Fitzwater v. Fitzwater

• Decision Date: 23 April 1980
• Docket Number: Docket No. 45290
• Citation: 294 N.W.2d 249,97 Mich.App. 92
• Parties: Roger Dale FITZWATER, Plaintiff-Appellee, v. Sally Marie FITZWATER, Defendant-Appellant. 97 Mich.App. 92, 294 N.W.2d 249
• Court: Court of Appeal of Michigan — District of US

Page 249

294 N.W.2d 249

Roger Dale FITZWATER, Plaintiff-Appellee, v. Sally Marie FITZWATER, Defendant-Appellant.

Docket No. 45290.

97 Mich.App. 92, 294 N.W.2d 249

Court of Appeals of Michigan.

April 23, 1980.

Released for Publication July 11, 1980.

[97 MICHAPP 93] Sherwin F. Biesman, Flushing, for defendant-appellant.

Edwin H. Rabin, Flint, for plaintiff-appellee.

Before J. H. GILLIS, P. J., and ALLEN and KELLY, JJ.

ALLEN, Judge.

Does a Michigan court have in personam jurisdiction to modify a foreign divorce decree which awarded the wife custody of and support for the minor children where the husband obligor does not reside or own property in Michigan and where the family domicile was outside Michigan? The trial court held no. We affirm.

Plaintiff and defendant were married in Flint, Michigan, December 17, 1966. Soon after the marriage, the parties divided their living time between Texas and Alaska. Four children were born of the marriage. In September 1977, defendant moved [97 MICHAPP 94] with the children to Flint, Michigan, but plaintiff husband remained in Bonham, Texas, where he owned and operated a service station. On June 28, 1978, plaintiff was granted a judgment of divorce in Fannin County, Texas. Custody of the four children was given the wife and the husband was ordered to pay $65 per month per child in support.

On January 29, 1979, defendant wife petitioned the Genesee County Circuit Court to amend the Texas decree so as to increase child support and to provide a policy of health insurance for the benefit of the minor children. Plaintiff was personally served with process by a member of the Fannin County Sheriff's Department on February 9, 1979. Plaintiff filed a special appearance through a Michigan attorney and moved for dismissal of the action for lack of jurisdiction. Following hearing, the trial court ruled in plaintiff's favor, stating:

"I'm impressed by several things: number one, the parties by stipulation entered into a property settlement that dissolved their marriage as recently as less than a year ago, June 29, 1978.

"The defendant has since moved to Michigan from Texas. Who is to say if she's not satisfied with what happens in Michigan she could move elsewhere? I think in a sense we're encouraging 'judge shopping' or 'forum shopping' when the court with the original jurisdiction is the one that dissolved the marriage, that has the right to enforce the judgment, since the defendant does reside or, the plaintiff does reside in Texas, and I see no particular reason this Court should get involved in this situation.

"I think it's a situation that the Court should not get involved in. I don't think we have jurisdiction, and I'm not going to accept it as such, and I deny your motion, * * *."

On May 16, 1979, an order was entered dismissing the case for lack of jurisdiction. From that order defendant appeals as of right.

[97 MICHAPP 95] The Family Support Act ¹ confers subject matter jurisdiction upon circuit courts to order and enforce the payment of money by fathers for the support of minor children living with their mother, separate and away from their father. Section 1a of this act has been interpreted by this Court as allowing the circuit court to modify an original decree of support from a foreign jurisdiction upon petition from the children's mother or guardian. Ebel v. Brown, 70 Mich.App. 705, 246 N.W.2d 379 (1976); Amato v. Sanborn, 47 Mich.App. 244, 209 N.W.2d 429 (1973); Gray v. Gray, 32 Mich.App. 466, 189 N.W.2d 145 (1971). However, in so ruling, it was deemed necessary that the lower court have personal jurisdiction over the husband obligor by reason of his current residency in the state.

The basis for this conclusion is found at 1 Restatement, Conflict of Laws, § 457, pp. 546-547, which states:

"A state has legislative jurisdiction to impose upon one person a duty to support another person if

(a) the person to be supported is domiciled within the state and the person to support is subject to the jurisdiction of the state, or

(b) the person to support is domiciled within the state although the person to be supported is not subject to the jurisdiction of the state, or (c) both parties are subject to the jurisdiction of the state, though neither is domiciled there."

In Ebel, Amato and Gray, both the obligor and the obligee, with her dependent children, had become permanently domiciled in Michigan at the time modification of the foreign decree of divorce and [97 MICHAPP 96] child support was sought. Thus, so long as the obligor is for any reason subject to the personal jurisdiction of the state, that state can exercise its subject matter jurisdiction to modify a foreign decree of support.

Likewise, the adoption in Michigan of the Uniform Reciprocal Enforcement of Support Act (URESA) (1952) ² permits Michigan courts to modify a foreign support decree or judgment where Michigan is responding to a petition brought by an initiating state for enforcement of a prior support decree. OAG 1952-1954, No. 1820, p. 434; Blue v. Blue, 243 Ga. 22, 252 S.E.2d 452 (1979); Alig v. Alig, 220 Va. 80, 255 S.E.2d 494 (1979); Ibach v. Ibach, 123 Ariz. 507, 600 P.2d 1370 (1979). The act does not, of course, grant in personam jurisdiction over a nonresident party not otherwise subject to the power of Michigan courts. Nor does it create new duties of support. Martin v. Coffey, 83 Mich.App. 113, 115, 268 N.W.2d 307 (1978). Rather, its purpose is to provide by reciprocal legislation for the enforcement, across state lines, of duties of support already in existence. Bjorgo v. Bjorgo, 402 S.W.2d 143 (Tex.1966). Therefore, where no jurisdiction over the obligor husband is possessed by the circuit court, URESA cannot be relied on as granting additional powers to modify a foreign support order.

Consequently, the issue becomes whether the circuit court had in personam jurisdiction over the plaintiff obligor husband in the instant case. Although the Family Support Act and URESA might be construed as permitting our circuit courts to exercise subject matter jurisdiction over this type [97 MICHAPP 97] of case, in order to do so, the court must have in personam jurisdiction over the obligor husband.

Service of process on plaintiff husband in Texas pursuant to GCR 1963, 105(1), was sufficient under Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) to give plaintiff fair notice of the proceedings against him and an opportunity for a hearing. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357 (1940). However, the exercise of in personam jurisdiction over the plaintiff husband also requires a showing that the prescribed relationship between the party and the state makes it constitutionally permissible for the state to extend its judicial power over the party. In order to constitutionally subject a party to a judgment in personam, "certain minimum contacts" within the territory of the forum must be shown so that the maintenance of the suit does not "offend 'traditional notions of fair play and substantial justice' ". International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 161 A.L.R. 1057 (1945).

Following the recommendation of the Michigan Law Revision Comm. (1972), 7th Annual Report, p. 53, the Legislature recently amended the Michigan "long-arm" statute to enable the courts of this state to exercise limited personal jurisdiction over an individual where the individual's relationship with the state arises out of the following act:

"Maintaining a domicile in this state while subject to a marital or family relationship which is the basis of the claim for * * * child support." 1974 P.A. 90, § 1; M.C.L. § 600.705(7); M.S.A. § 27A.705(7).

The amendment is intended to provide a basis for personal jurisdiction when the defendant has enjoyed[97 MICHAPP 98] a family domicile in Michigan and then abandons his dependents, leaving them as potential charges upon the public welfare resources of this state. Michigan Law Revision Comm. (1972), 7th annual report p. 55, Nelson, Family Support From Fugitive Fathers: A Proposed Amendment to Michigan's Long Arm Statute, 3 Prospectus 399 (1970).

Similar provisions in other states have been upheld as providing sufficient "minimal contacts" for subjecting a fugitive parent to the personal jurisdiction of the forum state. Dillon v. Dillon, 46 Wis.2d 659, 176 N.W.2d 362 (1969); Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679 (1968), cert. den. 393 U.S. 847, 88 S.Ct. 130, 21 L.Ed.2d 117 (1968), reh. den. 393 U.S. 972, 89 S.Ct. 391, 21 L.Ed.2d 386 (1968); Scott v. Hall, 203 Kan. 331, 454 P.2d 449 (1969); Hines v. Clendenning, 465 P.2d 460 (Okl.1970).

However, where, by the plain words of the statute, the basis of the claim for child support does not arise out of the maintenance of a familial domicile in this state, it cannot be said that our courts have been empowered to exercise personal jurisdiction over a nonresident parent in a support proceeding. ³ The obligor husband in the case at bar was not a fugitive parent from the state of his marital domicile. Whisenant v. Whisenant, 219 [97 MICHAPP 99] Kan. 387, 391-393, 548 P.2d 470 (1976); Varney v. Varney, 222 Kan. 700, 701-703, 567 P.2d 876 (1977), compare Hawes v. Hawes, 130 Ill.App.2d 546, 263 N.E.2d 625 (1970), with Farah v. Farah, 25 Ill.App.3d 481, 323 N.E.2d 361 (1975). While the parties may have been originally domiciled in Michigan at the commencement of their marital relationship, "soon after" they "divided their living time between Texas and Alaska". In fact, at the time of their divorce, the parties had been domiciled in Texas. Following the divorce, and defendant's wife's move to Michigan with her children, plaintiff husband remained domiciled in Texas. The state in which the litigants last lived together as husband and wife and in a family relationship was, therefor, Texas. As such, plaintiff...