Ex parte Dean

• Decision Date: 03 February 1984
• Citation: 447 So.2d 733
• Parties: Ex parte Kathy DEAN. (Re Kathy DEAN v. Marvin DEAN). 82-310.
• Court: Alabama Supreme Court

Page 733

447 So.2d 733

Ex parte Kathy DEAN.

(Re Kathy DEAN v. Marvin DEAN).

82-310.

Supreme Court of Alabama.

Feb. 3, 1984.

T.J. Carnes of Carnes & Carnes, Albertville, for petitioner.

Mary Ann Ross Stackhouse of Legal Services Corporation of Ala., Gadsden, for respondent.

ON APPLICATION FOR REHEARING

EMBRY, Justice.

This court granted the writ of certiorari. However, on 16 September 1983, the writ was quashed as improvidently granted. The case is now before us on application for rehearing. That application is granted.

Kathy Dean petitions this court to review the Court of Civil Appeals', 447 So.2d 728, holding which directs the Marshall County Circuit Court to enforce a child custody decree entered in the State of Florida incident to a marriage dissolution proceeding. This court granted rehearing in order to reconsider the Court of Civil Appeals' application of the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A (West 1983) and the Uniform Child Custody Jurisdiction Act (UCCJA), Code of 1975, § 30-3-20, et seq.

The facts of this case are adequately set out by the Court of Civil Appeals. We reiterate, however, one fact central to this case: Although Kathy Dean was married in Florida, she gave birth to the subject child in Alabama, where she has lived almost continuously since that time.

Kathy Dean's petition is based on two grounds. First, she contends the Florida court lacked the in personam jurisdiction necessary to entitle its decree, which determines the personal rights of an individual neither present nor domiciled in the State of Florida, to extraterritorial effect. Second, she argues the Court of Civil Appeals erroneously applied the PKPA and the UCCJA in determining that an Alabama court could not modify the Florida decree because Florida retained "continuing jurisdiction" under the PKPA.

We first consider the question of in personam jurisdiction. No state need give more full faith and credit to a judgment than that judgment would receive in the state that rendered it. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). Before a state may adjudicate personal rights arising out of a marital relationship, it must be able to exercise in personam jurisdiction over the parties. Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948). A child custody determination is an in personam proceeding requiring in personam jurisdiction over the affected parties. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953); accord Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).

In order to determine whether the Florida court was vested with in personam jurisdiction over Kathy Dean, this court must look to Florida law. Restatement (Second) of Conflict of Laws § 105 (1971); see also Chapter III, introductory note (c).

Both the PKPA and Florida's version of the UCCJA contain provisions ensuring that parties in a custody determination action are provided with reasonable notice and an opportunity to be heard. See 28 U.S.C.A. § 1738A(e) (West 1983); Fla.Stat.Ann. § 61.131 (West Supp.1983). However, neither act authorizes the assertion of in personam jurisdiction over nonresidents not present in the state. In short, neither act contains a "long-arm" provision necessary to assume in personam jurisdiction over absent contestants.

The general "long-arm" provision in Florida is similarly devoid of any assertion of in personam jurisdiction over nonresidents in child custody cases. Fla.Stat.Ann. § 48.193 (West Supp.1983) provides in pertinent part:

"Acts subjecting persons to jurisdiction of courts of state

"....

"(e) With respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage." (Emphasis added.)

It is clear to this court that neither Florida's general "long-arm" statute, nor the PKPA, nor Florida's UCCJA authorizes the assertion of personal jurisdiction over nonresident defendants in child custody proceedings. Consequently, the Florida court lacked the statutory authority necessary for the assertion of in personam jurisdiction over Kathy Dean. Similarly, any attempts at personal service upon Kathy Dean in this state, without the appropriate legislative authority, were ineffectual.

Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), stressed the importance of a state's articulating legislatively its interest in securing personal jurisdiction over nonresidents in various circumstances:

"If Delaware perceived its interest in securing jurisdiction over corporate fiduciaries to be as great as Heitner suggests, we would expect it to have enacted a statute more clearly designed to protect that interest."

Id., at 214-215, 97 S.Ct. at 2585.

The posture of this case is precisely the same as that in May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) (plurality opinion), where a father sought to enforce a Wisconsin custody decree in an Ohio Court. Justice Burton noted that although the defendant-mother had been personally served, Wisconsin lacked any statute authorizing such service in proceedings for the custody of children. Id., at 530-31, 73 S.Ct. at 841-842. The Supreme Court went on to consider:

"whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam...." (Emphasis added.)

Id., at 533, 73 S.Ct. at 843.

The full faith and credit clause interpretation woven within the holding of May remains crystal clear and binding upon this court.

Justice Burton noted:

"[I]t is now too well settled to be open to further dispute that the full faith and credit clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extraterritorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound." (Footnotes omitted.)

May, 345 U.S. at 533, 73 S.Ct. at 843 (quoting Baker v. Baker, Eccles & Co., 242 U.S. 394, 401, 37 S.Ct. 152, 154, 61 L.Ed. 386 (1917)). Accord Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed. 132 (1978).

The Court in May also found that a proceeding for the custody of children, as in the case at bar, is in fact an in personam proceeding. Id., 345 U.S. at 534, 73 S.Ct. at 843.

The Court of Civil Appeals noted the lack of a "long-arm" provision authorizing service of process over nonresident defendants. However, that court held that the notice provisions contained within the UCCJA and PKPA were sufficient to satisfy the due process requirements of International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In a similar argument, respondent Marvin Dean contends that...