Ex parte Wells

• Decision Date: 22 July 1988
• Citation: 533 So.2d 608
• Parties: Ex parte William Allen WELLS. (Re William Allen WELLS v. Judith Anne WELLS). 86-1654.
• Court: Alabama Supreme Court

Page 608

533 So.2d 608

Ex parte William Allen WELLS (Re William Allen WELLS v. Judith Anne WELLS).

86-1654.

Supreme Court of Alabama.

July 22, 1988.

Certiorari to the Court of Civil Appeals (Civ. 5860).

Thomas A. Deas, Mobile, for petitioner.

Joseph C. Sullivan, Jr., of Hamilton, Butler, Riddick, Tarlton & Sullivan, Mobile, for respondent.

Prior report: 533 So.2d 606 (Ala.Civ.App.).

PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and MADDOX, HOUSTON and STEAGALL, JJ., dissent, with opinion by MADDOX, J.

MADDOX, Justice (dissenting).

This issue in this case is whether the Circuit Court of Mobile County had personal jurisdiction over a non-resident defendant in a suit by his ex-wife to enforce and modify their Nevada divorce decree merely because he visited his children in Mobile and pays their tuition to attend a private school there.

Because I believe that this Court, in quashing the writ of certiorari as having been improvidently granted, fails to follow the law as set out in Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), and consequently deprives the petitioner of his due process rights guaranteed to him by the Constitution of the United States, I must respectfully dissent.

Although many of the basic facts are set out in the opinion of the Court of Civil Appeals, I believe a restatement of the pertinent facts would be helpful in explaining why I think that the "long arm" principle should not be applied in this case.

Judith Anne and William Allen Wells were divorced in Nevada on March 8, 1982. On December 18, 1985, Judith petitioned the Circuit Court of Mobile County to assume jurisdiction of the Nevada decree, enforce it in part, and modify it in part. William Wells was properly served by certified mail in Florida, where he was stationed with the U.S. Air Force. He failed to appear in the action, and the court rendered judgment in favor of the wife. Approximately four and one-half months after the court entered its judgment, William sought relief from that judgment pursuant to Rule 60(b)(4), Ala.R.Civ.P., contending that the judgment was void for lack of in personam jurisdiction. The circuit court overruled his motion, and the Court of Civil Appeals affirmed.

The parties were married in San Antonio, Texas. During their marriage, the parties lived in Alabama on two occasions when William was transferred here by the military. The parties separated about 1979, and Judith moved back to Alabama. In 1982, William instituted a divorce action in Nevada. The divorce decree awarded custody of their two minor sons to Judith, granted her $250 per month (per child) in child support, and made William responsible for "any costs of tuition and related expenses incurred by [Judith] while said minor children are attending private schools in Mobile, Alabama." William occasionally visited the children in Alabama. During these visits, William would move into Judith's house with the children, and Judith would move out. Judith testified that his visits were usually just for a weekend, and in any event did not exceed five days.

In December 1985, Judith requested the Circuit Court of Mobile County to assume jurisdiction of all matters set out in the Nevada divorce decree, to hold William in contempt for failure to pay $980.84 representing school expenses of the children, and to increase the amount of child support from $250 to $500 per month. The circuit court agreed to assume jurisdiction, awarded the wife a judgment of $980.84 for school expenses, and increased the child support to $500 per month. The court also ordered William to pay $150 as a reasonable attorney fee.

On September 26, 1986, William filed the Rule 60(b) motion that is the subject matter on this appeal, in the Circuit Court of Mobile County. Judith had meanwhile filed garnishment proceedings against William in execution of her judgment. The trial court denied his motion, holding that William's visits with his minor children were sufficient contacts with this state to give the court in personam jurisdiction. The Court of Civil Appeals affirmed, holding that Judith's residence in Alabama prior to their divorce, together with the divorce decree's mandate that William be responsible for the children's school expenses "in Mobile, Alabama," plus his occasional visitation with his children, were sufficient contacts to confer in personam jurisdiction.

The facts of the Kulko case are so similar that I believe it would be helpful to quote them just as Mr. Justice Marshall set them out in the Kulko opinion:

"Appellant Ezra Kulko married appellee Sharon Kulko Horn in 1959, during appellant's three-day stopover in California en route from a military base in Texas to a tour of duty in Korea. At the time of this marriage, both parties were domiciled in and residents of New York State. Immediately following the marriage, Sharon Kulko returned to New York as did appellant after his tour of duty. Their first child, Darwin, was born to the Kulkos in New York in 1961, and a year later their second child, Ilsa, was born, also in New York. The Kulkos and their two children resided together as a family in New York City continuously until March 1972, when the Kulkos separated.

"Following the separation, Sharon Kulko moved to San Francisco, Cal. A written separation agreement was drawn up in New York; in September 1972, Sharon Kulko flew to New York City in order to sign this agreement. The agreement provided, inter alia, that the children would remain with their father during the school year, but would spend their Christmas, Easter and summer vacations with their mother. While Sharon Kulko waived any claim for her own support or maintenance, Ezra Kulko agreed to pay his wife $3,000 per year in child support for the periods when the children were in her care, custody, and control. Immediately after execution of the separation agreement, Sharon Kulko flew to Haiti and procured a divorce there; the divorce decree incorporated the terms of the agreement. She then returned to California, where she remarried and took the name Horn.

"The children resided with appellant during the school year and with their mother on vacations, as provided by the separation agreement, until December 1973. At this time, just before Ilsa was to leave New York to spend Christmas vacation with her mother, she told her father that she wanted to remain in California after her vacation. Appellant bought his daughter a one-way plane ticket, and Ilsa left, taking her clothing with her. Ilsa then commenced living in California with her mother during the school year and spending vacations with her father. In January, 1976, appellant's other child, Darwin, called his mother from New York and advised her that he wanted to live with her in California. Unbeknownst to appellant, appellee Horn sent a plane ticket to her son, which he used to fly to California where he took up residence with his mother and sister.

"Less than one month after Darwin's arrival in California, appellee Horn commenced this action against appellant in the California Superior Court. She sought to establish the Haitian divorce decree as a California judgment; to modify the judgment so as to award her full custody of the children; and to increase appellant's child-support obligations. Appellant appeared specially and moved to quash service of the summons on the ground that he was not a resident of California and lacked sufficient 'minimum contacts' with the State under International Shoe Co. v. Washington, 326 U.S. 310, 316, [66 S.Ct. 154, 158, 90 L.Ed. 95] (1945), to warrant the State's assertion of personal jurisdiction over him."

Mr. Justice Marshall was joined by Chief Justice Burger and Justices Stewart, Blackmun, Rehnquist, and Stevens. Justice Brennan filed a short dissent, in which Justices White and Powell joined, but in his dissent he pointed out that he could not say "that the Court's determination against state-court in personam jurisdiction is implausible."

The reason the Kulko decision is not "implausible" is that in it the Supreme Court of the United States, recognized that many of its decisions involving the use of the so-called "long arm" statutes or rules primarily deal with commercial cases or other cases in which a potential defendant derives some personal benefit from this activity in the forum state. In Kulko, the Court stated:

"The Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants. See Shaffer v. Heitner, 433 U.S. 186, 198-200 [97 S.Ct. 2569, 2576-2578, 53 L.Ed.2d 683] (1977). It has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant. Pennoyer v. Neff, 95 U.S. [ (5 Otto) ] 714, 732-733 (1878); International Shoe Co. v. Washington, 326 U.S. at 316 . The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought, Mullane v. Central Hanover [Bank &] Trust Co., 339 U.S. 306, 313-314 [70 S.Ct. 652, 656-657, 94 L.Ed. 865] (1950), and a sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum. Milliken v. Meyer, 311 U.S. 457, 463-464 [61 S.Ct. 339, 342-343, 85 L.Ed. 278] (1940). In this case, appellant does not dispute the adequacy of the notice that he received, but contends that his connection with the State of California is too attenuated, under the standards implicit in the Due Process Clause of the Constitution, to justify imposing upon him the burden and inconvenience of defense in California.

" * * *

"We therefore believe that the state courts in the instant case failed to...