NORTH CAROLINA GENERAL ASSEMBLY

1975 SESSION

 

 

CHAPTER 656

SENATE BILL 357

 

 

AN ACT TO REWRITE CHAPTER 52A OF THE GENERAL STATUTES ENTITLED "UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT".

 

The General Assembly of North Carolina enacts:

 

Section 1.  Chapter 52A of the General Statutes as it appears in the 1966 Replacement Volume 2A of the General Statutes is hereby rewritten to read as follows:

"Chapter 52A.

"Uniform Reciprocal Enforcement of Support Act.

"§ 52A-1.  Short title. — This Chapter may be cited as the 'Uniform Reciprocal Enforcement of Support Act'.

"§ 52A-2.  Purposes. — The purposes of this Chapter are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto.

"§ 52A-3.  Definitions. — As used in this Chapter unless the context requires otherwise:

(1)        'Court' means any court of record in this State having jurisdiction to determine liability of persons for the support of dependents in any criminal proceeding, and when the context requires, means the court of any other state as defined in substantially similar reciprocal law.

(2)        'Duty of support' means a duty of support whether imposed or imposable by law or by order, decree, or judgment of any court whether interlocutory or final or whether incidental to an action for divorce, separation, separate maintenance, or otherwise and includes the duty to pay arrearages of support past due and unpaid.

(3)        'Governor' includes any person performing the functions of Governor or the executive authority of any state covered by this act.

(4)        'Law' includes both common and statute law.

(5)        'Initiating state' means a state in which a proceeding pursuant to this or a substantially similar reciprocal law is commenced. 'Initiating court' means the court in which a proceeding is commenced.

(6)        'Obligee' means a person including a state or political subdivision to whom a duty of support is owed or a person including a state or political subdivision that has commenced a proceeding for enforcement of an alleged duty of support or for registration of a support order. It is immaterial if the person to whom a duty of support is owed is a recipient of public assistance.

(7)        'Obligor' means any person owing a duty of support or against whom a proceeding for the enforcement of a duty of support or registration of a support order is commenced.

(8)        'Prosecuting attorney' means the district attorney in the appropriate place who has the duty to enforce criminal laws relating to the failure to provide for the support of any person.

(9)        'Register' means to record and file in the Registry of Foreign Support Orders.

(10)      'Registering court' means any court of this State in which a support order of a rendering state is registered.

(11)      'Rendering state' means a state in which the court has issued a support order for which registration is sought or granted in the court of another state.

(12)      'Responding state' means a state in which any responsive proceeding pursuant to the proceeding in the initiating state is commenced. 'Responding court' means the court in which the responsive proceeding is commenced.

(13)      'State' includes a state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the provinces of Canada in which reciprocity can be effected by administrative action, and any foreign jurisdiction in which this or a substantially similar reciprocal law is in effect.

(14)      'Support order' means any judgment, decree, or order of support in favor of an obligee whether temporary or final, or subject to modification, revocation, or remission, regardless of the kind of action or proceeding in which it is entered.

"§ 52A-4.  Remedies additional to those now existing. — The remedies herein provided are in addition to and not in substitution for any other remedies.

"§ 52A-5.  Obligor present in State is bound. — Duties of support arising under the law of this State when applicable under G.S. 52A-8, bind the obligor, present in this State, regardless of the presence or residence of the obligee.

"§ 52A-6.  Interstate rendition. — The Governor of this State:

(1)        may demand from the governor of any other state the surrender of any person found in such other state who is charged in this State with the crime of failing to provide for the support of any person in this State and

(2)        may surrender on demand by the governor of any other state any person found in this State who is charged in such other state with the crime of failing to provide for the support of a person in such other state.

The provisions of extradition of criminals not inconsistent herewith shall apply to any such demand although the person whose surrender is demanded was not in the demanding state at the time of the commission of the crime and although he had not fled therefrom. Neither the demand, the oath nor any proceedings for extradition pursuant to this section need state or show that the person whose surrender is demanded has fled from justice, or at the time of the commission of the crime was in the demanding or the other state.

"§ 52A-7.  Conditions of interstate rendition. — (1) Before making the demand upon the governor of another state for the surrender of a person charged criminally in this State with failing to provide for the support of a person, the Governor of this State may request any prosecuting attorney of this State to satisfy him that at least 60 days prior thereto the obligee initiated proceedings for support under this act or that any proceeding would be of no avail.

(2)        If, under a substantially similar act, the governor of another state makes a demand upon the Governor of this State for the surrender of a person charged criminally in that state with failure to provide for the support of a person, the Governor may request any prosecuting attorney to investigate the demand and to report to him whether proceedings for support have been initiated or would be effective. If it appears to the Governor that a proceeding would be effective but has not been initiated he may delay honoring the demand for a reasonable time to permit the initiating of a proceeding.

(3)        If proceedings have been initiated and the person demanded has prevailed therein, the Governor may decline to honor the demand. If the obligee prevailed and the person demanded is subject to a support order, the Governor may decline to honor the demand if the person demanded is complying with the support order.

"§ 52A-8.  What duties are applicable. — Duties of support applicable under this Chapter are those imposed or imposable under the laws of any state where the obligor was present during the period or any part of the period for which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.

"§ 52A-8.1.  Remedies of a county furnishing support. — Whenever a county of this State furnishes support to an obligee, it has the same right to invoke the provisions hereof as the obligee to whom the support was furnished for the purpose of securing reimbursement for such support and of obtaining continuing support and the term 'obligee' as used in this section shall apply to children owing the duty of support to their parents.

"§ 52A-8.2.  Paternity. — If the obligor asserts as a defense that he is not the father of the child for whom support is sought and it appears to the court that the defense is not frivolous, and if both of the parties are present at the hearing or the proof required in the case indicates that the presence of either or both of the parties is not necessary, the court may adjudicate the paternity issue.

Otherwise the court may adjourn the hearing until the paternity issue has been adjudicated. Nothing in this section shall be construed to deprive, amend or alter the right of the obligor defendant upon motion, to have ordered a blood grouping test as provided by G.S. 8-50.1.

"§ 52A-9.  How duties of support are enforced. — All duties of support including the duty to pay arrearages are enforceable by action irrespective of relationship between the obligor and obligee. Jurisdiction of all proceedings hereunder shall be vested in any court of record in this State having jurisdiction to determine liability of persons for the support of dependents in any criminal proceeding.

"§ 52A-9.1.  Jurisdiction by arrest. — If the court of this State believes that the obligor may flee it may:

(1)        as an initiating court, request in its certificate that the responding court obtain the body of the obligor by appropriate process; or

(2)        as a responding court, obtain the body of the obligor by appropriate process. Thereupon it may release him upon his own recognizance or upon his giving a bond in amount set by the court to assure his appearance at the hearing.

"§ 52A-10.  Contents of complaint for support. — Actions hereunder shall be commenced by the issuance of summons in the form required for actions for alimony without divorce by the court having jurisdiction. The complaint shall be verified and shall state the name and, so far as known to the plaintiff, the address and circumstances of the defendant and his dependents for whom support is sought and all other pertinent information. The plaintiff may include in or attach to the complaint any information which may help in locating or identifying the defendant including, but without limitation by enumeration, a photograph of the defendant, a description of any distinguishing marks of his person, other names and aliases by which he has been or is known, the name of his employer, his fingerprints, and his social security number.

"§ 52A-10.1.  Official to represent plaintiff, responding. — It shall be the duty of the official who prosecutes criminal actions for the State in the court acquiring jurisdiction to appear on behalf of the obligee in proceedings under this Chapter. In the event of an appeal from a support order entered under this act, the Attorney General shall represent the obligee.

"§ 52A-10.2.  Complaint by minor. — A complaint on behalf of a minor obligee may be filed by a person having legal or physical custody of the minor without appointment as guardian ad litem. In addition, notwithstanding any other provisions of the law, when a court of this State, acting as a responding state, receives from the court of an initiating state a complaint on behalf of a minor obligee brought by a person having legal custody of the minor, the court may proceed to a hearing of the cause without the appointment of a guardian ad litem.

"§ 52A-10.3.  Official to represent plaintiff, initiating. — If this State is acting as an initiating state the prosecuting attorney upon the request of the court (in the case of a person or member of a family receiving public assistance, at the request to the court by the county director of social services) shall represent the plaintiff in any proceeding under this act. The county director of social services in making such a request will provide written verification of the indigency of the person and the fact that the person or the family is receiving public assistance. In counties where the services of a special county attorney are available for social services matters as set out in G.S. 108-20 through G.S. 108-22, such special county attorney, instead of the prosecuting attorney, shall represent the obligee, the county or the plaintiff in any proceeding under this Chapter when the county has a right to invoke the provisions of this Chapter under Section 52A-8.1.

"§ 52A-11.  Duty of initiating court. — If the initiating court finds that the defendant is not to be found in this State, that the complaint sets forth facts from which it may be determined that the defendant owes a duty of support, and that a court of the responding state may obtain jurisdiction of the defendant or his property, it shall so certify and shall cause three copies of (1) the complaint, (2) its certificate, (3) any other document filed with the court, and (4) one copy of this Chapter to be transmitted to the court or other designated agency in the responding state.

If the name and address of such court is unknown and the responding state has an information agency, the court of this State shall cause such copies to be transmitted to the State information agency or other proper official of the responding state, with a request that it forward them to the proper court, and that the court of the responding state acknowledge their receipt to the court of this State. Unless the chief district court judge shall otherwise direct, the authority and duties of this section shall be the responsibility of the clerk of superior court.

"§ 52A-11.1.  Fees and costs. — A responding court of this State may in its discretion direct that any part of all fees and costs incurred in this State, including without limitation by enumeration, fees for filing, service of process, and seizure of property, shall be paid by the county, but when an order of support is entered against a defendant, he shall be taxed with the costs. These costs or fees do not have priority over amounts due to the obligee. In addition, any and all appellate costs taxed to the plaintiff or the State shall be waived when the plaintiff has been certified as an indigent by the initiating court.

The clerk of the initiating court may upon written verification by the county director of social services of the indigency of the plaintiff, waive all fees and costs incurred in filing a complaint hereunder or may waive such fees and costs solely upon a finding of indigency by the court.

"§ 52A-12.  Duty of the court of this State as responding state. — When the court of this State, acting as a responding state, receives from the court of an initiating state the aforesaid copies, it shall (1) docket the cause, (2) notify the prosecuting attorney as described in G.S. 52A-10.1, (3) set a time and a place for a hearing, and (4) take such action as is necessary in accordance with the laws of this State to obtain jurisdiction. The procedure for serving notice and summons on the defendant under this Chapter shall be the same as in actions for alimony as provided by G.S. 50-16.8.

"§ 52A-12.1.  Further duties of court and officials in the responding state. — (1) The prosecuting attorney on his own initiative shall use all means at his disposal to locate the obligor or his property and if because of inaccuracies in the complaint or otherwise, the court cannot obtain jurisdiction the prosecuting attorney may request the court to continue the case pending receipt of more accurate information or an amended complaint from the initiating court.

(2)        If the obligor or his property is not found in the county and the prosecuting attorney discovers that the obligor or his property may be found in another county of this State or in another state, he shall so inform the court. Thereupon the clerk of the court shall forward the documents received from the court in the initiating state to a court in the other county or to a court in the other state or to the information agency or other proper official of the other state with a request that the documents be forwarded to the proper court. All powers and duties provided by this act apply to the recipient of the documents so forwarded. If the clerk of a court of this State forwards documents to another court, he shall forthwith notify the initiating court.

(3)        If the prosecuting attorney has no information as to the location of the obligor or his property, he shall so inform the initiating court.

"§ 52A-12.2.  Hearing and continuance. — If the obligee is not present at the hearing and the obligor denies owing the duty of support alleged in the complaint or offers evidence constituting a defense, the court, upon request of either party, shall continue the hearing to permit evidence relative to the duty to be adduced by either party by deposition or by appearing in person before the court. The court may designate the judge of the initiating court as a person I before whom a deposition may be taken.

"§ 52A-13.  Order of support. — If the court of the responding state finds a duty I of support, it may order the defendant to furnish support or reimbursement therefor and subject the property of the defendant to such order.

"§ 52A-14.  Responding court to transmit copies to initiating court. — The j responding court shall cause a copy of all support orders to be sent to the initiating court.

"§ 52A-15.  Additional powers of court. — In addition to the foregoing powers, the responding court has the power to subject the defendant to such terms and conditions as the court may deem proper to assure compliance with its orders and in particular:

(1)        To require the defendant to furnish recognizance in the form of a cash deposit or bond of such character and in such amount as the court may deem proper to assure payment of any amount required to be paid by the defendant.

(2)        To require the defendant to make payments at specified intervals to the clerk of the court and to report personally to such clerk at such times as may be deemed necessary.

(3)        To punish the defendant who shall violate any order of the court to the same extent as is provided by law for contempt of the court in any other suit or j proceeding cognizable by the court.

"§ 52A-16.  Additional duties of the court of this State when acting as a responding court. — The court of this State when acting as a responding state j shall have the following duties which may be carried out through the clerk of the court:

(1)        Upon receipt of a payment made by the defendant pursuant to any order of the court or otherwise, to transmit the same forthwith to the initiating court and

(2)        Upon request to furnish to the initiating court a certified statement of all payments made by the defendant.

"§ 52A-17.  Additional duty of the initiating court of this State. — The; initiating court shall have the duty which may be carried out through the clerk of court to receive and disburse forthwith all payments made by the defendant , or transmitted by the responding court.

"§ 52A-18.  Evidence of husband and wife. — Laws attaching a privilege against the disclosure of communications between husband and wife are inapplicable to proceedings under this Chapter. Husband and wife are competent witnesses to testify to any relevant matter, including marriage and parentage.

"§ 52A-19.  Rules of evidence. — In any hearing under this law wherein the defendant has been served with notice and summons as herein provided, the verified complaint of the plaintiff shall be admissible as prima facie evidence of j the facts therein stated in any court of this State having jurisdiction to conduct hearings pursuant to this Chapter. In those cases where the defendant fails to appear after service of notice and summons, the court may enter a reasonable order for support. Upon proper motion of the defendant, the reasonableness of the order may be reconsidered by the court and upon a showing by the defendant that the order is not within his financial ability to pay, is beyond his earning capacity, or for other good cause shown, such order shall be subject to modification from time to time. The order fixed by the court shall also be subject to modification from time to time upon motion of the plaintiff.

"§ 52A-20.  Proceedings not to be stayed. — A responding court may or may not stay the proceeding or refuse a hearing under this act because of any pending or prior action or proceeding for divorce, separation, annulment, dissolution, habeas corpus, adoption, or custody in this or any other state. The court may hold a hearing and may issue a support order pendente lite. In aid thereof it may require the obligor to give a bond for the prompt prosecution of the pending proceeding. If the other action or proceeding is concluded before the hearing in the instant proceeding and the judgment therein provides for the support demanded in the complaint being heard, the court must conform its support order to the amount allowed in the other action or proceeding. Thereafter, the court shall not stay enforcement of its support order because of the retention of jurisdiction for enforcement purposes by the court in the other action or proceeding.

"§ 52A-21.  Application of payments. — A support order made by a court of this State pursuant to this act does not nullify and is not nullified by a support order made by a court of this State pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar act or any other law regardless of priority of issuance, unless otherwise specifically provided by the court. Amounts paid for a particular period pursuant to any support order made by the court of another state shall be credited against the amounts accruing or accrued for the same period under any support order made by the court of this State.

"§ 52A-22.  Effect of participation in proceeding. — Participation in any proceeding under this act does not confer jurisdiction upon any court over any of the parties thereto in any other proceeding.

"§ 52A-23.  Intrastate application. — This act applies if both the obligee and the obligor are in this State but in different counties. If the court of the county in which the complaint is filed finds that the complaint sets forth facts from which it may be determined that the obligor owes a duty of support and finds that a court of another county in this State may obtain jurisdiction over the obligor or his property, the clerk of the court shall send the complaint and a certification of the findings and any other document filed with the court to the court of the county in which the obligor or his property is found. The clerk of the court of the county receiving these documents shall notify the prosecuting attorney of their receipt. The prosecuting attorney and the court in the county to which the copies are forwarded then shall have duties corresponding to those imposed upon them when acting for this State as a responding state. In all intrastate proceedings provisions of this act stated to be applicable to an initiating state and a responding state are applicable respectively to an initiating county and a responding county.

"§ 52A-24.  State information agency. — The State Division of Social Services is designated as the State information agency under this act. It shall:

(1)        Compile a list of the courts and their addresses in this State having jurisdiction under this act and transmit it to the state information agency of every other state which has adopted this or a substantially similar act. Upon the adjournment of each session of the legislature the agency shall distribute copies of any amendments to the act and a statement of their effective date to all other state information agencies;

(2)        Maintain a register of lists of courts received from other states and transmit copies thereof promptly to every court in this State having jurisdiction under this act; and

(3)        Forward to the court in this State which has jurisdiction over the obligor or his property complaints, petitions, certificates and copies of the act it receives from courts or information agencies of other states.

If the State information agency does not know the location of the obligor or his property in the State and no State location service is available it shall use all means at its disposal to obtain this information, including the examination of official records in the state and other sources such as telephone directories, vital statistics records, police records, requests for the name and address from employers who are able or willing to cooperate, records of motor vehicle license offices, requests made to the tax offices, both State and federal, where such offices are able to cooperate and requests made to the Social Security Administration as permitted by the Social Security Act as amended.

To assist in locating parents who have deserted their children and other persons liable for support of dependents, the Division of Social Services may request and shall receive information from the records of all departments, boards, bureaus or other agencies of this State and the same are authorized and directed to provide such information as is necessary for this purpose. Only information directly bearing on the identity and whereabouts of a person owing or asserted to be owing an obligation of support shall be requested and used or transmitted by the Division of Social Services pursuant to the authority conferred by this act. The Division of Social Services shall make such information available to public officials and agencies of this State, other states and the political subdivisions of this State and other states seeking to locate parents who have deserted their children and other persons liable for support of dependents for the purpose of enforcing their liability for support.

"§ 52A-25.  Additional remedies. — If the duty of support is based on a foreign support order, the obligee has the additional remedies provided in the following sections.

"§ 52A-26.  Registration. — The obligee may register the foreign support order in a court of this State in the manner, with the effect, and for the purposes herein provided.

"§ 52A-27.  Registry of foreign support orders. — The clerk of superior court shall maintain a registry of foreign support orders in which he shall file foreign support orders.

"§ 52A-28.  The official. — If this State is acting either as a rendering or a registering state the representation of the obligee in proceedings under this Part shall be the same as is set out in G.S. 52A-10.1 and G.S. 52A-10.3.

"§ 52A-29.  Registration procedure; notice. — An obligee seeking to register a foreign support order in a court of this State shall transmit to the clerk of the court (1) three certified copies of the order with all modifications thereof, (2) one copy of the reciprocal enforcement of support act of the state in which the order was made, and (3) a statement verified and signed by the obligee, showing the post-office address of the obligee, the last known place of residence and post- office address of the obligor, the amount of support remaining unpaid, a description and the location of any property of the obligor available upon execution, and a list of the states in which the order is registered. Upon receipt of these documents, the clerk of the court, without payment of a filing fee or other cost to the obligee, shall file them in the Registry of Foreign Support Orders. The filing constitutes registration under this act.

Promptly upon registration, the clerk of the court shall send by certified or registered mail to the obligor at the address given a notice of the registration with a copy of the registered support order, and the post-office address of the obligee. He shall also docket the case and notify the prosecuting attorney of his action.

"§ 52A-30.  Effect of registration; enforcement procedure. — (1) Upon registration, the registered foreign support order shall be treated in the same manner as a support order issued by a court of this State. It has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating or staying as a support order of this State and may be enforced and satisfied in like manner.

(2)        The obligor has 20 days after the mailing of notice of the registration in which to petition the court to vacate the registration or for other relief. If he does not so petition, the registered support order is confirmed.

(3)        At the hearing to enforce the registered support order, the obligor may present only matters that would be available to him as defenses in an action to enforce a foreign money judgment. If he shows to the court that an appeal from the order is pending or will be taken or that a stay of execution has been granted, the court shall stay enforcement of the order until the appeal is concluded, the time for appeal has expired, or the order is vacated, upon satisfactory proof that the obligor has furnished security for payment of the support ordered as required by the rendering state. If he shows to the court any ground upon which enforcement of a support order of this State may be stayed, the court shall stay enforcement of the order for an appropriate period if the obligor furnishes the same security for payment of the support ordered that is required for a support order of this State.

"§ 52A-31.  Severability. — If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

"§ 52A-32.  Interpretation of Chapter. — This Chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states having a substantially similar act."

Sec. 2.  This act shall not apply to pending litigation including proceedings which have been initiated in a state other than North Carolina.

Sec. 3.  This act shall become effective on October 1, 1975.

In the General Assembly read three times and ratified, this the 18th day of June, 1975.