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The age of majority for purposes of child support is set by state law. Variations among the states continue to pose significant challenges, especially in relation to the payment of support for college-age students. A recent decision of New York’s highest court is illustrative. In Spencer v. Spencer, __ N.E.2d __, 10 N.Y.3d 60 (N.Y. 2008), the court was asked to consider the validity of a support order entered in New York that extended support to age 21 after the expiration of a Connecticut order that terminated support when the child reached 18. The law that governs these actions is a result of congressional attempts to address the problem of multiple, sometimes conflicting child support orders issued by different jurisdictions. Addressing child support orders issued in other states Courts have consistently held that under the full faith and credit clause, a state need only give the same recognition to another state’s order as the issuing state would give it. Because child support orders are always modifiable by the issuing state, states reviewing initial orders took the position that they could also modify the orders and were therefore not bound to give full faith and credit to the original state order. In an effort to remedy this situation and require the recognition of child support orders issued in other states, in 1994 Congress enacted the Full Faith and Credit for Child Support Orders Act (FFCCSOA). The act requires states to enforce “according to its own terms a child support order . . . of another State; and not . . . seek to or make a modification of such order,” except in limited circumstances. In 1996, Congress increased the protection offered to interstate orders by requiring all states to adopt the Uniform Interstate Family Support Act (UIFSA) in order to qualify for federal funds for child support enforcement. UIFSA replaced the Uniform Reciprocal Enforcement of Support Act under which parties could be subject to multiple support orders at the same time. UIFSA solved this problem by creating a ‘single order system” through a series of rules that determines which court has jurisdiction to issue an initial order. Once jurisdiction is established, the court retains “continuing and exclusive jurisdiction” to modify it. The act also establishes strict procedures for determining which jurisdiction can modify the order if the original issuing court no longer has jurisdiction because all the parties have left the state. The act was amended in 2001 to further clarify the rules pertaining to exclusive jurisdiction. Less than half the states, however, adopted the amendments. In Spencer, the parents, who have three children, were divorced in Connecticut in 1994. The father, a physician, was ordered to pay $250 per month for each child. In 2004, the oldest child turned 18 and the father’s obligation ceased in accordance with Connecticut law. The mother, who had lived in New York with the children since the time of the divorce, then requested a New York court to enter an order of support extending the father’s obligation to pay support for the son in accordance with New York law. Her petition was granted, where after the father appealed, arguing that New York was without authority to modify the existing Connecticut order under UIFSA because Connecticut had “exclusive and continuing jurisdiction” to modify the order. Under UIFSA, an issuing state retains jurisdiction for a modification if at least one of the parties remains in the state. In the instant case the father had lived in Connecticut since the entry of the order. However, the mother argued that the New York order was not a modification because the Connecticut order had expired and therefore there was no order to modify. She contended that the order was a new order of support that applied valid New York law. The issue then was whether a petition to request child support after the expiration of an original order constitutes a “modification” or is a de novo proceeding. The New York Appellate Division had characterized the initial order as “expired” and therefore incapable of modification. The state high court, however, disagreed with this characterization, finding that the New York proceeding was a modification over which New York lacked jurisdiction. The court relied on three grounds. First, the definition of “modification” under the FFCCSOA (which the court read as in pari materi with UIFSA) is “a change in a child support order that affects the amount, scope or duration of the order and modifies, replaces, supersedes or otherwise is made subsequent to the child support order.” Under the plain language of the statute the New York order was a “modification” because it changed the duration of the initial order and was made subsequent to the Connecticut order. Second, UIFSA limits the modification of the terms of an original order to the law of the issuing state. Under this provision, New York could not modify the duration of the award past the child’s 18th birthday because under Connecticut law there is no authority to extend support beyond 18. This interpretation was made clear in the drafter’s comments to the 2001 amendments which state “from its original promulgation, UIFSA determined that the duration of a child support obligation should be fixed by the controlling order . . . .If the language was insufficiently specific before 2001, the amendments should make this decision absolutely clear.” The comments go on to suggest that a motivating factor in adopting the 2001 amendments was to “preclude the imposition of a new obligation [after the original order expires at 18 under the issuing state's law] to support the child through age 21.” Although New York has not adopted the 2001 amendments, the court found this subsequent interpretation instructive. Finally, the court rejected the notion that a court could assume jurisdiction once an order expired as being contrary to the policy of securing a single-order system. The court’s interpretation was consistent with recent holdings in other jurisdictions. In 2007, a New Jersey court was asked to consider whether a court could require a father to pay college expenses for a son who was originally the subject of an order issued in Pennsylvania where the law does not require that such expenses be paid. In Marshak v. Weser, 915 A.2d 613 (N.J. App. Div. 2007), the parties divorced in Pennsylvania and a child support order was entered. Later, all parties moved to New Jersey. When the youngest child became emancipated at 18 under the Pennsylvania order, the mother sought additional support pursuant to New Jersey law, which permits support beyond the age of 18. The trial court found that because New Jersey had not enacted the 2001 UIFSA amendments which would have clearly prohibited such a change, the court was free to apply New Jersey law permitting the payment of college expenses. The Appellate Division disagreed with this analysis. It concluded that while New Jersey did indeed have jurisdiction to modify the order because all the parties had moved there, it cited to both Pennsylvania and New Jersey’s enactment of UIFSA, which provides that a court may not modify any aspect of a child support order that may not be modified under the law of the issuing state. Because the Pennsylvania court could not modify the order to provide college expenses, the New Jersey court was without authority to do so. As in New York, the New Jersey court considered the comments to the 2001 amendments in construing the intent of the original UIFSA. ‘Spencer’ will have impact on college-age students The Spencer holding is likely to have a significant impact on college-age students in New York whose original support was set in another state. Prior to this holding, courts in half of the appellate divisions in New York had permitted the extension of support until age 21 even in circumstances where the original decree entered in another state had ordered support to terminate at 18. They did so on the theory, advanced by the mother in Spencer, that these were not modifications of an existing order but rather were in the nature of de novo proceedings for support. Because obligors in these jurisdictions were generally advised of the court’s likely imposition of additional support, some litigants sought to avoid judicial proceedings and agreed to pay the additional support through a stipulation or an agreement to extend support until the child was 21 years of age. In addition to the extension of the age of majority to 21, New York also has considerable case law which directs that college costs be paid in full or in part for a child until age 21. The court could direct college support taking into consideration the educational background of the parents as well as the intellectual abilities and needs of a child. The Spencer decision has prompted additional concerns because the father not only requested that his obligation cease but that he be allowed to recoup the support that had been paid after the child reached the age of 18. The court held that this claim could not be determined on the existing record and directed the Family Court to address it on remittal. This aspect of the opinion is particularly troublesome as it would appear to authorize the recoupment of payments made and accepted under an order deemed valid at the time. If the payments that were made were used appropriately they would have been spent on the child and are no longer available. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached at Kist[email protected]. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached at [email protected].

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