In the Matter of Glenda J. Ball and Frank A. Ball

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9th Circuit Court–Nashua Family Division
No. 2014-493

IN THE MATTER OF GLENDA J. BALL AND FRANK A. BALL

Argued: May 13, 2015
Opinion Issued: August 20, 2015

Glenda J. Ball, self-represented party, by brief and orally.

Gawryl MacAllister & O’Connor, of Nashua (Jared O’Connor on the brief
and orally), for the respondent.

CONBOY, J. The respondent, Frank A. Ball, appeals an order of the 9th
Circuit Court – Nashua Family Division (Ryan, J.) denying his motion to
terminate his obligation to support the parties’ eldest child because she had
turned 18 and had graduated from high school. We reverse and remand.

I. Background

The pertinent facts are as follows. The respondent and the petitioner,
Glenda J. Ball, were married in 1994 and separated in 2004. They have three
children: a daughter born in 1995, a son born in 1997, and another son born
in 1999.

In July 2005, the parties entered into a separation agreement in
Massachusetts requiring the respondent to pay the petitioner $519 in weekly
child support until the “emancipation” of the parties’ children. The
agreement’s definition of “emancipation,” consistent with Massachusetts law,
required child support to continue after a child had attained the age of 18 or
had graduated from high school provided that certain conditions were met. See
Mass. Gen. Laws Ann. ch. 208, § 28 (West 2007) (amended 2011). Under the
agreement, the respondent was obligated to pay support for a child until the
child reached age 23 if the child was “attending a post-secondary accredited
educational training school or a two-year or four-year accredited college
program as a full-time student” and was “domiciled in the home of a parent
and . . . principally dependent upon said parent for maintenance due to
enrollment in the educational program.” See id. The parties agreed that their
agreement would “be construed and governed” by Massachusetts law and that
it would be incorporated and merged with their divorce decree. As they
requested, the parties’ Massachusetts divorce decree incorporated their
separation agreement.

According to the respondent and not disputed by the petitioner, the
parties and their children relocated from Massachusetts to New Hampshire in
2008. In the fall of 2008, the parties’ Massachusetts divorce decree was
registered in New Hampshire. See RSA 546-B:47 (2007) (repealed and
reenacted 2015). At that time, the parties requested the New Hampshire court
to approve a partial stipulation purporting to modify their Massachusetts
decree. In their 2008 partial stipulation, the parties agreed that the definition
of “emancipation” contained in their Massachusetts decree was thereby
“stricken” and that New Hampshire law would apply. The parties also agreed
that the respondent’s child support obligation would “be payable in accordance
with New Hampshire law . . . until the parties’ youngest child reaches the age
of 18 or graduates from high school whichever is later.” See RSA 461-A:14, IV
(Supp. 2014). The court approved the stipulation and ordered the respondent
to pay $516 in weekly child support. In December 2008, it increased the
weekly child support amount to $559.

In 2013, the respondent filed a petition to modify his child support
obligations, alleging that, because the parties’ daughter was 18 and had
graduated from high school, his obligation to support her should be
terminated. The petitioner objected, asserting that the Massachusetts decree
required the respondent to continue supporting the parties’ daughter because
she was “pursuing post-secondary education in an accredited college program
as a full time student,” was “domiciled in [the petitioner’s] home,” and was
“principally dependent upon [the petitioner] for her maintenance due to her
enrollment in college.” See Mass. Gen. Laws Ann. ch. 208, § 28. Although the
petitioner acknowledged that the parties had entered into the 2008 partial
stipulation, which had been approved by the New Hampshire court, she argued
that the court had “lacked jurisdiction and authority to modify the
Massachusetts Order regarding the duration that [the respondent] had to pay
child support.” Relying upon the Uniform Interstate Family Support Act

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(UIFSA), see RSA ch. 546-B (2007) (repealed and reenacted 2015), the trial
court agreed with the petitioner and denied the respondent’s motion to modify.
The respondent unsuccessfully moved for reconsideration, and this appeal
followed.

II. Analysis

A. Standard of Review

Resolving the issues in this appeal requires us to interpret UIFSA.
Although the respondent argues that UIFSA does not apply to this case, we
disagree. UIFSA applies because Massachusetts issued a child support order
in 2005, and UIFSA governs the jurisdiction of New Hampshire courts to
enforce or modify that order. See RSA 546-B:39-:46 (enforcing order), :47-:52
(modifying order). Our review of the trial court’s interpretation of UIFSA is de
novo. See In the Matter of Yaman & Yaman, 167 N.H. 82, 86 (2014).

“UIFSA is a model act adopted by the National Conference of
Commissioners on Uniform State Laws at the behest of Congress . . . .” In the
Matter of Scott & Pierce, 160 N.H. 354, 358 (2010) (quotation omitted). UIFSA
has been enacted in all 50 states and the District of Columbia. Id. at 359.
New Hampshire first enacted UIFSA in 1997, effective January 1, 1998. See
Laws 1997, 263:32. Since then, the National Conference of Commissioners on
Uniform State Laws has amended UIFSA twice, once in 2001, and again in
2008. Scott & Pierce, 160 N.H. at 359. In 2015, New Hampshire repealed the
1996 version of UIFSA and enacted the 2008 version, which included the 2001
amendments thereto. See Laws 2015, ch. 75. The 2015 amendments to New
Hampshire’s version of UIFSA will become effective on January 1, 2016. See
id.

To interpret UIFSA, we rely upon our ordinary rules of statutory
construction. Scott & Pierce, 160 N.H. at 359. Under those rules, we are the
final arbiter of the legislature’s intent as expressed in the words of the statute
considered as a whole. Id. We first look to the language of the statute itself,
and, if possible, construe that language according to its plain and ordinary
meaning. Id. We construe all parts of a statute together to effectuate its
overall purpose and avoid an absurd or unjust result. Id.

We also rely upon the official comments to UIFSA. Id. When interpreting
a uniform law, such as UIFSA, “the intention of the drafters of a uniform act
becomes the legislative intent upon enactment.” Hennepin County v. Hill, 777
N.W.2d 252, 256 (Minn. Ct. App. 2010) (quotation and brackets omitted). In
addition, we have considered later amendments to UIFSA when “they provide
insight into the intended meaning of New Hampshire’s existing statute.” Scott
& Pierce, 160 N.H. at 361. Further, we consider the interpretation of UIFSA by
other jurisdictions. See Hill, 777 N.W.2d at 256-57. The opinions from courts

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in other jurisdictions are relevant “because uniform laws should be interpreted
to effect their general purpose to make uniform the laws of those states that
enact them.” Id. at 257 (quotation omitted); see RSA 546-B:56 (providing that
RSA chapter 546-B “shall be applied and construed to effectuate its general
purpose to make uniform the law with respect to the subject of this chapter
among states enacting it”).

B. UIFSA in General

UIFSA applies when more than one state is involved in child support
proceedings. Scott & Pierce, 160 N.H. at 359. It consists of nine articles that
supply procedural and jurisdictional rules for three types of child support
proceedings: (1) proceedings to establish a child support order in the first
instance when there is no prior child support order; (2) proceedings to enforce
another state’s existing child support order; and (3) proceedings to modify an
existing child support order issued by another state. See id. at 360; see also
RSA 546-B:31-:38 (Articles 4 and 5 – establishing order), :39-:46 (Article 6 –
enforcing order), :47-:52 (Article 6 – modifying order). In this case, we are
concerned with Article 6 of UIFSA, which applies to modification of child
support orders issued by another jurisdiction. See RSA 546-B:47-:52.

The purpose of UIFSA is to avoid conflicting child support orders issued
by courts in different states. See Wills v. Wills, 745 N.W.2d 924, 926-27 (Neb.
Ct. App. 2008). UIFSA relies upon the concept of “continuing, exclusive
jurisdiction” to ensure that only one child support order will be in effect at any
given time. See LeTellier v. LeTellier, 40 S.W.3d 490, 493 (Tenn. 2001). A state
that issues a support order has continuing, exclusive jurisdiction over it, and
“[n]o other state may modify that order” as long as the issuing state retains
continuing, exclusive jurisdiction over it. Id.

Section 205 of UIFSA, codified in New Hampshire as RSA 546-B:7, sets
forth the circumstances under which the issuing jurisdiction retains and loses
its continuing, exclusive jurisdiction to modify its own support order. See
Lunceford v. Lunceford, 204 S.W.3d 699, 702-03 (Mo. Ct. App. 2006). Under
that provision, “[a]s long as one of the individual parties or the child continues
to reside in the issuing state, and as long as the parties do not agree to the
contrary, the issuing tribunal has continuing, exclusive jurisdiction over its
order – which in practical terms means that it may modify its order.” Unif.
Interstate Family Support Act § 205 cmt. (amended 1996), 9 Part IB U.L.A. 340
(2005); see RSA 546-B:7. By the same token, “if all the relevant persons – the
obligor, the individual obligee, and the child – have permanently left the issuing
state, the issuing state no longer has an appropriate nexus with the parties or
child to justify exercise of jurisdiction to modify.” Unif. Interstate Family
Support Act § 205 cmt. (amended 1996), 9 Part IB U.L.A. 340. “Although the
issuing state loses jurisdiction to modify the child support order if all the
parties leave the state, until the order is modified by another state in

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accordance with UIFSA, the issuing state’s order remains in effect not only in
the issuing state but also in any state in which the order has been registered.”
Lunceford, 204 S.W.3d at 703; see id. at 704 (citing cases).

However, Section 205 of UIFSA “does not confer jurisdiction to modify on
another tribunal.” Unif. Interstate Family Support Act § 205 cmt. (amended
1996), 9 Part IB U.L.A. 341. Sections 611(a) and 613 of UIFSA govern when a
state obtains continuing, exclusive jurisdiction to modify the child support
order issued by another state. See Unif. Interstate Family Support Act § 611
cmt. (amended 1996), 9 Part IB U.L.A. 444-45. In New Hampshire, Section
611(a) is codified as RSA 546-B:49, I, and Section 613 is codified as RSA 546-
B:51.

Section 611(a)(1) of UIFSA provides that one state may modify a child
support order issued by another state when the original support order is
registered in the new state and the new state finds that: (1) the child, the
obligee, and the obligor no longer reside in the state that issued the original
order; (2) the petitioner seeking modification is not a resident of the new state;
and (3) the respondent is subject to personal jurisdiction in the new state.
Unif. Interstate Family Support Act § 611(a)(1) (amended 1996), 9 Part IB
U.L.A. 442; see RSA 546-B:49, I(a); see also Scott & Pierce, 160 N.H. at 360.

“There are two exceptions to the rule of [Section 611(a)(1)] requiring the
petitioner to be a nonresident of the forum in which modification is sought.”
Unif. Interstate Family Support Act § 611 cmt. (amended 1996), 9 Part IB
U.L.A. 445. “First, under [Section 611(a)(2)] the parties may agree that a
particular forum may serve to modify the order.” Id.; see RSA 546-B:49, I(b)
(providing that the parties may file written consents in the original jurisdiction
to allow a new state to modify the support order). “Second, Section 613 . . .
applies if all parties have left the original issuing state and now reside in the
same new forum state.” Unif. Interstate Family Support Act § 611 cmt.
(amended 1996), 9 Part IB U.L.A. 445; see RSA 546-B:51.

Once a new tribunal modifies the child support order, that tribunal
“becomes the tribunal of continuing, exclusive jurisdiction.” RSA 546-B:49, IV;
see Unif. Interstate Family Support Act § 611(d) (amended 1996), 9 Part IB
U.L.A. 443. “The order of the modifying tribunal becomes the operative
‘controlling order’ and the modifying tribunal assumes continuing, exclusive
jurisdiction over the only operative child support order.” Unif. Interstate
Family Support Act § 611 cmt. (amended 1996), 9 Part IB U.L.A. 444; see Scott
& Pierce, 160 N.H. at 360.

C. Parties’ Arguments

The parties dispute whether the trial court had subject matter
jurisdiction in 2008 to change the duration of the respondent’s child support

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obligation from that set forth in the Massachusetts support order. The
petitioner argues that the trial court lacked jurisdiction to shorten the duration
because doing so would not have been allowed under Massachusetts law. See
RSA 546-B:49, III; see also Unif. Interstate Family Support Act § 611(d)
(amended 2001), 9 Part IB U.L.A. 255 (providing that, “[i]n a proceeding to
modify a child-support order, the law of the State that is determined to have
issued the initial controlling order governs the duration of the obligation of
support”). The petitioner, however, conflates subject matter jurisdiction with
choice of law. As explained below, we conclude that the trial court had subject
matter jurisdiction to adjudicate the parties’ petition to modify their
Massachusetts support order.

“Subject matter jurisdiction is jurisdiction over the nature of the case
and the type of relief sought; the extent to which a court can rule on the
conduct of persons or the status of things.” Hemenway v. Hemenway, 159 N.H.
680, 683 (2010) (quotation and brackets omitted). Subject matter jurisdiction
constitutes “a tribunal’s authority to adjudicate the type of controversy
involved in the action.” Id. (quotation omitted). “Absent subject matter
jurisdiction, a court order is void.” Id. at 684. “A party may challenge subject
matter jurisdiction at any time during the proceeding, including on appeal, and
may not waive it.” Id. (quotation omitted). “A court lacks power to hear or
determine a case concerning subject matters over which it has no jurisdiction.”
In the Matter of Muller & Muller, 164 N.H. 512, 516-17 (2013) (quotation
omitted). We review, de novo, whether the trial court in this case had subject
matter jurisdiction. See id. at 517.

“The family division is a court of limited jurisdiction, with exclusive
power conferred by statute to decide cases in certain discrete areas,” including
child support. Id. (quotation omitted); see RSA 490-D:2, I, II (2010). Because
the powers and jurisdiction of the family division are limited to those conferred
by statute, we look to the relevant statutes to determine whether the family
division had subject matter jurisdiction in this case to change the duration of
the respondent’s child support obligation from that set forth in the
Massachusetts order. See Muller, 164 N.H. at 517.

The trial court in this case had subject matter jurisdiction under Section
613 of UIFSA, codified in New Hampshire as RSA 546-B:51, to rule upon the
parties’ request for modification. RSA 546-B:51, I, provides: “If all of the
parties who are individuals reside in this state and the child does not reside in
the issuing state, a tribunal of this state has jurisdiction to enforce and to
modify the issuing state’s child support order in a proceeding to register that
order.” Under this provision, New Hampshire had jurisdiction in 2008 to
adjudicate the parties’ request to modify their Massachusetts support order
because “all of the parties who are individuals reside[d] in this state and the
child [did] not reside in the issuing state.” RSA 546-B:51, I.

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 Nothing in the plain language of RSA 546-B:51 otherwise limits the
court’s subject matter jurisdiction to adjudicate a request to modify the
support order issued by another state. The remaining section of RSA 546-
B:51, RSA 546-B:51, II, merely provides that, when exercising jurisdiction
under RSA 546-B:51, a New Hampshire court must apply certain UIFSA
provisions, including Article 6, “and the procedural and substantive law of this
state,” and that certain other UIFSA provisions not relevant to the instant case
do not apply. See RSA 546-B:51, II.

The petitioner does not dispute that RSA 546-B:51 governs this case.
Nor does she dispute that the court had jurisdiction in 2008 to modify the
amount of child support that the respondent was required to pay. Instead, she
relies upon RSA 546-B:49, III, which provides, in pertinent part: “A tribunal of
this state may not modify any aspect of a child support order that may not be
modified under the law of the issuing state.” The petitioner contends that,
pursuant to this provision, because Massachusetts law would not shorten the
duration of the respondent’s child support obligation under these
circumstances, the New Hampshire court lacked subject matter jurisdiction to
do so. RSA 546-B:49, III is the New Hampshire version of Section 611(c) of
UIFSA. See Unif. Interstate Family Support Act § 611(c) (amended 1996), 9
Part IB U.L.A. 443.

For the purpose of addressing the petitioner’s argument, we assume,
without deciding that RSA 546-B:49, III applies to this case. See RSA 546-B:51
(providing that Article 6, which includes RSA 546-B:49, III, applies to
proceedings under RSA 546-B:51); see also Unif. Interstate Family Support Act
§ 613 cmt. (amended 1996), 9 Part IB U.L.A. 454 (explaining that “Section
611(c) [of UIFSA codified in New Hampshire as RSA 546-B:49, III] forbidding
modification of nonmodifiable aspects of the controlling order still applies”
when a proceeding is brought under Section 613 of UIFSA, codified in New
Hampshire as RSA 546-B:51).

We disagree with the petitioner, however, that the trial court’s alleged
failure to comply with RSA 546-B:49, III deprived the trial court of subject
matter jurisdiction. In this regard, we find Scott & Pierce instructive.

In that case, as in the instant case, the issuing state was Massachusetts.
Scott & Pierce, 160 N.H. at 356. While in Massachusetts, the parties agreed to
lengthen the duration of the husband’s child support obligation, and that
modification was approved by a Massachusetts court. Id. at 356-57.
Thereafter, although the husband moved to New Hampshire, the wife did not.
Id. She later filed a petition in New Hampshire to modify the amount of weekly
child support. Id. at 357. The New Hampshire court granted the wife’s
petition. Id.

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 We concluded that the New Hampshire court had jurisdiction to act upon
the wife’s petition to modify the Massachusetts order “because the parents and
their children no longer resided in Massachusetts and [the wife], who sought
modification, did not reside here, although [the husband] did.” Id. at 360; see
RSA 546-B:49, I. We explained that, once the New Hampshire court modified
the amount of weekly child support set forth in the Massachusetts order, “New
Hampshire became the issuing state, assumed continuing exclusive
jurisdiction over the child support order, and obtained the authority to apply
its own substantive law to any provision of the child support order that could
have been modified under Massachusetts law.” Scott & Pierce, 160 N.H. at 360
(quotation omitted). We further explained that Massachusetts law continued to
govern those aspects of the Massachusetts order that could not be modified
under Massachusetts law. Id. at 360-61. Thus, RSA 546-B:49, III establishes
when a New Hampshire court must follow the law of the issuing forum. It does
not affect the jurisdiction of a New Hampshire court to adjudicate a request to
modify a child support order issued by another state.

Accordingly, even if, as the petitioner contends, the trial court violated
RSA 546-B:49, III by applying New Hampshire law to the duration of the
respondent’s child support obligation, such would constitute an error of law
rather than a jurisdictional defect. Thus, because applying New Hampshire
law to the duration of the respondent’s child support obligation is not a
jurisdictional defect, the trial court’s 2008 order is not void for lack of subject
matter jurisdiction.

Therefore, the trial court’s alleged legal error in applying New Hampshire
law when modifying the duration of the respondent’s child support obligation
could be waived. Here, regardless of whether the petitioner’s challenge might
be barred by res judicata (an argument the respondent does not make), we
conclude that the petitioner waived the alleged error by entering into the 2008
stipulation and by not arguing in the 2008 proceedings that applying New
Hampshire law to the duration of the respondent’s child support obligation was
error.

Because the 2008 order is not void for lack of subject matter jurisdiction,
and because the petitioner waived any legal error in the 2008 order approving
the parties’ stipulation, the trial court erred by not extinguishing the
respondent’s obligation to support the parties’ eldest child as required by the
court’s 2008 order.

Reversed and remanded.

DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

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