Department of Human Services v. Shelnut, No. 1999-CA-01494-SCT.

• Decision Date: 14 December 2000
• Docket Number: No. 1999-CA-01494-SCT.
• Citation: 772 So.2d 1041
• Parties: DEPARTMENT OF HUMAN SERVICES, STATE OF MISSISSIPPI v. Edward E. SHELNUT.
• Court: Mississippi Supreme Court

772 So.2d 1041

DEPARTMENT OF HUMAN SERVICES, STATE OF MISSISSIPPI v. Edward E. SHELNUT.

No. 1999-CA-01494-SCT.

Supreme Court of Mississippi.

December 14, 2000.

Office of the Attorney General by Gregory J. Weber, John G. Sims, III, Attorneys for Appellants.

Reeves Jones, Jackson, Attorney for Appellee.

EN BANC.

SMITH, Justice, for the Court:

¶ 1. The Mississippi Department of Human Services (DHS) attempted to register and enforce a child support order entered by a Canadian court against Edward E. Shelnut in the Chancery Court of the First Judicial District of Hinds County pursuant to the Uniform Interstate Family Support Act (UIFSA), Miss.Code Ann. § 93-25-1 et seq. (Supp.1999). The chancery court refused to enforce the judgment for child support because it found that the Canadian court did not have personal jurisdiction over Shelnut. DHS has appealed to this Court. We hold that the chancellor erred and accordingly reverse and remand.

STATEMENT OF FACTS

¶ 2. Edward E. Shelnut and Gaye-Lynn Kern married in 1981 in the Canadian province of Saskatchewan. Immediately after their marriage, the couple resided in the United States—first in Georgia, then in Hinds County, Mississippi. Their daughter, Margaret Anne Shelnut, was born in 1986. In 1989, Shelnut and Kern separated, and Kern returned to her native Canada with Margaret Anne.

¶ 3. On April 27, 1989, Shelnut filed a complaint for child custody and support in the Hinds County Chancery Court. Shelnut filed a separate complaint for divorce on May 2, 1990. Seven days later, Kern filed an action for divorce in the Court of Queen's Bench, Judicial Centre of Saskatoon, Canada. Kern successfully obtained service of process over Shelnut, but Shelnut was unable to effectuate service of process over Kern.

¶ 4. Shelnut filed an affidavit and pleading contesting personal jurisdiction in the Canadian court. He never made a physical appearance in that court. The Canadian court granted Kern's request for a divorce on June 28, 1990, and also awarded Kern with child custody and child support. No appeal was taken by Shelnut.

¶ 5. Likewise, Kern contested the jurisdiction of the Hinds County Chancery Court by filing a motion to dismiss regarding Shelnut's complaint for child custody and support. On May 2, 1990, Chancellor Denise Sweet Owens denied Kern's motion to dismiss, finding that the court had concurrent jurisdiction with the Canadian court over the parties and subject matter. On September 18, 1990, Shelnut's actions divorce and for child custody and support were consolidated upon joint motion of the parties. Chancellor Stuart Robinson dismissed the action, finding that the Canadian court, having jurisdiction over the parties and marital relationship, had entered a valid divorce. Shelnut did not appeal the chancery court's judgment. He has never paid child support as ordered by the Canadian court.

¶ 6. On January 25, 1999, DHS, in an attempt to collect child support and arrearages in the amount of $30,225, filed notice of registration of the Canadian judgment in the Hinds County Chancery Court. Shelnut contested enforcement of the foreign judgment. Chancellor Robinson held that the Canadian judgment for child support was not enforceable in Mississippi and dismissed the action, finding that the Canadian court lacked personal jurisdiction over Shelnut necessary to support a judgment of child support against him.

¶ 7. DHS timely filed a notice of appeal from the judgment of the chancery court. DHS raises the following issues:

I. THE DOCTRINE OF RES JUDICATA PRECLUDES SHELNUT FROM ATTACKING THE JURISDICTION OF THE CANADIAN COURT.

II. THE CHANCELLOR ABUSED HIS DISCRETION BY DENYING DHS'S REQUEST THAT KERN BE PERMITTED TO TESTIFY BY TELEPHONE.

Shelnut, who filed no notice of cross-appeal in this action, raises the following issue:

III. THE JUDGMENT OF THE CANADIAN COURT DOES NOT QUALIFY FOR ENFORCEMENT UNDER THE UIFSA.

DISCUSSION OF LAW

I. THE DOCTRINE OF RES JUDICATA PRECLUDES SHELNUT FROM ATTACKING THE JURISDICTION OF THE CANADIAN COURT.

¶ 8. Generally, the enforcement of judgment entered in a foreign nation is governed by state law and the principle of comity. Laskosky v. Laskosky, 504 So.2d 726, 729 (Miss.1987). The application of the principle of comity is a matter of discretion with the trial judge. Id. (citing Kountouris v. Varvaris, 476 So.2d 599, 607 (Miss.1985); Cox v. Cox, 234 Miss. 885, 892, 108 So.2d 422 (1959)). However, in the area at issue in this case—child support—our Legislature has seen fit to adopt statutory law controlling the recognition of foreign judgments.

¶ 9. The UIFSA, as enacted in Mississippi, provides a procedure whereby child support orders from foreign states and countries may be enforced in this Mississippi. Miss.Code Ann. § 93-25-1 et seq. (Supp.1999). Jurisdictions outside the United States fall within the purview of the UIFSA. By definition, a "state" includes foreign jurisdictions which have enacted laws or established procedures for issuing and enforcing support orders similar to the UIFSA. Miss.Code Ann. § 93-25-3(s)(ii) (Supp.1999). The proper procedure to be followed by a foreign jurisdiction seeking enforcement of a child support order is to send a request for registration with the order to the appropriate tribunal in Mississippi. Miss.Code Ann. § 93-25-83 (Supp.1999). A registered order "is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state." Miss.Code Ann. § 93-25-85(2) (Supp.1999). Canada is a participant in this scheme of enforcement. See Reciprocal Enforcement of Maintenance Orders Act, 1996.

¶ 10. Whether we are examining enforcement of the judgment under statutory law or principles of comity, the ability of a court to give effect to a foreign judgment necessarily depends upon the judgment being valid in the first place. Because the duty to pay child support is a personal obligation, a valid judgment imposing child support in favor of a plaintiff may be entered only by a court having jurisdiction over the person of the defendant. Hamm v. Hall, 693 So.2d 906, 909 (Miss.1997) (citing Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)). Thus, the question of whether the Canadian court had personal jurisdiction over Shelnut is crucial to the chancery court's ability to enforce the judgment. Shelnut successfully argued before the chancery court that because the Canadian court lacked jurisdiction over his person, the judgment for child support is void and unenforceable under the UIFSA.

¶ 11. The chancellor's determination to forego application of the doctrine of res judicata is a legal rather than a factual determination. For questions of law de novo, our standard of review is de novo. Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000) (citing Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990)). DHS contends that the chancellor erred in refusing to apply the principles of res judicata to the issue of whether the Canadian court had personal jurisdiction over Shelnut. DHS points to two prior adjudications of this issue which, DHS contends, preclude Shelnut's collateral attack on the validity of the foreign judgment.

A. The Canadian Judgment

¶ 12. Shelnut filed an affidavit and responsive pleading in the Canadian court in which he raised, among other defenses, the issue of personal jurisdiction. DHS first argues that the Canadian court's decision on jurisdiction is binding and bars Shelnut's collateral attack.

¶ 13. The principles of res judicata apply to questions of jurisdiction as well as to other issues whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). Where the jurisdiction of the court is challenged, and the question is contested and decided, a judgment of the court, unless reversed or set aside, that jurisdiction duly attached is conclusive on the parties in subsequent litigation. State ex rel. Patten v. Gaither, 179 Miss. 64, 171 So. 768 (1937).

¶ 14. When a person receives a complaint and summons from a court in another jurisdiction, whether the jurisdiction be another state, another federal court, or another country, and believes he is not subject to that court's jurisdiction, he has several alternatives available to him.¹ First, he may ignore the complaint and summons, and, then, if a default judgment is issued against him, he may challenge that judgment on jurisdictional grounds in a collateral proceeding when the plaintiff seeks to enforce the judgment. Insurance Corp. of Ireland,456 U.S. at 706,102 S.Ct. at 2106 (citing Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244 (1931)). Second, he may voluntarily waive any lack of personal jurisdiction and submit to the distant court's jurisdiction. And third, he may submit to the jurisdiction of the court for the limited purpose of challenging jurisdiction. Id. (citing American Sur. Co. v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 101, 77 L.Ed. 231 (1932)). The Supreme Court has explained that by taking this third route, as Shelnut has done here, "the defendant agrees to abide by that court's determination on the issue of jurisdiction: That decision will be res judicata on that issue in any further proceedings." Id.

¶ 15. DHS relies upon the opinion of the Supreme Court of Alaska in Wall v. Stinson, 983 P.2d 736 (Alaska 1999). In that case, an Oregon court entered a child support order. The husband, a resident of Alaska, had participated through counsel in the Oregon proceedings and had unsuccessfully raised the issues of personal and subject matter jurisdiction. The husband began to prosecute appeal in Oregon, but later abandoned it. When the wife attempted to enforce the Oregon order in Alaska, the husband attempted to collaterally attack...