Tеrrence L. PUHLMAN, Appellant, v. Carol A. TURNER, formerly known as Carol A. Puhlman, Appellee.
No. S-5422.
Supreme Court of Alaska.
May 27, 1994.
876 P.2d 540 | 291-298
Conclusion
I believe Swanner has been presented with a Hobson‘s choice of either complying with the law or abandoning the precepts of his religion. Since the government‘s interest in this particular law does not outweigh Swanner‘s fundamental religious rights, Swanner should be granted an exemptiоn to accommodate his beliefs. The AERC relies on nothing more than a pure conclusion that the state has a compelling interest in preventing marital status discrimination in housing. It has not presented any evidence that an exemption in this case would result in a substantial threat to housing availability. Nor does it explain exactly what is so invidious about marital status discrimination as to make its proscription a governmental interest of the highest order, comparable with the state‘s interest in eradicating racial or gender discrimination. For these reasons, I fail to see how a limited exemption for Swanner and others similarly situated is not justified. In my opinion, the analysis and result set forth in this case will return to haunt this court in future decisions.
Employment Sec. Div. v. Smith, 450 U.S. 707, 719, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981) (rejecting state‘s asserted reasons for refusing a religious exemption due to lack of evidence in the record); Wisconsin v. Yoder, 406 U.S. 205, 224-29, 92 S.Ct. 1526, 1537-40, 32 L.Ed.2d 15 (1972) (rejecting state‘s argument concerning the dangers of a religious exemption as speculative and unsupported by the record); Sherbert v. Verner, 374 U.S. 398, 407, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963) (“[T]here is no рroof whatever to warrant such fears ... as those which the [state] now advance[s].“); see also Smith, 494 U.S. at 911, 110 S.Ct. at 1618 (Blackmun, J., dissenting) (state‘s assertion that religious exemption for peyote use would harm health and safety of state citizens is unsupported and speculative).
George E. Weiss, Anchorage, for appellee.
Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
OPINION
COMPTON, Justice.
The superior court held that if a nonresident parent seeks to enforce in Alaska the visitation provisions of an out-of-state divorce deсree, the Alaska court may exercise personal jurisdiction over the nonresident in a proceeding to modify the support provisions of the decree. We vacate the superior court‘s order and direct entry of an order dismissing the support modification proceeding.
I. FACTUAL AND PROCEDURAL BACKGROUND
Terrence L. Puhlman, a member of the United States Armed Forces, and Carol A. Turner married and had two children. On September 15, 1988, they obtained a divorce in Texas. A modification decree entered by the Texas court on July 27, 1990 (Texas Order)1 provides in part that (1) Turner has primary physical custody of the children; (2) Puhlman has visitation rights including custody of the children for approximately three months each summer; (3) Turner is to “deliver,” i.e., be financially responsible for transporting, the children to Puhlman‘s residence at the beginning of the summer; (4) Puhlman is to similarly “deliver” the children to Turner‘s residence at the end of the summer; and (5) Puhlman is to pay child support in the amount of $296.00 per month during the months in which Turner has custody of the children. Turner and the children moved to Anchorage between entry of the original and modification decrees.
In 1992 Puhlman was stationed in Germany. Turner refused to pay for the children to fly to Germany that summer to visit Puhlman. Puhlman flew to Anchorage in June and filed the Texas Order with the superior court,
The superior court enforced the Texas Order, directing that the children be allowed to go to Germany for the remainder of the summer, and that Turner bear the expense of their return to Anchorage at the end of the summer. The court deferred consideration of Turner‘s cross-motion to increase child support to the regular motions calendar, but opined that it had personal jurisdiction over Puhlman. Puhlman opposed the cross-motion, challenging the Alaska court‘s exercise of personal jurisdiction over him. The superior court ruled that Alaska did have personal jurisdiction over
II. DISCUSSION
It is well-settled that Alaska courts follow federal “minimum contacts” analysis when applying Alaska‘s long-arm jurisdiction statute,4 consistent with the due process requirements of the Fourteenth Amendment to the United States Constitution. See, e.g., Glover v. Western Air Lines, Inc., 745 P.2d 1365, 1367 (Alaska 1987); Volkswagenwerk, A.G. v. Klippan, GmbH, 611 P.2d 498, 500 (Alaska), cert. denied, 449 U.S. 974 (1980).
The United States Supreme Court analyzed minimum contacts with regard to child support obligations in Kulko v. Superior Court, 436 U.S. 84 (1978). The Kulkos separated in 1972 and were later divorсed. Pursuant to a separation agreement negotiated in New York, Kulko, a resident of New York, was awarded custody of the two children. He was ordered to pay child support during the children‘s visitation with Horn, their mother, who had moved to California. Id. at 87-88, 98 S.Ct. at 1693-1694. The children moved to California in 1973 and 1976 respectively. Horn initiated suit in California to obtain custody of the children and increase child support payments. Id. at 88, 98 S.Ct. at 1694. Kulko defended on the grounds that the California court lacked personal jurisdiction over him. Id. The United States Supreme Court agreed:
“Thе 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, 2 L.Ed.2d 1283 (1958)) (alteration in original). The Court decided that neither (1) Kulko‘s temporary presence in California, (2) his consent to allow his children to live in
Puhlman argues that Kulko is applicable to this case. We agree. The Kulko court distinguished the concepts of being forced into court and “purposefully availing” oneself of a court; a court‘s assertion of personal jurisdiction is proper only in the latter case. See Kulko, 436 U.S. at 93-94, 98 S.Ct. at 1697-98.
Turner attempts to distinguish Kulko because Puhlman initiated the proceeding in superior court, thereby “purposefully availing” himself of the Alaska court. The question becomes whether Puhlman, in seeking to enforce the Texas Order in Alaska, “purposefully availed” himself of the Alaska court, thereby subjecting himself to the long-arm jurisdiction of Alaska. This is an issue of first impression in Alaska. The Supreme Court of California answered this question in the negative. In Kumar v. Superior Court, 32 Cal. 3d 689, 186 Cal.Rptr. 772, 652 P.2d 1003, 1012-13 (1982),5 the court held that if a nonresident parent is forced to employ the courts of the forum state to enforce visitation rights pursuаnt to an out-of-state decree, the nonresident will not be subject to the state‘s long-arm jurisdiction. Puhlman argues that he was forced to avail himself of the Alaska court in the enforcement proceeding and should not be subject to personal jurisdiction in a collateral support modification proceeding.
This court is guided by the principle that due process of law requires “‘minimum contacts ... such that the maintenance of the suit does not offend traditional notions of fair play аnd substantial justice.‘” Glover, 745 P.2d at 1367 (quoting Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984)). This court has deemed it fair to exercise personal jurisdiction where “the defendant‘s contacts with the forum are substantial enough that the defendant could reasonably anticipate being haled into court....” Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985)). In this regard the distinction between enforcement of the visitation order and modification of the support order is important. Had Puhlman sought to register the Texas Order in Alaska in order to modify it, e.g., to decrease child support or increase visitation rights, then he reаsonably could expect to be brought before the Alaska court on the cross-motion to modify the Texas Order. However, because Puhlman sought only to enforce the Texas Order, he could not reasonably expect to be before the Alaska court on the cross-motion.6
Indeed, fairness was the guiding principle for the United States Supreme Court in Kulko and the Supreme Court of California in Kumar:
Principles of fairness preclude the exercise of personal jurisdiction where connection with the state resulted from an effort to encourage visitation with the non-custodial parent.... [The father] was virtually forced into the California court because [the mother] denied him his visitation rights. It would be grossly unfair to allow her now to claim that he thereby established “minimum contact” sufficient to establish personal jurisdiction.
Kumar, 652 P.2d at 1012-13 (citation omitted). Both cases noted the strong importance of promoting visitation by non-custodial parents. This policy would be undermined by subjecting to jurisdiction in another state
Puhlman argues that it would be unfair for the superior court to exercise personal jurisdiction over him:
If Puhlman wanted to see his children ... he had to come to Alaska. Even at that, Turner made it clear that he was wasting his time because she was not going to give him the children to take back to Germany in accordance with the Texas decree. Puhlman therefore had to domesticate the Texas decree in Alaska in order to physically get custody of the children to take them out of state.
We agree. The superior court concluded that the children were improperly withheld from Puhlman. Turner thus placed Puhlman in danger of forfeiting 1992 summer visitation with the children. He was forced to seek relief in the Alaska court to enjoy that visitation.
III. CONCLUSION
Federal and state long-arm jurisprudence protects due process rights by ensuring that courts exercise personal jurisdiction consistent with “traditional notions of fair play and substantial justice.” Glover, 745 P.2d at 1367 (quoting Calder, 465 U.S. at 788, 104 S.Ct. at 1486). We conclude that considerations of fairness preclude the Alaska court from exercising personal jurisdiction over a nonresident parent who seeks only to enforce visitation rights awarded in an out-of-state judgment.
For the foregoing reasons we VACATE the order of the superior court and direct the superior court to GRANT Puhlman‘s motion to dismiss Turner‘s cross-motion to modify child support.
BRYNER, J. Pro. Tem.,* not participating.
* Sitting by assignment made pursuant to
MATTHEWS, Justice, dissenting.
I. FACTS
The facts necessary for an understanding of the issues on this petition follow. Terrence Puhlman and Carol Turner wеre divorced in Texas on September 15, 1988. They were both residents of Texas. Carol was awarded custody of their two children. Terrence was awarded visitation rights which included summer vacation visits at his residence. Terrence was ordered to pay child support.
On or about April 15, 1989, Carol and the children moved from Texas. They have lived in Alaska since July 21, 1989.
On July 27, 1990, the Texas District Court modified the divorce decree concerning visitation and support. In particular, Terrence was required to pay the sum of $296 per month for the support of both children except during the summer months “when he has possession of the children,” and Carol was required to pay the costs for the children to travel to Terrence‘s home at the beginning of each vacation.1
In 1992 Terrence was stationed in Germany, although Texas was still his legal residence. The present case was initiated by Terrence on July 2, 1992, when he moved in the superior court for a writ of assistance requiring Carol to turn over the children to him for summer visitаtion pursuant to the terms of the Texas decree. On July 6th Carol filed a pleading entitled “Opposition to Emergency Motion for Writ of Assistance and Cross Motion to Modify Visitation and for Other Relief.” The cross motion asked for the following modifications of the visitation aspects of the Texas decree:
- That Terrence be required to post bond ensuring the return of the children to Alaska prior to the exercise of any visitation in view of his alleged “wilful and unjustified failures to return the children for the pаst two years....”
- That Terrence be required to pay round trip tickets for the children‘s visi-
tation “[i]n view of [Carol‘s] nominal income.”
Carol also asked that child support be increased pursuant to
A hearing was held on July 6, 1992. At the hearing the trial court granted the writ of assistance and the children were delivered to Terrence for visitation. After inquiring as to whether Terrence hаd continuing contacts with the state of Texas and learning that Terrence was still a resident there, the court ruled that Texas had continuing jurisdiction to modify visitation and that Alaska lacked modification jurisdiction. The court deferred ruling on the subject of jurisdiction to modify the Texas decree concerning child support until the parties were able to brief that question. After considering the parties’ briefs the court ruled that Alaska had jurisdiction to modify the Texas decree concerning child suppоrt. Subsequently Terrence filed a child support guidelines affidavit, indicating that the amount of child support he should pay under
II. DISCUSSION
This case got off to a bad start when the court ruled that it lacked jurisdiction to modify the visitation and custody aspects of the Texas decree. Had the original decree come from almost any other state, this ruling would have been accurate.
Most states exercise “significant connection” jurisdiction under their equivalent to section 3(a)(2) of the Uniform Child Custody Jurisdiction Aсt (UCCJA).2 This means that the state that issues the original decree has exclusive jurisdiction to modify the decree as to custody,3 even though the custodial parent and the children have established a “home state” residence in another state, so long as the non-custodial parent still has a significant connection with the original state and substantial evidence concerning the children is available there. These are vague standards. The federal Parental Kidnapping Prevention Act,
Texas law is unusual because it conditions the exercise of significant connection jurisdiction on a showing that no other state has “home state” jurisdiction.
If the trial court had correctly ruled that Alaska has modification jurisdiction concerning custody, the case for personal jurisdiction over Terrence regarding child support would stand before us in a different light. The quеstion would be whether a state having and exercising jurisdiction under the UCCJA and PKPA system to modify a decree from another state concerning custody may also entertain a motion to modify the child support aspects of the same decree. As the majority opinion notes, the parties have not raised this issue and the majority opinion expresses no view concerning it. However, since hanging in the balance are prospective payments of child support which will extend well into the next century, I would order supplemental briefs on this issue.6 See Vest v. First National Bank of Fairbanks, 659 P.2d 1233, 1234 n. 2 (Alaska 1983) (“Where an issue that has not been raised involves a question of law that is critical to a proper and just decision, we will not hesitate to consider it, particular-ly after calling the matter to the attention of the parties and affording them the opportuni-ty to brief the issue.“).
Although a final decision must be withheld, I suggest that a substantial case can be made that the same contacts and interests, and the absence of contacts and intеrests elsewhere, which have given Alaska exclusive jurisdiction over custody, suffice to justify the assertion of personal jurisdiction over the non-custodial parent on child support issues. In support of this view the following points can be developed:
(1) Alaska, as the home state of the chil-dren, has a vital interest in ensuring that the children residing in Alaska are adequately supported. Kulko v. California Superior Court, 436 U.S. 84, 98, 98 S.Ct. 1690, 1699, 56 L.Ed.2d 132 (1978); Perry v. Newkirk, 871 P.2d 1150 (Alaska, 1994);
(2) Custody, visitation and child support are inseparably related. In general, the more visitation a non-custodial рarent is awarded, the less child support the non-custodial parent has to pay.
(3) Kulko can be distinguished. The Court did not address the question whether the forum state had jurisdiction under the UCCJA. This is not surprising, as the underlying action in Kulko was begun in 1976 and most jurisdictions had not adopted the UCCJA before 1977. Congress added forcе to the jurisdictional system of the UCCJA by enacting the PKPA in 1981. The broad acceptance of the UCCJA/PKPA system is, in part, an indication that its jurisdictional rules are fair and do not offend “traditional notions of fair play and substantial justice.” This general consensus may carry over to child support questions because of the inter-relatedness of custody and child support. Anoth-
In summary, rather than reverse, I would order the parties to brief the question of whether the due process clause of the Fourteеnth Amendment allows the assertion of personal jurisdiction over a non-resident parent for the purpose of adjusting an out-of-state decree of child support in cases where Alaska has and is exercising jurisdiction under the UCCJA/PKPA to modify the same decree insofar as it relates to custody and visitation.
Andrew S. NELSON, Appellant, v. STATE of Alaska, Appellee.
No. A-4330.
Court of Appeals of Alaska.
May 13, 1994.
Notes
The court did not state the legal basis for this conclusion. At thе time the superior court entered this order, Alaska had become the “home state” of the children.The Texas Order is not challenged as being invalid. It is suggested that there may be a need to modify it, although Alaska does not have jurisdiction to modify it, which the parties are fully aware of and Ms. Turner‘s been aware of that fact for some time because of the prior litigation here. If it‘s to be modified, it‘ll be modified in Texas.
A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child‘s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child‘s present or future care, protection, training, and personal relationships[.]