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Kubisty v. Office of Child Support Enforcement4/13/2005
NOT DESIGNATED FOR PUBLICATION
This is a pro se appeal from an order confirming the registration of a foreign decree setting the amount of child support. Appellant Edward Kubisty raises four points of error. Error is conceded by the appellee Office of Child Support Enforcement (OCSE) on Kubisty's first two points. We agree, and reverse and remand for a hearing.
The facts are undisputed. Edward Kubisty and Monica Urie were divorced in California in 1980. The California court ordered Kubisty to pay $100 per month in child support for the parties' then minor child. It appears that the support was set based upon the parties' agreement. On December 4, 2001, OCSE filed a petition seeking to register the California decree in the Faulkner County Circuit Court. The petition alleged an arrearage of $20,475. A notice was also prepared, informing Kubisty that he had twenty days from the date of service to request a hearing to contest the validity or enforcement of the registered order. The notice also provided that, in the event that Kubisty did not timely request a hearing, the registration would be confirmed by operation of law and he would be precluded from further contesting the registered order. Kubisty was served with the petition and notice on December 13, 2001. On January 2, 2002, Kubisty filed a "Request for Hearing and Response to Petition to Register Foreign Judgment," requesting a hearing, generally denying the factual allegations of the petition, asserting certain defects in the petition, and asserting affirmative defenses. Kubisty also filed a "Motion to Vacate Registered Orders and Combined Brief" alleging further defects in the petition and Urie's lack of standing to pursue the petition.
A hearing was set for April 15, 2002, but was continued until Monday, May 13, 2002. On Friday, May 10, 2002, Kubisty filed for relief under Chapter 13 of the Bankruptcy Code. Notice of the bankruptcy filing was given to OCSE and the trial court the same day. Kubisty did not appear at the hearing on May 13, 2002, and an order was entered on May 20, 2002, confirming registration of the California support order, awarding judgment for arrearages of $20,475 and authorizing OCSE to enforce the order by withholding from Kubisty's income, workers' compensation benefits, or unemployment benefits.
On November 4, 2003, the United States Bankruptcy Court found that the May 20, 2002, order entered by the trial court was void because it was entered in violation of the automatic stay and authorized withholding from Kubisty's income, workers' compensation benefits, and unemployment benefits. The bankruptcy court granted OCSE relief from the automatic stay conditioned on Kubisty being given an opportunity to raise his defenses to registration in the trial court.
Following the order of the bankruptcy court, the trial court held a hearing on January 9, 2004. At that hearing, OCSE argued that the California support order was confirmed by operation of law when, after Kubisty requested a hearing, he failed to appear for the May 13, 2002, hearing and made no further requests for a hearing. Kubisty argued that the effect of the automatic stay and the bankruptcy court's order was to preserve the defenses he had raised prior to the bankruptcy filing. The trial court recognized that the issue was whether a hearing was necessary to determine whether the California order should be registered. The court also expressed concern with whether it could entertain a collateral attack on the California order. Ultimately, the trial court found that the California order was confirmed by operation of law. On January 15, 2004, an order was entered finding that the California order was confirmed by operation
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