STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1528

State of Minnesota,
Monica Sanchez Lara, petitioner,
Respondent,

vs.

Everardo Villasenor del Castillo,
Appellant.

Filed June 7, 2005

Remanded

Minge, Judge

Scott County District Court

File No. 2004-01732

Monica Sanchez Lara, Alondra #1411 Col Merelos, Guadalajara, Jalisco, Mexico 44910 (pro se respondent)

Patrick J. Ciliberto, Scott County Attorney, Miriam Jeanne Wolf, Assistant County Attorney, Scott County Justice Center, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent State of Minnesota)

Kristine Anderson Isle, Jeffrey L. Loftness, Loftness & Anderson, P.A., 327 Marschall Road, Suite 370, Shakopee, MN 55379 (for appellant)

Considered and decided by Minge, Presiding Judge; Wright, Judge; and Huspeni, Judge.*

U N P U B L I S H E D O P I N I O N

MINGE, Judge

Appellant challenges the child support magistrate’s determination of child support for a child born and residing in Mexico. On the limited record before us, we conclude that the child support magistrate had subject-matter jurisdiction to establish child support, but we remand for a determination of whether a prior or simultaneous proceeding in Mexico affects the exercise of that jurisdiction.

FACTS

The minor child, Manuel A. Villasenor Sanchez, was born on January 16, 1995, in the city of Guadalajara, State of Jalisco, Republic of Mexico. Both respondent mother, Monica Sanchez Lara, and appellant father, Everardo Villasenor del Castillo, were living in Guadalajara and are citizens of Mexico. The parties have never been married to each other. Appellant presently resides in Scott County, Minnesota, on a work visa with his wife and two minor children. Respondent continues to live in Guadalajara with the minor child and has no ties to Minnesota.

On March 13, 2002, the Mexican Ministry of Foreign Affairs sent a letter to the State of Minnesota requesting child support assistance, stating that “[respondent] has submitted an application under the U.S.A.-Mexico (UIFSA) to compel [appellant] to pay Child support for their child.” [1] Scott County filed a complaint to establish child support in February 2004. The record does not disclose why it took almost two years to commence an action. Appellant filed a motion for downward deviation from child support guidelines, arguing that appellant was already providing child support through Mexican courts and that the child support magistrate (CSM) should apply Mexico law. The CSM heard testimony from respondent by telephone and from appellant in person. The record indicates that in September 2003, appellant began making payments of $138 per month into a Mexican court to provide child support for the child, but that respondent refused to accept the payments because she feared such acceptance would constitute acquiescence in the $138 payment level. The CSM found that it had jurisdiction, found that the minor child was in need of support, applied Minnesota law including the statutory support grid, made a downward deviation, and ordered appellant to pay $855 a month for child support and $19,440 as reimbursement for past support. The CSM found that evidence of Mexican law was “not intelligible” and that there was not sufficient evidence to establish that appellant had made child support arrangements in Mexico that were acceptable to officials in that country.

In a motion to the CSM for review of its initial order, appellant requested leave to submit evidence of the Mexican proceeding, arguing that it had a material bearing on the jurisdiction of the CSM and the appropriate level of support. The CSM denied this request, but the CSM did make certain factual changes in its initial order and credited appellant with the amount he had paid into the Mexican court. This appeal followed.

D E C I S I O N

Whether a court has subject-matter jurisdiction is a question of law reviewed de novo. In re Thulin, 660 N.W.2d 140, 143 (Minn. App. 2003). Questions of statutory interpretation are also reviewed de novo. In re Senty-Haugen, 583 N.W.2d 266, 268 (Minn. 1998). Subject-matter jurisdiction goes to the authority of the court to hear a particular case, and therefore the lack of subject-matter jurisdiction may be raised at any time by either party. Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn. App. 1995) (citing Minn. R. Civ. P. 12.08(c)), review denied (Minn. May 31, 1995). “An appellate court will determine jurisdictional facts on its own motion even though neither party has raised the issue.” Carlson v. Chermak, 639 N.W.2d 886, 889 (Minn. App. 2002). If this court determines that a district court lacked subject-matter jurisdiction over a matter on appeal, it must dismiss the action. Minn. R. Civ. P. 12.08(c). Subject-matter jurisdiction may not be conferred by consent of the parties. No Power Line, Inc. v. Minn. Envtl. Quality Council, 262 N.W.2d 312, 321 (Minn. 1977).

The issue of jurisdiction arose because this court could not determine whether there was an agreement between Mexico and the United States pursuant to the Uniform Interstate Family Support Act (UIFSA). UIFSA was adopted by Minnesota and seeks to unify laws relating to the establishment, enforcement, and modification of child support. Minn. Stat. § 518C.902 (2004); Kasdan v. Berney, 587 N.W.2d 319, 322 (Minn. App. 1999). At the federal level, the law provides that the federal government may establish a reciprocating agreement with any foreign country. 42 U.S.C. § 659a(a) (2000). The parties agree that no agreement exists between the United States and Mexico. See Notice of Declaration of Foreign Countries as Reciprocating Countries for the Enforcement of Family Support, 69 Fed. Reg. 59980 (Oct. 6, 2004) (listing the following countries that have been designated foreign reciprocating countries: Australia, nine Canadian provinces and territories, Czech Republic, Ireland, Netherlands, Norway, Poland, Portugal, Slovak Republic, and Switzerland).

This court requested additional briefing on the issue of whether the CSM had subject-matter jurisdiction to consider an action on behalf of an applicant residing in Mexico to establish child support for a child residing in Mexico. Scott County argued that the CSM has subject-matter jurisdiction based on UIFSA’s statutory language, an April 28, 1994, memorandum from the attorney general’s office, and a January 14, 1999, memorandum from the U.S. Department of Health and Human Services. The statutory language is Minn. Stat. § 518C.101(s)(2) (2004), which defines state as including “a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders that are substantially similar to the procedures under this chapter or the procedures under the Uniform Reciprocal Enforcement of Support Act or the Revised Uniform Reciprocal Enforcement of Support Act.”

In its memorandum, the Minnesota Attorney General’s Office referred to materials from and followed the analysis of the National Child Support Enforcement Association regarding reciprocity with Mexico. Memorandum from Asst. Atty. Gen. Fabian Hoffner, to Child Support Enforcement Dir. Anne Damon (Apr. 28, 1994) (addressing “Reciprocity of International Support Agreements”). Based on this analysis, the attorney general’s memorandum determined that an adequate level of similarity in support procedures exists between Minnesota and certain states in Mexico to establish reciprocity for purposes of child support. Id. The Mexican states covered by this determination included the State of Jalisco. Id. We recognize that this conclusion in the attorney general’s memorandum represents a legal determination and is not binding on this court. See Vill. of Blaine v. Indep. Sch. Dist. No. 12, 272 Minn. 343, 353, 138 N.W.2d 32, 39 (1965). However, we give careful consideration to formal opinions, especially when they have been acted on and gone unchallenged for many years. See State Dept. of Highways v. Cohoon, 291 Minn. 222, 225, 190 N.W.2d 488, 490 (1971) (noting that the attorney general’s opinion was made soon after the passage of the law and subsequent legislative sessions had not changed that portion of the statute). Although the April 28, 1994, memorandum is not a formal attorney general’s opinion, based on the record and materials available to this court, it appears that the memorandum is well reasoned and represents the best evidence available to this court on the appropriateness of reciprocity in this setting.

In its memorandum dated January 14, 1999, the Office of Child Enforcement of the United States Department of Health & Human Services advised those responsible for operation of the IV-D program that it interpreted 42 U.S.C. § 654(4)(A)(ii) (Supp. 1998) to require that IV-D services be available to anyone requesting such services without regard to residency or citizenship.[2] U.S. Dep’t of Health & Human Serv. PIQ 15-099-01 (Jan. 14, 1999), http://www.acf.hhs.gov/programs/cse/pol/PIQ/piq-9901.htm (addressing quotations “Direct Application for Title IV-D Services from International Residence”). A careful reading of that statute permits, but does not require, that interpretation. The provision is ambiguous.

Counties may provide IV-D services to persons requesting such services regardless of participation in public assistance programs. 42 U.S.C. § 1301(d) (2000); see also Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 238-39 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003). Similarly, the courts of this state are generally open to consider claims against any person in the state as long as the subject matter is one that falls within the jurisdiction of our courts.[3] See Minn. Const. art. VI, § 3; Minn. Stat. § 484.01 (2004); Wick v. Wick, 670 N.W.2d 599, 603-04 (Minn. App. 2003). In this regard, proceedings to establish and enforce child support have long been within the jurisdiction of our courts. See Minn. Stat. §§ 256.87, 518C.201, .401 (2004); State v. Becht, 23 Minn. 1, 1-2 (1876). Although there is no formal reciprocity under UIFSA between the United States and Mexico and the relevant provisions of the IV-D law are ambiguous, based on the conclusions reached in the attorney general’s memorandum and based on the broad jurisdiction of Minnesota courts to consider child support, we conclude that the CSM had subject-matter jurisdiction to consider the action to establish child support.

Authority to assert subject-matter jurisdiction is not the end of the inquiry. The CSM had a responsibility to fully consider whether it could or should exercise jurisdiction in this case if there was a simultaneous proceeding in Mexico. One of the objectives of UIFSA is to expedite enforcement of child support orders across varying jurisdictions and to eliminate the problems of multiple or conflicting child support orders. See Hamilton v. Foster, 620 N.W.2d 103, 114 (Neb. 2000). The statutes actually establish the following framework for implementing this objective:

(a) A tribunal of this state may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a petition or comparable pleading is filed in another state only if:

(1) the petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state;

(2) the contesting party timely challenges the exercise of jurisdiction in the other state; and

(3) if relevant, this state is the home state of the child.

(b) A tribunal of this state may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state if:

(1) the petition or comparable pleading in the other state is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state;

(2) the contesting party timely challenges the exercise of jurisdiction in this state; and

(3) if relevant, the other state is the home state of the child.

Minn. Stat. § 518C.204 (2004). In situations involving simultaneous proceedings, to exercise jurisdiction, Minnesota courts must determine whether paragraph (a) or paragraph (b) applies. Kasdan, 587 N.W.2d at 322. In interpreting Minn. Stat. § 518C.204, the home state of the child is significant in determining whether Minnesota will exercise jurisdiction. Kasdan, 587 N.W.2d at 324; see also Unif. Interstate Family Support Act (2001) § 204 cmt., 9 U.L.A. 191 (2005).

The CSM found that “[t]he [appellant] claims that he has made arrangements to support the minor child through the Mexican legal system which pre-date the County’s commencement of this action which either deprive Minnesota courts of jurisdiction over this matter or to which this court should voluntarily defer.” The CSM’s finding recognizes, without citing, the rule set forth in section 518C.204. Appellant argued that any child support action should be maintained in the Mexican legal system because he deposited money in the Mexican court and initiated an action challenging the March 13, 2002, letter sent to the state from the Mexican Ministry of Foreign Affairs. The CSM found that the payments did not confer jurisdiction on Mexico and that “[t]he evidence is not sufficient to prove that the [appellant] has made arrangements acceptable to the Mexican authorities for support of the minor child,” but failed to determine whether section 518C.204(b) precluded the CSM from exercising jurisdiction.

The nature and extent of the proceeding in Mexico is critical to a proper disposition of this proceeding. Although we respect and support the promptness of expedited child support proceedings, in this case more time for submission of evidence should have been allowed. There was a period of almost two years between the date when the State of Minnesota received the initial request from the Republic of Mexico and when Scott County filed this support action.[4] The case was filed, heard, and the initial judgment entered in less than 12 weeks. Given the central importance of the Mexican law and proceedings to the jurisdiction and decision of the Minnesota courts in this matter, the request for additional time was not unreasonable and should have been granted. Certainly if appellant was not attempting to meet his responsibilities in Mexico, our courts should not provide him with the advantage of maneuvering and delay. As the CSM observed, the materials that were provided in the brief period the file was open were inadequate. A reasonable period of time should have been allowed to obtain appropriate documents. Therefore, we remand to the CSM to allow the parties time to provide evidence of the nature and status of any Mexican proceedings in this matter and for a determination by the CSM whether it is precluded from exercising jurisdiction under UIFSA’s provision governing simultaneous proceedings.

We do not reach the merits of appellant’s claim that the CSM abused its discretion in ordering too high a level of child support and failed to consider Mexico’s child support laws.[5]

Remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] UIFSA refers to the Uniform Interstate Family Support Act which is Chapter 518C of the Minnesota statutes

[2] A “‘IV-D case’ means a case where a party has assigned to the state rights to child support because of the receipt of public assistance as defined in section 256.741 or has applied for child support services under title IV-D of the Social Security Act, United States Code, title 42, section 654 (4).” Minn. Stat. § 518.54, subd. 14 (2004).

[3] We note that even if Minnesota courts have general subject-matter jurisdiction, the courts can still exercise discretion to decline jurisdiction on the basis of forum non conveniens. Kennecott Holdings Corp. v. Liberty Mut. Ins. Co., 578 N.W.2d 358, 360 (Minn. 1998); Florance v. Mercantile Nat’l Bank, 360 N.W.2d 626, 629-30 (Minn. 1985). Since forum non conveniens was not raised by the parties or considered by the CSM, we do not further address it.

[4] A critical question is whether the referral by the Mexican Ministry of Foreign Affairs on March 13, 2002 could constitute the filing of a pleading under Minn. Stat. § 518C.204. Clearly, the Scott County filing in February 2004 would be such a filing. Since neither of the parties nor the CSM addressed this question, we do not decide it.

[5] We acknowledge that under UIFSA the forum establishing child support applies its laws, including support guidelines. Minn. Stat. § 518C.303 (2004). However, we find no precedent for a court in the United States applying the domestic law of one of our states in establishing support for a child who is a citizen and resident of another country where the standard of living and child support law may be different. We recognize that the CSM used the guidelines and made a downward departure. If the CSM determines that it should establish support, additional briefing and analysis of this legal issue by the parties may be helpful.