Lewkowitz v. Lewkowitz

• Decision Date: 05 March 1985
• Parties: Sybil S. LEWKOWITZ, Petitioner, v. Horst LEWKOWITZ, Respondent. . Submitted:
• Court: Delaware Family Court

Page 211

513 A.2d 211

Sybil S. LEWKOWITZ, Petitioner, v. Horst LEWKOWITZ, Respondent.

Family Court of Delaware,

New Castle County.

Submitted: March 5, 1985.

Decided: June 14, 1985.

Upon Petition to Register and Enforce a Foreign Support Order, granted.

Thomas J. Eastburn, Wilmington, for petitioner.

Eliot Alazraki, Wilmington, for respondent.

WAKEFIELD, Judge.

Petitioner, a New Jersey resident, has petitioned this Court pursuant to 13 Del.C. § 639 to register and enforce an order entered by the Superior Court of New Jersey (herein "New Jersey Court") dated February 1, 1982, which reduced to judgment the child support arrears incurred by the petitioner under an earlier order of the same court dated July 19, 1976. The latter order required respondent to pay to petitioner an aggregate of $40 per week for the two sons of the parties, and the February 1, 1982 judgment for arrears entered by the New Jersey Court was for $13,174.45 plus counsel fees of $901.65. Additional arrears have accrued since that time. Respondent opposes the petition to register and enforce primarily on the ground that the New Jersey Court had no in personam jurisdiction over the respondent, and, hence, the judgment for arrears is void and of no effect.

The facts are not in dispute. Petitioner and respondent were husband and wife and were residents of New Jersey at the time both children were born. They were divorced by the New Jersey Court on February 3, 1967, in Case No. M-5584-65. Respondent moved to Delaware in 1970 and has remained a Delaware resident ever since. Petitioner and the two children have continued to reside in New Jersey during the entire period following the divorce.

In 1976, petitioner asked the New Jersey Court in the same divorce action for an order of support, and respondent apparently asked the New Jersey Court for an order of visitation. Both appeared in the courthouse for trial, but the matter was settled, and by agreement of the parties, an order awarding petitioner support and respondent visitation was entered on July 19, 1976. The respondent apparently does not challenge the New Jersey Court's jurisdiction to enter that order. Indeed, he could not now do so because he appeared in the action through his attorney and affirmatively sought and received an order for visitation with his sons.

Sometime in 1981, petitioner filed with the New Jersey Court a motion designed to fix the amount of arrears on the July 19, 1976 order and to reduce them to judgment. A copy of that pleading was served on respondent in Delaware by the New Castle County sheriff. A hearing on the motion was scheduled by the New Jersey Court for January 29, 1982. Notice of the hearing was given to respondent in some unspecified fashion, but there is no doubt that he received it because respondent's Delaware attorney wrote to petitioner's New Jersey attorney that respondent would not attend "as he feels that he is not subject to the jurisdiction of New Jersey." The hearing in New Jersey was held as scheduled, and the New Jersey Court, after noting respondent's non-appearance and after reviewing affidavits and argument of counsel, entered the Order of February 1, 1982, awarding judgment to petitioner for arrears totaling $13,174.45 and also providing that the prior order for child support and medical and dental expenses should continue. The instant Delaware proceeding was filed for the purpose of collecting the judgment so entered.

Respondent does not challenge the technical procedures used by the New Jersey Court in obtaining service upon him in Delaware. He simply asserts that such service cannot legally confer in personam jurisdiction over him because he no longer has the "minimum contacts" with that State required by International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and its numerous progeny.

Obviously, the law of New Jersey applies in the determination of whether its Superior Court had in personam jurisdiction over respondent when it entered its Order of February 1, 1982, unless that law is in some fashion violative of the United States Constitution.

In the case of Ring v. Ring, N.J.Super., 146 N.J.Super. 373, 369 A.2d 993 (1977), the New Jersey Superior Court, relying on its "long-arm" statute, held that where husband and wife had resided as man and wife in New Jersey and the husband moved to another state, the wife could institute a separate maintenance action in the New Jersey courts and could acquire in personam jurisdiction over the husband. ¹ It should be borne in mind that the Ring case was an original lawsuit designed to obtain an initial order of support. In the case at bar, the initial order of support was obtained in 1976, and the New Jersey action under attack here was an enforcement action. Respondent in this action attempts to distinguish Ring on the thin ground that, in the Ring case, the parties were still married at the time the action was instituted and that since the New Jersey Court would have had jurisdiction over the divorce and any alimony petition incident thereto, it was also appropriate for the Court to deal with the preceding separate maintenance action. The simple answer to that theory is that the New Jersey Court itself did not make that distinction. Indeed, that Court stated:

Originally, the concept of long-arm jurisdiction developed in order to obtain jurisdiction over defendants not subject to personal service within the State, so as to afford relief in tort and commercial cases. There is a definite trend towards applying this concept to all types of litigation, including matrimonial and support cases. (Emphasis added).

Id., 369 A.2d at 994. See also, Egbert v. Egbert, N.J.Super., 125 N.J.Super. 171, 309 A.2d 746 (1973).

The Pennsylvania Superior Court in Rogers v. Rogers, Pa.Super., 295 Pa.Super. 160, 441 A.2d 398 (1982) held that the Pennsylvania long-arm statute could be used to obtain jurisdiction over an absent former spouse in a child support action initiated by a Pennsylvania mother where the father had deserted the mother and left the jurisdiction. In that case, there was no marriage contract in existence when the suit was filed.

In Bergan v. Bergan, Cal.App., 114 Cal.App.3d 567, 170 Cal.Rptr. 751 (1981), where the California courts had entered a decree of divorce and a child and spousal support order incident thereto, the Court held that California had jurisdiction to enter a judgment for arrears on the order where the father was personally served in Arizona. The Court held:

Here California is both a reasonable and a fair forum for this action arising from the parties' marriage and its dissolution. California was the marital domicile. All the children of the marriage were born here. The marriage was dissolved here. The judgment of dissolution which Nora now seeks to enforce is a California judgment arising from Eldon's activities and obligations created in California. Eldon does not dispute the validity of the judgment of dissolution. Indeed, he himself requested entry on the final judgment creating the permanent support obligations. The Superior Court has continuing jurisdiction over him in...