IN RE: Susan SPENCER (2006)

Appeals (1) from an order of the Family Court of Albany County (Walsh, J.), entered March 2, 2006, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 4, to direct respondent to pay child support, and (2) from two orders of said court, entered March 2, 2006, which awarded petitioner counsel fees.

The parties, who divorced in 1995, are the parents of three children, Kipp (born in 1986), Tyler (born in 1988), and Kelly (born in 1992).   Pursuant to a judgment entered in Connecticut, the Superior Court of Connecticut granted petitioner physical custody of the children and directed respondent to pay child support of $750 per week-i.e., $250 per child-until the children reached 18 years of age.   Petitioner and the children moved to New York, where they currently reside.   Respondent continues to reside in Connecticut.

After Kipp reached age 18, petitioner commenced this proceeding seeking a new order of support, arguing that the Connecticut judgment had expired with respect to Kipp. A Support Magistrate granted the petition and ordered respondent to pay child support for Kipp in the amount of $350 per week, as well as 75% of unreimbursed medical expenses and college expenses, and awarded petitioner counsel fees.   Both parties filed objections.   Family Court denied respondent's objections and, in two separate orders, granted petitioner's objections by increasing the amount of counsel fees awarded to $9,597.   Respondent appeals from all three of Family Court's orders and we now affirm.

Respondent's sole argument on appeal is that Family Court lacked subject matter jurisdiction to grant a new support order for Kipp under the Federal Full Faith and Credit for Child Support Orders Act (see 28 USC § 1738B [hereinafter FFCCSOA] ) and the Uniform Interstate Family Support Act (see Family Ct. Act § 580-101 et seq. [hereinafter UIFSA] ).   Specifically, respondent characterizes Family Court's support award as modifying the duration of the prior Connecticut judgment directing child support payments only until Kipp reached age 18, and asserts that New York courts lack the power to make any such modification because the requirements of FFCCSOA and UIFSA were not met.   We disagree.

Under both FFCCSOA and UIFSA, a state that issues a child support order has “continuing, exclusive jurisdiction over the order” unless none of the parties or children continues to reside in the state or all parties have filed consents permitting another state to modify the order and assume exclusive jurisdiction (28 USC § 1738B [d];  accord Family Ct. Act § 580-205[a] ).   Thus, as respondent asserts, because he continues to reside in Connecticut and has not consented to allow New York courts to assume jurisdiction, Connecticut has exclusive subject matter jurisdiction over the matter and Family Court did not have the authority to modify the Connecticut judgment (see 28 USC § 1738B [e];  Family Ct. Act § 580-611[a];  Matter of Batesole-Harmer v. Batesole, 28 A.D.3d 551, 551, 813 N.Y.S.2d 738 [2006];  Matter of Daknis v. Burns, 278 A.D.2d 641, 643-644, 719 N.Y.S.2d 134 [2000];  Matter of Reis v. Zimmer, 263 A.D.2d 136, 143, 700 N.Y.S.2d 609 [1999], amended 270 A.D.2d 968, 710 N.Y.S.2d 259 [2000] ).¹

In the instant case, however, Family Court did not modify the Connecticut judgment.   Rather, the court recognized that modification is possible only during the life of an order and, because the Connecticut judgment had expired when Kipp reached age 18, there was no existing order to modify (see Sobie, 1999 Supp. Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 580-611, 2006 Pocket Part, at 76 [“Modification is of course possible only during the life of a decree.   Once expired it cannot be modified;  hence [s]ection[ ] ․ 580-611[is] inapplicable.”] ).   Put another way, “[b]ecause the [Connecticut judgment] has expired with respect to [Kipp], ․ any order entered by a New York court with respect to him will not affect the amount, scope or duration of the [Connecticut judgment]” (Hauger v. Hauger, 256 A.D.2d 1076, 1077, 683 N.Y.S.2d 771 [1998];  see Matter of Ferraro v. Nash, 293 A.D.2d 538, 539, 739 N.Y.S.2d 838 [2002];  Schottenstein v. Schottenstein, 9 Misc.3d 1106(A), 2005 N.Y. Slip Op. 51422, *2-4, 2005 WL 2205760 [2005];  Goodison v. Goodison, 184 Misc.2d 573, 575, 709 N.Y.S.2d 376 [2000];  see generally 28 USC § 1738B [b] [defining “modification” as “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”];  but see Sheetz v. Sheetz, 840 A.2d 1000, 1003 [Pa.Super.2003] ).

While respondent correctly asserts that a proposed 2001 amendment to UIFSA would expressly prohibit “imposition of a further obligation of support” by another state once the issuing state's support order expired (Unif. Interstate Family Support Act [2001] § 611[d] ), the federal statute, FFCCSOA, has not been so amended and the New York Legislature-the body whose intent we must seek to effectuate in interpreting Family Ct. Act § 580-611 (see e.g. Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998] )-has not adopted the proposed amendment to UIFSA.   We note that “ ‘[t]he Legislature is ․ presumed to be aware of the decisional and statute law in existence at the time of an enactment’ ” (Jensen v. General Elec. Co., 82 N.Y.2d 77, 86, 603 N.Y.S.2d 420, 623 N.E.2d 547 [1993], quoting Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 169, 490 N.Y.S.2d 751, 480 N.E.2d 365 [1985] ).   Thus, we find the refusal to adopt the amendment particularly revealing of the Legislature's intent, given the existence of appellate level case law predating the amendment and expressly permitting New York courts to issue an order for support upon expiration of an out-of-state order.

In sum, because the Connecticut judgment had expired and it is undisputed that Family Court had personal jurisdiction over respondent (cf. Matter of Auclair v. Bolderson, 6 A.D.3d 892, 895-896, 775 N.Y.S.2d 121 [2004], lv. denied 3 N.Y.3d 610, 786 N.Y.S.2d 814, 820 N.E.2d 293 [2004];  Matter of Chisholm-Brownlee v. Chisholm, 177 Misc.2d 185, 187-188, 676 N.Y.S.2d 818 [1998] ), Family Court had the authority to issue a new child support order for Kipp and to award counsel fees in connection with this proceeding.

ORDERED that the orders are affirmed, without costs.

FOOTNOTES

1.   Moreover, even assuming that Connecticut had lost jurisdiction and the necessary prerequisites to confer jurisdiction on New York were present here (see Matter of Auclair v. Bolderson, 6 A.D.3d 892, 894, 775 N.Y.S.2d 121 [2004], lv. denied 3 N.Y.3d 610, 786 N.Y.S.2d 814, 820 N.E.2d 293 [2004] ), we note that Family Court “may not modify any aspect of a child support order that may not be modified under the law of the issuing state,” including extension of the duration of the order beyond the age mandated by the issuing state (Family Ct. Act § 580-611[c];  see Sheetz v. Sheetz, 840 A.2d 1000, 1003 [Pa.Super.2003];  Robdau v. Virginia, 35 Va.App. 128, 132-133, 543 S.E.2d 602, 604-605 [2001] ).

MERCURE, J.P.

CREW III, CARPINELLO, LAHTINEN and KANE, JJ., concur.