February 200124

Effective July 1, 1994, Virginia adopted the Uniform InterstateFamily Support Act (UIFSA),1 that replaced the Uniform

Reciprocal Enforcement of Support Act (URESA), as the lawapplicable to interstate child/spousal support actions. The adop-tion of UIFSA was the result of the recommendations of the U.S.Commission on Interstate Support Enforcement2 and the NationalConference of Commissioners on Uniform State Laws (NCCUSL),which approved the model legislation in August, 1992. Theadoption of UIFSA, either verbatim or without material change,has been a key ingredient in virtually every federal child supportlegislative proposal over the past few years.3

In an article in the 1994 family law theme issue of the VirginiaLawyer entitled “UIFSA: Virginia’s Adoption Of The New InterstateSupport Act,”4 I provided a general summary of the act as initiallyadopted, and analyzed its essential provisions for the generalfamily law practitioner. The purpose of this article is to providethe general practitioner with an update on UIFSA since its enact-ment in 1994, the statutory amendments that have been made tothe act, and an analysis of the case law that has developed inVirginia related to UIFSA.

Statutory AmendmentsEffective July 1, 1997, UIFSA was amended in four areas. First,the act was amended to clarify that the provision for waiver ofVirginia continuing jurisdiction by written consent of the Virginiaparty relates only to individuals, and not state agencies (such asthe Division of Child Support Enforcement or DCSE in Virginia).5

Second, the act strengthens interstate wage garnishments byrequiring employers who receive an interstate wage withholdingorder, which is regular on its face, to comply with the order andto distribute the funds as ordered.6 Third, the act was amendedto clarify that if all of the parties now live in Virginia and thechild is not a resident of the issuing state, the out of state ordermay be enforced and modified in a registration proceeding inVirginia.7

The fourth, and most significant change enacted in 1997, is anamendment to Va. Code Ann. Sec. 20-88.41. It permits a declara-tory judgment proceeding in Virginia to determine which of twoor more conflicting child support orders controls. Significantly,the amendment permits an obligor to file such an action inVirginia even where no enforcement or modification proceedingis pending or filed in Virginia.

A practical application of this last amendment occurred in theHenrico County Juvenile and Domestic Relations District Court.8

In this case, a 1981 Florida divorce decree had ordered thefather to pay for child support the sum amount of $300 permonth for his two minor children. The mother later moved fromFlorida to Colorado with the children, while the father, my client,later moved to Virginia. By subsequent orders entered in aColorado court in 1989 and 1991, the support was increased to$225 per child, and thereafter, $689 for both children. What ledto my involvement was a federal garnishment of tax refundsowed to my client for an alleged arrearage of over $40,000 onchild support. He claimed that he had never been served withany Colorado proceedings and had not appeared or consentedto jurisdiction in Colorado for purposes of modification of theFlorida order.

A petition was filed in the Henrico County juvenile court pur-suant to the declaratory judgment provisions of the UIFSA citedabove, and the court and agencies, as well as the mother, wereall served with the petition. Further investigation and review ofthe records in Colorado confirmed that, notwithstanding therecitation in the Colorado orders that the Colorado court hadjurisdiction over the defendant/father, in fact no such service orany other jurisdictional criteria were met. My client had neverbeen to Colorado, never participated in any prior proceedings inColorado, and had no long-arm nexus sufficient to bring himbefore the Colorado courts. Counsel in Colorado were retainedby my client to research and confirm that, based upon theColorado UIFSA and their jurisdictional case law, the order mod-ifying the Florida court’s order was void. Further, they confirmedthat, since both parties had left the original ordering state,

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Uniform Interstate Family Support Act:A Practical Update

by Lawrence D. Diehl

Virginia Lawyer 25

Florida lost its continuing one-state jurisdiction and any modifi-cation against the father should have been, under UIFSA, inVirginia where the petitioner was a non resident, and the defen-dant a resident, of the state in which a modification action isbrought.9

Faced with these facts, the appropriate Colorado agencyacknowledged that the modification order was invalid and void,and that there were no arrearages owed by my client to themother. I had the agency execute an affidavit summarizing thecorrect factual sequence of the orders and their agreement tovoid their arrearage order and federal tax intercept. Not onlythat, the Colorado state agency even paid my client a reasonablelegal fee for their overreaching as part of the settlement order!Thus, by using the declaratory judgment proceeding now avail-able under UIFSA, an excessive child support arrearage wasvoided and a federal tax lien canceled. I also learned a valuablepractice hint in interstate child support matters: Never assumethat the court’s mere recitation of jurisdiction in a support orderis correct on its face value or supported by the record. “Wishingdoesn’t make it so,” even for state welfare departments, if thefacts show that, as a matter of record and law, no such serviceor jurisdiction exists.10

Developing Case LawAlthough not extensive, Virginia’s case law interpreting UIFSApoints out two trends. The first is a strict construction of the moreprocedural aspects of the law, especially in the area of registrationof foreign judgments. The second is a broad and liberal interpre-tation of the act in the areas of its purpose and assertion of juris-diction to effectuate its stated purposes. The interpretation of theact by the Virginia Court of Appeals in these areas is consistentwith its underlying purposes. The case law provides the practi-tioner with two basic lessons: You must cross your “t’s” and dotyour “i’s” when you are implementing the technical aspects ofthe act. Read and follow its provisions. Use these policy caseswhich follow to argue a broad policy in convincing the court toutilize the UIFSA provisions where its application by the trialcourt may be in doubt.11

In Commonwealth of Virginia ex rel. Kenitzer v. Richter, 23 Va.App. 186, 475 S.E.2d 817 (1996), the court of appeals held thatwhere a Virginia order was originally entered as to child support,and the mother and child had moved to California, and the fatherhad moved to South Carolina, Virginia had lost its status as a“one state, one order” state and could only enforce, but notmodify, its prior order. Further, its failure to determine the amountof the support arrearage was erroneous. The court further ruled,in a strict interpretation of the term ”registration of order,” that aSouth Carolina order merely staying a wage garnishment was notan “order of support” sufficient for registration purposes inVirginia, and the Virginia trial court properly rejected the father’smotion to register the South Carolina order. As a practical matter,while UIFSA does not prevent the parties, once they have all leftthe initiating state, from using Virginia to “enforce” an order, themore practical action would be by the mother against the fatherin South Carolina.[12] Unless both parties consented to the modi-fication proceeding in Virginia, UIFSA clearly would not permit

Virginia to be the modifying state after both parties and the childhave left this state.

A second case addressing the issue of the strict need to computearrearages in the process of registering and enforcing or modifyinga foreign support order is Slawski v. Commonwealth of Virginiaex. rel. Slawski, 29 Va. App. 721, 514 S.E.2d 773 (1999). InSlawski, the court of appeals reversed the registration of a NewJersey child support order where the trial court failed to computeor determine the arrearages as required by statute.13 The casewas remanded to the trial court to make such a finding. As apractical matter, make sure, if you are representing the obligeewho is filing an order for registration, that the amount of arrear-ages is computed, whether by your client or the applicable out-of-state agency. Generally, such agencies will have records thatcan be certified by affidavit and filed in the Virginia court for aninitial determination of such arrearages.

After a hearing on remand, the case was again appealed to thecourt of appeals. In Slawski v. Commonwealth ex. rel. Slawksi,Case No. 2521-99-2 (Unpublished Opinion, Va. Ct. App. 5/9/00),the court of appeals rejected numerous arguments of the fatherattempting to avoid the collection of an arrearage determined tobe the sum of $52,200 for child support and $194,400 in spousalsupport. Specifically, the court ruled that the father bore the bur-den of proof in establishing any of the defenses provided by theact.[14] The court specifically and properly held that even thoughunder Virginia law, the child would have been emancipated forpurposes of a defense to some of the arrearages, New Jersey lawapplied as the law of the “issuing state”.15 The court also sum-marily dismissed father’s arguments that indigency was a defenseto the registration of the order and that he had been deniedequal protection of the laws. The appellate court made a broadpolicy statement by declaring “[T]he provisions of UIFSA guaran-teeing enforcement of valid support orders entered by otherstates are rationally related to a legitimate government interest.”

In Fitzhugh v. Dupree, Case No. 1388-97-1 (Unpublished Opinion,Va. Ct. App. 11/10/97), the court of appeals upheld the registrationof a California child support order in Virginia pursuant to UIFSA.The Virginia trial court applied the California statute of limitationson the issue of the collection of arrearages.16 The appellate courtaffirmed the trial court’s ruling that California was the “issuing

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The adoption of UIFSA . . .

has been a key ingredient in

virtually every federal child

support legislative proposal

over the past few years.

February 200126

state” for purposes of determining which state’s statute of limita-tions would apply, even though California had modified an earlierNew York order. This is once again consistent with the statutoryscheme and Virginia’s recognition of the applicable laws of otherstates as contained in Slawski, supra.

Also consistent with this statutory scheme is the ruling in VanDyke v. Van Dyke, Fairfax County Cir. Ct., Chancery No. 144143(12/2/98), where the trial court held that Pennsylvania had noauthority to modify a Virginia support order where the fatherhad moved to Pennsylvania, but the mother still resided inVirginia.17 Virginia would not have to recognize the modifiedPennsylvania order pursuant to the Full Faith and Credit Act, 29U.S.C. Sec. 1738B.

On the issue of the ability to appeal a ruling on a UIFSA regis-tration order, in Parks v. Parks, Case No. 1892-97-4 (UnpublishedOpinion, Va. Ct. App. 2/10/98), the Court of Appeals held thatwhere the trial court entered a temporary or pendente lite childsupport order, the order was not final. The order was merelyinterlocutory and not appealable to the court of appeals on theissue of whether the trial court was without jurisdiction to deter-mine the validity of the registration of an Illinois child supportorder in Virginia. This ruling is consistent with the general rulethat the jurisdiction of the court of appeals does not generallyapply to interlocutory orders and is limited to final orders on theissue.18 Thus, as a practical matter, if you are faced with theissue of the validity of the registration of a foreign support orderand desire to appeal the ruling on the issue, have the trial courtmake the ruling final so that a timely appeal can be made.

In broadly interpreting the term “acts and directives”19 for purposesof determining whether Virginia had jurisdiction over the obligorfather who resided in Africa, the court of appeals in Franklin v.Commonwealth 27 Va.App, 136, 497 S.E. 2d 881 (1998), ruled thatthe DCSE had jurisdiction where the father had “forced” the wifeand children to move to Virginia and where the last place ofmatrimonial domicile was Virginia. These acts, including the “ordering” of the mother and children to leave Africa (so that “they had to go somewhere”), provided a sufficient Kulko nexusto assert jurisdiction over the father. The trial court soundlyrejected the father’s argument that Virginia had no jurisdictionover him since, like Admiral Kulko, he had not told them tospecifically move to Virginia. The trial court further ruled that thecourt had alternate grounds of jurisdiction since the father had

made a general appearance in the matter.20 It is submitted thatthe decision in this case, while a broad interpretation of the term,is sound as policy matter, although the reality of the collectionability against a father in Africa might be suspect.

The most recent ruling of the court of appeals providing a broadbut appropriate interpretation of UIFSA is Commonwealth ofVirginia ex. rel. Gagne v. Chamberlain, 31 Va. App. 533, 525S.E.2d 19 (2000). In Gagne, the DCSE obtained an administrativeorder requiring a mother located in Virginia to reimburse the Stateof New Hampshire for welfare (AFDC) funds expended for thecare of her two daughters. The trial court recognized a Kulko-type claim and held that UIFSA did not authorize the collectionof such a claim of public assistance owed to another state. Inreversing the trial court, the Court of Appeals held that UIFSAcreates “a debt due and owing to the Department by person orpersons” responsible for support if public assistance money isapplied to the benefit of dependent children.21 In a succinct anddetailed analysis of the statutory construction of various termsunder UIFSA and their reading as a whole to effectuate the goalsof the act, the Court of Appeals focused on the purpose ofUIFSA in providing Virginia with jurisdiction to collect the debt.The court stated “[S]ince UIFSA requires the uniform applicationof Virginia laws to interstate petitions, New Hampshire is entitledto the benefit of Virginia law allowing the creation by law of adebt for provision of AFDC funds. To hold otherwise woulddefeat the clear purpose of the statute and, therefore, be incon-sistent with the manifest intention of the General Assembly.”

ConclusionVirginia’s adoption of UIFSA has brought our state into the 21stCentury in the area of interstate child support enforcement. Itscontinuing and exclusive “one state, one order” jurisdictionalconcept, along with modernization of hearing processes and dis-covery, has clearly improved upon the URESA system previouslyapplicable to such proceedings. The uniformity that its rulesintend has been implemented and interpreted by Virginia’s caselaw to date in a manner consistent with the goals of the legisla-tion, providing the day-to-day practitioner in this field with anunderstanding of the rules of the game, and an ability to adviseclients as to their rights and obligations in the interstate supportarea. In its six years of implementation, UIFSA has been a wel-come improvement to the interstate support collection system,and the case law interpretations of the act by Virginia’s courtsappear to provide further assurance that its provisions and goalswill be effectively implemented. �

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Lawrence D. Diehl is a sole practitionerwhose practice is limited to family law. Hepractices in the Hopewell and Richmond areaand co-counsels in cases throughout thestate. He received his B.A. From BucknellUniversity and his J.D. from the Marshall-Wythe School of Law, College of William andMary. Last year he received the VSB FamilyLaw Section’s Lifetime Achievement Award.

Virginia’s adoption of UIFSAhas brought our state intothe 21st Century in the areaof interstate child supportenforcement.

Virginia Lawyer 27

ENDNOTES

1 Va. Code Sec. 20-88.32 through 88.82 (1994).

2 For an excellent summary of the history of the development of this legislationand a more detailed analysis thereof, see 27 Family Law Quarterly No. 1(Spring, l993).

3 See, for example, Senator Bradley’s S. 689 (1993) recommending the enact-ment of UIFSA “without material change” as compared to RepresentativeSchroeder’s H.B. 2790 (1993) requiring the enactment of UIFSA by each state“verbatim.” Virginia’s version varies slightly from the model adopted by theNCCUSL. For example, Virginia has not adopted one of the long-arm jurisdic-tional provisions permitting personal jurisdiction over a nonresident wheresuch individual “engaged in sexual intercourse in this State and the child mayhave been conceived by that act of intercourse.” If a “verbatim” test is lateradopted by federal legislative mandates, arguably such variations will have tobe amended by the General Assembly of Virginia in the future.

4 See “UIFSA: Virginia’s Adoption Of The New Interstate Support Act,” 43Virginia Lawyer, No. 5 (December, 1994), pp. 26–28.

5 Va. Code Ann. Sec. 20-88.39.

6 Va. Code Ann. Sec. 20-88.64.

7 Va. Code Ann. Sec. 20-88.77.1.

8 See Padgett v. Carpin, et als, Henrico County Juvenile and Domestic RelationsDistrict Court, Henrico County, Virginia, Case No. 23616, Order dated9/22/98.

9 Va. Code Ann. Sec. 20-99.76. Neither was an action under the prior URESAfiled by the Colorado authorities against the father in Virginia, another optionthat would have been available under Colorado and Virginia law in the1981–94 time period prior to the enactment of UIFSA.

10 See Kulko v. Superior Court, 436 U.S. 84 (1978), where the Court ruled thatthere were insufficient facts to support an assertion of jurisdiction by theState of California over the non-resident father for child support purposeswhere there was no personal presence in the state or other facts supportingany reasonable “nexus” to support such jurisdiction. The mere presence ofthe child or mother in the state seeking to assert jurisdiction over the defen-dant is, by itself, insufficient to support such a claim.

11 For an excellent resource as to the purposes and intent of each of the act’sprovisions, see Sampson, “Uniform Interstate Family Support Act,” 27 FamilyLaw Quarterly, No. 1 (Spring, 1993). This article provides “unofficial” com-ments by the drafters of the act to serve as a practical interpretation of theintent of the act and its implementation in certain fact situations.

12 Va. Code Ann. Sec. 20-88.76 provides that to modify or enforce an order,where both parties and the child have left the initial ordering state, the peti-tioner must be a “non-resident” of the state in which the action is filed. Inthis fact situation, the mother could not file to modify in California since sheis not a non-resident of that state. She must file in South Carolina, whichmakes practical sense since the father and his wages/assets and other meansof collection available under South Carolina law would be more accessible toenforce the order.

13 Va. Code Ann. Sec. 20-88.70(A).

14 Va. Code Ann. Sec. 20-88.72.

15 Va. Code Ann. Sec. 20-88.69(A).

16 Va. Code Ann. Sec. 20-88.69 addresses the choice of laws in UIFSA matters.Under subsection (B), the act provides that in an action for arrearages, the “statute of limitations under the laws of this Commonwealth or of the issuingstate, whichever is longer, applies.”

17 Since one of the parties and the child would still be residents of Virginia asthe issuing state, Virginia would not lose its one state, one order jurisdiction.Va. Code Ann. Sec. 20-88.39(A)(1).

18 Va. Code Ann. Sec. 17.1-405.

19 Va. Code Ann. Sec. 20-88.35(5).

20 Va. Code Ann. Sec. 20-88.35(2).

21 Va. Code Ann. Sec. 63.1-250.

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