Office of the Attorney General, rather than by the FSM Office of the Attorney General. Accordingly, the Court directs the Clerk of Courts of the FSM Supreme Court to forward plaintiff's request for enforcement to the Trial Division of the Pohnpei Supreme Court, for docketing and notice to the State Attorney General's Office pursuant to 6 F.S.M.C. 1742(1).

DISCUSSION

I. Background

When the FSM Constitution went into effect on May 10, 1979, all Trust Territory statutes, except for those inconsistent with the FSM Constitution, became laws of governments within the FSM by virtue of the transition clause. FSM Const. art. XV, § 1. Title 39, Sections 301 i>et seq. of the Trust Territory Code, titled "Reciprocal Enforcement of Support," became Title 6, Chapter 17 of the FSM Code, by the same name. In the paragraphs that follow, the Court will explain the basis for its conclusion that the provisions of Chapter 17 are now valid and enforceable as part of state law.

A. Uniform Reciprocal Enforcement of Support Act

The Trust Territory's reciprocal enforcement provisions, from which the FSM Code provisions derive, were themselves modelled on the United States' Uniform Reciprocal Enforcement of Support Act (URESA). URESA was created and adopted in the 1950's in the United States to remedy the problem of interstate enforcement of duties of support.

Before URESA, a parent wishing to avoid child support obligations could escape the jurisdiction of the court by simply moving. This caused hardship to custodial parents who counted on child-support payments to support their children. It also placed a financial burden on state governments that were compelled to provide public assistance to custodial parents who were unable to enforce their court orders against their deserting spouses.^[1] URESA was intended to provide custodial parents in the United States and U.S. territories with a simplified, fair and convenient procedure to enforce their existing child-support orders outside the jurisdiction of the court which had entered the original order.^[2]

URESA, or legislation patterned on URESA, has been adopted in all jurisdictions of the United States as part of state law. URESA provides for a cooperative effort between the state in which the custodial parent seeking support ("obligee") and the state in which the parent owing a duty of support ("obligor") reside. Under URESA, the obligee files a petition in the jurisdiction in which he or she resides, with the "initiating court." After a preliminary finding that the non-custodial parent's support obligation is likely to be unfulfilled, the initiating court forwards the petition to the responding court, which assumes jurisdiction. The responding court then sets the matter for hearing at which the obligee is represented by the government of the responding state and need not appear in person. If the responding court finds a duty of support, arising from statutory, contractual or common-law obligations, it may enter a support order that it has the authority to enforce. In this way, the custodial parent is able to obtain a child support order enforceable in the jurisdiction in which the parent owing support resides.

B. State or National Law?

Determinations as to whether carryover provisions from the Trust Territory Code are state or national laws must be made on a statute-by-statute, or a section-by-section, basis. See FSM v. Oliver, [1988] FMSC 29; 3 FSM Intrm. 469, 473 (Pon. 1988); Edwards v. Pohnpei, [1988] FMSC 6; 3 FSM Intrm. 350, 355 (Pon. 1988). In Pernet v. Aflague, [1990] FMSC 8; 4 FSM Intrm. 222 (Pon. 1990), this Court previously held that Title 6, Chapter 16 of the FSM Code, also derived from Title 39 of the Trust Territory Code, and which addresses domestic relations law generally, remains in effect in the FSM as state law.

[The provisions of Title 39 of the Trust Territory Code] remain in effect within Pohnpei as either national or state law by virtue of the transition clause, article XV of the Constitution of the Federated States of Micronesia. FSM v. Oliver, [1988] FMSC 29; 3 FSM Intrm. 469 (Pon. 1988). Control over domestic relations falls within the powers of the states rather than the national government. Mongkeya v. Brackett, [1986] FMSC 1; 2 FSM Intrm. 291, 292 (Kos. 1986).

Thus, this statute is now a part of Pohnpei state law and the obligation of this Court is to attempt to apply the statute in the same fashion as would be done by the highest state court of Pohnpei. Edwards v. Pohnpei, [1988] FMSC 6; 3 FSM Intrm. 350, 360 n.22 (Pon. 1988).

4 FSM Intrm. at 224 (considering court's power to order child support in connection with confirmation of customary divorce between Pohnpei resident and Truk resident under Chapter 16).

Chapter 16 sets forth substantive law on domestic relations, including proceedings for annulment, divorce and adoption. It also sets forth the circumstances under which orders for custody, support and alimony will issue. In contrast, Chapter 17 is concerned solely with the enforcement of existing support obligations between residents of different jurisdictions or "responding states." Despite this distinction, the Court finds that the reciprocal enforcement provisions of Chapter 17 also remain in effect as part of state law because these provisions are part of a "statutory package" predominantly concerned with matters of domestic relations. Cf. Oliver, 3 FSM Intrm. at 477. Interpretation of the reciprocal enforcement provisions as part of state law is consistent with the treatment of URESA-based provisions under the U.S. law on which Chapter 17 is patterned, and consistent with the FSM states' traditional jurisdiction over domestic relations matters in the FSM.

II. Application of Reciprocal Enforcement Provisions

The reciprocal enforcement provisions of the CNMI Code, under which the initiating court operated in this case, and the parallel provisions of the FSM Code were both adopted from the Trust Territory Code and are therefore both based on the URESA model. In order to enforce a duty of support issued in the CNMI against an obligor residing elsewhere, the CNMI Code provides that the Attorney General of the "initiating state" forwards to the "Attorney General" of the "responding state" the complaint filed by the person to whom a duty of support is owed (the "obligee," and here, Tracy Burke). At that point, the FSM statutory provisions take over.

Under 6 F.S.M.C. 1741, the "Attorney General's Office" is required to "forward to the court in the Trust Territory which has jurisdiction over the obligor or his property petitions, certificates, and copies of the act it receives from courts or information agencies of other States." Section 1742 then provides that:

(1) After the responding court receives copies of the complaint, certificate, and act from the initiating court, the clerk of courts shall docket the case and notify the district attorney of his action.

(2) The district attorney shall prosecute the case diligently. He shall take all action necessary in accordance with the laws of the Trust Territory to enable the court to obtain jurisdiction over the obligor or his property and shall request the clerk of courts to set a time and a place for a hearing and give notice thereof to the obligor in accordance with the law.

6 F.S.M.C. 1742.

As this Court has previously acknowledged, there are inherent difficulties in applying legislation originally adopted in Trust Territory times, because these statutes often refer to officials and entities which no longer exist. See Oliver, 3 FSM Intrm. at 475. In this case, Chapter 17 places affirmative duties and obligations on the "District Attorney" and the "Attorney General,"^[3] and places jurisdiction in the "Trial Division of the High Court." See 6 F.S.M.C. 1734. There is no direct correspondence between titles and offices existing under the former unitary Trust Territory Administration, and titles and offices now in existence under the current federal system of government. However, interpretation of these terms becomes easier once it has been established that the reciprocal enforcement provisions are to be applied as state law. Oliver, 3 FSM Intrm. at 475 ("the very same words, especially official titles and authorizations to act, may be given different meanings depending on whether the statute being interpreted is viewed as state or national law").

Having found that Chapter 17 is state law, the Court finds that the most logical reading of these Code provisions is to interpret each reference to "responding state" as the FSM state in which the obligor is resides. Similarly, statutory references to the "Attorney General" and "District Attorney" are most logically interpreted as references to the state bodies with responsibility for enforcing state laws Ä in this case, the Pohnpei State Office of the Attorney General. There does not appear to be any reason to believe that enforcement of the statute's reciprocal enforcement provisions is beyond the power of the states to control. Cf. Edwards, 3 FSM Intrm. at 357.

Because faithfulness to the purpose and principle of the transition clause demands that the Court strive to maintain the breadth of coverage originally intended at the time of enactment, if state powers prove insufficient to carry out the original purpose of the carryover statute, then the law must also be upheld as a national law to achieve the statute's full intended effect. Oliver, 3 FSM Intrm. at 477. For example, Chapter 17 contemplates that the "Attorney General's Office" shall serve as an information agency, and work with other "states" to share information on the location of courts with jurisdiction over these cases, and to assist in locating obligors present within the jurisdiction, using all available means, including "official records." 6 F.S.M.C. 1741. The Code broadly defines "state" to include not just other FSM states, but also states, territories, and possessions of the United States. Due to this broad definition, if it later becomes necessary to rely on resources of the national government to assist the states in their enforcement efforts, this can be done in the exercise of national powers.

III. Initial Docketing in State or National Court?

6 F.S.M.C. 1734 expressly places jurisdiction over reciprocal enforcement proceedings in the Trial Division of the High Court. However, the High Court no longer exists. Having found that Chapter 17 is state law, the Court finds that this reciprocal enforcement proceeding is properly docketed in state court.^[4] This interpretation is consistent with the state courts' traditional jurisdiction over domestic relations matters in the FSM. It is also consistent with the actions of other jurisdictions applying URESA-based legislation, which conduct reciprocal enforcement proceedings in state court.

CONCLUSION

The Court finds that this reciprocal enforcement proceeding is properly commenced in the Trial Division of the Pohnpei Supreme Court, rather than in the FSM Supreme Court. This action is accordingly dismissed without prejudice. The Clerk of this Court shall forward plaintiff's Uniform Support Petition, General Testimony for URESA, and Declaration of Arrears to the Clerk of Courts of the Pohnpei Supreme Court, for docketing and for further proceedings under 6 F.S.M.C. 1742(1).

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^[1] See Jane H. Gorham, Stemming the Modification of Child-Support Orders by Responding Courts: A Proposal to Amend RURESA's Antisuppression Clause, 24 U. MICH. J.L. REF. 405 (1991).

^[2] 67A C.J.S. Parent and Child § 91 (1978). The Uniform Reciprocal Enforcement of Support Act was promulgated by the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association in 1950. The Act was amended in 1952, 1958, and 1968, and the 1968 version became known as the RURESA Ä the Revised Uniform Reciprocal Enforcement of Support Act. Gorham, supra note 1, at 406-09.

^[3] Prior to the creation of the FSM, the executive branch of the Trust Territory Administrations consisted of a High Commissioner, overseeing the Attorney General, and a District Government in each of the six administrative districts: the Mariana Islands District, Palau District, Yap District, Truk District, Ponape District, and Marshall Islands District. 3 TTC 1-2. Domestic relations matters were the responsibility of the Trust Territory District governments. 3 TTC 2(4).

^[4] The statute defines "court" as the Trial Division of the High Court of the Trust Territory, and when the context requires means the court of any State as defined in a substantially similar reciprocal law." 6 F.S.M.C. 1712(1).