In re Parental Responsibilities of HZG, 02CA0227.

• Decision Date: 08 May 2003
• Docket Number: No. 02CA0227.,02CA0227.
• Citation: 77 P.3d 848
• Parties: In re the PARENTAL RESPONSIBILITIES OF H.Z.G., a Child, Upon the Petition of S.M.G., Petitioner-Appellee, and Concerning D.C., Respondent-Appellant.
• Court: Colorado Court of Appeals

77 P.3d 848

In re the PARENTAL RESPONSIBILITIES OF H.Z.G., a Child,

Upon the Petition of S.M.G., Petitioner-Appellee, and

Concerning D.C., Respondent-Appellant.

No. 02CA0227.

Colorado Court of Appeals, Div. IV.

May 8, 2003.

Certiorari Denied September 22, 2003.

Jeffrey H. Cahn, P.C., Jeffrey H. Cahn, Boulder, Colorado, for Petitioner-Appellee.

Warren & Carlson L.L.P., Bruce W. Warren, Niwot, Colorado, for Respondent-Appellant.

Opinion by Judge ROTHENBERG.

In this paternity action, D.C. (father) appeals from the judgment based on the trial court's determination that it acquired personal jurisdiction over him, a nonresident, to establish child support payable to S.M.G. (mother). We affirm.

The evidence established that father had an ownership interest in a closely held corporation located in Idaho. Mother met father in March 2000 while she was working for the company in Idaho.

After they began a personal relationship there, she learned she was pregnant. In April, May, and June 2000, father provided her with some support. When the relationship ended in June or July, she informed father she intended to move to Colorado. She moved in July, and he assisted her with the move.

After mother arrived in Colorado, mother informed father she was applying for Medicaid and Colorado Child Care Assistance Program benefits for the child and she needed documentation of her sources of income, including the prebirth support father was paying. He mailed a letter to her dated July 17, 2000. He admitted understanding that his letter would be submitted as part of her application.

Father's letter stated: "I intend to pay [mother] $300.00 per month from August until January, at which time child support payments will be determined. The check will go out on or about the 10th of each month." Father mailed monthly payments from August through November 2000, and the child was born in Colorado in January 2001. When father did not send any further support, mother filed this action to establish paternity, to allocate parental responsibility, and to set child support and other costs and expenses. She served the petition and summons on father by mail.

Father responded with a motion to dismiss the petition for lack of jurisdiction, which the trial court denied. As relevant here, the trial court found father "knew and intended that his letter of intent would be relied upon ... by Colorado authorities in providing financial assistance to [mother and the child]." The court concluded that while the letter father sent to mother probably would have been insufficient alone to establish jurisdiction, when viewed in conjunction with father's other actions and their intended consequences, there was sufficient evidence to support the exercise of personal jurisdiction over father based on his transaction of business in Colorado within the meaning of the long-arm statute, § 13-1-124(1)(a), C.R.S.2002.

At a later hearing, the court entered permanent orders regarding child support, arrearages, parental responsibility, parenting time, and related issues. The court rejected mother's claim that father also owed her money for prebirth support and expenses pursuant to a contract between them.

Father appeals from the trial court's ruling regarding personal jurisdiction over him to establish his child support obligation. He does not appeal from the portions of the judgment allocating parental responsibilities or parenting time.

I.

Initially, we reject mother's contention that father waived his objection to personal jurisdiction by participating in the proceedings, after his jurisdictional arguments were rejected, to defend his position on the issues of child support and arrearages.

In support of her argument, mother relies on cases in which nonresident litigants objected to jurisdiction, but then sought affirmative relief from the Colorado courts. See T.L. Smith Co. v. Dist. Court, 163 Colo. 444, 431 P.2d 454 (1967)(defendant waived jurisdiction by filing a permissive counterclaim seeking damages for plaintiff's breach of contract); Fagerberg v. Webb, 678 P.2d 544, 548 (Colo.App.1983)("By invoking the jurisdiction of the court in filing these permissible cross-claims and third-party complaints, [the nonresident defendant] waived any objection to the issue of in personam jurisdiction."), aff'd in part and rev'd in part on other grounds sub nom. Webb v. Dessert Seed Co., 718 P.2d 1057 (Colo.1986).

By filing claims in the litigation that were not required to be filed, and that did not arise from the transactions on which the court based its initial assertion of jurisdiction, the nonresident defendants subjected themselves to the jurisdiction of the court for all purposes. Harman v. Stillwell, 944 P.2d 665, 668 (Colo.App.1997)(distinguishing earlier cases, and concluding defendant did not submit himself to jurisdiction by filing claim required by probate code).

Here, father has filed no documents analogous to a permissive counterclaim or cross-claim, and his requests for relief from the court arose from the paternity action filed by mother. Accordingly, we reject mother's contention that father waived his objection to personal jurisdiction by his participation in the proceedings.

II.

Father contends the trial court erred in exercising personal jurisdiction over him. He maintains that such jurisdiction is not permitted by Colorado's long-arm statute and violates the Due Process Clause of the United States and Colorado Constitutions. We disagree.

A.

Whether a court may properly assert personal jurisdiction over a party is a question of law, to be reviewed de novo by this court. Union Pac. R.R. v. Equitas Ltd., 987 P.2d 954 (Colo.App.1999).

As relevant here, Colorado's long-arm statute provides that a person submits to the jurisdiction of the courts of this state concerning any cause of action arising from "[t]he transaction of any business within this state." Section 13-1-124(1)(a).

In adopting the long-arm statute, the General Assembly intended to extend the personal jurisdiction of Colorado's courts to the maximum limits permissible under the United States and Colorado Constitutions. Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267 (Colo.2002).

A party invoking the Colorado long-arm statute must allege sufficient facts to support a reasonable inference that the nonresident defendant has engaged in conduct under the statute which subjects the nonresident to the personal jurisdiction of the court. A prima facie showing of threshold jurisdiction is sufficient and may be determined from allegations in the complaint or evidence introduced at any hearing conducted in the matter. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

Due process requires that individuals have fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign. Individuals have fair warning when their conduct and connection with the forum state are such that they should reasonably anticipate being haled into court there. Hence, unilateral activity by those who claim some relationship with a nonresident defendant cannot in itself satisfy the requirement of contact with the forum state. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

It is essential that there be some act by which the nonresident purposefully avails himself or herself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra. The "purposeful availment" requirement ensures that a nonresident will not be haled into a jurisdiction solely as a result of random or fortuitous contacts. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra, 40 P.3d at 1270.

"For a nonresident to be subjected to the general jurisdiction of the forum state by his [or her] activities there, those activities must be continuous and systematic, of a general business nature." Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra, 40 P.3d at 1271. However, "for specific jurisdiction to adjudicate claims arising from [a nonresident's] contacts with the forum state, the fair warning requirement is satisfied as long as the litigation results from alleged injuries that `arise out of or relate to' activities that are significant and purposefully directed by the defendant at residents of the forum." Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra, 40 P.3d at 1271 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985)).

In certain situations, a single act may support specific jurisdiction. However, in addition to the requirement of purposeful availment, the contact also must proximately result from actions of the nonresident that create a substantial connection with the forum state. Single or occasional acts related to the forum may not be sufficient to establish jurisdiction if their nature and quality and the circumstances of their commission create only an attenuated affiliation with the forum. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

B.

In concluding that father had engaged in the transaction of business here and that the purposeful availment requirement had been met, the trial court relied on father's sending mother the July 2000 letter for the purpose of assisting her in applying for public assistance benefits for their child. The trial court specifically found that father "knew and intended that his letter of intent would be relied upon ... by Colorado authorities" for that purpose.

When a nonresident has deliberately created continuing obligations between himself or herself and residents of the forum state, he or she has manifestly availed himself or herself of the privilege of conducting business there. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

The Colorado Child Care Assistance Program (C-CAP) is a state public assistance program provided through the counties. See § 26-2-801, et seq., C.R.S.2002. Any payment...