NAJAM, Judge.
Zuri Jackson ("Mother") appeals the trial court's grant of Demetrius Holiness' ("Father") motion to dismiss her petition for modification of child support. Mother presents a single issue for our review, which we restate as whether the trial court erred when it dismissed her petition for lack of subject matter jurisdiction.
We affirm.
Mother and Father were married in 1995 in Indiana, and they divorced in 1996, when they were living in Nevada. They have two minor children together. A Nevada court issued the final dissolution decree, including an order that Father pay $363 per month in child support. Mother and the children then moved back to Indiana in 1996, and Father moved to Maryland.
In 2002, Mother completed the necessary paperwork under the Uniform Interstate Family Support Act ("UIFSA") to have the decree registered in Maryland. Appellant's App. at 6-25, 130.
On April 23, 2009, Mother filed her petition for modification of child support with the Allen Circuit Court. Father, who has continued to reside in Maryland during that time, hired counsel in Indiana, who filed an appearance and various motions with the trial court. Ultimately, Father filed a motion to dismiss for lack of personal jurisdiction under Trial Rule 12(B)(2). However, following a hearing,
Subject matter jurisdiction is an issue of law to which we apply a de novo standard of review. Lombardi v. Van Deusen, 938 N.E.2d 219, 223 (Ind.Ct.App. 2010). Likewise, a trial court's interpretation of a statute is an issue of law reviewed de novo. Id. Subject matter jurisdiction is the power of a tribunal to hear and to determine a general class of cases to which the proceedings before it belong. Georgetown Bd. of Zoning Appeals v. Keele, 743 N.E.2d 301, 303 (Ind.Ct.App.2001). A tribunal receives subject matter jurisdiction over a class of cases only from the constitution or from statutes. Id. A party can never waive the issue of subject matter jurisdiction. Id.
Indiana Code Section 31-18-6-11 provides in relevant part:
(Emphasis added). Here, Mother, the petitioner, is a resident of Indiana, but the parties have not filed a consent with the court having continuing jurisdiction under UIFSA to transfer jurisdiction to the Indiana court. Thus, under the statute, an Indiana court cannot have subject matter jurisdiction to modify the child support order here.
In its Order, the trial court concluded that under Indiana Code Section 31-18-6-11(a)(1), a petitioner seeking modification of a child support order issued by another jurisdiction must be a non-resident of Indiana. That is true when the parties have not consented to Indiana's jurisdiction under subsection (a)(2). Because Mother is a resident of Indiana and the parties have not consented to Indiana's jurisdiction, the trial court concluded that she must seek modification of child support in Maryland, where Father lives.
Nonetheless, on appeal Mother contends that the federal Full Faith and Credit for Child Support Orders Act ("FFCCSOA" or "Federal Act") "preempts" subsection (a)(1) of Indiana's statute because the Federal Act does not impose a non-residency requirement. Brief of Appellant at 10. In particular, Mother cites to 28 U.S.C.
It is true that that statute has no requirement like the one found in Indiana Code Section 31-18-6-11(a)(1), which requires that the party seeking to modify a child support order issued in another State be a nonresident of Indiana. And Mother maintains that, "[u]nder the Supremacy Clause of the United States Constitution, the FFCCSOA is binding on all states and supersedes any inconsistent provisions of state law, including the provisions of UIFSA." Id.
But the case law Mother cites in support of her argument on this issue is unpersuasive. Indeed, while Mother contends that "the UIFSA is preempted by the provisions of [the FFCCSOA]," and she cites to case law from a foreign jurisdiction, our supreme court has held otherwise. Id. In Basileh v. Alghusain, 912 N.E.2d 814, 820 (Ind.2009), our supreme court expressly held that the FFCCSOA does not preempt the UIFSA. In Basileh, the court addressed the issue of preemption with respect to Indiana Code Section 31-18-2-5 and 28 U.S.C. § 1738B. On direct appeal, this court had determined there was a "crucial" distinction between the two statutes, namely, that the Uniform Act requires the parties' written consent to another state's jurisdiction, whereas the Federal Act does not. And we held that the federal statute preempted the state statute.
On transfer, our supreme court examined the law on federal preemption and held:
Id. at 820.
Here, Indiana Code Section 31-18-6-11(a)(1) is likewise closely modeled after Section 611 of the Uniform Act, which also requires that the party seeking modification be a nonresident. We follow the reasoning in Basileh and hold that Indiana Code Section 31-18-6-11(a)(1) is not preempted by the FFCCSOA. Basileh, 912 N.E.2d at 820. Still, Mother contends that the non-residency element of Indiana Code Section 31-18-6-11(a)(1) "does not
(Emphasis added). Accordingly, Mother's contention that the best interests of the children require that Indiana exercise subject matter jurisdiction over the modification of child support here is unavailing.
Although Mother does not prevail in this appeal, we pause to note what we believe to be an incongruity in the statutory scheme that leads to the somewhat absurd result in this case. Indiana Code chapter 31-18-6 provides a mechanism for registration and enforcement of an out-of-state child support order. "Except as otherwise provided in this article, an Indiana tribunal shall recognize and enforce but may not modify a registered order if the issuing tribunal has jurisdiction." Ind.Code § 31-18-6-3 (emphasis added). Section 31-18-6-11 sets forth the requirements that must be met in order for Indiana to modify a registered order. Relevant to this case, Indiana may modify an out-of-state child support order only if neither the child nor either parent lives in the issuing state, the person seeking modification is a non-resident of Indiana, and the person against whom modification is sought is subject to personal jurisdiction in Indiana.
But Mother is a resident of Indiana. The second requirement of Section 31-18-6-11(a)(1) allowing an out-of-state child support order to be modified in Indiana is that the petitioner be a non-resident. Although we recognize that because of this requirement, the provision allowing an Indiana court to modify an out-of-state child support order is not applicable in this case, this case seems to be one in which the sections of the act cannot be harmonized.
The comment to UIFSA § 611, on which Indiana's Section 31-18-6-11 is based, states that the purpose of the non-residency requirement for the petitioner is to "curb[ ]or eliminat[e] the undesirable effect of `ambush or tag' jurisdiction, e.g., the likelihood that the parties would vie to strike first to obtain home-town advantage.... [S]uch lawsuits would discourage continued contact between the child and the obligor, or between the parties for fear of a lawsuit in a distant forum." Comment to UIFSA § 611 (2008). But what is the point of Section 31-18-2-1 conferring jurisdiction over a person who previously resided in Indiana if not to allow Indiana to modify a child support order under the circumstances presented here? Father would not be discouraged from contact with Mother or the children upon their move to Indiana after the dissolution for fear of being brought into court here because he was already subject to the jurisdiction of Indiana courts, even before they moved back. Notably, Indiana's Section 31-18-2-1 does not include the provision of the UIFSA that the bases of jurisdiction over a nonresident set forth therein "may not be used to acquire personal jurisdiction for a tribunal of this state to modify a child-support order of another state unless the requirements of Section 611 are met...." UIFSA § 201(b) (2008) (emphasis added). Thus, Indiana has not unbound its personal jurisdiction statute from the out-of-state child support modification statute. And because personal jurisdiction is conferred over a non-petitioning parent who previously resided with the child in Indiana but does not necessarily presently reside in Indiana, but the petitioning parent must be a non-resident, it is possible that Indiana could modify a child support order when no party currently lives in Indiana. If, for instance, the facts of this case were the same but for Mother living in Illinois rather than Indiana when she sought modification, the requirements of Section 31-18-6-11 would be met, allowing an Indiana court to modify the child support order even though no party was a resident of Indiana. And because the obligation of support can continue until a child turns twenty-one, it is possible that Indiana would have personal jurisdiction to modify a support order for up to twenty years after the relevant parties have left the state.
Moreover, had Mother returned to Indiana prior to seeking dissolution, Indiana could have exercised in rem jurisdiction to grant a dissolution due to her
Although the requirements of Section 31-18-6-11 are clear, the procedure for modifying an out-of-state child support order is less clear when Section 31-18-6-11 is considered in conjunction with other relevant statutes. However, because the incongruity between the statutory sections is a legislative matter, we must conclude that the trial court did not err in dismissing Mother's petition to modify because she is not a non-resident petitioner as required by Section 31-18-6-11.
In sum, Mother's contention that 28 U.S.C. § 1738B preempts Indiana Code Section 31-18-6-11(a)(1) must fail given our supreme court's holding to the contrary in Basileh. And the commentary to Section 611 of the UIFSA, upon which our state statute was based, explains the reasoning behind the "rough justice" of the non-residency requirement. The trial court did not err when it dismissed Mother's petition to modify child support for lack of subject matter jurisdiction.
Affirmed.
ROBB, C.J., and VAIDIK, J., concur.
