Fox v. Fox

• Decision Date: 30 June 1975
• Docket Number: No. 18645,18645
• Citation: 526 S.W.2d 180
• Parties: Rachel B. FOX, Appellant, v. Robert K. FOX, Appellee.
• Court: Texas Court of Appeals

Page 180

526 S.W.2d 180

Rachel B. FOX, Appellant, v. Robert K. FOX, Appellee.

No. 18645.

Court of Civil Appeals of Texas Dallas.

June 30, 1975.

Rehearing Denied Aug. 7, 1975.

Walter H. Mizell, Thompson, Knight, Simmons & Bullion, Dallas, for appellant.

Ben L. Krage, Rosenberg, Kasmir & Willingham, Dallas, for appellee .

AKIN, Justice.

This is an action to enforce a New Jersey judgment obtained by plaintiff Rachel B. Fox against the defendant Robert K. Fox for accrued and unpaid alimony ordered in a divorce decree. The district court refused to give full faith and credit to the New Jersey judgment and entered a summary judgment for the defendant. Plaintiff appeals.

Two principal questions are presented by this appeal. First, was the 1971 New Jersey divorce decree void as to the alimony and attorney's fees awarded because the New Jersey court lacked in personam jurisdiction over the defendant in that proceeding? Secondly, was the September 4, 1973 default judgment for accrued and unpaid alimony, attorney's fees, and court costs void because of lack of jurisdiction over the person of the defendant by the New Jersey court? We answer both questions in the negative and, therefore, reverse and render the judgment of hte trial court.

The facts are undisputed. The parties were married on April 2, 1955, in New Jersey, and lived together in that state until they separated in August 1967. On April 20, 1968, they signed a separation agreement providing that defendant would pay child support in the amount of $40 per week and alimony in the amount of $30 per week. The agreement also provided that defendant was to receive one-half of the net proceeds from the sale of the parties' home. When this agreement was signed, the parties resided in New Jersey. In January 1969, the defendant moved to Texas and became a resident of this state. Approximately two years after defendant became a Texas resident, plaintiff initiated divorce proceedings in New Jersey. Service was obtained upon the defendant in Texas by having him served with citation from the New Jersey court by an appropriate Texas official. The defendant made no appearance in the New Jersey divorce action. A divorce judgment was rendered April 22, 1971 which incorporated the identical terms of the separation agreement of April 20, 1968. The defendant failed to pay the alimony and in 1973 plaintiff filed a motion for judgment with the New Jersey chancery court for alleged unpaid alimony in the amount of $4,720 and for an unpaid attorney's fee award of $750 provided for in the original divorce decree, together with unpaid court costs from the divorce action in the amount of $155.55. In this action service was had upon the defendant by certified mail, return receipt requested. Defendant signed the receipt, but made no appearance, and plaintiff was granted a default judgment for alimony arrearages on September 4, 1973.

On October 24, 1973, plaintiff initiated this action in a Texas district court to enforce the New Jersey judgment for alimony arrearages. Each party filed a motion for summary judgment. The court refused to grant full faith and credit to the New Jersey judgment and rendered summary judgment for defendant.

1. The 1971 New Jersey Divorce Decree

To ascertain whether the New Jersey court in 1971 acquired in personam jurisdiction over the nonresident defendant, Robert Fox, to award the plaintiff alimony and attorney's fees, it is necessary to determine if (A) New Jersey law authorized the acquisition of such jurisdiction in the manner of service of process employed, and (B) if there existed sufficient minimum contacts between the defendant and the forum state relevant to the cause of action to satisfy traditional notions of fair play and substantial justice. Accord, Mitchim v. Mitchim, 518 S.W.2d 362, 366 (Tex.1975); Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679, 681 (1968); Wright v. Wright, 114 N.J.Super. 439, 276 A.2d 878 (1971).

A. New Jersey Law

It is undisputed that defendant was personally served outside the state of New Jersey. Defendant contends that according to New Jersey law, the summons and complaint must be served within the state in order to give the New Jersey court jurisdiction over the person of a nonresident defendant. We disagree. Certain New Jersey statutes, court rules, and decisions were before the trial court by stipulation, and, consequently are before us as well. Texas Rules of Civil Procedure, rule 184a. N.J.Ct.R. 4:4--4 specifies the methods of service to secure personal jurisdiction over a defendant. Subparagraph (a) of this rule provides that service of a summons and complaint shall be made on an individual by delivering a copy of the summons and complaint in person. The rule does not require that this service must be accomplished within the state of New Jersey or that it cannot be served outside the state, and it, along with subparagraphs (c) and (d), assert jurisdiction of New Jersey courts over non-resident defendants under the long-arm theory. Wright v. Wright, 114 N.J.Super. 439, 276 A.2d 878, 879 (1971). We conclude, therefore, that under these New Jersey rules and decisions, proper service of process was made pursuant to New Jersey law when the defendant was personally served in the original divorce action within the state of Texas.

Defendant argues that the New Jersey court did not acquire in personam jurisdiction in view of the following statement appearing in the 1952 New Jersey superior court decision of Kase v. Kase, 18 N .J.Super. 12, 86 A.2d 587, 589 (1952): 'Since an order for the payment of alimony is a personal judgment, process must be served within the State in order to give the court jurisdiction of the person of a non-resident.' This statement in Kase, however, was not necessary to the decision, and it was not followed in the 1971 New Jersey superior court decision of Wright v. Wright, 114 N.J.Super. 439, 276 A.2d 878 (1971), wherein personal jurisdiction in a New Jersey court was obtained in an action for child support and alimony of a nonresident defendant by personal service on him in New York. We accept this later decision as declaring the New Jersey law in 1971, when the present divorce judgment was rendered.

B. Minimum Contacts with New Jersey

Since we conclude that the manner of service employed by plaintiff in the original divorce action satisfies New Jersey court rules, it is now necessary to determine if there existed sufficient minimum contacts between the defendant and New Jersey under the test laid down in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Plaintiff contends that since the defendant has consistently made child support payments to her while she has remained a resident of New Jersey, and because the divorce decree awarding child support and alimony was entered pursuant to the separation agreement consummated by the parties while they were residents of New Jersey, the defendant has had sufficient contacts with New Jersey to satisfy traditional notions of fair play and substantial justice. We agree.

The contacts which the defendant had with New Jersey resemble those which existed in the recent Texas Supreme Court decision of Mitchim v. Mitchim, 518 S.W.2d 362, 366 (Tex.1975). In Mitchim, Arizona was the marital domicile of the parties from 1966 until the husband moved to Texas in 1971. The parties owned a home in Arizona and after moving to Texas the husband continued to make mortgage payments on the home. The suit for divorce was filed less than six months after the husband left Arizona. Those contacts were held to fall within the ambit of personal jurisdiction constitutionally allowed. Id. at 367. Here New Jersey was the matrimonial domicile of the parties from 1955 until 1967; the parties executed a separation and property settlement agreement in New Jersey in 1968; and after moving to Texas in 1969, the defendant has sent child support payments to plaintiff in New Jersey. Plaintiff is still domiciled in New Jersey and New Jersey had a strong interest in providing for her support both at the time of the divorce and later. We conclude, therefore, that the New Jersey court in 1971 had in personam jurisdiction over the defendant to properly award alimony and attorney's fees to the plaintiff. See Egbert v. Egbert, 125 N.J .Super. 171, 309 A.2d 746, 748 (1973); Restatement (Second) of Conflict of Laws § 77, comment c (1971).

2. The 1973 New Jersey Judgment for Accrued and Unpaid Alimony

Plaintiff contends that the district court ered in failing to extend full faith and credit to the 1973 New Jersey judgment because the chancery court in New Jersey has continuing personal jurisdiction over a party to a divorce action, in which personal jurisdiction was originally obtained, to make subsequent orders concerning alimony. We agree.

The New Jersey state which authorizes continuing jurisdiction of the chancery court provides:

Pending any matrimonial action brought in this state or elsewhere, or after judgment of divorce or maintenance . . . the court may make such order as to the alimony or maintenance of the wife . . . as the circumstances of the parties and the nature of the case shall render fit, reasonable and just . . .. Orders so made may be revised and altered by the court from time to time as circumstances may require. N.J.S.A. 2A:34--23 (1952).

It is evident from this language that the 1973 New Jersey judgment for alimony arrearages is the type of decree contemplated to occur within the continuing jurisdiction of the New Jersey chancery court. This continuing jurisdiction is not limited to orders from the court which simply alter or modify a previously entered alimony decree. It also extends to a judgment of the chancery court for the payment of accrued and unpaid alimony ordered by a preceding divorce decree.

In New Jersey, alimony and child support installments do not become vested property rights when they become due because the...