Commonwealth of Virginia v. Autry
Davidson, J., delivered the opinion of the Court. This case presents the question whether a Maryland court, acting pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), Maryland Code (1957, 1979 Repl.Vol.), Art. 89C, has the authority to order a parent to support an illegitimate child, notwithstanding the fact that a court in another jurisdiction has vacated its prior order imposing a duty of support. On 4 January 1972, the Juvenile and Domestic Relations Court for Bergen County, New Jersey (New Jersey Court), adjudicated the appellee, Kenneth Autry (father), to be the father of Cynthia Halsey (child), born 31 October 1971. The New Jersey Court ordered the father to pay $10.00 per week to the Bergen County Welfare Board for the support of the child.
On 23 April 1973, the New Jersey Court ordered the father to pay $20.00 per week for the support of the child. On 4 June 1975, the New Jersey Court, at the request of the child’s mother, vacated the 23 April 1973 order of support, reserving any arrearages to the Bergen County Welfare Board. 1 55 Since 1 May 1978, the child has been in the physical custody of Helen Halsey, her maternal grandmother (grandmother). She has resided with her grandmother in Virginia, and has received public assistance benefits from that state. The grandmother has been designated as the payee of these benefits.
On 14 November 1979, in the Juvenile and Domestic Relations District Court of Wythe County, Virginia (Virginia Court), the Virginia Department of Welfare filed a petition on behalf of the grandmother pursuant to the provisions of the Revised Uniform Reciprocal Enforcement of Support Act, Va. Code § 20-88.19 (1950, 1975 Repl.Vol.). The petition sought support in the amount of $119.00 per month and reimbursement for public assistance paid from 1 May 1978. At the time the petition was filed the father was residing in Glen Burnie, Maryland.
The Virginia Court, pursuant to Va. Code § 20-88.22, transmitted the petition to Maryland where it was filed in the Circuit Court for Anne Arundel County pursuant to Md. Code, Art. 89C, § 18. On 14 October 1980, after a hearing, the trial court entered an order dismissing the petition. In that order, the trial court, relying on Chance v. LaPausky, 43 Md.App. 84 , 402 A.2d 1329 (1979), stated: "It appears to the Court that the New Jersey Court at Complainant’s request by Order dated June 4, 1975, circumscribed the obligation of Respondent, Kenneth Autry, to pay support reserving only the New Jersey Welfare Support arrearages.
By doing so it left no obligation imposed or imposable within the meaning of Section 7 of Article 89C. "It is significant that Petitioners here provided support for the child from May 1, 1978 to the present, such support beginning after the New Jersey Court had terminated Autry’s obligation to pay any support. 56 "Assuming that the New Jersey Court’s Order of June 4, 1975 means what it says and does in fact terminate Autry’s duty to support (either imposed or imposable as referred to in Section 7 of Article 89C) then there is no right in Virginia to collect from Autry that which Autry has no lawful obligation to pay.” (Emphasis added.) The Virginia Department of Welfare appealed to the Court of Special Appeals. We issued a writ of certiorari before consideration by that Court. We shall vacate the judgment of the trial court.
The relevant statutory provisions of Art. 89C are § 2 (g), § 4, and § 7. Section 2 (g) provides: " ’Duty of support’ includes any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial separation, separate maintenance or otherwise.” (Emphasis added.) Section 4 provides: "Duties of support arising under the law of this State, whether applicable under § 7, bind the obligor, present in this State, regardless of the presence or residence of the obligee.” (Emphasis added.) Section 7 provides: "Duties of support applicable under this article are those imposed or imposable under the laws of any state where the obligor was present during the period for which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.” (Emphasis added.) The general purposes of Art. 89C are to improve and 57 extend the enforcement of duties of support. Art. 89C, § 1. 2 More particularly, one of the purposes of Art. 89C is to provide liberal enforcement in Maryland of the claims of nonresident parents and children entitled to support.
Zouck v. Zouck, 204 Md. 285, 300-01 , 104 A.2d 573, 580 (1954). Still another purpose is to provide liberal enforcement in Maryland of the claims of out-of-state welfare departments which have made support payments to nonresident parents and children entitled to support. Art. 89C, § 8. 3 The Act has broad remedial purposes and, therefore, should be liberally construed. E.g., Lambrou v. Berna, 154 Me. 352, 356 , 148 A.2d 697, 700 (1959); State of Illinois ex rel.
Shannon v. Sterling, 248 Minn. 266, 274 , 80 N.W.2d 13, 19 (1956); Davidson v. Davidson, 66 Wash.2d 780, 785 , 405 P.2d 261, 265 (1965); see, e.g., Keesling v. State, 288 Md. 579, 589 , 420 58 A.2d 261, 266 (1980); James v. Prince George’s County, 288 Md. 315, 335 , 418 A.2d 1173, 1184 (1980); Smith v. Higinbothom, 187 Md. 115, 130 , 48 A.2d 754, 762 (1946); see also 3 Sutherland, Statutory Construction § 60.01-02 (4th ed. C. Sands 1974). Article 89C embodies a statutory scheme by which nonresident parents and children entitled to support, as well as welfare departments, can enforce duties of support across state lines. URESA, 9A U.L.A. 748 (1979).
A URESA proceeding is commenced when a person to whom a duty of support is owed files a petition, Art. 89C, § 9, 4 in á court of the initiating state, the state in which that person resides. Art. 89C, § 2 (c). 5 After determining that a duty of support exists, the court in the initiating state forwards the petition to a court of the responding state, the state where the parent allegedly owing a duty of support resides. Art. 89C, § 14(a). 6 The court of the responding state, Art. 89C, § 2(d), 7 must obtain jurisdiction over the parent, Art. 89C, § 18(a)(1), 8 59 hold a hearing, Art. 89C, § 18 (b), 9 and determine whether a duty of support exists, and if so, the extent of that duty. Art. 89C, § 23. 10 In determining whether and to what extent a duty of support is imposed or imposable, ordinarily it is the law of the responding state, and not the law of the initiating state, which governs.
Art. 89C, §§ 2, 4, & 7. E.g., Engelson v. Mallea, 180 N.W.2d 127, 131 (Iowa 1970); Rosenberg v. Rosenberg, 152 Me. 161, 163 , 125 A.2d 863, 864 (1956); Mahan v. Read, 240 N.C. 641, 648 , 83 S.E.2d 706, 712 (1954); Childers v. Childers, 19 N.C.App. 220, 224-25 , 198 S.E.2d 485,488 (1973); see McCabe v. McCabe, 210 Md. 308,314-15 , 123 A.2d 447, 450 (1956). If the court of the responding state finds a duty of support, it may order the parent to furnish support or reimbursement, and may take appropriate steps to enforce compliance with that order. Art. 89C, § 23.* 11 The remedies provided by the Act are in addition to any other remedies that may exist.
Art. 89C, § 3. 12 See Barrell v. Barrell, 288 Md. 19, 22 , 415 A.2d 579, 580-81 (1980). Here the record shows that at the time the petition was filed, the child resided in Virginia and the father resided in Maryland. The petition was filed in a court in Virginia, the initiating state, and was forwarded to a court in Maryland, the responding state. Thus, whether and to what extent a duty of support is imposed or imposable is governed by Maryland law.
Art. 89C, §§ 2, 4, & 7. 60 At common law, a father of an illegitimate child owed no duty of support. Fiege v. Boehm, 210 Md. 352, 358 , 123 A.2d 316, 320 (1956); see 10 Am.Jur.2d Bastards § 68 at 895 (1963). As long ago as 1781, such a duty was imposed in Maryland by a statute that provided criminal penalties for nonsupport of an illegitimate child. 13 Thereafter, this Court, applying that Act and its successors, has consistently enforced a father’s duty to support an illegitimate child. Dorsey v. English, 283 Md. 522, 529-30 , 390 A.2d 1133, 1138 (1978); State v. Hardesty, 132 Md. 172, 176 , 103 A. 461, 462 (1918); Oldham v. State, 5 Gill 90, 93 (1847).
In 1962, as part of a broad legislative plan to restructure the criminal bastardy laws, Art. III, § 38 of the Maryland Constitution was amended. 14 The amendment expressly provides that a father’s obligation to support an illegitimate child is a duty enforceable by attachment and imprisonment. Brown v. Brown, 287 Md. 273, 282 , 412 A.2d 396, 401 (1980). The Paternity Act, Md. Code (1957, 1981 Repl.Vol.), Art. 16, §§ 66A to 66P, was enacted by the 1963 Maryland Laws, ch. 722. That Act repealed Md. Code (1957), Art. 12 "Bastardy and Fornication,” the then most recent successor to the 1781 Maryland Laws, ch. 13, § 1, and transformed the character of the proceeding in which a father’s paternity and 61 his duty to support an illegitimate child were determined from criminal in nature, Oldham, 5 Gill at 93 , to civil in nature.
Thompson v. Thompson, 285 Md. 488, 490-91, 404 A.2d 269, 271 (1979). The primary purposes of the Paternity Act are to impose the basic obligations and responsibilities of parenthood upon both parents of illegitimate children, and to insure that illegitimate children enjoy the same right of support as legitimate children. Dorsey, 283 Md. at 529 , 390 A.2d at 1138 ; Corley v. Moore, 236 Md. 241, 243 , 203 A.2d 697, 698 (1964); Art. 16, § 66A. An additional purpose is to shift the burden of support from the taxpayers to the parents of the illegitimate child.
Mayor of Rockville v. Randolph, 267 Md. 56, 61 , 296 A.2d 574, 576 (1972); Shelley v. Smith, 249 Md. 619, 630 , 241 A.2d 682, 688 (1968). The Paternity Act effectuates these purposes by assigning to parents of illegitimate children the same support responsibilities as are assigned to parents of legitimate children by Md. Code (1957, 1978 Repl.Vol.), Art. 72A, § 1. 15 There can be no question that under Maryland law a duty of support is imposed upon the father of an illegitimate child. The question here concerns the circumstances under which such a duty of support is "imposable” by a Maryland court acting as a responding state court in a URESA proceeding. Ordinarily, as conceded by the father here, a duty of support is imposable by a responding state court in a URESA proceeding even though no previous order of support exists.
E.g., Clarkston v. Bridge, 273 Or. 68, 72 , 539 P.2d 1094, 1096 (1975); Brown v. Thomas, 221 Tenn. 319, 323 , 426 S.W.2d 496, 498 (1968); Yetter v. Commeau, 84 Wash.2d 155, 162 , 524 P.2d 901, 905 (1974); see also Banks v. McMorris, 47 Cal.App.3d 723, 727 , 121 Cal.Rptr. 185, 188 (1975); Harmon v. Harmon, 160 Cal.App.2d 47, 53 , 324 P.2d 901, 905 (1958): Johnson v. Ross, Ind.App., 405 N.E.2d 569 , 571 62 (1980). As stated by W. Brockelbank and F. Infausto in their book, Interstate Enforcement of Family Support 39 (2d ed. 1971): "[The duty of support], of course, may grow out of the order of support or a judgment or decree but is equally a duty if it never has received judicial attention and now is the basis of litigation for the first time under the Act.” Illustrative of this general principle is the case of Johnson v. Ross, Ind.App., 405 N.E.2d 569 (1980). There, a husband and wife were divorced but no support was ordered because the husband alleged that no children were born of the marriage. Subsequently, the wife instituted a URESA proceeding for support of her child.
The husband answered, stating that he was not the child’s father and contending that there had never been an adjudication imposing a duty on his part to support the child. In concluding that the responding court had the authority to impose a duty of support, the Court of Appeals of Indiana stated: "We note at the outset Johnson is mistaken in his assertion that an action under the Act requires a pre-existing judicial determination of support duty. He correctly concludes the Act does not 'create’ obligations of support. It does, however, enforce such responsibilities, and broadly defines 'duty of support’ to include 'any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, legal separation, separate maintenance or otherwise.’ IC 31-2-1-2 (f).
It is evident no previous court judgment is required to create an obligation which is 'imposable’ by law. Banton v. Mathers, (1974) 159 Ind.App. 634 , 309 N.E.2d 167 (the Act’s remedy need not be predicated upon a divorce decree); Olson v. Olson, (Mo. App. 1976) 534 S.W.2d 526 ; Banks v. McMorris, (1975) 47 Cal.App.3d 723 , 121 Cal.Rptr. 63 185. Olson correctly observed '[a] duty of support "imposable by law” is one arising out of a relationship —■ a duty of support to be adjudicated’ (emphasis in original). 534 S.W.2d 530 .” Johnson, Ind.App., 405 N.E.2d at 571 .
Under this general principle, if the New Jersey Court had not imposed a previous order of support in the instant case, a duty of support would have been imposable by the Maryland court acting as a responding state court. Here, however, the New Jersey Court had imposed a duty of support upon the father in an order that it subsequently vacated. In our view, the effect of the vacating order was to nullify the previous order imposing a duty of support and, therefore, to leave the case in the same posture as if the previous order of support had never been imposed. If the general principle were to be applied here, the duty of support existing under Maryland law would be imposable by a Maryland court acting as a responding state court in a URESA proceeding.
Such a result would be consonant with the broad remedial purposes of the Act. Moreover, even if we did not view the New Jersey Court’s vacating order as a nullifying order, we would reach the same conclusion. That vacating order can be modified by the New Jersey Court when required in the best interests of the child by a change in circumstances N.J. Stat. Ann. § 9:16-2 to 4 (1976); N.J. Stat. Ann. § 2A:34-23 (1976); e.g. Kopak v. Polzer, 4 N.J. 327, 332-33, 72 A.2d 869, 871 (1950); C.M. v. C.C., 170 N.J. Super. 586, 591 , 407 A.2d 849, 852 (1979); see also Bergen County Welfare Bd. v. Cueman, 164 N.J. Super. 401, 404 , 396 A.2d 620, 622 (1978).
Thus, we do not agree with the trial court’s assumption that the New Jersey Court’s vacating order established that the father’s duty to support the child was permanently terminated. Indeed, that vacating order did nothing more than determine that at a given time, under given circumstances, under New Jersey law, the father was not required to pay any amount of money for child support. Thus, in our view, the vacating order, if not viewed as a nullifying order, is no different from any other 64 order affecting child support issued by a court of a jurisdiction other than Maryland. Ordinarily, a responding state court in a URESA proceeding has the authority to consider
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