Vol. 57 — Friedman, Vaile, and Evolving Interstate Uniformity
A legal note from Marshal Willick about Nevada cases properly considering the bigger picture of consistent interpretation of uniform laws.
For many years, family law in America has become increasingly homogenous. Over the past few decades, Nevada has increasingly sought to be part of that evolution, as opposed to apart from it, and that is probably a good thing.
I. INTRODUCTION: NATIONALIZATION AND FEDERALIZATION
The States, as “laboratories,” have generally been free to tinker with the parameters and components of family law (as “domestic relations” is more commonly known today) for the past couple of centuries. As the United States Supreme Court put it: “We have consistently recognized that ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’” Rose v. Rose, 481 U.S. 619, 625, 107 S. Ct. 2029, 95 L. Ed.2d 599 (1987).
Relatively recent trends have challenged and corralled that traditional freedom, however, leading to ever-greater similarity in family law as practiced in the U.S. While whole books could be written on the subject, the two driving forces might fairly be summarized as “federalization” and “nationalization.”
Congress sometimes expresses the will to “occupy the field” in a particular question of traditionally State-created law, and generally, it has the power to do so, even when it results in unintended consequences of unjust enrichment and inequity. See Carmona v. Carmona, 603 F.3d 1041 (9th Cir. 2010) (revised op’n on rehearing) (permitting a former spouse who had bargained away certain benefits for value to nevertheless make a claim to them despite her agreement, the order of the divorce court, and the wishes of the employee, due to the happenstance of the timing of divorce and retirement, and the preemptive scope of ERISA).
Another example of Congressional meddling in traditional State law concepts was to wade into defining and regulating marriage in the so-called “Defense of Marriage Act” in 1996, which was reactive to developments in Hawaii, and the repercussions of which have left both State and federal courts in paroxysms ever since – at this writing, pending in the United States Supreme Court.
Much more often, federal law is only seen where principles such as due process and equal protection bear on enforcement of State laws. Preemption of such State laws has been explained, again by the United States Supreme Court, as necessary for a federal system, but to be very strictly limited because of the obvious opportunity for abuse and inequity:
Because domestic relations are preeminently matters of state law, we have consistently recognized that Congress, when it passes general legislation, rarely intends to displace state authority in this area. Thus we have held that we will not find preemption absent evidence that it is “positively required by direct enactment.”
Mansell v. Mansell, 490 U.S. 581, 587, 109 S. Ct. 2023, 2028 (1989), quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S. Ct. 802, 808, 59 L. Ed. 2d 1 (1979) (quoting Wetmore v. Markoe, 196 U.S. 68, 77, 25 S. Ct. 172, 176, 49 L. Ed. 390 (1904)).
On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has “positively required by direct enactment” that state law be pre-empted. . . . Before a state law governing domestic relations will be overridden, it “must do ‘major damage’ to ‘clear and substantial’ federal interests.”
As discussed in prior notes, federalization of family law is often problematic, since top-down imposition of federal regulation onto State court systems has the potential to cause as much injustice as it might alleviate. See, e.g., legal note Vol. 52, “Proposed Changes to the SCRA are a Bad Idea,” July, 2012, posted at https://www.willicklawgroup.com/newsletters.
Nationalization, by contrast, is often a positive development, as the law of the 50 States evolves in such a way that the concept of substantial justice coalesces around increasingly-similar balancings and mechanisms as the States address an ever-increasingly mobile, and nationally conscious, population.
Accelerating this trend is the increasing frequency and reach of “uniform acts” – laws designed to be enacted in multiple States, and wherever possible applied similarly in different places. Sometimes – as with the Uniform Interstate Family Support Act (UIFSA), prodding for enactment comes from the federal government – in that case by way of a threatened loss of welfare funding if the law was not enacted. In other instances, the States themselves take the lead in trying to regulate problems – especially, interstate problems – that cause them concern.
These uniform laws come out of the “Uniform Law Commission ” (ULC), previously known as the National Conference of Commissioners on Uniform State Laws (NCCUSL). Now 116 years old, the ULC provides States with non-partisan draft legislation intended to bring “clarity and stability” – and most especially, consistency – to various areas of the law. Explicitly supportive of the federal system, members of the ULC must be lawyers, and include lawyer-legislators, attorneys in private practice, State and federal judges, law professors, and legislative staff attorneys, who have been appointed by State governments as well as districts and territories to research, draft and promote enactment of uniform State laws in areas where uniformity is seen as desirable and practical.
Two of the ULC’s products figure in this note – UIFSA and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
II. NEVADA BECOMES MORE NATIONAL-LAW SAVVY
Throughout the 1970s and 1980s, a recurrent charge leveled at the Nevada Supreme Court was its predisposition to issuance of opinions so fact-specific and limited in scope that they could not be used reliably for guidance by the Bar in other cases. Improvements have been made steadily, and in recent years, the Court has expressed a much greater willingness to see itself as one court among many nationally dealing with the same sets of laws, which are far better applied everywhere if all courts reviewing those laws remain cognizant of the evolving consensus regarding them.
In 2010, for example, the Court decided Fernandez v. Fernandez, 126 Nev. ___, 222 P.3d 1031 (Adv. Opn. No. 3, Feb. 4, 2010), in which it declared as unenforceable a stipulation in which parties purported to make the child support award unmodifiable. See legal note Vol. 18, “Fernandez & Child Support,” June, 2010, posted at https://www.willicklawgroup.com/newsletters.
The Court reasoned that public policy militated toward a uniform interpretation and application of certain kinds of laws – including child support statutes – that did not allow parties to “opt out” of the rules set up for regulating how all parties to all such cases should be treated. In so doing, the Court took another step in the long march toward the intended goals of “predictability, consistency, and adequacy” underlying child support reform and enactment of support guidelines throughout the country since 1987.
Recently, in a pair of cases, the Court signaled that Fernandez was no flash in the pan, but that the Court will remain guided, in part, by considerations of the development of family law over time and even among multiple States.
III. FRIEDMAN: NO OPTING OUT OF THE UNIFORM CUSTODY ACT
In Friedman v. Dist. Ct., 127 Nev. ___, 264 P.3d 1161 (Adv. Opn. No. 75, Nov. 23, 2011), the Court considered a case in which the parties’ divorce decree purported to maintain “exclusive modification jurisdiction” in Nevada no matter where either party, or the children, might move in the future.
The family court judge, relying on that stipulated provision, had permitted a child custody modification to be filed by the mother years after the mother, the father, and all children had left Nevada (the case facts showed that after a couple of moves, all parties lived in California). The trial court found that the parties’ agreement superseded the statute, and that in any event the father was judicially stopped from requesting dismissal of the mother’s motion since he had stipulated to the jurisdictional terms upon divorce.
The Nevada Supreme Court found that – as specified in the Uniform Child Custody Jurisdiction and Enforcement Act – once any court anywhere determines that all parties have left the State of Nevada, “Continuing, Exclusive Jurisdiction” (CEJ) is lost, and only the current Home State could decide whether to retain or relinquish jurisdiction over the case. The Court termed that factual finding by the trial court a “jurisdiction-ending determination.”
The Court explained that the very purpose of creating the UCCJEA was to eliminate inter-jurisdictional interpretations that previously stemmed from the looser wording of the UCCJA. The Court labeled as “irrelevant” both the State in which the original order was issued and the stated preference of the parties to indefinitely retaining jurisdiction in that place, because the statute mandates the result.
Rebuffing the claim that the fact that the original divorce decree had been issued in Nevada was important, the Court held that the relevant “proceeding” for purposes of determining the “date of the commencement of the proceeding” under the Act is not the original divorce proceeding. Rather, it is the filing of the post-divorce motion concerning custody or visitation that controls. This is implicit in NRS 125A.055, which defines “child custody proceeding” to mean “a proceeding in which legal custody, physical custody or visitation with respect to a child is an issue,” and NRS 125A.065, which defines “commencement” as meaning “the filing of the first pleading in a proceeding.”
IV. VAILE: THE UNIFORM SUPPORT ACT SETS THE PARAMETERS
In 1998, Robert Scotlund Vaile and Cisilie Porsboll were granted a divorce in Nevada, incorporating the terms of a separation agreement with regard to, among other things, the payment of child support. Under that agreement, Vaile was obligated to pay Porsboll monthly child support according to a specific formula that was calculated based on the parties’ annual tax returns. See Vaile v. Porsboll, 128 Nev. ___, 268 P.3d 1272 (Adv. Opn. No. 3, Jan. 26, 2012).
The parties never exchanged tax returns or otherwise complied with the agreement, but Vaile paid $1,300 a month in child support from August, 1998, to April, 2000, when he kidnaped the children from Porsboll in Norway. The children were recovered through a Hague Convention action in 2002, but Vaile never resumed payments of child support.
In 2007, Porsboll moved “to establish a sum certain due each month in child support” (per State law requiring a specific dollar sum for every support order) and to “reduce arrears in child support to judgment.” The trial court set support at $1,300 per month, alternately terming its order a “clarification” and a “modification.” Vaile appealed.
The Nevada Supreme Court found the terms of the Uniform Interstate Family Support Act (UIFSA) to be controlling. Finding that the trial court had subject matter jurisdiction to enforce the Nevada child support order, but not to modify it (since the parties did not live and never had lived in Nevada), the Court found that setting the support order at a dollar sum certain, when the original decree would have allowed annual changes in the sum due, was a modification not permitted by the uniform law.
The Court therefore reversed and remanded for entry of an amended child support award in accordance with the terms of the original, never-modified decree, which would control until and unless one of the parties properly modified the sum due in accordance with the terms of UIFSA for modifying a controlling order.
V. TOWARD A UNIFORM INTERPRETATION OF UNIFORM LAWS
In Friedman, the Court began its analysis with the explanation that its
review properly includes decisions from other UCCJEA states so as to harmonize our law with theirs. See NRS 125A.605 (“In applying and construing the Uniform Child Custody Jurisdiction and Enforcement Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.”).
The Court further expounded that
The UCCJEA has been described as a “pact” among the states, seeking to promote comity and “to reduce conflicting orders regarding custody and placement of children.” . . . . The district court’s assertion of exclusive, continuing jurisdiction based on the original decree exceeds its authority . . . . But there is an even more significant jurisdictional excess in this case: The district court’s failure to stay its proceedings and to respect California’s prerogative, as the home state, to determine whether to proceed or to decline jurisdiction under the UCCJEA’s inconvenient/more appropriate forum provisions. NRS 125A.355(2). If the California court – “the court of the state having jurisdiction substantially in accordance with the provisions of [the UCCJEA] does not determine that the court of this state” – the Nevada district court – “is a more appropriate forum, the court of this state shall dismiss the proceeding.” NRS 125A.355(2) (emphasis added). That California has thus far, as a matter of comity, declined to proceed in the face of the district court’s assumption of jurisdiction does not militate against issuance of writ relief, as [the mother] and the dissent suggest. It argues in favor of the writ, for unless the writ issues, Nevada will have committed the very jurisdictional offense the UCCJEA interdicts.
This passage clarifies that the Court was able to see itself as one among several courts applying the same law. Part of its conclusion was driven by the fact, as the Court noted, that “invoking jurisdiction would upset the dictates of nationwide public policy.” The Vaile decision displayed similar respect for uniformity in UIFSA determinations.
Both Vaile and Friedman stand for bigger principles than the holdings of the individual cases – they signify the realization and acceptance by the highest court in Nevada of its place as one of 50 co-equals, working together to shape and apply the legal consensus of proper application of laws intended to apply equally to all persons, in all States.
The nationalization of family law is clearly in process, to the long-term benefit of all the people affected by interstate facts and disputes that are touched on by those various uniform laws.
VII. QUOTES OF THE ISSUE
“A lawyer’s relationship to justice and wisdom is on a par with a piano tuner’s relationship to a concert. He neither composes the music, nor interprets it – he merely keeps the machinery running.”
– Lucille Kellen
“Morals are an acquirement – like music, a foreign language, like piety, poker, or paralysis. No one is born with them.”
– Mark Twain
“It is an honorable calling that you have chosen. Some of you will soon be defending poor, helpless insurance companies who are constantly being sued by greedy, vicious widows and orphans trying to collect on their policies. Others will work tirelessly to protect frightened, beleaguered oil companies from being attacked by depraved consumer groups.”
– Art Buchwald (commencement address, Tulane University School of Law)
For the archives of previous legal notes, go to https://www.willicklawgroup.com/newsletters.
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