In re Marriage of Malwitz

• Decision Date: 04 October 2004
• Docket Number: No. 03SC439.,03SC439.
• Citation: 99 P.3d 56
• Parties: In re the MARRIAGE OF Petitioner: Susan A. MALWITZ, and Respondent: Reginald D. Parr, and concerning Pueblo County Child Support Enforcement Unit.
• Court: Colorado Supreme Court

99 P.3d 56

In re the MARRIAGE OF Petitioner: Susan A. MALWITZ, and

Respondent: Reginald D. Parr, and concerning Pueblo County Child Support Enforcement Unit.

No. 03SC439.

Supreme Court of Colorado.

October 4, 2004.

Colorado Legal Services, Lynn Magalska, Pueblo, Greenberg Traurig, LLP, Naomi G. Beer, Kristi Blumhardt, Michele Stone Gardner, Denver, for Petitioner.

Holland & Hart LLP, Susannah W. Pollvogt, A. Bruce Jones, Denver, for Amicus Curiae Colorado Coalition Against Domestic Violence.

RICE, Justice.

Susan Malwitz appeals a ruling by the court of appeals reversing the trial court's finding that it had personal jurisdiction over her non-resident husband, Reginald Parr (the "Defendant"), in an action for dissolution of marriage and child support. In re the Marriage of Malwitz, 81 P.3d 1076 (Colo. App.2003). Because we conclude that the trial court possessed both statutory and constitutional authority to exercise jurisdiction over the Defendant, we reverse the court of appeals and remand for further proceedings consistent with this opinion.

I. Facts and Proceedings Below

In April 2000, Malwitz petitioned the Pueblo County District Court for dissolution of marriage, seeking orders regarding parental responsibilities, child support, maintenance, and division of property and debts. After being personally served in Texas, the Defendant filed a motion to dismiss for lack of personal jurisdiction. At the trial court's hearing on the personal jurisdiction issue, Malwitz and her father testified regarding the Defendant's history of abuse and harassment, as well as her knowledge of the Defendant's prior conviction for "terroristic threats against one of his ex's and attempted kidnapping against his other daughter."

Malwitz and her father testified to the following course of events. Malwitz and the Defendant were married in Texas, by operation of common law, in November 1997. Throughout the course of their marriage, the Defendant, whom Malwitz knew to be involved in a gang, abused Malwitz both mentally and physically. For example, in March 1998, when Malwitz attempted to leave the Defendant, he had a friend step on Malwitz's head while the Defendant kicked Malwitz in the face. A few months later, when Malwitz confronted the Defendant with her suspicions that he was sexually abusing her daughter from a previous relationship, the Defendant threatened to kill Malwitz if she turned him in. Despite these threats, Malwitz left the Defendant that night and reported both the death threats and child sexual abuse to the police.¹

Malwitz, who was pregnant with the Defendant's child when she left him in September 1998, initially moved into a friend's trailer, where the Defendant continued to harass her. First, Malwitz witnessed the Defendant in the driveway of the trailer court watching both Malwitz and her daughter. Shortly thereafter, a friend of the Defendant discovered where Malwitz worked and, within the following three days, tires on Malwitz's car were flattened on two occasions while the car was parked at her workplace. In December 1998, when Malwitz reported these incidents to the police, they advised her to move into a woman's shelter. After Malwitz moved into the shelter, the Defendant and a friend were seen carrying firearms and attempting to break into Malwitz's former home in the trailer court. Additionally, during this period of estrangement, the Defendant twice made "harassing" phone calls to Malwitz's father, who resided in Colorado. In January 1999, fearing for her life, Malwitz fled with her daughter to her father's home in Colorado, where, a few months later, she gave birth to the Defendant's child.

For purposes of determining personal jurisdiction, all factual disputes are resolved in the plaintiff's favor, taking into consideration the "allegations set forth in the complaint as well as from evidence introduced in any hearing conducted on the matter." Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1272 (Colo.2002). Thus, in reviewing the trial court's decision to exercise personal jurisdiction over the Defendant, we accept the trial court's factual findings regarding the Defendant's abuse of Malwitz. Here, the only evidence before the trial court consisted of Malwitz's complaint and testimony from Malwitz and her father at the hearing below. Based on that evidence, the trial court expressly found that the Defendant "perpetrated domestic violence against [Malwitz]."

Based on its factual findings, the trial court concluded that it had jurisdiction over the Defendant pursuant to section 14-5-201(5), 5 C.R.S. (2003), because the Defendant's "acts or directives" had caused Malwitz, pregnant with their child, to flee Texas and because the Defendant was aware that Malwitz's only family ties were in Colorado and therefore should have foreseen that Malwitz would flee to Colorado. The Defendant appealed, and the court of appeals reversed, finding that the trial court abused its discretion in exercising jurisdiction over the Defendant. In re the Marriage of Malwitz, 81 P.3d at 1079.

We granted certiorari to address whether the trial court had jurisdiction to order child support under section 14-5-201(5) based on the Defendant's acts of domestic violence, which caused Malwitz to flee to Colorado where the child was born and now resides with Malwitz. Accepting the trial court's factual findings regarding the Defendant's abuse and harassment of Malwitz, we find that the Defendant's actions were sufficient to constitute "acts or directives" that caused Malwitz to flee Texas for Colorado within the meaning of section 14-5-201(5). We further find that, under these circumstances, the exercise of personal jurisdiction over the Defendant is consistent with due process. We therefore hold that the trial court had personal jurisdiction over the Defendant for purposes of entering a child support order.

II. Analysis

Whether a court may exercise personal jurisdiction over a non-resident defendant is a question of law, which we review de novo. See In re the Parental Responsibilities of H.Z.G., 77 P.3d 848, 851 (Colo.App.2003). Specifically, in order to determine whether a Colorado court may properly exercise jurisdiction over a party, we look to whether the court has both statutory and constitutional authority to do so. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 290, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (noting that "the proper approach was to test jurisdiction against both statutory and constitutional standards"); Archangel Diamond Corp. v. Arkhangelskgeoldobycha, 94 P.3d 1208, 1212 (Colo.App.2004) ("After determining whether the requirements of the long-arm statute have been met, the court must separately determine whether a defendant has the requisite minimum contacts to satisfy due process."). Thus, we must determine first whether the Defendant's abuse and harassment of Malwitz caused her and the child to reside in Colorado so as to make jurisdiction statutorily appropriate under section 14-5-201(5) and, second, whether exercising personal jurisdiction over the Defendant would be consistent with due process.

A. Jurisdiction Under UIFSA

Colorado's Uniform Interstate Family Support Act (UIFSA) was enacted in order "to be used as a procedural mechanism for the establishment, modification, and enforcement of child and spousal support." McNabb ex rel. Foshee v. McNabb, 31 Kan. App.2d 398, 65 P.3d 1068, 1074 (2003). Adopted as the long-arm provision of UIFSA, section 14-5-201(5) provides that, "[i]n a proceeding to establish, enforce, or modify a child support order or to determine parentage," a Colorado court may exercise personal jurisdiction over a non-resident if "[t]he child resides in this state as a result of the acts or directives of the individual." Thus, jurisdiction is appropriate under UIFSA if the Defendant's abuse and harassment of Malwitz constituted "acts or directives" that caused Malwitz to reside in Colorado and, ultimately, to give birth to the Defendant's child in this state.

Other jurisdictions have interpreted the long-arm provision of UIFSA, reaching varying results depending on the particular facts and circumstances of each case.² For example, in McNabb, the Kansas Court of Appeals refused to find personal jurisdiction over a non-resident father under UIFSA because it concluded that the child did not reside in Kansas as a result of the acts or directives of the father. In McNabb, the mother claimed that the father drank excessively, had abused her on one occasion a year before the mother and child moved to Kansas, and had dropped the child on one occasion several months before the mother and child moved to Kansas. 65 P.3d at 1070-71. However, because the one physical incident between the father and mother occurred over a year before the mother fled and the father's drinking "did not cause [the mother] and the child to flee Virginia for Kansas," the court ruled that the father's "acts or directives" did not cause the mother and child to reside in Kansas. Id. at 1075. Accordingly, the court concluded that personal jurisdiction was not available under UIFSA. Id.

In Windsor v. Windsor, 45 Mass.App.Ct. 650, 700 N.E.2d 838 (1998), a Massachusetts appellate court concluded that personal jurisdiction over a non-resident father was inappropriate under UIFSA. There, the mother left the father in Florida in June 1977, gave birth to their son in Massachusetts in September 1977, and filed a complaint for divorce, including a demand for child support, nearly twenty years later, in June 1995. Windsor, 700 N.E.2d at 839. In her complaint, the mother alleged that the father had been guilty of "cruel and abusive treatment" during the course of the marriage, but did not offer any specific facts or testimony to support that claim. Id. at 841. Thus, finding that "[n]o affidavit, testimony, or authenticated or verified document even intimates, let alone establishes, that the wife and her...