In re Albar
| Decision Date | 31 May 2018 |
| Docket Number | A161561 |
| Citation | 424 P.3d 774,292 Or.App. 146 |
| Parties | In the MATTER OF the MARRIAGE OF Fatima Mohammad ALBAR, Petitioner-Respondent, and Hazim Yousef NAJJAR, Respondent-Appellant. |
| Court | Oregon Court of Appeals |
George W. Kelly, Eugene, argued the cause and filed the brief for appellant.
No appearance for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
Father appeals a judgment granting custody of children and awarding child support to mother. We address three of father's assignments of error.1 In his first assignment of error, father argues that the trial court erred when it determined that he had waived his objection to the court's personal jurisdiction. We conclude that father did not waive his objection to personal jurisdiction but the court had jurisdiction over father on other grounds, and we affirm the court's jurisdictional determination on that alternative basis. In his third assignment of error, father argues that the trial court erred when it determined his child support obligation based on a calculation of mother's income that excluded monetary gifts from her family. We conclude that the court erred in that respect. In his seventh assignment of error, father argues that the court erred when it made his parenting time conditional on the children's agreement. We conclude that the court erred in that respect as well. Accordingly, we reverse and remand for the trial court to recalculate father's child support obligation and amend its parenting plan. As a result of that reversal, we also reverse the trial court's denial of attorney fees to father. Otherwise, we affirm.
The pertinent facts are undisputed. Father and mother are both citizens of Saudi Arabia. They were married there, had children there, and eventually moved with their children to Oregon under student visas to pursue post-graduate degrees. Later, father repudiated the marriage under Islamic law and obtained a divorce certificate from a local Islamic center. Eventually, father's visa expired and he moved back to Saudi Arabia, while mother remained in Oregon with the couple's minor children. Father has not returned to the United States since that time and has resided in Saudi Arabia and the United Arab Emirates.
Several years after father returned to Saudi Arabia, mother filed a petition for dissolution of marriage in Oregon in which she sought custody of the children and child support. Father's first filed response to mother's petition was captioned "Response to Petition for Dissolution of Marriage" and "Special Appearance." In that response, father objected that the trial court lacked personal jurisdiction over him because he had insufficient contacts with Oregon. In addition, father objected that the court lacked subject matter jurisdiction over mother's dissolution petition because the couple was already divorced. Finally, father responded to various allegations in mother's petition and requested an award of attorney fees and costs, all "without waiving [father's] affirmative defenses * * * [including] jurisdictional objections."
Father subsequently moved to dismiss mother's petition based on his contention that the trial court lacked personal jurisdiction over him. The court determined that father's initial response constituted a "general appearance" that "called upon the power of [the] court." As such, the court held that father had "waived his opportunity to object to personal jurisdiction." The court then found that it had personal jurisdiction over father based on that waiver and went on to grant various aspects of mother's petition.
Following trial, the court granted custody to mother, allowed father to contact or visit with the children in Oregon subject to their agreement, and imposed on father a monthly child support obligation of $1,412.
In his first assignment of error, father contends that the trial court erred when it concluded that he had waived his objection to personal jurisdiction. Father argues that "the end result—a judgment that created a personal obligation (child support)—must be reversed." While we determine that father did not waive his objection to the court's personal jurisdiction, we nevertheless conclude that the court had personal jurisdiction over father for the purpose of entering the support order.
Father argues that he did not waive his objection to the trial court's personal jurisdiction over him because he responded "specifically to object to jurisdiction," which was included in his first responsive pleading, and both his response to allegations in mother's petition and his request for fees and costs were made "without waiving his jurisdictional defenses."
Objections based on personal jurisdiction are governed by ORCP 21. Although father's response in this case raised additional defenses, responded to allegations, and sought fees and costs, ORCP 21 A provides that "[n]o defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion." Similarly, ORCP 21 G(1) provides that, when, as here, a responsive pleading is filed, a defense of lack of personal jurisdiction is not waived if it is "included" in the responsive pleading, without expressly limiting the other claims, defenses, or responses that may also be included in that same pleading. See Adams and Adams , 173 Or. App. 242, 251, 21 P.3d 171 (2001) ().
Our prior opinions and ORCP 21 broadly permit parties to object to personal jurisdiction in an initial responsive pleading without first making a special appearance solely to challenge jurisdiction. See Dept. of Human Services v. M. C.-C. , 275 Or. App. 121, 124 n. 1, 365 P.3d 533 (2015), rev. den. , 358 Or. 611, 369 P.3d 386 (2016) (). Compare Pacific Protective Wear Distributing Co., Inc. v. Banks , 80 Or. App. 101, 105, 720 P.2d 1320 (1986) , with O'Connor and Lerner , 70 Or. App. 658, 661-62, 690 P.2d 1095 (1984) ( ). In this case, father challenged the trial court's exercise of personal jurisdiction at the first opportunity. Father did not respond to mother's petition for dissolution of marriage or otherwise appear before the court in that matter before objecting, in his first responsive pleading, to the court's exercise of personal jurisdiction. Accordingly, father did not waive his objection to the court's jurisdiction over him by raising it along with other responses and requests, as permitted by ORCP 21 A and G, at the "earliest possible time" in his first responsive pleading.
A valid judgment imposing a personal obligation on a defendant may be entered only by a court having personal jurisdiction over the defendant. World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed. 2d 490 (1980). Effective personal jurisdiction is subject to both statutory and constitutional requirements. First, a long-arm statute must, under the circumstances presented, confer jurisdiction; second, the court's assertion of jurisdiction must not offend the defendant's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. State ex rel. Sweere v. Crookham , 289 Or. 3, 6, 609 P.2d 361 (1980).
Although the trial court here erred by concluding that father had waived his objection to the court's personal jurisdiction over him, we nevertheless conclude on the merits that the court had personal jurisdiction over father to establish a child support order.2
Under ORCP 4 L, Oregon's primary long-arm statute, jurisdiction exists "in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States."3 As we will discuss, personal jurisdiction over father in this case is consistent with constitutional standards. Accordingly, ORCP 4 L provided the trial court with long-arm jurisdiction over father for the purpose of resolving his obligations arising from mother's petition for dissolution of marriage.
ORS 110.518 ; see also ORS 110.510(1) (); State ex rel. Simons v. Simons , 265 Or. App. 557, 559, 336 P.3d 557 (2014) (...
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