This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).







Fredrick R. Bates, III,


Filed April 15, 1997

Affirmed in part, reversed in part, and remanded

Randall, Judge

Dakota County District Court

File No. FO-96-7571

Robert B. MacDonald, Mary Johnson, Popham, Haik, Schnobrich, & Kaufman, Ltd., 3300 Piper Jaffray Tower, 222 South Ninth Street, Minneapolis, MN 55402 (for appellant).

Michael E. Molenda, Shari L. Sterud, Severson, Sheldon, Dougherty, & Molenda, P.A., Suite 600, 7300 West 147th Street, Apple Valley, MN 55124 (for respondent).

Considered and decided by Randall, Presiding Judge, Parker, Judge, and Klaphake, Judge.



Appellant argues the district court erred when it ruled that 28 U.S.C. § 1738B precluded the court from modifying the parties' Texas child support order. Appellant also claims the district court erred when it dismissed her petition rather than transfer it to Texas district court. Appellant also challenges the district court's refusal to waive her district court and appellate court filing fees and costs. We affirm in part, reverse in part, and remand.


Appellant brought a motion in Dakota County District Court seeking to modify respondent's child support obligations under a 1994 Texas child support order. The district court dismissed appellant's motion, ruling that Minn. Stat. § 518C.611, subd. (a) (1996), and 28 U.S.C. § 1738B, subd. (a), (e) (1996), precluded the court from modifying the Texas child support order.

By a second order dated August 8, 1996, a different Dakota County judge granted in part and denied in part, appellant's motion for reconsideration. Pursuant to the parties' stipulation, that judge ordered enforcement of current child support through Dakota County, sealed the record, and recaptioned the case to prevent the release of appellant's and the children's names and location.

The court ruled that Minn. Stat. ch. 518C did grant personal jurisdiction to modify the Texas order. However, the court concluded that although Minn. Stat. ch. 518C allows modification, 28 U.S.C. § 1738B precluded the court from modifying the Texas child support order. The court denied appellant's motion to waive filing fees and costs. This appeal follows.


"Jurisdictional disputes are legal questions to be reviewed de novo." Abu-Dalbouh v. Abu-Dalbouh, 547 N.W.2d 700, 704 (Minn. App. 1996) (citations omitted).


In October 1994, the Congress passed the Full Faith and Credit for Child Support Orders Act. 28 U.S.C. § 1738B (1996) (FFCCSO Act). Its purpose is to facilitate the enforcement of child support orders among the states, "to discourage continuing interstate controversies over child support in the interest of greater financial stability and secure family relationships for the child," and to avoid jurisdictional competition and conflict between state courts in the establishment of child support orders. Pub. L. No. 103-383 § 2(c). Congress found that national standards were needed by which state courts could determine their jurisdiction to issue and enforce child support orders issued by courts of other states. Id. at § 2(b).

The FFCCSO Act requires the appropriate authorities of one state to enforce the terms of a child support order made consistently with the terms of the Act by a court of another state and that such court shall not modify such an order unless in accordance with subsection (e) of the Act. 28 U.S.C. § 1738B(a). Subsection (e) of the Act provides that a court may modify a child support order made by the court of another state if the court has jurisdiction to make such an order and the court of the other state no longer has continuing, exclusive jurisdiction of the child support order because the state is no longer the child's state or the residence of any contestant. 28 U.S.C. § 1738B(e).

A tribunal enjoys continuing, exclusive jurisdiction over a child support order if the state is the child's state or the residence of any contestant unless the court of another state, acting in accordance with subsection (e), has made a modification of the order. 28 U.S.C. § 1738B(d). A child support order is made consistently with the FFCCSO Act if the court that makes the order, pursuant to the laws of the state in which the court is located, has subject matter jurisdiction to hear the matter and enter such an order, and has personal jurisdiction over the contestants. 28 U.S.C. § 1738B(c).

Here, both Dakota County judges, without explanation, concluded that 28 U.S.C. § 1738B precluded the district court from modifying the Texas child support order. This is presumably because the Texas court enjoys continuing and exclusive jurisdiction under 28 U.S.C. § 1738B. Appellant argues the Texas district court order was not made consistently with § 1738B because the Texas court lacked subject matter and personal jurisdiction over the two minor children. We disagree.

Subject matter jurisdiction to modify the parties' 1987 California child support order was conferred by Texas Family Code § 159.611. This section provides that a Texas court may modify a child support order issued in another state if the order is properly registered in Texas and only, if after notice and hearing, the Texas court finds that:

(1) the following requirements are met:

(A) the child, the individual obligee, and the obligor do not reside in the issuing state;

(B) a petitioner who is a nonresident of this state seeks modification; and

(C) the respondent is subject to the personal jurisdiction of the tribunal of this state; or

(2) an individual party or the child is subject to the personal jurisdiction of the tribunal and all of the individual parties have filed in the issuing tribunal a written consent that provides that a tribunal of this state may modify the support order and assume continuing, exclusive jurisdiction over the order.

Tex. Fam. Code Ann. § 159.611 (West 1996) (emphasis added) (containing language substantially similar to the version of the statute in effect at the time of the district court's decision, 1993 Tex. Gen. Laws ch. 970, § 1, ch. 21, subch. F. § 21.45).

It is undisputed that at the time appellant commenced the modification proceedings in Texas, none of the parties resided in California. Respondent lived in Texas and appellant lived in New York with the two minor children. Appellant, a nonresident of Texas, was the petitioner seeking modification, and respondent, as a resident of Texas, was subject to the personal jurisdiction of the Texas court. Accordingly, the Texas court had subject matter jurisdiction to modify the original California child support order.

As the custodial parent of the minor children, appellant brought suit on behalf of the children. This action is specifically authorized by Texas Family Code § 159.611(a)(1). By doing so, she necessarily consented to the personal jurisdiction of the Texas court for both herself and the children. See Creavin v. Moloney, 773 S.W.2d 698, 703-04 (Tex. App. 1989) (holding that custodial parent, a resident of Ireland, by filing suit in Texas district court on behalf of children seeking child support, submitted herself to the personal jurisdiction of the court despite the fact that the she and the child had little, if any, contact with the state of Texas).

Thus, under Creavin, although appellant and her two minor children are nonresidents of Texas and have little, if any, contact with the state, the Texas court had personal jurisdiction because appellant herself brought suit in a Texas court. She, therefore, submitted herself and the children to the jurisdiction of the Texas courts.

We conclude that under applicable Texas law, the Texas court properly exercised both subject matter and personal jurisdiction when rendering the 1994 child support order.


Next, appellant argues that even if the Texas court did enjoy subject matter and personal jurisdiction, the Texas court did not retain continuing, exclusive jurisdiction under 28 U.S.C. § 1738B.

Under a plain and ordinary reading of 28 U.S.C. § 1738B, a state enjoys continuing, exclusive jurisdiction over the child support order "if the State is the child's State or the residence of any contestant * * * ." 28 U.S.C. § 1738B(e) (emphasis added). A contestant is defined as a person, including a parent, who is under a child support order or a party to a proceeding that may result in the issuance of a child support order. 28 U.S.C. § 1738B(b)(A)(ii), (iii). Here, respondent is under a child support order and therefore a contestant for the purposes of the FFCCSO Act. Thus, under 28 U.S.C. § 1738B(e), the Texas court has continuing, exclusive jurisdiction over its 1994 child support order.


Appellant argues next that when properly applied, 28 U.S.C. § 1738B does not preempt state law on the facts of this case. Specifically, appellant argues that Congress, in legislating in the area of child support, did not intend to interfere with Minnesota's governance of matters of local concern. Also, appellant argues that the Supremacy Clause does not apply in this case to preempt modification of the Texas child support order under Minn. Statute ch. 518C.

In the present case, it cannot be said that Congress sought to preempt state law or that the Supremacy Clause works to preempt state law. The FFCCSO Act works only to set the guidelines by which the states can determine jurisdiction to order or modify child support obligations. It does not govern the area of child support per se, but merely establishes the rules and procedures used to give full and faith and credit to child support orders properly rendered by a state court. The substantive aspects of child support are necessarily left to the individual states. Accordingly, we conclude Congress, by passing 28 U.S.C. § 1738B, did not preempt state law in the area of child support.


Appellant argues that her due process and liberty rights were violated when she was forced either to forego child support or to appear in Texas to defend her children's rights to support. Appellant offered no legal support for her position. Where a party merely asserts error and it is not supported by any argument or authorities it is deemed waived and will not be considered on appeal unless prejudicial error is "obvious" on mere inspection. Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971). Because an inspection of the record shows no obvious prejudicial error, we do not address these claims.


Next, appellant argues that applying 28 U.S.C. § 1738B, which was passed in October 1994, to an order issued in April 1994 constitutes retroactive application in violation of her due process rights.

Generally, absent language to the contrary, a statute is presumed to operate prospectively only. Ubel v. State, 547 N.W.2d 366, 369 (Minn. 1996). This presumption is codified in Minn. Stat. § 645.21 (1996), which provides that "[n]o law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature."

In the context of marriage dissolutions, it is generally recognized that, unlike property settlements, courts retain continuing jurisdiction over the issues of child support, spousal maintenance, and custody. See Nelson v. Quade, 413 N.W.2d 824, 828 (Minn. App. 1987) (recognizing that property settlement "does not require continuing family court jurisdiction as do matters of custody, child support, and spousal maintenance"), review denied (Minn. Dec. 22, 1987). Because the Texas court had continuing jurisdiction over the child support order, it was still a pending matter. Therefore, because the FFCCSO Act was passed while the Texas court enjoyed continuing jurisdiction over the child support order, applying the provisions of 28 U.S.C. § 1738B does not result in retroactive application of the statute. See Isabel M. v. Thomas M., 624 N.Y.S.2d 356, 361 (Fam. Ct. 1995) (holding that 28 U.S.C. § 1738B was not applied retroactively where the matter was still pending when the Act was passed).


Next, appellant argues that her and the minor children's equal protection rights were violated because they are being treated in a disparate manner when, unlike other Minnesota residents, they are denied access to the courts of Minnesota.

Under the equal protection clauses of the federal and state constitutions all persons similarly situated must be treated alike under the law. In re Harhut, 385 N.W.2d 305, 310 (Minn. 1986). Generally, legislative classifications of persons will be upheld "if rationally related to a legitimate state interest." Id. (citations omitted). A legislative classification is valid if: (1) the distinctions are not manifestly arbitrary or fanciful, but are genuine and substantial, thereby providing a natural and reasonable basis justifying the legislation adapted to peculiar conditions and needs, (2) the classification is genuine or relevant to the purpose of the law, and (3) the purpose of the statute is one the state can legitimately attempt to achieve. Lund v. Hennepin County, 403 N.W.2d 617, 620 (Minn. 1987).

The FFCCSO Act does not draw a distinction between custodial and noncustodial parents. It applies equally to both and provides a rational basis by which state courts can readily determine jurisdiction with regard to the enforcement and/or modification of child support orders. As such, we conclude that neither appellant's nor the children's equal protection rights were violated.


Appellant argues that the district court erred in dismissing this action. We agree. Minn. Stat. § 518C.306 (1996) provides that:

If a petition or comparable pleading is received by an inappropriate tribunal of this state, it shall forward the pleading and accompanying documents to an appropriate tribunal in this state or another state and notify the petitioner by first class mail where and when the pleading was sent.

(Emphasis added.) This language is clear and unambiguous. Moreover, respondent, in his brief, states that he has no objection to the matter being transferred to the appropriate Texas tribunal.

Given the language of Minn. Stat. § 518C.306 and that respondent does not object to having this matter transferred to Texas district court, we reverse the district court and remand on this issue, ordering the district court to forward the matter to the appropriate Texas tribunal.


Appellant argues that the district court erred as a matter of law in denying her motion to waive filing fees and costs. Appellant claims that under Minn. Stat. § 518C.313 (1996) she is not required to pay filing fees and costs in an action concerning an interstate child support order. This provision provides that:

(a) The petitioner may not be required to pay a filing fee or other costs.

(b) If an obligee prevails, a responding tribunal may assess against an obligor filing fees, reasonable attorney's fees, other costs, and necessary travel and other reasonable expenses incurred by the obligee and the obligee's witnesses. * * *

Minn. Stat. § 518C.313. Contrary to appellant's assertions, the district court was not required to waive the filing fee or costs or assess those amounts to respondent. The legislature's use of the word "may" leaves this decision to the discretion of the district court. See Minn. Stat. § 645.44, subd. 15 (1996) ("May is permissive."). The district court properly exercised its discretion on the issue of costs.


Lastly, respondent argues that petitioner's memorandum in support of motion to reconsider should be stricken from the record. We agree.

Rule 11 of the Minnesota Rules of Civil Procedure requires that if a pleading, motion or other paper is not signed, "it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant." Minn. R. Civ. P. 11. Here, the memorandum is unsigned. This omission was brought to the attention of appellant's counsel and the district court during the August 1, 1996, hearing. The memorandum was filed with the district court on August 8 and remained unsigned. Because it is unsigned, even after the omission was brought to the attention of counsel, we grant respondent's motion to strike the document entitled, "Petitioner's Memorandum in Support of Motion to Reconsider."

Further, respondent asks that the references to telephone records made in footnote 6 of appellant's brief be stricken as not properly before this court because they were not presented to or placed before the district court. Evidence or matters not produced and received into evidence below may not be considered on appeal. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). Because no telephone records were produced or received by the district court, they are not properly before this court. Accordingly, we grant respondent's motion to strike in this regard.

Because we rule in respondent's favor, we do not address respondent's motion to strike appellant's argument that the Texas court lacked personal jurisdiction over the children.

Affirmed in part, reversed in part, and remanded.