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AGO 1952 No. 221 - January 23, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington

UNIFORM ENFORCEMENT OF SUPPORT ACT ‑- NATURE OF ACT ‑- FILING FEES ‑- MANNER IN WHICH COURT SECURES JURISDICTION OF PERSON.

(1) The action is a civil action.

(2) The petitioner is liable for filing fees.

(3) The court sets a time and place for a hearing after jurisdiction is acquired by the service of summons and a copy of the petition.

                                                                    - - - - - - - - - - - - -

                                                                 January 23, 1952

Honorable Roger L. Olson
Prosecuting Attorney
Franklin County
Pasco, Washington                                                                                                Cite as:  AGO 51-53 No. 221

Dear Sir:

            This is to acknowledge your letter of October 12, 1951, in which you requested our opinion on three questions relative to chapter 196, Laws of 1951.

            We quote from your letter as follows:

            "1. Is such an action a criminal action or is it filed as a civil action in the names of the parties?

            "2. If filed as a civil action, who is liable for the usual and customary filing fees?

            "3. If a civil action and the cause comes in from some other state as the initiating state, is the defendant entitled to be first served with a Show  [[Orig. Op. Page 2]] Cause Order, or can he be immediately apprehended by use and virtue of a Bench Warrant issued by the Court?"

            Our conclusion may be stated as follows:

            (1) The action is a civil action.

            (2) The petitioner is liable for filing fees.

            (3) The court sets a time and place for a hearing after jurisdiction is acquired by the service of summons and a copy of the petition.

                                                                     ANALYSIS

            Chapter 196, Laws of 1951, is entitled "The Uniform Reciprocal Enforcement of Support Act."  This office has not, until now, had occasion to consider or analyze the provisions of this statute.  In the hope that our results would promote a uniform procedure throughout the state, we discussed the questions raised herein with some of the prosecuting attorneys who have had occasion to use this statute.  We find that our conclusions herein were in accord with those with whom we had discussions.

            Consideration of chapter 196, in its entirety, compels us to conclude that the procedure under chapter 196 is civil in nature.  Sections 10, 11, 13, 15, 16 and 17 employ the terms "petition," "plaintiff" and "defendant" and other terms connotating that the action is civil in nature.  These terms though not singularly appropriate to civil actions, are so employed throughout the act to convince us that the legislature intended the procedure of the act to be civil, rather than criminal in nature.

            There is no sure test to determine whether an action is civil or criminal.  Generally, however, a civil action is concerned with enforcing a private or civil right.  1 Am.Jur. § 40.  Enforcing a civil order directing payment of support is in the nature of a private right, and the fact that non-support is also a criminal offense does not change the nature of the right to collect pursuant to such an order.  In addition, sections 5 and 6 of the Uniform Act as interpreted in the Commissioners' Prefatory Note in 9A U.L.A. supp., relate to criminal enforcement of support whereas sections 7 through 18 relate to the civil enforcement of such duties.

             [[Orig. Op. Page 3]]

            In respect to filing fees, we feel that since the procedure is civil in nature, the filing fees would be chargeable in the same manner and to the same persons as in any civil matter.  In this respect, a petition under chapter 196 is not unlike a petition by a wife to compel her divorced husband to pay his alimony as provided in the divorce decree.  Inasmuch as there is no statutory provision in this state authorizing the use of pauper's oath, we do not think the payment of filing fees can be waived by the filing of such an affidavit as is commonly done in many other states, according to the information we have received.  In 9A U.L.A. supp., page 20, in discussing the question of filing fees the Commissioners' note has this to say:

            "Sections 9 to 17 cover details of what is known as the two-state proceeding.  In the past, the greatest difficulty in enforcing support where the parties are in different states has been the expense of travel to a distant state to litigate the rights of the destitute obligee.  Under this Act this expense can be reduced to filing fees plus a few postage stamps.  * * *"

            In answer to your third question, section 12 of the act provides that when the court of this state acting as the responding state receives from the court of the initiating state a certified copy of the petition (complaint), the certificate and authenticated copy of the act, the court shall:

            "(1) Docket the cause.

            "(2) Notify the prosecuting attorney.

            "(3) Set a time and place for a hearing, and

            "(4) Take such action as is necessary in accordance with the laws of this state to obtain jurisdiction."

            It is the opinion of this office that in view of the ruling of our Supreme Court in the case ofNevin v. Pacific Coast and Norway Packing Company, 105 Wash. 192, 177 Pac. 739, that in order to acquire jurisdiction under the provisions of Rem. Rev. Stat., § 220, a summons and a copy of the petition must be served upon the obligor.  In 9A U.L.A. supp., a general discussion of the provisions of the Reciprocal Enforcement of Support Act states that provisions covering minute  [[Orig. Op. Page 4]] details of procedure were deliberately kept out of the Uniform Act so that the usual rules for obtaining jurisdiction for carrying on the procedure and for appeals govern in the responding state.  Accordingly, the court sets a time and place for the hearing, which is held after the jurisdiction has been acquired by the service of a summons and a copy of the complaint.  A bench warrant cannot be used, inasmuch as the provisions of the statute which are being used relate to the civil enforcement of the act rather than the criminal enforcement, and at the time the petition has been received from the initiating state no offense has been committed in the state of Washington.

            Accordingly, you are advised that the procedure of chapter 196 is civil in nature, filing fees are chargeable to the same persons as in any similar civil matter, and the defendant should be brought before the court after the service of a summons and a copy of the petition.

Very truly yours,

SMITH TROY
Attorney General

JANE DOWDLE
Assistant Attorney General

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