§28.07 Modifying The Child Support Order

• Jurisdiction: Washington

§ 28.07 MODIFYING THE CHILD SUPPORT ORDER

The necessity to retain jurisdiction in a child support case has long been recognized by the courts in Washington. Historically, the courts modified divorce decrees without express statutory authority on the basis of their inherent equitable powers. State ex rel. Ranken v. Superior Court, 6 Wn.2d 90, 106 P.2d 1082 (1940); Ruge v. Ruge, 97 Wash. 51, 165 P. 1063 (1917). Once a court order of support has been entered, only the court can modify that order because an agreement between the parties to change support prospectively is invalid. Hartman v. Smith, 100 Wn.2d 766, 674 P.2d 176 (1984). Support may be modified prospectively only. RCW 26.09.170(1); In re Marriage of Shoemaker, 128 Wn.2d 116, 904 P.2d 1150 (1995). The increase or decrease may take effect any date between the dates of filing and entry of the modification order. RCW 26.09.170(1); Bowman v. Bowman, 77 Wn.2d 174, 459 P.2d 787 (1969). See § 28.07[7][a], below. The obligation may also be suspended. In re Marriage of Drlik, 121 Wn. App. 269, 87 P.3d 1192 (2004). Washington law will be applied even if the child leaves the state. In re Marriage of Abel, 76 Wn. App. 536, 886 P.2d 1139 (1995). The income tax exemption for dependent children is considered an element of support and may be modified. In re Marriage of Peterson, 80 Wn. App. 148, 906 P.2d 1009 (1995) , review denied, 129 Wn.2d 1014 (1996).

A decree is modified when a party's rights are either extended beyond or reduced from those originally intended in the decree. Rivard v. Rivard, 75 Wn.2d 415, 451 P.2d 677 (1969); In re Marriage of Jarvis, 58 Wn. App. 342, 792 P.2d 1259 (1990). However, legal issues determined in the earlier proceeding are the "law of the case" and may not be modified. In re Marriage of Burch, 81 Wn. App. 756, 761-62, 916 P.2d 443 (1996); In re Marriage of Trichak, 72 Wn. App. 21, 863 P.2d 585 (1993) (mother was collaterally estopped from relitigating whether the deviation for the child's Social Security income was proper when prior support order allowed the deviation). But see Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 829 P.2d 746 (1992), cert. denied, 506 U.S. 1079 (1993) (doctrine of collateral estoppel rather than law of the case applies in the absence of a prior appellate decision or jury instructions).

Washington courts have statutory and equitable powers to modify support orders. RCW 26.09.175; Pippins v. Jankelson, 110 Wn.2d 475, 478, 754 P.2d 105 (1988). As a general rule, courts must find a substantial change of circumstances before modifying a support order. RCW 26.09.170(5); Pippins, 110 Wn.2d 475. The moving party must show a substantial change in circumstances from the time of the court's last support order. See In re Marriage of Leslie, 90 Wn. App. 796, 802, 954 P.2d 330 (1998), review denied sub nom. Verhey v. Verhey, 137 Wn.2d 1003 (1999). If the facts submitted for modification could have been presented in the context of a previous modification request, they are not new and cannot justify a substantial change in circumstances. In re Marriage of Moore, 49 Wn. App. 863, 865, 746 P.2d 844 (1987).

[1] Jurisdiction

Both state and federal law govern the circumstances under which a support order may be modified.

[a] State Law

Once jurisdiction is acquired over the subject matter and the parties in a dissolution of marriage or parentage action, Washington courts have continuing jurisdiction over the parties to modify child support. In re Marriage of McLean, 132 Wn.2d 301, 305, 937 P.2d 602 (1997); see also In re Marriage of Steele, 90 Wn. App. 992, 957 P.2d 247, review denied, 136 Wn.2d 1031 (1998). Under Washington's version of the Uniform Interstate Family Support Act (UIFSA), Chapter 26.21A RCW, Washington retains continuing, exclusive jurisdiction over the support order for purposes of modification as long as one of the parties or the child resides in Washington or until the parties file written consents with the tribunal of this state that another court may exercise jurisdiction. RCW 26.21A.120.

The circumstances under which a foreign decree can be modified in Washington are also controlled by UIFSA. Almgren v. Schneider, 173 Wn.2d 353, 268 P.3d 215 (2011). Under RCW 26.21A.550, an out-of-state order can be modified in Washington when the parents reside in different states only under the following circumstances:

1. the mother, father, and child do not reside in the state that issued the prior support order, the party seeking the modification does not reside in this state, and the responding party is subject to the jurisdiction of this state; or
2. one of the parties is subject to the jurisdiction of this state and all of the parties have filed a written consent in the issuing tribunal providing that a court of this state may modify the support order and assume continuing, exclusive jurisdiction over the order.

The court may modify the out-of-state order only if the court finds that one of these grounds exists after "notice and hearing." RCW 26.21A.550.

This statute bars modifications that were possible before UIFSA was enacted. Formerly, if the residential parent and child resided in Washington, the obligor resided in the state in which the support order was entered, and the obligor was personally served with process in this state, modification was proper. In re Marriage of Peterson, 68 Wn. App. 702, 843 P.2d 1107 (1993). Now, the foreign state has continuing, exclusive jurisdiction over that support order, and Washington cannot modify the order. RCW 26.21A.120, .550. A modification is also barred by 28 U.S.C. § 1738B(i).

A parent's failure to pay support to children residing in this state does not confer in personam jurisdiction sufficient to modify a foreign support order in Washington. In re Marriage of Yocum, 73 Wn. App. 699, 870 P.2d 1033 (1994).

When all the parties and children reside in Washington, Washington courts have jurisdiction to modify a support order entered in another state. RCW 26.21A.560. The support order must be registered under UIFSA.

If there is authority to modify a foreign support order, the order must first be registered in this state, which is done by filing a request for registration and a notice of registration. RCW 26.21A.540. The modification petition may be filed at the same time as the registration action. Attach a certified copy of the foreign order as an exhibit.

A determination that this state has authority to modify a foreign support order does not mean that there is authority to modify other provisions of that order. Under UIFSA, this state cannot modify the duration of the support order. Almgren, 173 Wn.2d 353. The out-of-state petitioner also has limited immunity from suit in this state. RCW 26.21A.265; see RCW 26.27.091 (Uniform Child Custody Jurisdiction and Enforcement Act).

[b] Federal Law

The federal Full Faith and Credit for Child Support Orders Act (FFCSOA), 28 U.S.C. § 1738B, identifies the circumstances under which support orders must be given full faith and credit in a state that did not enter the order: (1) the court entering the order had subject matter jurisdiction; (2) the court had personal jurisdiction over the contestants; and (3) reasonable notice and opportunity to be heard were given. 28 U.S.C. § 1738B(c). The Act's definition of "state" includes Indian country. 28 U.S.C. § 1738B(b). The UIFSA has been enacted by all states and state child support (IV-D) agencies rely on UIFSA rather than the FFCSOA.

If the above conditions are met, a second court with jurisdiction may modify the prior out-of-state order only if (1) the court in the first state no longer has continuing, exclusive jurisdiction because the state is no longer the child's state or the residence of any contestant; or (2) each contestant files a written consent to the second court's assumption of jurisdiction with the original court. 28 U.S.C. § 1738B(e).

Under prior law, the state's continuing jurisdiction allowed a modification even if all of the parties had left the state. The Act now denies full faith and credit to such a modification. 28 U.S.C. § 1738B(i).

[2] Venue

Venue for a modification proceeding is set forth in RCW 26.09.280. The statute provides that the proceeding may be brought in the county where the prior support order was entered, where the minor children are residing, or where the residential parent resides. The venue statute is permissive, stating several grounds for venue. There is no mandate that requires that the action be heard in the county where the decree was entered if venue is also proper in another county.

Venue can be changed in two ways: (1) file a copy of the findings and decree in the new county together with the petition for modification or (2) file a motion for a change of venue in the original county pursuant to RCW 4.12.030 and CR 82. The first option is preferable. Former RCW 26.08.170 required that a certified copy of the decree be filed along with the petition for modification in a new county, but the current statute does not. Once venue is changed, all issues can be litigated in the new forum. A ruling on a request to change venue under RCW 4.12.030 is discretionary with the court. White v. White, 51 Wn.2d 652, 321 P.2d 262 (1958); Hauge v. Corvin, 23 Wn. App. 913, 599 P.2d 23 (1979).

[3] Motion for Adjustment

All support orders may be "adjusted" once every 24 months based on changes in the parents' income or to the economic table or standards. RCW 26.09.170(7). The motion or petition may be filed before 24 months have passed provided the adjustment takes place after 24 months have passed. In re Marriage of Roth, 72 Wn. App. 566, 865 P.2d 43 (1994). A motion for adjustment can also be used to adjust support if the support order requires periodic adjustments.

The action may be initiated by filing a motion for adjustment along with a worksheet. RCW 26.09.170(7)(b). Local rules may require that additional documents be filed and served, such as tax...