Carr v. Carr

• Decision Date: 17 November 1988
• Docket Number: No. 17934,17934
• Citation: 180 W.Va. 12,375 S.E.2d 190
• Court: West Virginia Supreme Court
• Parties: Sue A. CARR v. Donald L. CARR.

Page 190

375 S.E.2d 190

180 W.Va. 12

Sue A. CARR v. Donald L. CARR.

No. 17934.

Supreme Court of Appeals of West Virginia.

Nov. 17, 1988.

Syllabus by the Court

1. "Once the circuit court's jurisdiction of the person attaches in a divorce action, jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action, including matters relating to alimony, child support, and custody, and a party may not avoid the continuing jurisdiction of the trial court to modify orders concerning alimony, child support, and custody by moving outside the geographical jurisdiction of this State." Syl. pt. 1, State ex rel. Ravitz v. Fox, 166 W.Va. 194, 273 S.E.2d 370 (1980).

2. "In general, this State adheres to the conflicts of law doctrine of lex loci delicti." Syl. pt. 1, Paul v. National Life, 177 W.Va. 427, 352 S.E.2d 550 (1986).

3. When a petition is filed in this State seeking modification of a foreign child support decree, the better result is obtained by filing the petition under the Uniform Reciprocal Enforcement of Support Act, regardless of whether the State originating the support order would permit modification.

Cecil C. Varney, Williamson, for Sue A. Carr.

Robert C. Chambers, Huntington, for Donald L. Carr.

BROTHERTON, Justice:

This proceeding relates to a petition for modification of a California support decree filed in West Virginia by the petitioner-mother. The respondent-father, a resident of California, answered and raised the issue of West Virginia's subject matter jurisdiction over the petition. On October 31, 1986, the Cabell County Circuit Court dismissed the petitioner's application for lack of jurisdiction to modify a foreign support order.

The parties to this action, Sue and Donald Carr, were divorced in California by order dated January 21, 1976. Donald Carr was ordered to pay child support for their child, Robert (Bobby) Carr, in the amount of $158.60 monthly until Bobby reached "the age of 18, is emancipated or until further order of the court, or the respondent's death." The child, Bobby, was born on July 18, 1972.

The petitioner-wife returned to West Virginia with Bobby in 1976. They currently reside in Cabell County, West Virginia, where they have resided continuously since 1982. On November 6, 1985, Sue Carr filed a petition for modification of the California child support order in the Circuit Court of Cabell County. A summons and copy of the petition were personally served on the respondent, Donald Carr, while he was visiting relatives in West Virginia. Mr. Carr continues to reside in California.

The respondent filed an answer to the petition, alleging that the West Virginia court lacked jurisdiction to modify a foreign divorce decree, or, alternatively, that the West Virginia court should decline to exercise jurisdiction as being an inconvenient and inappropriate forum. By final order dated October 31, 1986, the Circuit Court of Cabell County dismissed the petition because of lack of jurisdiction to enter an award modifying the foreign support decree. This proceeding is the petitioner's appeal to the West Virginia Supreme Court of Appeals from that final ruling.

The issue before us, then, is whether a West Virginia court has jurisdiction in this action to modify a foreign child support decree where the respondent-father is a resident of another state.

I.

We turn first to the issue of whether the non-resident respondent is properly before this Court. The due process clause of the Fourteenth Amendment serves as a limit on a state court's authority to exercise jurisdiction over a non-resident defendant. ¹ This issue was addressed in Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), where the United States Supreme Court held that the exercise of personal jurisdiction by California courts over the appellant-father, a resident of New York, violated the due process clause of the Fourteenth Amendment. In Kulko, the support decree was entered in New York and the divorce was obtained in Haiti. Citing the due process standards of minimum contacts and reasonable notice developed in Pennoyer v. Neff, ² International Shoe Co. v. Washington, ³ and Mullane v. Central Hanover Trust Co., ⁴ the Court found that the mere act of sending a child to live with her mother in California connoted no intent to obtain a corresponding benefit in California which would make equitable California's exercise of personal jurisdiction. Kulko, 436 U.S. at 91, 97, 98 S.Ct. at 1696, 1699-1700, 56 L.Ed.2d at 140-41, 145. The father did not visit California himself, but merely sent his daughter to live in California at the child's request.

Unlike the fact situation in Kulko, the respondent-father in this case was personally served while visiting relatives in West Virginia. We believe the respondent has established sufficient contact with West Virginia to make the exercise of jurisdiction equitable. ⁵ In fact, the respondent does not dispute the issue of personal jurisdiction, arguing only against the existence of subject matter jurisdiction. Consequently, we believe the respondent is properly before this Court. ⁶

II.

We now address the issue of whether West Virginia has the authority to exercise jurisdiction over this action for support, and consequently, the non-resident respondent.

The United States Supreme Court decision in Kulko, while enlightening, did not reach the issue of whether California could have modified the New York support agreement since personal jurisdiction had not been obtained over the defendant. Therefore, we must look elsewhere for guidance.

This Court addressed the issue tangentially in State ex rel. Ravitz v. Fox, 166 W.Va. 194, 273 S.E.2d 370 (1980). In Ravitz, the parties were divorced in West Virginia in 1975. Subsequently, the father moved to New Jersey and the mother and children to Florida. In 1976, the mother instituted an action in New Jersey seeking to enforce the divorce decree and collect accrued support payments. The parties then agreed on those issues and an order was entered dealing only with visitation. In 1979, the mother initiated modification proceedings in West Virginia. Counsel for the father appeared specially in West Virginia and moved to dismiss, alleging lack of personal jurisdiction since the father resided in New Jersey and stating that New Jersey had modified and assumed jurisdiction, thus divesting West Virginia courts of personal jurisdiction.

In Ravitz, the Court concluded that West Virginia had continuing jurisdiction to modify a divorce and support decree issued by a West Virginia court. ⁷ Specifically, the Court held that:

[o]nce the circuit court's jurisdiction of the person attaches in a divorce action, jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action, including matters related to alimony, child support, and custody, and that a party may not avoid the continuing jurisdiction of the trial court to modify orders concerning alimony, child support, and custody by moving outside the geographical jurisdiction of this State.

166 W.Va. at 199, 273 S.E.2d at 373. Under this approach, the California court would be the proper forum in which to modify the California support decree. ⁸

III.

Our inquiry does not end, however, with the determination of West Virginia's position on modification of foreign support decrees. This State adheres to the traditional lex loci delicti theory of conflicts of law. Paul v. National Life, 177 W.Va. 427, 352 S.E.2d 550 (1986). Under that doctrine, the law of California, as the state of the original decree, should apply.

A review of California law reveals that the California Supreme Court permits the modification of a foreign support decree. ⁹ In Worthley v. Worthley, 44 Cal.2d 465, 283 P.2d 19 (1955), the California Supreme Court was faced with a situation in which the parties, who were married in New Jersey and divorced in Nevada, had previously entered into a support agreement in New Jersey. The defendant-husband moved to California, where the plaintiff-wife commenced an action to enforce the New Jersey support agreement. The husband contended the Nevada divorce terminated any right to support from the New Jersey agreement.

The California Supreme Court reported that it had previously determined a California court would recognize and give prospective enforcement to a foreign alimony decree, despite the fact the decree remained subject to modification under the law of the state which originally rendered the decree. In doing so, the court established the foreign decree as a California decree subject to enforcement by contempt if the defendant failed to comply. ¹⁰ The court also recognized that in Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1946), the United States Supreme Court held an action to enforce an alimony decree for arrearages could be maintained in another jurisdiction with proper notice.

Speaking for the California Supreme Court, Justice Traynor concluded that "foreign-created alimony and support obligations are enforceable in this state. In an action to enforce a modifiable support obligation, either party may tender and litigate any plea for modification that could be presented to the courts of the state where the alimony or support decree was originally rendered." 283 P.2d at 25. ¹¹ In reaching its conclusion, the court noted that the argument that alimony and support obligations were enforceable only in the state in which they had been rendered was rejected by the California Supreme Court in Biewend and by the legislature in enacting the Uniform Reciprocal Enforcement of Support Act (URESA). Under URESA, California must recognize foreign alimony and support decrees and afford the defendant an opportunity to litigate the issue of modification. Id. at 24. Justice Traynor observed that the result would be anomalous if the court would refuse to follow the policy...