Lilly v. Lilly, 2011 UT App 53 (Utah Court of Appeals, February 25, 2011).
Father physically resides in California due to his active duty service in the military. The parties were divorced in California and subsequently mother and child moved to Utah. Father filed a Petition to modify the child support order in Utah because Utah was the resident state of the child, Mother and Father. The trial court denied the Petition based on a lack of subject-matter jurisdiction because father physically lived in California. Father appealed.
The Court of Appeals found that Utah has subject matter jurisdiction because Father is domiciled in Utah. Under UIFSA, a state that enters the child support order maintains jurisdiction over child support if the child, obligor, or obligee continue to reside in that state. The Court of Appeals found that ‘reside’ under the statute refers to a person’s domicile, the place at which the person has been physically present, and where he intends to return, and which he regards as home. Because the trial court had failed to determine Father’s domicile, the Court of Appeals Reversed and Remanded the case to determine Father’s domicile to determine whether Utah has subject matter jurisdiction to modify the child support.
Full Decision available at http://utcourts.gov/opinions/appopin/lilly022511.pdf
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There's still a few more issues left to resolve on remand. One big question readers are hopefully wondering after reading the opinion is why the parties were even fighting over whether Utah or California handled the case. The reason is choice of law. Suffice it to say, California's support guidelines are based on a higher California cost-of-living whereas Utah's are lower. In a nutshell, the Mother wants to collect child support as if she was incurring California living expenses and the Father wants to pay child support based on a Utah cost of living (which is where the Mother and child presently reside). The difference appears to be quite substantial.
Unfortunately, the UIFSA itself is not crystal clear on which State's guidelines would apply except to say that California law would govern the duration of child support and what parts of the order are subject to modification. Case law from other jurisdiction is consistent in holding that it would be the law of the modifying state - in this case, Utah - but to my knowledge our Appellate Courts have not had an opportunity to decide the question yet. So, there's still quite a bit to do for what should otherwise be a fairly run-of-the-mill child support modification case.
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