Davanis v. Davanis

• Decision Date: 18 June 1986
• Docket Number: No. 85-0991,85-0991
• Parties: In re the Foreign Judgment of Nancy Ann DAVANIS, Petitioner-Appellant, v. George M. DAVANIS, Respondent.
• Court: Wisconsin Court of Appeals

Page 108

392 N.W.2d 108

132 Wis.2d 318

In re the Foreign Judgment of Nancy Ann DAVANIS, Petitioner-Appellant, v. George M. DAVANIS, Respondent.

No. 85-0991.

Court of Appeals of Wisconsin.

Argued April 25, 1986.

Opinion Released June 18, 1986.

Opinion Filed June 18, 1986.

Robert M. Koch of Koch, Baganz, Koch & Clark, Brookfield, for petitioner-appellant.

Marvin A. Margolis of Margolis & Cassidy, Milwaukee, for respondent.

Bronson C. LaFollette, Atty. Gen., and Donald P. Johns, Asst. Atty. Gen., for amicus curiae.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

SCOTT, Chief Judge.

This action was commenced under the Revised Uniform Reciprocal Enforcement of Support Act (1968) (RURESA), sec. 52.10, Stats. ¹ Nancy Ann Davanis filed a summons and petition with a Wisconsin court requesting registration in Wisconsin of a California divorce judgment divorcing her from George M. Davanis. Subsequent to the registration of the California divorce judgment in Wisconsin, Nancy filed an order to show cause requiring George to, inter alia, show cause why an order increasing the amount of his child support payments should not be entered. Nancy appeals from an "Order & Judgment" dismissing her order to show cause.

On appeal, Nancy contends that George failed to timely and properly object to jurisdiction in the trial court and has thereby waived any objection to the Wisconsin court's exercise of jurisdiction over his person. She further contends that the Wisconsin court may exercise personal jurisdiction over George.

We conclude that a challenge to personal jurisdiction need not be made at the time the foreign support order is registered, provided that no affirmative relief is requested in addition to mere registration. Because we are persuaded that George's jurisdictional challenge was both timely and proper, we find that he has not waived his objection to the Wisconsin court's exercise of jurisdiction over his person. We further conclude that George does not have sufficient minimum contacts with the state of Wisconsin; therefore, Wisconsin does not have personal jurisdiction over George. Accordingly, we affirm the "Order & Judgment" of the trial court.

Nancy and George were married in October 1970 in Hales Corners, Wisconsin. The parties' marriage certificate lists George's residence in San Francisco, California, at the time of the marriage and shows him to have been in the U.S. Armed Forces at that time. ² On January 17, 1971, the parties moved to California.

Nancy and George were divorced by the Superior Court of California in February 1979. At that time, both parties were California residents. While the California divorce proceeding was pending, Nancy moved to Wisconsin along with the parties' minor child.

On November 2, 1983, Nancy filed a summons and petition with the Waukesha county circuit court requesting registration in Waukesha county of the California divorce judgment, pursuant to sec. 52.10(39), Stats., of RURESA. On March 20, 1984, the Waukesha county circuit court entered an order confirming the registration of the California judgment and support order in Wisconsin. Notice of registration and confirmation of registration was filed on March 23, 1984 and George was served by mail. George filed no response to the registration procedure and made no appearance.

On September 11, 1984, the circuit court judge signed an order, upon a motion and supporting affidavit filed by Nancy, requiring George to, inter alia, show cause why an order increasing the monthly child support payments should not be entered. Nancy's supporting affidavit alleged a substantial change in circumstances.

On January 11, 1985, George's counsel sent a letter to the circuit court in anticipation of the hearing on the order to show cause set for January 16, contending that the Wisconsin court did not have jurisdiction to proceed with a hearing to increase support. A copy of this letter was sent to counsel for Nancy. ³ On January 15, 1985, George filed a brief in support of a motion to dismiss for want of personal jurisdiction under Wisconsin's long-arm statute, sec. 801.05, Stats. On March 14, 1985, the trial court issued a written decision holding that the circuit court was without the personal jurisdiction over George necessary to proceed in the matter.

Nancy contends that George has failed to timely and properly object to the jurisdiction of the trial court; therefore, he has waived any defense based on lack of personal jurisdiction. First, she claims that George's failure to object to jurisdiction in the registration proceeding or by petition to vacate the registration pursuant to sec. 52.10(40)(b), Stats., constitutes a waiver of objection. Second, Nancy claims that George failed to properly object to jurisdiction because he did not file his objection by written motion.

We are guided in our analysis of these issues by the purposes of RURESA "to improve and extend by reciprocal legislation the enforcement of duties of support." Sec. 52.10(1), Stats. See also O'Halloran v. O'Halloran, 580 S.W.2d 870, 871 (Tex.Civ.App.1979). The Act itself creates no duties of family support, but is concerned solely with the enforcement of existing duties when the person to whom a duty is owed is in one state and the person owing the duty is in another.

URESA was first enacted when conventional judicial proceedings had proved unsatisfactory, largely because the defaulting spouse-obligor was frequently outside the jurisdiction and the obligee could rarely afford to travel to distant states and litigate the question of support obligations. Id. The Act was designed to avoid such disadvantages by allowing the obligation of support to be established in the obligee's home state and by then allowing that right to be enforced in a foreign state by a simplified procedure without having to bring an independent action in the foreign state. Id. at 872.

We first address Nancy's argument that an objection to personal jurisdiction must be made within twenty days after the mailing of notice of registration under sec. 52.10(40)(b), Stats., or it is waived. We note that no Wisconsin appellate court decision dealing with this issue has been brought to our attention. ⁴

Section 52.10(39)(a), Stats., provides that an obligee seeking to register a foreign support order in a Wisconsin court must transmit certain documents to the clerk of the court. Upon receipt of the documents, the clerk files them in the registry of foreign support orders. Id. Such filing constitutes registration. Id.

Section 52.10(40)(a), Stats., provides that "[u]pon registration the registered foreign support order shall be treated in the same manner as a support order issued by a court of this state. It has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a support order of this state and may be enforced and satisfied in like manner." Section 52.10(40)(b) provides, "The obligor has 20 days after the mailing of notice of the registration in which to petition the court to vacate the registration or for other relief. If he does not so petition the registered support order is confirmed." Section 52.10(40)(c) concerns the hearing to enforce the registered support order.

In Pinner v. Pinner, 33 N.C.App. 204, 234 S.E.2d 633, 635-36 (1977), the court construed identical provisions of RURESA as establishing a two-step procedure for registration and enforcement: first, registration of the order and, if required, a hearing on whether to vacate the registration or grant the "obligor" other relief and, second, enforcement of the order. Id. The Pinner court reasoned that the definitions of "obligor" and "obligee" under RURESA, sec. 52.10(2)(f) and (g), Stats., leads to the conclusion that the obligee has the option to merely register the order or to register and enforce simultaneously. Section 52.10(2)(f) defines an obligee, in pertinent part, as "a person ... [who] has commenced a proceeding for enforcement of an alleged duty of support or for registration of a support order." Section 52.10(2)(g) defines an obligor, in pertinent part, as "any person ... against whom a proceeding for the enforcement of a duty of support or registration of a support order is commenced."

Having concluded that registration and enforcement are separate procedures, the Pinner court considered whether jurisdiction over the person or property of the obligor is necessary for valid registration. The court held that the mere registration of a foreign support order is a ministerial duty of the clerk and that the court must determine whether jurisdiction exists over the person at the time of enforcement. Id., 234 S.E.2d at 636.

By that act no court or agency of the state is purporting to exercise power over the obligor or his property. Registration does not prejudice any rights of the obligor; it merely changes the status of the foreign support order by allowing it to be treated the same as a support order issued by a court of North Carolina. ... Once the order is so treated the obligee or the obligor may request modifications in the order, and when the obligee attempts to enforce the order, the court must determine whether jurisdiction exists over the person or property of the obligor and what amount, if any, is in arrears. W. Brockelbank, Interstate Enforcement of Family Support (The Runaway Pappy Act), pp. 77-87 (Infausto ed. 1971).

Id. The Pinner court held that personal jurisdiction is not necessary for registration of a foreign support order under URESA and that language in a confirmation order purporting to find jurisdiction was superfluous and did not bind the defendant in subsequent enforcement proceedings. Id.; Fleming v. Fleming, 49 N.C.App. 345, 271 S.E.2d 584, 586 (1980).

We find the reasoning of the Pinner court persuasive and we hold that jurisdiction over the person is not necessary for registration of a foreign support order. We...