Lake v. Butcher

• Decision Date: 02 April 1984
• Docket Number: No. 11258-9-I,11258-9-I
• Citation: 679 P.2d 409,37 Wn.App. 228
• Parties: Laura J. LAKE, Respondent, v. Steven R. BUTCHER, Appellant, and Infant Girl Lake, Party in Interest.
• Court: Washington Court of Appeals

Page 228

37 Wn.App. 228

679 P.2d 409

Laura J. LAKE, Respondent, v. Steven R. BUTCHER, Appellant and Infant Girl Lake, Party in Interest.

No. 11258-9-I.

Court of Appeals of Washington Division 1.

April 2, 1984.

Ordell, Lawrie & Brown, William T. Lawrie, Seattle, for appellant.

Elizabeth Thomas, Evergreen Legal Service, Seattle, Laura J. Lake, Kent, for respondent.

Leen & Moore, Inc., P.S., Seattle, for party in interest (infant girl lake).

WARD WILLIAMS, Judge.

Laura Lake brought this action to establish that Steven Butcher is the father of her minor child. The trial court denied Butcher's motion to dismiss. Butcher did not answer. Eventually, an order of default and a default judgment were entered, determining that Butcher is the child's father and providing for custody, visitation, and child support. Butcher appeals; we affirm.

The undisputed facts are that the parties were married during March 1978 in Minnesota and divorced in Iowa in 1980. They were separated from mid-1978 on, except for a single 1 month period, commencing November 7, 1978, when they cohabited in King County. They engaged in sexual intercourse during this month. Lake gave birth to a child on August 15, 1979 in Seattle.

Butcher first contends that RCW 26.26, the Uniform Parentage Act, is unconstitutional because it grants personal jurisdiction over him solely upon the basis of an act of sexual intercourse performed within the state. RCW 26.26.080(2). He argues that Washington "is an inconvenient forum for the Defendant" and that "Lake's wanderings cannot be the basis for finding jurisdiction."

The due process requirements relating to personal jurisdiction have previously been set forth by this court:

The existence of personal jurisdiction depends upon (1) reasonable notice to the defendant that an action has been brought; and (2) a sufficient connection between the defendant and the forum state as to make it fair to require defense of the action in that forum. Kulko v. Superior Ct., 436 U.S. 84, 91, 56 L.Ed.2d 132, 98 S.Ct. 1690 [1696] (1978). Thus the cases have declared that three basic factors must coincide if our courts are to exercise jurisdiction:

(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

(Footnotes omitted.) Tyee Constr. Co. v. Dulien Steel Prods., Inc., 62 Wn.2d 106, 115-16, 381 P.2d 245 (1963); In re Miller, [86 Wash.2d 712, 719, 548 P.2d 542 (1976) ].

In re Marriage of Hall, 25 Wash.App. 530, 535-536, 607 P.2d 898 (1980).

Jurisdiction over Butcher is based upon RCW 26.26.080(2), which provides:

A person who has sexual intercourse in this state thereby submits to the jurisdiction of the courts of this state as to an action brought under this chapter with respect to a child who may have been conceived by that act of intercourse. In addition to any other method provided by statute, personal jurisdiction may be acquired by personal service of summons outside this state or by service in accordance with RCW 4.28.185 as now or hereafter amended.

Obtaining personal jurisdiction over Butcher on the basis of RCW 26.26.080(2) is proper. First, Butcher was served and had actual knowledge of the action. Second, the cause of action arises from Butcher's act of sexual intercourse in this state. Finally, it does not offend traditional notions of fair play or substantial justice to hold that a man who fathers a child in this state has established sufficient contacts with the state to support the assertion of personal jurisdiction over him in an action concerning that child. Tyee Constr. Co., supra; In re Marriage of Hall, supra. Accord Adam v. Van Buren, 315 N.W.2d 319 (S.D.1982).

This decision is consistent with relevant Supreme Court decisions. In In re Custody of Miller, supra, the court held that a non-resident father's tortious action in neglecting to support his children residing in Washington allowed assertion of personal jurisdiction over him pursuant to RCW 4.28.185(1)(b). ¹ In so holding, the court stated:

In determining whether the respondent is accorded the "fair play and substantial justice" requirement of the Tyee jurisdictional formula, this must be considered in context with and cannot be divorced from the nature of the underlying controversy which evoked this litigation. One also must keep in mind that the welfare of the children is the paramount concern, coupled with the secondary interests of the parents and the state in the resolution of this issue.

(Emphasis added.) Miller, 86 Wash. at 720, 548 P.2d 542. The same concerns apply in this case.

Our decision is also consistent with the Supreme Court's decision in In re Marriage of Myers, 92 Wash.2d 113, 594 P.2d 902 (1979). In Myers, the court stated that personal jurisdiction over a non-resident father was properly gained pursuant to a section of the "long-arm statute" subjecting a person to the jurisdiction of this state's courts for any cause of action arising from, "[t]he act of sexual intercourse within this state with respect to which a child may have been conceived." RCW 4.28.185(1)(e).

A society which does not protect and nurture its children is doomed. By adopting the Uniform Parentage Act, the legislature has lawfully placed upon persons begetting children in this state the obligation of supporting them. Butcher was personally served with process in Iowa and was amenable to the jurisdiction of the State of Washington.

Butcher's next contention, that the default order was improperly entered because the action was taken by a court commissioner pro tempore, is without merit. The superior court has inherent authority to appoint commissioners pro tempore to sit in place of temporarily absent regularly appointed commissioners. Ordell v. Gaddis, 99 Wash.2d 409, 411, 662 P.2d 49 (1983). There is no indication in the record that the pro tem commissioner who entered the default order, a duly sworn district court judge, was acting other than in this authorized capacity.

Butcher next contends that the order of default is void because proof of service was not contained in the court file at the time the order was entered. See CR 55(b)(4). Butcher did not raise this issue in the trial court, so has waived it. Raymond v. Fleming, 24 Wash.App. 112, 600 P.2d 614 (1979), review denied, 93 Wash.2d 1004 (1980); see CR 12(h)(1). In any event, "[i]t is the fact of service which confers jurisdiction, not the return," Williams v. Steamship...