King v. King

• Decision Date: 08 April 1985
• Citation: 513 A.2d 773
• Parties: Donna KING, Petitioner, v. Clarence A. KING, Respondent. . Submitted:
• Court: Delaware Family Court

Page 773

513 A.2d 773

Donna KING, Petitioner, v. Clarence A. KING, Respondent.

Family Court of Delaware,

New Castle County.

Submitted: April 8, 1985.

Decided: July 22, 1985.

Upon Respondent's motion to dismiss for lack of jurisdiction over Respondent, motion denied.

Alfred J. Lindh, Wilmington, for petitioner.

Wendie E. Cohen, Wilmington, for respondent.

WAKEFIELD, Judge.

On August 29, 1984, Petitioner (herein sometimes "mother") filed a Civil Support Petition on a Family Court form seeking $260 per week for the support of two children of her marriage to Respondent (herein sometimes "father"). Service by summons was made on the father in the State of Maine pursuant to Delaware's Long-Arm Statute, 10 Del.C. § 3104, ¹ and also by ordinary mail, 10 Del.C. § 974.

On September 11, 1984, respondent wrote to the Clerk of Court acknowledging receipt of the summons. He also contacted an attorney in Maine who also wrote to the Clerk asking that notice of any hearing be sent to her in order that Delaware counsel could be obtained "should court action become necessary." Thereafter, for several weeks, the mother's Delaware attorney and the father's Maine attorney attempted to negotiate a settlement, but on November 16, 1984, ² the parties were notified of a scheduled hearing before a Master on December 10, 1984. Five days before the hearing, the father's Maine attorney arranged with the father's present Delaware counsel for representation.

On December 4, 1984, the Master entered a disposition as follows:

At the request of Respondent, the hearing on Civil Support Petition 84-8-741-CV now scheduled for December 10, 1984 is to be rescheduled with notice of the new time and date to the parties and counsel. This rescheduling is on the condition that Ms. Cohen enter her appearance in writing no later than December 7, 1984.

On the next day, counsel for the father filed an "Entry of Appearance" stating: "PLEASE ENTER my appearance as attorney for Respondent...."

On January 30, 1985, the Court issued another "Summons in Civil Action" to the parties and counsel, fixing a new hearing for February 21, 1985. On February 15, 1985, counsel for the father filed a Motion to Dismiss for Lack of Jurisdiction which is the subject matter of this decision. Thereafter, the parties entered into a Stipulation of Facts with respect to the Motion and filed memoranda of law.

The parties were married in Virginia in 1968. Two children were born of the marriage in other states. In 1975, the parties moved to Delaware where they purchased a home. The father's place of employment was in Pennsylvania. The parties separated in 1981 and, shortly thereafter, the father moved to Alabama while the children remained with their mother in Delaware. In March of 1983, the father moved to Maine. The mother and children have continued to reside in Delaware until the present.

While the father lived in Alabama, the parties negotiated a written Separation Agreement dated May 24, 1982. Negotiations had been carried on between the mother's then Delaware attorney and the father's Alabama attorney. The agreement was signed by the mother in Delaware, mailed to the father's Alabama attorney, and after he substituted two new pages, the father signed the document in Alabama and returned it to Delaware where the mother initialed the revised pages. The parties were then divorced on August 16, 1982 on the mother's petition in this Court. The Separation Agreement was not incorporated or merged into the divorce decree.

The father has not been a resident of Delaware since 1981. Since that time, he has only been in the State for the purpose of picking up the children for visitation. He no longer owns real or personal property in this State and carries on no trade or business here. He has carried out to the letter all of the support provisions of the Separation Agreement and, in fact, voluntarily increased the payments called for therein beyond the amounts required.

On the basis of the foregoing facts, the father argues that this Court has no jurisdiction to exercise in personam jurisdiction over him. The mother argues, on the same facts, that in personam jurisdiction has been acquired by compliance with the Long-Arm Statute and that, in any event, there has been a voluntary appearance both by and on behalf of the father who has waived any objection to jurisdiction and is now estopped to deny it.

In addressing the issue posed by counsel, the Court has treated the Civil Support Petition filed herein as a Petition to Modify a Separation Agreement. To do otherwise would be to treat the agreement as a nullity or non-existent. This being the case, the proceeding, therefore, has some characteristics which would seem to distinguish it from the line of cases referred to in Lewkowitz v. Lewkowitz, Del.Fam., 513 A.2d 211 (1985) which deals with personal jurisdiction over a respondent for the purpose of establishment, enforcement, or modification of judicially-ordered child support. Here we are dealing with an effort to obtain an upward modification of the child support provisions of a Separation Agreement negotiated by the parties at a time when the mother and children were residents of Delaware and the father resided in another state.

In order for this Court to assert in personam jurisdiction over a nonresident respondent, the "minimum contacts" test first enunciated in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) must be satisfied. The respondent must have sufficient contacts with the forum state in order for the due process requirements of the Fourteenth Amendment to be satisfied. The Delaware Long-Arm Statute, 10 Del.C. § 3104, permits the Court to exercise personal jurisdiction over a nonresident where the respondent "transacts any business" in this State. The statute has been construed by both federal and state courts as conferring the broadest possible jurisdiction permitted by the Constitution. Transportes Aereos De Angola v. Ronair, Inc., 544 F.Supp. 858 (D.Del.1982); Mason & Szmokaluk v. Gordon & Hinckman, Del.Super., C.A. No. 78-C-JN-55, Taylor, J. (Mar. 31, 1980). In addition, the statute is to be given liberal construction in favor of exercising jurisdiction. Waters v. Deutz Corp., Del.Super., 460 A.2d 1332 (1983). It has also been construed as a "single act" statute which means that jurisdiction over nonresidents may be predicated on a single act or transaction engaged in by a nonresident within the state. Eudaily v. Harmon, Del.Supr., 420 A.2d 1175 (1980).

Thus, it has been held that the execution of a separation agreement within the forum state requiring an obligor to make payments to the wife for herself and the child and to maintain an escrow account in the forum to secure performance were business transactions sufficient to invest the forum state with jurisdiction over a nonresident who defaulted in his performance of the agreement. Van Wagenburg v. Van Wagenburg, Md.Ct.App., 215 A.2d 812, cert. denied, 385 U.S. 833, 87 S.Ct. 73, 2 L.Ed.2d 68 (1966). See also Kochenthal v. Kochenthal, N.Y., 28 A.D.2d 117, 282 N.Y.S.2d 36 (1967); Brenda C.W. v. John F.W., Del.Fam., File No. 234-1978, Wakefield, J. (Sept. 9, 1980).

In the case at bar, however, the father was a nonresident of Delaware at the time the agreement was executed, he did not sign it in Delaware, and he was represented by an out-of-state attorney. The contract did provide that it was to be construed in accordance with Delaware law and that "the Family Court of the State of Delaware, or other appropriate court having jurisdiction" was empowered to make adjustments from time to time in the child support payments called for therein. An agreement which calls for interpretation according to the law of a particular state does not confer jurisdiction on the courts of that state, but the agreement to have adjustments made by the courts of a particular state standing alone might well be construed as an agreement to submit to the jurisdiction of its courts. However, this agreement was made more ambiguous when the phrase "or other appropriate court having jurisdiction" was added. This could just as easily mean that the Delaware Family Court could make the adjustment only if there is an independent basis for jurisdiction at the time the adjustment was sought. The Court cannot say, therefore, that the agreement itself requires the father to submit to the jurisdiction of this Court. In addition, although some of the negotiations for the agreement were transacted in Delaware by the mother's attorney and although she signed it here, no action by the father with respect thereto occurred in this state. Therefore, his execution of the agreement was not a transaction in Delaware thereby vesting this Court with in personam jurisdiction over respondent in order to award an increase in the support provisions thereof, particularly where there has been no breach thereof.

Petitioner did not cite the unusual case of Miller v. Kite, N.C.Ct.App., 318 S.E.2d 102 (1984), in which the North Carolina Court of Appeals held that where the child lived in North Carolina, the courts of that State had in personam jurisdiction over a nonresident father to increase the child support provisions of a separation agreement which the child's father and mother had executed in Illinois. That Court distinguished Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 reh'g denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978), cited by respondent, pointing out that the forum state contacts in Kulko had all been "imposed" on the father by the decisions of others, that the father in Kulko had legal custody, and that he provided a home for the children in his state; whereas, the father in the North Carolina case had agreed for the mother to have custody, thereby permitting her to choose to reside in North Carolina where the father paid support, where he visited with the children, where...