Gerald v. Hudgins Nka Gerald D. Hudgins, 92-LW-3360

• Decision Date: 21 July 1992
• Docket Number: 7-91-21,92-LW-3360
• Parties: GERALD V. HUDGINS NKA GERALD D. HUDGINS, PETITIONER-RESPONDENT-APPELLANT and LEE HUDGINS NKA LEE EICHER KRUSE, PETITIONER-MOVANT-APPELLEE CASE
• Court: Ohio Court of Appeals

GERALD V. HUDGINS NKA GERALD D. HUDGINS PETITIONER-RESPONDENT-APPELLANT

and

LEE HUDGINS NKA LEE EICHER KRUSE PETITIONER-MOVANT-APPELLEE

No. 7-91-21.

92-LW-3360 (3rd)

Court of Appeals of Ohio, Third District Henry

July 21, 1992

Civil Appeal from Common Pleas Court.

MR JOHN DONOVAN, Reg. #0003219, Attorney at Law, 609 N. Perry, Napoleon, OH 43545, For Appellant.

MR. GERALD LAVER, Reg. #0032324, Assistant Prosecuting Attorney, P.O. Box 605, Napoleon OH 43545, For Appellee.

OPINION

EVANS J.

This is an appeal by Gerald Hudgins (Appellant) from judgment entered in the Court of Common Pleas of Henry County ordering him to pay an increased amount of child support following the registration of an Indiana child support order, pursuant to the Uniform Reciprocal Enforcement of Support Act, R.C. 3115.32 (URESA).

On November 3, 1982, Appellant and his former wife, Lee Kruse (Appellee), were divorced in the state of Indiana. Appellee was awarded custody of the parties' minor child, Trevor, and Appellant was ordered to pay child support in the amount of $50 per week. Both parties to this action have since left Indiana. Appellant now resides in Virginia, and Appellee now resides in Henry County, with the parties' minor son.

On February 13, 1990, Appellee filed an application to register the Indiana support order in Henry County Court of Common Pleas, pursuant to R.C. 3115.32. Appellant was properly served with notice of the registration. When Appellant did not object to the registration within the prescribed twenty day period, see R.C. 3115.32(H), the order was confirmed by the court.

On June 6, 1990, following registration of the foreign order, Appellee filed a motion for an increase in child support and for a lump sum judgment on arrears, based on Appellant's increased earning capacity and the needs of the child. Appellant filed a motion to dismiss, contesting the trial court's exercise of jurisdiction over him. At the court's request the parties entered into a stipulation of facts and submitted briefs before a ruling was made on the motion to dismiss. The stipulation set forth the following with respect to the parties' whereabouts during their marriage:

#8 In 1979, Hudgins lived in an apartment in Dayton, Ohio at the instance and request of his employer for approximately 3 months and during said three month period Hudgins performed work for his employer at his employer's request. During this period Hudgins would travel back to Indiana on weekends to his marital residence in Indiana.

#9 On May 21st and 22nd, 1978, the parties stayed at a Holiday Inn in Dayton, Ohio.

#10 From Hay 22nd through May 29th, 1978, the parties visited Kruse's parents in Napoleon, Ohio.

#11 On September 1st and 2nd, 1978, the parties attended a wedding in Steubenville, Ohio.

#12 On October 7th, 1978, the parties attended a football game in Columbus, Ohio.

#13 On December 2nd and 3rd, 1978 the parties visited Kruse's parents in Napoleon, Ohio.

#14 In 1979 and 1980, the parties visited Kruse's parents in Napoleon, Ohio, approximately two to three times.

#15 The parties never resided permanently in Ohio during their marriage.

Appellant's motion to dismiss was overruled in the trial court on April 3, 1991. On October 23, 1991, the court entered final judgment against Appellant for an agreed-upon support arrearage. The court further ordered an increased amount in child support, retroactive to June 6, 1990. Appellant was also ordered to pay an allocation of the child's medical expenses. Appellant appealed the court's order, asserting three assignments of error:

I. The trial court erred in finding that the Petitioner/ Respondent-Appellant waived jurisdictional defenses.

II. The trial court erred when it denied the Petitioner/ Respondent-Appellant's motion to dismiss based upon the finding that sufficient minimum contacts exist in Ohio to obtain personal jurisdiction when the beneficiaries of child support reside in Ohio.

III. The trial court erred when it found it had jurisdiction under the Uniform Reciprocal Enforcement of Support Act (R.C. 3115.01 et seq.) to increase the amount of child support.

I

Appellant complains that the trial court erred in finding that he waived his jurisdictional defenses by not responding to the notice of registration of the foreign support order. Essentially, the court, in its entry overruling Appellant's motion to dismiss, impliedly made such finding by asserting that Appellant, by statute, had only twenty days in which to assert any defenses regarding the registered support order.

The relevant language of R.C. 3115.32(H) & (I) provides as follows:

(H) The obligor has twenty days after the mailing of notice of the registration in which to petition the court to vacate the registration or for other relief. If he does not so petition the registered support order is confirmed.

(I) At the hearing to enforce the registered support order the obligor may present only matters that would be available to him as defenses in an action to enforce a foreign money judgment * * *

It is clear that the registration section of the Act provides a twenty-day period in which an obligor may contest registration of a foreign support order. However, contrary to the trial court's finding that Appellant has waived all defenses, even in actions subsequent to and unrelated to the registration itself, we find that the defenses which may be asserted in a registration action are limited to those which relate directly to the validity of the original, foreign decree. See State of Oregon ex rel Worden v. Drinkwalter (1985), 216 Mont. 9, 12, 700 P.2d 150, 152; Ackerman v. Yanoscik (Tex. Civ. App. 1980), 601 S.W.2d 72. Thus, the only defenses Appellant has Waived by his failure to resist the registration of the order in this case would be, for instance, lack of jurisdiction in the Indiana (rendering) court, or existence of some procedural defect in the rendering court which would nullify the judgment. Therefore, Appellant was free to assert any relevant defenses in subsequent actions concerning enforcement or modification of the (now) Ohio support order, including, and especially, the registering court's lack of personal jurisdiction over him. To rule otherwise would violate the obligor's due process rights.^[1] Stephens v. Stephens (1985), 229 Va. 610, 618, 331 S.E.2d 484, 489 (Act can not properly be read to so completely break down the boundaries of the states and to so thoroughly do away with the minimum contacts required by due process before a state can assert personal jurisdiction over a nonresident). See, also, Bjugan v. Bjugan (Wyo. 1.985), 710 P.2d 213; Davanis v. Davanis (App. 1986), 132 Wis. 2d 318, 392 N.W.2d 108; Ackerman v. Yanoscik (Tex. Civ. App. 1980), 601 S.W.2d 72; O'Halloran v. O'Halloran (Tex. Civ. App. 1979), 580 S.W.2d 870; Pinner v. Pinner (1977), 33 N.C. App. 204, 234 S.E.2d 633; Sabrina D. v. Thomas W. (1981), 110 Misc. 2d 796, 443 N.Y.S.2d 111.

URESA has been enacted in all of the United States and most U.S. territories, in either its original or revised form, for the purpose of facilitating the enforcement of existing orders for support payments for dependent children. An action under URESA is generally initiated in the obligee's home state, either for enforcement of an alleged duty of support under the certification provisions of the statute, see R.C. 3115.12, or for registration of an existing order from the issuing state. See R.C. 3115.32. Although the Act provides for notice to an obligor that the obligee has filed a registration action, a court does not need in personam jurisdiction over an obligor for the registration of a foreign support order which was properly rendered in a state having jurisdiction over the parties to the action. See Allsup v. Allsup (1988), 323 N.C. 603, 606, 374 S.E.2d 237, 238-239; Davanis v. Davanis (1986), 132 Wis. 2d 318, 392 N.W.2d 108 (without personal jurisdiction over obligor, URESA cannot be relied on as granting power to modify foreign support order); Gingold v. Gingold (1984), 161 Cal. App. 3d 1177, 208 Cal. Rptr. 123; Fleming v. Fleming (1980), 49 N.C. App. 345, 271 S.E.2d 584; Pinner v. Pinner (1977), 33 N.C. App. 204, 234 S.E.2d 633.

Pursuant to R.C. 3115.32(G), upon proper registration the foreign state's order essentially becomes an Ohio order, and is subject to any subsequent modification or enforcement by an Ohio court. However, such action may only be taken where the court properly has personal jurisdiction over the obligor. As stated by the Supreme Court of Nebraska,

Mere registration without further action does not subject the obligor to any peril which would motivate a reasonable person to come forward and object to the court's jurisdiction. [Thus] an obligor may raise a challenge to the court's exercise of personal jurisdiction at a subsequent enforcement [or modification] proceeding. Wilson v. Ransom (1989), 233 Neb. 427, 446 N.W.2d 6, 10.

The trial court's final decision in this case did not rest upon the court's finding of waiver of defenses. Instead, the court went on to find that it had jurisdiction over Appellant due to his "minimum contacts" with the state of Ohio. In overruling Appellant's motion to dismiss Appellee's motion for increased child support due to the court's lack of personal jurisdiction, the court found the following:

The children [sic.], the beneficiaries of the child support, are residents of Henry County, Ohio. This minimal contact is sufficient to obtain personal jurisdiction over Hudgins who is obligated to pay child support. Therefore, the court's finding of waiver of defenses apparently had no prejudicial effect on its ultimate decision that it properly could exercise personal jurisdiction over Appellant. The...