Baker v. Baker

• Decision Date: 03 December 1979
• Docket Number: No. 12719,12719
• Parties: Linda Gay BAKER, Plaintiff-Respondent, v. Michael Calvin BAKER, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 590

603 P.2d 590

100 Idaho 635

Linda Gay BAKER, Plaintiff-Respondent, v. Michael Calvin BAKER, Defendant-Appellant.

No. 12719.

Supreme Court of Idaho.

Dec. 3, 1979.

Dean Williams of Kerr, Williams & Clarke, Blackfoot, for defendant-appellant.

Murray J. Sorensen of Larsen & Sorensen, Blackfoot, for plaintiff-respondent.

BISTLINE, Justice.

The defendant-appellant in this divorce action, Michael Baker, was personally served with summons and complaint at Grants Pass, Oregon, and declined to appear generally in the action. By special appearance only he raised objections in the trial court to that court's jurisdiction to make a determination of custody or an order of child support which challenges he based upon the premise that he and the children were not in Idaho, but in Oregon when the action was commenced.

The sole question we decide is whether the Idaho long-arm statute, I.C. § 5-514, clothes the district courts with sufficient jurisdiction in a divorce action to render an in personam judgment against a non-appearing defendant on issues of child custody, child support, and attorney fees. We hold that it does. Finding it unnecessary to do so, we do not decide whether the Uniform Child Custody Jurisdiction Act, enacted by the 1977 legislature with an effective date of July 1, 1977, is applicable to litigation commenced by the filing of a divorce complaint prior to that effective date.

The Bakers were married in Blackfoot, Idaho, and they and two children born to them in Blackfoot lived there continuously until Baker, following an altercation, went to Oregon. She procured the issuance of a warrant for his arrest. He called from Oregon, asking her to join him; she declined. A few days later he came to the family home in Blackfoot in the early morning, and, aided and abetted by his father and brother, and over her protests, he took the children from her and into Oregon. Mrs. Baker immediately filed an action for divorce, asking custody of the children and child support. Following his special appearance, on July 1, 1977, the trial court ruled that I.C. § 5-1001 Et seq., effective that date, conferred jurisdiction upon the court to determine questions of child custody and child support. ¹

Baker, citing I.C. § 73-101, contends that the Uniform Act cannot be given application to an action pending before its effective date. ² We need not decide this issue because we agree with Mrs. Baker's contention that the trial court was vested with in personam jurisdiction over the defendant by virtue of the long-arm statute. ³ Baker relies heavily upon May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) and Newell v. Newell, 77 Idaho 355, 293 P.2d 663 (1956). In both of these cases it was held that where the children were corporeally in another state when the action was commenced, and no general appearance was made by the absent spouse being sued for divorce, a decree purporting to award custody of the children was not entitled to full faith and credit, by reason of failure of an in personam jurisdiction. Baker's reliance on these cases is misplaced in that, though May was good law at the time, in personam jurisdiction has since been expanded beyond a state's boundaries by the long-arm statutes of the states involved in those cases.

In earlier days a divorce action was classified as an action in rem or quasi in rem since the marital status is the res. Substituted service was effective in gaining jurisdiction to dissolve the marriage, but:

"Substituted service does not warrant the rendition of a judgment in personam . . . and is ineffective to confer jurisdiction as to the personal rights and liabilities of the defendant."

Newell v. Newell, 77 Idaho at 363, 293 P.2d at 668.

Our long-arm statute, passed in 1961, five years after Newell v. Newell, as applicable here, states:

"Any person . . . who . . . does any of the acts hereinafter enumerated, thereby submits said person . . . to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:

"(e) The maintenance within this state of matrimonial domicile at the time of the commission of any act giving rise to a cause of action for divorce or separate maintenance."

Idaho Code § 5-514.

Baker concedes that the district court had jurisdiction to decree a divorce and a division of the marital property, since I.C. § 5-514(e) provides that the maintenance of matrimonial domicile in Idaho confers personal jurisdiction over the defendant for any cause of action for divorce arising in this state; he contends, nevertheless, that it could not award custody of the children or grant money judgments for their support. We do not agree.

Child custody, and support of minor children are incidents to the disposition of a divorce action. I.C. § 32-705. Phillips v. Phillips, 93 Idaho 384, 462 P.2d 49 (1969); Smith v. Smith, 67 Idaho 349, 357, 180 P.2d 853, 858 (1947).

If the district court acquired an in personam jurisdiction over Baker by reason of the provisions of I.C. § 5-514(e), that jurisdiction extended to all facets of the divorce cause of action, and was as complete as it would have been had Baker been personally served in Idaho, or had he appeared generally in the action.

We must also consider the actions of the legislature in including divorce actions as being within the purview of the long-arm statute. Clearly that purpose was To extend the in personam jurisdiction of the courts of this state in divorce cases over those defendants who were maintaining matrimonial domicile in this state when the cause of action for divorce arose. If we were to hold with appellant that § 5-514(e) only authorizes the award of a divorce decree and the distribution of marital property located in this state, we would in effect be holding that the legislature was engaged in a useless endeavor in enacting said subsection (e). This is so simply because prior to the enactment of our long-arm statute the courts of this state already had sufficient jurisdiction to dissolve the marriage and make disposition of property within the state. It is logical to infer that the legislature, in enacting our long-arm statute, was well aware of its own previous enactments and the decisions of this Court pertaining to those enactments.

This Court has held that our long-arm statute is to be "liberally construed." Intermountain Business Forms, Inc. v. Shepard Business Forms, 96 Idaho 538, 540, 531 P.2d 1183, 1185 (1975). Moreover, Idaho Code § 5-514 exhibits a legislative intent to exercise "all the jurisdiction available to the State of Idaho under the due process clause of the United States Constitution." Doggett v. Electronics Corp. of America, Combustion Control Division, 93 Idaho 26, 30, 454 P.2d 63, 67 (1969).

In Owens v. Superior Court of Los Angeles County, 52 Cal.2d 822, 345 P.2d 921 (1959), the Supreme Court of California had before it Section 417 of the California Code of Civil Procedure providing that:

" 'Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Sections 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was a resident of this State (a) at the time of the commencement of the action, or (b) at the time that the cause of action arose, or (c) at the time of service.' "

345 P.2d at 922.

The defendant in that personal injury case was personally served in Arizona in which state he was a permanent resident at the commencement of plaintiff's action in California. ⁴ Accordingly the Court noted that jurisdiction under Section 417 had to be based on the defendant's California residence when the cause of action arose. Defendant argued that his being a California resident when the cause of action arose was insufficient to subject him to an in personam jurisdiction.

Justice Traynor writing for the California court discussed the earlier case of Allen v. Superior Court, 41 Cal.2d 306, 259 P.2d 905 (1953), observing that the constitutional limitations of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), had there been reviewed against the redefinition of those limitations in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940):

"It was against this background that the Legislature enacted section 417, and we concluded that as 'so based on the broad authority of sections 412 and 413, section 417 is manifestly designed to restrict the power of the court if a personal judgment is to be entered. Thus its operation is made dependent on defendant's residence within the state either at the time of commencement of the action or time of service, and on his personal service with summons.' 41 Cal.2d at page 312, 259 P.2d at page 908. We held that personal jurisdiction could constitutionally be based on the defendant's domicile here at the time of the commencement of the action, stating:

" 'One main objection to service by publication on a person residing outside of the state is that due process requires fair notice. This was a consideration in Milliken v. Meyer, supra, 311 U.S. 457, 61 S.Ct. 339, (85 L.Ed. 278,) upholding a personal judgment against a domiciliary based on the personal service of process while absent from the state. It was there said, at page 464 of 311 U.S., at page 343 of 61 S.Ct.: "One * * * incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him. " The same principle on analogous reasoning applies where a domiciliary at the time of the commencement of the action thereafter changes his state of residence and is personally served with process in the...