SMITH VS. STATE, DIV. OF WELFARE AND SUPPORTIVE SERVS.

Statutes cited

Key holdings

Practitioner summary

Standard of review: The court reviews a child support order for an abuse of discretion, Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996); see also Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1227 (2004), and an abuse of discretion occurs when the decision is not supported by substantial evidence, Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018) (the court "will uphold the district court's determination if it is supported by substantial evidence" (quoting Flynn)). Service framework: A notice and finding of financial responsibility under NRS 425.3822(2) "must be served upon the parent [against whom support is sought] in the manner prescribed for service of summons in a civil action or by certified mail, restricted delivery, with return receipt requested." Under UIFSA, NRS 130.605(1), when an out-of-state support order is registered, the registering tribunal must notify the nonregistering party. The court emphasized that these service requirements protect due process by informing the nonmoving party of the time and ability to contest registration, citing NRS 130.605(2)(b) and NRS 130.606(1) (allowing a party, within 20 days of service of a notice of registration, to seek to vacate the registration, assert defenses, or contest remedies or arrearages pursuant to NRS 130.607), and NRS 425.3828(1) (upon written objection, the court must hold an evidentiary hearing under NRS 425.3832). Application: The district attorney's office failed to inform the district court that it had abandoned its attempt to register the California order in favor of continued administrative enforcement and that it did not serve the 2017 notice; the district court failed to address Smith's non-service arguments at the hearing or in its order, treating the 2017 notice as properly served and confirming the support and arrears amounts without the due process protections of NRS 130.605(2)(b) and NRS 130.606(1). The court noted the failure was especially significant because failure to contest such an order within the NRS 130.605(2)(b) window "precludes further contest of that order with respect to any matter that could have been asserted." NRS 130.605(2)(c); Blount v. Blount, 188 Nev., Adv. Op. 52, 512 P.3d 1254, 1257-58 (2022). Respondent's argument that it could administratively enforce the California order without registration under NRS 130.507(2) was raised for the first time on appeal, and the court declined to consider it under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal."). On the Treasury Offset Program issue, the court found the record devoid of admissible evidence that respondent provided the notice required under 31 C.F.R. §285.1 (d), (h) that Smith's federal funds would be subject to administrative offset; the only "evidence" was counsel's oral argument, which does not establish facts. Nev. Ass'n Servs., Inc. v. Eighth Judicial Dist. Court, 130 Nev. 949, 957, 338 P.3d 1250, 1255 (2014). The district court's findings regarding the offset notice were therefore not supported by substantial evidence. Disposition: The court vacated the challenged order and remanded, directing the district court to strike the 2017 Notice and Finding of Financial Responsibility. The disposition does not preclude continued enforcement of the California order by any means permitted under Nevada or federal law or a new registration proceeding, but any future judicial enforcement in Nevada must comply with the registration and service requirements of NRS Chapter 130.

In plain language

This case is about whether Nevada's child support enforcement agency followed the required procedures before enforcing a California child support order against a Nevada resident. In 2013, a California court entered an order naming "Jonathan Jace Roosevelt Smith" as the father of a minor child and requiring him to pay $238 per month in child support. In 2017, the Nevada Division of Welfare and Supportive Services filed a document in Nevada that combined a "notice and finding of financial responsibility" with a notice registering the California order under the Uniform Interstate Family Support Act (UIFSA) - a law governing how one state enforces another state's support orders. Documents attached to the filing indicated Smith had not made payments and owed approximately $12,376 in arrears. Smith did not respond to the 2017 notice, but in 2021, after hiring a lawyer, he moved to void enforcement of the order. He alleged he was never served with notice of the California proceedings, the California order, or the 2017 Nevada notice, and that he only learned of the Nevada action when the agency intercepted $19,811.12 out of a $30,000 civil settlement paid to him by the Bureau of Prisons through the federal Treasury Offset Program. He also contended the California order was intended for a different person, as his name is "Jonathan Lee Smith," though the Court of Appeals noted he failed to present any evidence to support these assertions in the district court. The district court denied Smith's motion, reasoning that because the agency had previously notified Smith that his arrears were referred for federal collection, no additional notice was required before offsetting federal payments. But neither the district court nor the agency addressed Smith's argument that he was never served with the 2017 notice. On appeal, the agency admitted in its answering brief that it did not complete service of the Nevada notice on Smith in the manner required by statute, due to his incarceration. The Nevada Court of Appeals concluded the district court abused its discretion by failing to address Smith's non-service arguments. Nevada law requires that a notice and finding of financial responsibility be served on the parent, and that when an out-of-state support order is registered, the nonregistering party must be notified - requirements that protect a person's ability to contest the registration within a short window. Because Smith was never served, the district court effectively confirmed the amount of support and arrears he owed without giving him those protections. The court also concluded that the district court's finding that Smith received notice of the federal offset was not supported by evidence, because the only support for it was the oral argument of the agency's lawyer, and arguments of counsel are not evidence. The Court of Appeals vacated the district court's order and remanded, directing the district court to strike the 2017 notice. It clarified that this does not prevent continued enforcement of the California order by lawful means or a new registration proceeding, but any future attempt to judicially enforce the order in Nevada must comply with the registration and service requirements of NRS Chapter 130.