Jaworowski v. Kube

• Decision Date: 04 October 1994
• Parties: Deborah JAWOROWSKI, Plaintiff-Respondent, v. Frank KUBE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 474

276 N.J.Super. 474

648 A.2d 261

Deborah JAWOROWSKI, Plaintiff-Respondent, v. Frank KUBE, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Sept. 13, 1994.

Decided Oct. 4, 1994.

Dina G. Kugel, Westfield, for appellant (Lindabury, McCormick & Estabrook, attorneys; Ms. Kugel and Marlene Browne-Berg, on the brief).

Nicholas T. Grosch, Newark, for respondent (Stephen J. Edelstein, Essex County Counsel, attorney).

Before Judges PRESSLER, LANDAU and NEWMAN.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

Defendant Frank Kube appeals from an order of the Chancery Division, Family Part, enforcing a child support order entered against him in Arizona and expressly rejecting his argument that that order is void by reason of Arizona's failure to have obtained personal jurisdiction over him. We affirm.

The jurisdictional facts are largely undisputed. Defendant and plaintiff Deborah Jaworowski were both residents of New Jersey when they met in 1983. Planning to be married, they moved together to Phoenix, Arizona, in February 1985, where they rented an apartment and lived together as husband and wife. Plaintiff was then pregnant with their daughter, who was born in August 1985. With defendant's concurrence, plaintiff registered at the hospital under defendant's name, and the child bears his name as well. The child was also so baptized in April 1986. In June, because of problems between them, plaintiff changed her mind about marrying defendant and returned to New Jersey with the baby and her two other children. Defendant remained in Arizona, plaintiff rejoining him there, however, in August. She has lived in Arizona since. Defendant left Arizona in October 1986, came back in November 1987, and left again the following month. He has resided in New Jersey since. It appears that while he still lived in Arizona, he filed there for unemployment benefits, which he continued to receive after his return to New Jersey.

Although defendant has never denied paternity of the child, he failed to provide support for her. Plaintiff, who had been receiving public assistance, commenced a paternity and support action against defendant in the Arizona Superior Court for Maricopa County in July 1988. Defendant was personally served with process at his home in New Jersey by a Union County sheriff's officer. He consulted with an attorney employed by Union County Legal Services Corporation who wrote to plaintiff's attorney in Arizona advising that defendant acknowledged paternity, recognized his obligation to support the child but was unable to then do so because he was unemployed, asserted his right to visitation, and offered to sign a consent decree.

Although defendant never filed an answer to the complaint or otherwise appeared in the Arizona action, negotiations ensued between the attorneys. Plaintiff had proposed a consent decree providing monthly child support of $400. Defendant, asserting that he was unemployed and living on monthly benefits of $450, offered child support of $175 monthly, to be increased when he again started to work. Plaintiff's attorney rejected the proposal, advising that he had specific information respecting defendant's current employment and that defendant's salary warranted the demanded $400 monthly support level under Arizona's child support guidelines. Defendant's response continued to assert his unemployment, acknowledged that he was receiving weekly benefits of $228 and asked that plaintiff modify her demand based on that benefit level. That was apparently the end of the correspondence. A default judgment was entered in January 1989 fixing child support at $400 per month and requiring defendant to pay the child's incurred medical expenses as well as plaintiff's attorney's fee. Defendant asserts that he was not noticed either of the entry of the default or the entry of the default judgment.

Initiation by plaintiff's Arizona attorney in late 1989 of inquiries in New Jersey respecting enforcement of the judgment in this state were not apparently pursued. Ultimately, the Arizona Attorney General's Office requested the Essex County Probation Department to obtain enforcement pursuant to N.J.S.A. 2A:17-56.18, which extends the income withholding provisions of the New Jersey Support Enforcement Act, N.J.S.A. 2A:17-56.7 to -56.16, to support orders entered by a sister state. The Essex County Probation Office complied with this request and commenced this proceeding by serving a notice of income withholding on defendant's employer. Defendant responded by obtaining an order requiring Probation to show cause why the Arizona judgment should not be vacated on jurisdictional grounds. At the ensuing hearing, the Family Part judge concluded that Arizona had properly exercised long-arm in personam jurisdiction over defendant. He also concluded that because the Arizona judgment was not entered in a proceeding under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), N.J.S.A. 2A:4-30.24 to -30.64, he had no jurisdiction to entertain an application by defendant to modify the terms of the Arizona judgment. While we agree with the first of these determinations, we are nevertheless of the view that defendant is not without the procedural recourse of seeking modification of the Arizona judgment in this state.

We address first the due process issue. It is well-settled that an exercise of long-arm in personam jurisdiction by the forum state by way of substituted service made outside that state will not offend due process if the defendant had such minimal contacts with the forum state so that maintenance of the action there will not offend traditional notions of fair play and substantial justice. See generally International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Lebel v. Everglades Marina, Inc., 115 N.J. 317, 558 A.2d 1252 (1989); Charles Gendler & Co. v. Telecom Equipment Corp., 102 N.J. 460, 508 A.2d 1127 (1986). The United States Supreme Court has expressly considered the question of the adequacy of the contacts to warrant an exercise of long-arm jurisdiction over a noncustodial parent from whom support is sought for children who reside with the custodial parent in the forum state. See Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), on which defendant relies. The principles articulated by Kulko are, of course, binding on us.

As we read Kulko, it reaffirms long-standing due process principles by holding that in order to sustain the forum state's exercise of jurisdiction in a support action, the non-custodial parent's contacts with that state must consist of or be based on conduct by which he purposefully avails himself of the privilege of conducting activities there and of the benefits and protection of its laws. 436 U.S. at 94, 98 S.Ct. at 1698. And see Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Conversely, the requirements of due process will not be met where the non-custodial parent's connection with the forum state is "too attenuated ... to justify imposing upon him the burden and inconvenience of defense...." Kulko, supra, 436 U.S. at 91, 98 S.Ct. at 1696. The Court in Kulko concluded that defendant's contacts with the forum state did not meet this standard. But the facts underlying that conclusion are very different from those before us here.

In Kulko, the parties, then both residents of New York, were married in 1959 while defendant was in military service. The marriage took place in California during defendant's three-day stopover there en route from a military assignment in Texas to a tour of duty in Korea. Plaintiff then returned to New York where defendant joined her after his military service. The parties' two children were born in New York, where the family continued to reside together until 1972 when plaintiff moved to California. The parties were divorced in that year by a Haitian divorce which incorporated their agreement by which defendant, who remained in New York, was to be the custodial parent, the children visiting with their mother in California during school holidays and summers. Eventually each of the children opted to reside in California and when each made that decision, defendant paid for their one-way transportation from New York to California. Plaintiff then commenced an action in California, serving defendant in New York by substituted service, seeking support for the children. As the Court made clear, California's assertion of jurisdiction over defendant was based neither on the fact that the marriage had taken place there nor on defendant's "glancing presence" in California during his military service. 436 U.S. at 92, 98 S.Ct. at 1696-97. Nor did it rest upon defendant's agreement that the children would make extended visits to their mother in California. Rather California predicated its claim of jurisdiction on the fact that defendant, by thereafter sending the children to California to live with their mother and thereby relieving himself of the financial obligation for their support that he had had as the custodial parent, had sufficiently and purposefully availed himself of the benefit and protection of California law to satisfy due process. That conduct, the Court concluded, did not constitute sufficient contact to justify an exercise of long-arm jurisdiction. See also Landis v. Kolsky, 81 N.J. 430, 409 A.2d 276 (1979), holding that neither the fact of the occurrence of the marriage in...