Kerri Ann (Green) McCAFFERY, Appellant, v. David Eric GREEN, Appellee.
No. S-6705.
Supreme Court of Alaska.
Feb. 7, 1997.
931 P.2d 407
Zane D. Wilson, A. Rene Broker, Cook Schuhmann & Groseclose, Inc., Fairbanks, for Appellant. David E. Green, Wilsonville, OR, pro se. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.
MATTHEWS, Justice.
I. INTRODUCTION
This case presents an issue expressly left undecided in Puhlman v. Turner, 874 P.2d 291 (Alaska 1994): whether an Alaska court which is already exercising jurisdiction over a nonresident defendant on custody and visitation issues under the Uniform Child Custody Jurisdiction Act may also exercise personal jurisdiction over that defendant on child support issues.
II. FACTS AND PROCEEDINGS
A Texas court issued a final decree divorcing Kerri McCaffery and David Green on June 29, 1987. Under the decree, Kerri was given legal and physical custody of their three children and David was given visitation rights. David was ordered to pay $350 per month in child support. A 1991 modification order, entered under the Texas court‘s continuing jurisdiction, raised David‘s child support obligation to $375 and provided a detailed visitation schedule. Under the order, David was to buy one-way tickets for the children when exercising his visitation rights; Kerri was required to buy one-way tickets so that the children could return to her.
Kerri moved to Alaska in 1991 with the children. David moved to Oregon in January 1994. Neither of the parties now lives in Texas.
On May 19, 1994, Kerri filed a complaint in the Alaska superior court for modification of the child support and the transportation cost provisions of the modified Texas decree. David filed an answer objecting to the exercise of personal jurisdiction by the Alaska court over the support issue.
The superior court denied Kerri‘s motion, noting that Kerri had failed to register the Texas judgment under what was then
III. DISCUSSION
A. Child Support Issue
1. Kerri‘s failure to register the Texas order
In its written opinion, the superior court‘s first reason for dismissing Kerri‘s motion to modify the Texas support order was her failure to register the Texas judgment in Alaska, as provided for in
The superior court allowed Kerri twenty days to register the Texas judgment and to pursue her transportation cost motion, recognizing that it would have jurisdiction to determine that issue. The failurе to register the Texas order presents the same problem to the motion to modify the transportation cost arrangement as it does to the support issue, however. The only reason the court could have had to dismiss the second claim while allowing the first to proceed was its belief that it lacked personal jurisdiction over David to hear the second. We thus turn to the jurisdictional issue, noting that if personal jurisdiction existed, the claim should have been allowed to proceed.
2. Personal jurisdiction3
We have consistently interpreted Alaska‘s long-arm statute,
The superior court noted that it had jurisdiction under the UCCJA to hear the custody
(a) Puhlman v. Turner
We held in Puhlman v. Turner, 874 P.2d 291 (Alaska 1994), that a nonresident father who flew to Anchorage to file a Texas visitation order and enforce his visitation rights did not thereby subject himself to personal jurisdiction in Alaska for a support modification claim. We noted that the father did not “purposely avail” himself of the protection of the Alaska courts, but rather was forced into court by his wife‘s refusal to allow visitation. Id. at 294. To subject a nonresident parent to personal jurisdiction based on the parent‘s use of an Alaska court to enforce a foreign judgment would undermine the strong public policy of promoting visitation and would discourage parents from enforcing visitation orders. Id. at 294-95.
The superior court in Puhlman, however, had also ruled that Alaska had no jurisdiction under the UCCJA to modify the visitation provisions at the wife‘s request. Id. at 293 n. 2. We noted that this was a mistake, since the Texas version of the UCCJA surrendered jurisdiction to a child‘s new home state. Id. But since the parties did not address the issue, we specifically reserved judgment on whether the exercise of UCCJA jurisdiction over child custody or visitation issues could provide an independent basis for personal jurisdiction under the Fourteenth Amendment. Id.; see also id. at 297 (Matthews, J., dissenting) (suggesting that a state‘s vital interest in protecting resident children and the interrelatedness of visitation and support issues might give a state already exercising jurisdiction under the UCCJA jurisdiction over support issues as well).
The superior court was therefore incorrect in its reliance upon Puhlman as a basis for dismissing Kerri McCaffery‘s claim. We address the issue left undecided by Puhlman: whether the contacts that give a state jurisdiction under the UCCJA will also allow it to address a request to modify a child support order.
(b) Kulko v. Superior Court
The United States Supreme Court addressed the exercise of personal jurisdiction in a child support proceeding in Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), and held that California lacked personal jurisdiction over a New York resident who had sent his children to live with their mother in California.
In Kulko, the husband and wife resided in New York for approximately thirteen years; their two children were born there. 436 U.S. at 86-87, 98 S.Ct. at 1693-94. When the couple separated, the wife moved to California and the husband remained in New York. Id. at 87, 98 S.Ct. at 1694. The children were originally to spend the school year with the father and Christmas, Easter, and summers with the mother; the father was to pay some support to the mother for the time the children spent with her. Id. In December 1973 the daughter told her father that she wanted to move to California to be with her mother; the father bought a one-way plane ticket for her. Id. In January 1976 the son followed. Id. at 88, 98 S.Ct. at 1694-95. Less than a month later, the mother sought to modify the divorce decree to obtain full custody and to increase the father‘s child support obligations. Id.
Like any standard that requires a determination of “reasonableness,” the “minimum contacts” test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite “affiliating circumstances” are present. ... We recognize that this determination is one in which few answers will be written in black and white. The greys are dominant and even among them the shades are innumerable.
Kulko, 436 U.S. at 92, 98 S.Ct. at 1697 (citations and quotations omitted) (emphasis added). The Court later added:
The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.... [I]t is essential in each case that there be some act by which the defendant purposefully avails [him]self of the privilege of conducting activities within the forum State....
Id. at 93-94, 98 S.Ct. at 1698 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958)) (alterations in original).
Under this analysis, the Court found no sufficient purposeful act by the father to avail himself of the benefits and protections of California‘s laws. Kulko, 436 U.S. at 94, 98 S.Ct. at 1698. The Court noted that “basic considerations of fairness” pointed toward New York as the proper forum, since the father “remained in the State of the marital domicile, whereas it is [the mother] who has moved across the continent.” Id. at 97, 98 S.Ct. at 1699.
The Court recognized that California had “unquestionably important” interests in protecting the welfare of its minor residents, but it noted that those interests were already being served by URESA.5 Id. at 98, 98 S.Ct. at 1700. Finally, it suggested that the outcome might be different if California had asserted a “particularized interest in trying such cases in its courts by, e.g., enacting a special jurisdiction statute.” Id. It concluded: “[T]he mere act of sending a child to California to live with her mother is not a commercial act and connotes no intent to obtain or expectancy of receiving a corresponding benefit in the State that would make fair the assertion of that State‘s judicial jurisdiction.” Id. at 101, 98 S.Ct. at 1701.
(c) Applying Kulko to the present case
The Kulko decision has not been received with universal satisfaction. In some ways, it places less importance on a personal and moral obligation, than it does on a merely economic obligation.6 By extending the purposeful availment standard to the parent-child relationship, it gives great emphasis to the “contacts” requirement of International Shoe. International Shoe and subsequent cases held that the Due Process Clause “does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.” International Shoe, 326 U.S. at 319, 66 S.Ct. at 160 (emphasis added); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294, 100 S.Ct. 559, 565-66, 62 L.Ed.2d 490 (1980). Some commentators have suggested that the ties and relations between a parent and child create ties and relations between the parent and the state in which the child lives sufficient to satisfy notions of fairness in exercising personal jurisdiction in support proceedings.7 In other words, the parent-child relationship may be seen as the archetype of “affiliating circumstances.” See Hanson, 357 U.S. at 246, 78 S.Ct. at 1235-36.
Others have suggested that Kulko relies too heavily upon URESA as an alternative.
We consider it significant that the Supreme Court in Kulko emphasized that the mother could have brought all of her claims in New York. 436 U.S. at 95, 98 S.Ct. at 1698-99. Here, if Alaska cannot hear the support claim then there is no one state where all of Kerri‘s claims can be litigated. Alaska, as the child‘s home state, has exclusive jurisdiction over custody (and visitation) issues under the UCCJA and PKPA. Thus neither Texas nor Oregon may modify the custody or visitation provisions. See Rogers v. Rogers, 907 P.2d 469, 471-72 (Alaska 1995) (holding that home state‘s jurisdiction to modify custody decree is exclusive under PKPA). But under David‘s analysis only Oregon, a state with no relation to the mother, the children, or the marriage, could hear the support issue.12 Even if Kerri could have used URESA to modify the Texas decree in Oregon, as the Kulko Court suggested, she would still have had to maintain two separate actions upon substantially similar
We also consider it significant that Kulko was decided before the widespread enactment of the UCCJA.13 The defendant in Kulko had no contacts with California; the Court‘s analysis focused on the fairness of haling him into court in California and whether he could reasonably expect to be subjected to personal jurisdiction in California. 436 U.S. at 97-98, 98 S.Ct. at 1699-1700. Here, David is already before an Alaska court with respect to issues of visitation and transportation expenses. He does not dispute that Alaska has jurisdiction over him with respect to these issues.14 The question now becomes, once David is haled into court in Alaska on a custody claim, would making him answer the support modification claim violate “traditional notions of fair play and substantial justice“?15 International Shoe, 326 U.S. at 316, 66 S.Ct. at 158. It may be in David‘s interest to have an Oregon court hear the support issue, but that is not the issue. If making him defend the support claim in Alaska would not impermissibly burden his right to due process, then Alaska may assert jurisdiction.
Kulko involved a complex balance of interests: the father‘s, the mother‘s, the children‘s, and the potential fora‘s. It would be easy to reduce it to a simple rule-there is no personal jurisdiction over nonresidents in child support proceedings-and affirm. But we believe that such a holding would ignore important differences between that case and this one. No party has remained in the issuing state. URESA has not proven as effective аs the Kulko Court had hoped; it remains to be seen what difference the UIFSA will bring.16 The father is already before the Alaska court under the UCCJA to determine visitation issues. There is no concern that the exercise of jurisdiction would “discourage parents from entering into reasonable visitation agreements.” Kulko, 436 U.S. at 93, 98 S.Ct. at 1697. Any discouragement would result from the UCCJA scheme, which extends jurisdiction to visitation agreements already, and not of the exercise of jurisdiction here.
Furthermore, assertion of jurisdiction by Alaska here simply makes sense. An Alaska court is already deciding issues of custody and visitation. A visitation determination inherently affects the amount of child support owed by the оbligor parent. Alaska Civil Rule 90.3(a)(3) specifically links the two issues: a court may allow an obligor parent to reduce child support payments up to fifty percent for any period in which that parent has extended visitation of over twenty-seven consecutive days. This rule recognizes that a parent‘s own expenses are greater (and the other parent‘s expenses less) when that parent exercises visitation rights. To decide custody and visitation issues without being able to make the logically concomitant support modification could result in an imba-
Other commentators have noted that support and custody issues are intertwined:
Dissolution of marriage determines status and does not carry with it any inevitable consequences. The parties are not presumed to have any ongoing obligation to one another. Therefore, in a divorce action it is conceptually justifiable to sever the economic issues from the status issues and require personal jurisdiction to resolve the former. In contrast, divorce does not extinguish a parent‘s obligation to his or her children. While the amount of monthly payments is certainly a subject of frequent dispute, the fact remains that the noncustodial parent can reasonably anticipate being liable for some amount of child support. The parent‘s obligation to support the child is not merely related to the status determination; it is an inevitable concomitant of custody decisions.
Monica J. Allen, Child-State Jurisdiction: A Due Process Invitation to Reconsider Some Basic Family Law Assumptions, 26 Fam. L.Q. 293, 307 (1992). The close relationships between visitation and support and between custody and support, and the inverse effect each can have on the other, suggest that a court with exclusive jurisdiction to modify visitation rights under the UCCJA should have the power concurrently to adjust support obligations.17, 18
B. Transportation Cost Issue
Kerri‘s original motion to modify the transportation cost arrangement asked that the court order the parties to alternate buying round-trip airplane tickets for visitation so that the parties could avoid wasting money on separate one-way tickets. David responded by objecting that the burden of paying for an entire round-trip ticket every other visit may be harder to bear than paying for a one-way ticket for each visit. He wrote: “Mr. Green is requesting that ... they continue to divide the expense of travel equally per visit or at the very least be able to fly their children one way as is currently in force.” Kerri filed a reply that indicated she did not oppose David‘s suggestion that they divide expenses and asked that the parties thus split the cost of a rоund-trip ticket for every visitation trip. In this way, the parties could both save money without putting an additional burden on David‘s finances by requiring him to make a significant outlay every other trip.
Because the parties seem to have agreed on a reasonable procedure to save money by avoiding the purchase of two separate one-way tickets for each visitation, the superior court‘s denial of the motion to modify, issued without explanation, is perplexing. The court may not have appreciated that the parties at the time were purchasing separate one-way tickets and were agreeing to split the round-trip cost instead.
IV. CONCLUSION
Alaska is currently exercising personal jurisdiction over David Green under the UCCJA and PKPA for child custody and visitation-related issues. Texas, the issuing state, no longer has jurisdiction over any issues since all parties have moved away. Given the interrelatedness of custody and visitation with child support issues, given that all parties have left the marital domicile, and given that David is already before the Alaska courts, it would not violate “traditional notions of fair play and substantial justice” to exercise рersonal jurisdiction over David on child support issues.
The superior court also denied a motion to modify where the parties seem to have agreed upon a mutually acceptable cost-saving arrangement.
The case is REVERSED and REMANDED on both the child support and the transportation cost issues.
RABINOWITZ, J., dissents in part.
RABINOWITZ, Justice, dissenting in part.
Article VI of the Constitution of the United States provides in Clause 2:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.
With regard to the Supremacy Clause of the Federal Constitution, we said in Totemoff v. State, 905 P.2d 954, 963 (Alaska 1995):
We are not obliged to follow Katie John, since this court is not bound by decisions of federal courts other than the United States Supreme Court on questions of federal law. In re F.P., 843 P.2d 1214, 1215 n. 1 (Alaska 1992), cert. denied, 508 U.S. 950, 113 S.Ct. 2441, 124 L.Ed.2d 659 (1993).1
The basic principle operative here is that all American courts, state and federal, owe obedience to the decisions of the Supreme Court of the United States on questions of federal law, and a judgment of the Supreme Court provides the rule to be followed in all such courts until the Supreme Court sees fit to reexamine it.2 1B James W. Moore, Moore‘s Federal Practice § 0.402[1], at I-10 (2d ed. 1996).
Given the mandate of the Supremacy Clause and this court‘s acknowledgment that it is obligated to follow the decisions of the United States Supreme Court on questions of federal law, I dissent from the majority‘s departure from the holding of Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).
In Kulko, the United States Supreme Court held that California lacked personal jurisdiction over Ezra Kulko, who had sent one of his daughters to live with her mother in California. The Court ruled:
The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state.... [I]t is essential in each case that there be some act by which the defendant purposefully avails [him]self of the privilege of conducting activities within the forum state....
See also Freeman v. Lane, 962 F.2d 1252, 1258 (7th Cir.1992); Kraus v. Board of Ed. of Jennings, 492 S.W.2d 783, 784-85 (Mo.1973).
I readily concede that there are numerous grey areas implicated in the methodology of personal jurisdiction analysis once the “essential” element of “the defendant purposefully availing himself” of the privilege of conducting activities within the forum state is satisfied. Nevertheless, the purposeful availment element is the sine qua non of personal jurisdiction. Since Kulko is squarely on point, I am not persuaded that we are free to disregard its teachings. Thus I would affirm the superior court‘s denial of Kerri‘s motion for modification of child support on the basis that under Kulko the superior court lacked personal jurisdiction over David Green.3
Notes
As the court of appeals observed in Harrison v. State, 791 P.2d 359 (Alaska App.1990):
Where a federal question is involved, the courts of Alaska are not bound by the decisions of a federal court other than the United States Supreme Court.
Id. at 363 n. 7 (citations omitted).
1 Homer H. Clark, Jr., The Law of Domestic Relations § 13.4, at 761 (2d ed. 1987).In the ordinary sense of the phrase it seems clear that the defendant in Kulko purposely availed himself of the protection and benefits of California‘s laws when he sent his daughter there to live. If the defendant here had been an insurance company which sent one of its policies into California, it would have apparently been liable to suit in California [citing McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)]. The Kulko opinion suggests that this standard is only met when the defendant has sought a commercial benefit in the forum state.... A rule of law which gives greater weight to the enforcement of commercial contracts than to the enforcement of duties of support in the family can only be characterized as enacting a topsy-turvy system of values.
Monica J. Allen, Child-State Jurisdiction: A Due Process Invitation to Reconsider Some Basic Family Law Assumptions, 26 Fam. L.Q. 293, 311 (1992).Child-state jurisdiction is based on the understanding that the ties between parent and child are unique and exist regardless of the father‘s intentions or his actions.
Child-state jurisdiction is also an implementation of the universally accepted notion that the duty to support one‘s children is an inevitable consequence of one‘s status as a parent.... [T]he child‘s presence in a given state does not link nonresident parents to the state for all purposes, but only for those purposes which inevitably flow from their status as a parent.
The United States Supreme Court itself recognized URESA‘s shortcomings in 1981. Jones v. Helms, 452 U.S. 412, 425 & n. 26, 101 S.Ct. 2434, 2443 & n. 26, 69 L.Ed.2d 118 (1981) (“Although appellant‘s argument [that URESA is inadequate to enforce support obligations] is persuasive, for purposes of deciding this case we need neither accept nor reject it.“) (citing commentators critical of URESA).
For our рurposes, however, it is sufficient to note that Oregon law on the use of URESA to modify a foreign support decree is unsettled. See State ex rel. Neb. v. Brooks, 34 Or.App. 975, 580 P.2d 206, 207 (1978) (holding that Oregon may not modify foreign decree under URESA), opinion withdrawn, result adhered to on other grounds, 35 Or.App. 805, 583 P.2d 12 (1978) (leaving question open); State ex rel. La. v. Phillips, 39 Or.App. 325, 591 P.2d 1196 (holding modification possible), aff‘d on reh‘g, 40 Or.App. 547, 595 P.2d 1276 (1979); In the Matter of Marriage of Tavares, 293 Or. 484, 651 P.2d 133, 137 n. 5 (1982) (citing above cases, noting that Oregon Supreme Court has never decided whether foreign decree may be modified).
It is also not clear that Oregon would represent Kerri at all in a URESA action. See In the Matter of Marriage of Hazen and Henderson, 74 Or.App. 322, 702 P.2d 1143, 1147 n. 5 (1985) (“[R]ealistically it would be highly unlikely that the prosecutors’ offices in Oregon represent mother under URESA in view of the fact that there is no support arrearage.“), overruled on other grounds by In the Matter of Marriage of Horn, 97 Or.App. 177, 775 P.2d 338, 339 (1989). We further note that the UIFSA did not take effect in Oregon until after Kerri had filed her complaint. See
Indeed, Justice White later retreated somewhat from his own World-Wide Volkswagen language, quoted above, in Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n. 10, 102 S.Ct. 2099, 2104-05 n. 10, 72 L.Ed.2d 492 (1982) (The restriction on jurisdiction “must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause. That Clause is the only source of the personal jurisdiction requirement and the Clause itself makes no mention of federalism concerns.“).
Kerri cites Plucker v. Plucker, 338 N.W.2d 842 (S.D.1983), for the proposition that a child‘s domicile in a state alone can give that state personal jurisdiction over a nonresident parent for child support issues. But Plucker is not quite on point, since the forum state there was the marital domicile and the father abandoned the mother and children in that state. Id.