Wills v. Wills

vivian l. wills , appellee , v .
russell c. wills , appellant .
745 N.W.2d 924
Filed March 11, 2008. 	No. A-06-1161.
1. Statutes: Judgments: Appeal and Error. Statutory interpretation presents a
question of law. When reviewing questions of law, an appellate court has an obli-
gation to resolve the questions independently of the conclusion reached by the
trial court.
2. Courts: Statutes: Intent. An appellate court properly looks to the official
comments contained in a model act on which a Nebraska statute or series of
statutes was patterned for some guidance in an effort to ascertain the intent of
the legislation.
3. Statutes. A court must look to a statute’s purpose and give to the statute a rea-
sonable construction which best achieves that purpose, rather than a construction
which would defeat it.
4. States: Child Support. Under Neb. rev. Stat. § 42-746(d) (reissue 2004), the
law of the state which issued the initial controlling order governs the duration of
the obligation of support.
Appeal from the District Court for Frontier County: david
urBom, Judge. Affirmed as modified.
James C. Bocott, of McCarthy & Moore, for appellant.
No appearance for appellee.
inBody, Chief Judge, and irwin and cassel, Judges.
cassel, Judge.
INtrODUCtION
the district court determined that under the Uniform Interstate
Family Support Act (UIFSA) it had the authority to modify
a New Mexico divorce decree to extend the duration of child
support, measured by the age of majority, from age 18 (New
Mexico) to age 19 (Nebraska). the court extended the child
support owed by russell C. Wills by 1 year. We determine that
the court erred in statutory interpretation, and we modify the
judgment to preserve the original duration of support.
BACkgrOUND
On July 10, 1992, a district court for New Mexico dissolved
the marriage between russell and Vivian L. Wills. pursuant
WILLS v. WILLS 	559
Cite as 16 Neb. App. 559
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

to the divorce decree, Vivian was awarded “primary physical
custody” of the parties’ three minor children and russell was
ordered to pay child support until the minor children married,
reached the age of majority, or otherwise became emancipated.
the age of majority in New Mexico at the time of the decree
was 18 years of age. At some point after the entry of the New
Mexico decree, the parties and their minor children moved
to Nebraska.
In March 2006, Vivian registered the New Mexico decree in
the district court for Frontier County. On March 27, she filed a
motion to modify the amount of the child support obligation for
the two younger children, who were born in November 1988,
asserting a material change in circumstances in that russell’s
disposable income had increased.
Based on stipulated facts, the district court entered an order
on August 31, 2006, modifying both the amount and duration
of the child support originally ordered in the New Mexico
divorce decree. the court determined that the requirements for
a modification in Neb. rev. Stat. § 42-746 (reissue 2004) did
not apply because Neb. rev. Stat. § 42-747.01 (reissue 2004)
was applicable. the court found that it had exclusive continu-
ing jurisdiction and that the decree was subject to modification
using Nebraska substantive law.
russell timely appeals. pursuant to authority granted to this
court under Neb. Ct. r. of prac. 11B(1) (rev. 2006), this case
was ordered submitted without oral argument.
ASSIgNMENt OF ErrOr
russell alleges that the court erred in modifying the dura-
tion of child support under the UIFSA because the duration of
child support was determined by the age of majority and was
nonmodifiable under the laws of both states.
StANDArD OF rEVIEW
[1] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion
reached by the trial court. Mathews v. Mathews, 267 Neb. 604,
676 N.W.2d 42 (2004).
560 	16 NEBrASkA AppELLAtE rEpOrtS

ANALySIS
As the Nebraska Supreme Court has previously explained:
the general purpose of UIFSA is to unify state laws
relating to the establishment, enforcement, and modifica-
tion of child support orders. . . . the goal of UIFSA is to
streamline and expedite interstate enforcement of support
decrees and to eliminate the problems arising from mul-
tiple or conflicting support orders from various states by
providing for one tribunal to have continuing and exclusive
jurisdiction to establish or modify a child support order. .
. . UIFSA provides a system where only one child support
order may be in effect at any one time. . . . UIFSA allows,
under certain circumstances, a Nebraska court to . . .
modify a support order issued in another state . . . .
Hamilton v. Foster, 260 Neb. 887, 899, 620 N.W.2d 103,
114 (2000).
the specific question presented in this appeal is whether
the Nebraska court, the registering tribunal under UIFSA, has
authority to modify the duration of child support determined by
the New Mexico court as the issuing tribunal.
In Nebraska, the age of majority is 19. See Neb. rev. Stat.
§ 43-2101 (reissue 2004). the district court determined, and
russell does not dispute, that the age of majority in New
Mexico is 18. See N.M. Stat. Ann. § 28-6-1 (Michie 2000).
the 	district 	court 	determined, 	and 	russell 	agrees,
that 	§ 	42-747.01 	applies 	to 	the 	instant 	case. 	Section
42-747.01 states:
(a) 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 modify the
issuing state’s child support order in a proceeding to reg-
ister that order.
(b) A tribunal of this state exercising jurisdiction under
this section shall apply the provisions of sections 42-701
to 42-713.02 and 42-736 to 42-747.03 and the procedural
and substantive law of this state to the . . . modification
proceeding. Sections 42-714 to 42-735 and 42-748 to
42-750 do not apply.
(Emphasis supplied.)
WILLS v. WILLS 	561
Cite as 16 Neb. App. 559

the district court focused on the language in § 42-747.01(b)
directing the court to apply Nebraska substantive law. As
Nebraska substantive law specifies age 19 as the age of major-
ity, the court determined that § 42-747.01 authorized the
court to modify the duration of support to that age. the court
stated that “[t]he requirements for a modification set forth in
[§] 42-746 do not apply because [§] 42-747.01 is applicable to
this case.”
russell, however, emphasizes the listed sections and contends
that § 42-747.01(b) also requires the court to apply § 42-746(c)
and (d), as they fall within the specified range. Section 42-746
states, in pertinent part:
(c) Except as otherwise provided in section 42-747.03,
a tribunal of this state shall not modify any aspect of a
child support order that cannot be modified under the law
of the issuing state, including the duration of the obliga-
tion of support. . . .
(d) In 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 obligor’s fulfillment of the duty of support
established by that order precludes imposition of a further
obligation of support by a tribunal of this state.
russell argues that the duration of a child support order
could not be modified under New Mexico law and that the
Nebraska court was also precluded from modifying the duration
of the support order. He also contends that New Mexico law
controls the duration of his support obligation.
[2,3] Despite a basic difference in the nature of the case, we
rely upon the decision in Groseth v. Groseth, 257 Neb. 525,
600 N.W.2d 159 (1999), for guiding principles. the Groseth
parties were divorced in Massachusetts and resided respectively
in texas and Nebraska. In the instant case, both parties reside
in Nebraska. thus, while in Groseth there remained a matter
of interstate concern as between texas and Nebraska, no such
matter exists in the instant case. Nonetheless, we draw three
important lessons from the Groseth decision. First, we prop-
erly look to the official comments contained in a model act on
which a Nebraska statute or series of statutes was patterned for
562 	16 NEBrASkA AppELLAtE rEpOrtS

some guidance in an effort to ascertain the intent of the legisla-
tion. Id. Second, dicta in Groseth supports our interpretation.
third, a court must look to a statute’s purpose and give to the
statute a reasonable construction which best achieves that pur-
pose, rather than a construction which would defeat it. Id.
the official comments to the model act support our interpre-
tation. the Nebraska Legislature closely followed the changes
to the UIFSA model act, adopting the 1996 UIFSA amendments
in 1997 and importing the 2001 UIFSA changes in 2003. See,
2003 Neb. Laws, L.B. 148; 1997 Neb. Laws, L.B. 727. Section
42-747.01 precisely tracks Unif. Interstate Family Support Act
§ 613, 9 U.L.A. 261 (2005), which was a new section included
in the 1996 UIFSA amendments. the 1996 comment to § 613,
which we quote at length, speaks directly to the purpose
of § 42-747.01:
the comment to Section 611(e) in the 1992 version of
UIFSA contains the following statement: “Finally, note
that if the parties have left the issuing state and now reside
in the same state, this section is not applicable. Such a fact
situation does not present an interstate matter and UIFSA
does not apply. rather, the issuing state has lost its con-
tinuing, exclusive jurisdiction and the forum state, as the
residence of the parties, should apply local law without
regard to the interstate Act.”
the intent of the comment was to state what seemed
at the time to the Drafting Committee to be obvious; an
action between two citizens of the same state is not a
matter for interstate concern or application. A significant
number of knowledgeable commentators, however, found
the statement in the comment to be wholly inadequate.
After all, the commentary is not substantive law, but
rather merely expresses an interpretive opinion of the
drafters of the Act. On reflection, the Drafting Committee
decided that the critics were correct; the Act should deal
explicitly with the possibility that the parties and the child
no longer reside in the issuing state and that the individual
parties have moved to the same new state. . . .
this section is designed to make it clear that when
the issuing state no longer has continuing, exclusive
WILLS v. WILLS 	563
Cite as 16 Neb. App. 559

jurisdiction and the obligor and obligee reside in the same
state, a tribunal of that state has jurisdiction to modify
the child support order and assume continuing, exclu-
sive jurisdiction. . . .
Finally, because modification of the child support order
when all parties reside in the forum is essentially an
intrastate matter, Subsection (b) withdraws authority to
apply most of the substantive and procedural provisions of
UIFSA . . . . Note, however, that the provision in Section
611(c) [§ 42-746(c)] forbidding modification of nonmodi-
fiable aspects of the controlling order applies. For exam-
ple, the duration of the support obligation remains fixed
despite the subsequent residence of all parties in a new
state with a different duration of child support.
(Emphasis supplied.) Unif. Interstate Family Support Act § 613,
comment, 9 U.L.A. 454 (2005). A comment to the 2001 amend-
ments enlarges on this explanation, stating:
the fact that the State of the new controlling order has
a different duration of for [sic] child support is specifi-
cally declared to be irrelevant by UIFSA, see Section 611,
supra. Note that the even-handed approach of the Act is
sustained; neither an increase nor a decrease in the dura-
tion in the obligation of child support is permitted.
Unif. Interstate Family Support Act § 613, comment, 9 U.L.A.
261 (2005). this comment refers to the 2001 amendment to
UIFSA § 611 adding a new section (d), which was, in turn,
adopted essentially verbatim by the Nebraska Legislature as
the current § 42-746(d). Section 42-476(c) was also amended
to expressly refer to the duration of the obligation of support
as an aspect that cannot be modified under the law of the issu-
ing state.
the dicta in Groseth v. Groseth, 257 Neb. 525, 600 N.W.2d
159 	(1999), 	anticipated 	the 	2001 	UIFSA 	amendments. 	In
describing the purpose of § 42-747.01, the Nebraska Supreme
Court quoted the comment regarding the interpretation initially
deemed “‘obvious’” by the UIFSA Drafting Committee. the
court also provided an example suggesting that where the law
of the states differed on the age of majority, modification by the
forum state could not affect the duration of the support order.
564 	16 NEBrASkA AppELLAtE rEpOrtS

[4] In light of the history of the 1996 and 2001 amendments
to UIFSA (adopted by the Legislature in 1997 and 2003, respec-
tively), the purpose of the statute is clear. Section 42-746(d)
declares that the law of the state which issued the initial con-
trolling order governs the duration of the obligation of support.
the district court recognized that the law of New Mexico pro-
vides for support to terminate at age 18. As New Mexico issued
the initial controlling order, its law governs the duration of
russell’s support obligation. the district court erred in extend-
ing russell’s child support by the additional year.
CONCLUSION
Under the 1996 and 2001 amendments to UIFSA, the law
of New Mexico, as the state which issued the initial control-
ling order, governs the duration of russell’s support obligation.
to the extent that the district court’s order of modification
purported to change the duration of support, it is modified to
conform to the provision of the original New Mexico decree
continuing child support until such time as the children “are
married, reaches [sic] majority or [are] otherwise emancipated.”
Under the governing law of New Mexico, a child reaches
majority when he or she attains the age of 18 years. As so
modified, we affirm the final order of the district court.
affirmed as modified .
rhonda l. geBhardt , appellant , v .
J ohn o. geBhardt , appellee .
746 N.W.2d 707
Filed March 11, 2008. 	No. A-07-102.
1. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
2. ____: ____. Notwithstanding whether the parties raise the issue of jurisdiction,
an appellate court has a duty to raise and determine the issue of jurisdiction
sua sponte.
3. Pleadings: Judgments: Time. Neb. rev. Stat. § 25-1329 (Cum. Supp. 2006)
requires the filing of a motion to alter or amend no later than 10 days after the
entry of the judgment.
gEBHArDt v. gEBHArDt 	565
Cite as 16 Neb. App. 565