Lozinski v. Lozinski, No. 19623

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN
Citation185 W.Va. 558,408 S.E.2d 310
PartiesCarole A. LOZINSKI, Plaintiff Below, Appellant, v. John M. LOZINSKI, Jr., Defendant Below, Appellee.
Decision Date17 July 1991
Docket NumberNo. 19623

Page 310

408 S.E.2d 310
185 W.Va. 558
Carole A. LOZINSKI, Plaintiff Below, Appellant,
v.
John M. LOZINSKI, Jr., Defendant Below, Appellee.
No. 19623.
Supreme Court of Appeals of
West Virginia.
Submitted March 5, 1991.
Decided July 17, 1991.
Syllabus by the Court

1. A parent's failure to support his children constitutes a tortious act for purposes

Page 311

[185 W.Va. 559] of the West Virginia long-arm statute, W.Va.Code § 56-3-33 (Supp.1991).

2. When an individual commits a tort by failing to support his children, personal jurisdiction may be obtained over that individual pursuant to the West Virginia long-arm statute provided that the statutory requirements for asserting jurisdiction have been met.

Richard A. Bush, Bush & Trippel, Parkersburg, for appellant.

C. Blaine Myers, Myers and Zirkovich, Parkersburg, for appellee.

WORKMAN, Justice:

Carole A. Lozinski, the ex-wife of appellee, John M. Lozinski, Jr., appeals from the Wood County Circuit Court ruling which granted her a divorce and child custody but failed to adjudicate the related issues of alimony, child support, property division, or equitable distribution on the grounds that the court lacked in personam jurisdiction over appellee. Mrs. Lozinski maintains that the court had personal jurisdiction over Mr. Lozinski pursuant to the West Virginia long-arm statute, W.Va.Code § 56-3-33 (Supp.1991). We reverse the decision of the circuit court on the grounds that the West Virginia long-arm statute may apply to actions when a party violates his duty to support his children, thereby committing a tortious act. Based on the commission of that tort, the long-arm statute is invoked and the West Virginia Secretary of State becomes the duly-authorized agent of the tortfeasor for process purposes.

The parties were married for twenty-two years prior to their separation in December 1988. Four children were born of the marriage, one of whom was emancipated at the time the divorce complaint was filed by Mrs. Lozinski on December 20, 1988. Through the divorce complaint, which was predicated on irreconcilable differences, appellant sought permanent custody of the three minor children of the parties as well as child support, alimony, medical insurance for herself and the children, the former marital domicile of the parties located in Parkersburg, West Virginia, and equitable distribution.

Appellant initially attempted to obtain service against appellee through publication because Mr. Lozinski had relocated to the State of Florida. When appellee failed to enter an appearance in response to service by publication, Mrs. Lozinski filed an amended complaint which contained an additional count premised on the joint ownership of the former marital domicile. Pursuant to the provisions of W.Va.Code § 56-3-33, 1 the West Virginia Secretary of State

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[185 W.Va. 560] accepted service on behalf of Mr. Lozinski with regard to the amended divorce complaint in August 1989. Upon receiving notification that the secretary of state had accepted service on his behalf, appellee filed a special appearance to contest the court's jurisdiction based on his two-prong position that long-arm service is improper in a divorce action and that equitable distribution could not be awarded absent personal service of process.

By order entered December 15, 1989, the circuit court ruled that the West Virginia Secretary of State improperly accepted service on behalf of appellee. The court reasoned that appellant's basis for applying the long-arm statute--appellee's interest in, use of, or possession of West Virginia real property 2--was procedurally insufficient. The court premised its reasoning on the language of W.Va.Code § 56-3-33(b) which directs that "[w]hen jurisdiction over a nonresident is based solely upon the provisions of this section, only a cause of action arising from or growing out of one or more of the acts specified in subdivisions (1) through (7), subsection (a) of this section may be asserted against him." The court concluded that because the divorce cause of action did not arise from or grow out of appellee's interest in real property, long-arm jurisdiction was improperly invoked under W.Va.Code § 56-3-33.

Following the final hearing before the family law master on January 4, 1990, appellant was awarded a divorce on the grounds of a one-year separation of the parties. Although Mrs. Lozinski was awarded custody of the minor children, the court denied the related relief that she had requested--child support, alimony, equitable distribution, attorney's fees, and court costs--on the grounds that it lacked personal jurisdiction over Mr. Lozinski and accordingly could not rule on these issues. 3

Through this appeal, appellant seeks to reverse the circuit court's quashing of the long-arm service of process obtained over appellee and the court's overruling of Mrs. Lozinski's exceptions to the family law master's recommendations with respect to denial of child support, alimony, equitable distribution, attorney's fees, and court costs.

This case presents an issue of first impression for this Court--whether the long-arm statute can be utilized to obtain in personam jurisdiction over a nonresident defendant in a domestic proceeding. Appellee strenuously argues that the long-arm statute is not a proper vehicle for obtaining personal jurisdiction in a divorce action. We disagree, and find that where child support is an issue, the long-arm statute can be utilized.

The advent and growth of long-arm statutes

appear to be examples of legislative self-interest. In part they represent attempts by one state to provide a litigation forum for the convenience of its own citizens at the expense of citizens of other states. Nonetheless, most observers have agreed that the statutory trend is a healthy and natural one in a mobile, industrialized society that effectively has reduced the time and rigors of travel.... [L]ong-arm statutes promote the determination of jurisdictional questions on the basis of the relationship of defendant and the dispute to the forum state.... Finally, by providing a plaintiff with a forum near his home, many injuries can be rectified that simply were uneconomic to litigate under a system that forced the plaintiff to journey to the defendant.

4 C. Wright & A. Miller, Federal Practice and Procedure § 1068 at pp. 335-36 (2d ed. 1987) (footnotes omitted and emphasis supplied). Prior to the enactment of the West Virginia long-arm statute in 1978, 4 plaintiffs

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[185 W.Va. 561] attempting to hale nonresidents into this state's tribunals were required to successfully clear the "minimum contacts" hurdle first enunciated in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Id. at 316, 66 S.Ct. at 158, 90 L.Ed. at 102. In International Shoe, the United States Supreme Court ruled that "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Id. (citing Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940), reh'g denied Milliken v. Meyer, 312 U.S. 712, 61 S.Ct. 548, 85 L.Ed. 1143 (1941)). Applying the "minimum contacts" rule proved difficult, however, because the standard's inherent vagueness left it subject to continuous and varying interpretation. See Harman v. Pauley, 522 F.Supp. 1130, 1136 (S.D.W.Va.1981)...

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14 practice notes
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...to supply services, and caused tortious 511 S.E.2d 741 injury by acts and omissions in this State. Citing Lozinski v. Lozinski, 185 W.Va. 558, 562, 408 S.E.2d 310, 314 (1991) (defining "`tortious act' as including any act committed in the state which involved a breach of duty to another and......
  • Leslie Equipment v. Wood Resources, L.L.C., No. 34712.
    • United States
    • Supreme Court of West Virginia
    • October 30, 2009
    ...validity as though such nonresident were personally served with a summons and complaint within this state." Id. In Lozinski v. Lozinski, 185 W.Va. 558, 408 S.E.2d 310 (1991), we recognized how the adoption of our long-arm statute was a legislative device by which the trial courts of this st......
  • Nezan v. Aries Technologies Inc., No. 35495.
    • United States
    • Supreme Court of West Virginia
    • November 17, 2010
    ...use of the long-arm statute to effectuate jurisdiction over a non-resident father in a child support proceeding. In Lozinski v. Lozinski, 185 W.Va. 558, 408 S.E.2d 310 (1991), we held: Prior to the enactment of the West Virginia long-arm statute in 1978, plaintiffs attempting to hale nonres......
  • Helen Tucker & Mound City Inc. v. Thomas, Civil Action No. 5:10CV31.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • February 15, 2012
    ...certain acts within the state, or certain acts outside of the state, that have caused injury within the state. See Lozinski v. Lozinski, 185 W.Va. 558, 408 S.E.2d 310, 315 (1991) (“The intent and benefit of any long-arm statute is to permit the secretary of state to accept process on behalf......
  • Request a trial to view additional results
14 cases
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...to supply services, and caused tortious 511 S.E.2d 741 injury by acts and omissions in this State. Citing Lozinski v. Lozinski, 185 W.Va. 558, 562, 408 S.E.2d 310, 314 (1991) (defining "`tortious act' as including any act committed in the state which involved a breach of duty to another and......
  • Leslie Equipment v. Wood Resources, L.L.C., No. 34712.
    • United States
    • Supreme Court of West Virginia
    • October 30, 2009
    ...validity as though such nonresident were personally served with a summons and complaint within this state." Id. In Lozinski v. Lozinski, 185 W.Va. 558, 408 S.E.2d 310 (1991), we recognized how the adoption of our long-arm statute was a legislative device by which the trial courts of this st......
  • Nezan v. Aries Technologies Inc., No. 35495.
    • United States
    • Supreme Court of West Virginia
    • November 17, 2010
    ...use of the long-arm statute to effectuate jurisdiction over a non-resident father in a child support proceeding. In Lozinski v. Lozinski, 185 W.Va. 558, 408 S.E.2d 310 (1991), we held: Prior to the enactment of the West Virginia long-arm statute in 1978, plaintiffs attempting to hale nonres......
  • Helen Tucker & Mound City Inc. v. Thomas, Civil Action No. 5:10CV31.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • February 15, 2012
    ...certain acts within the state, or certain acts outside of the state, that have caused injury within the state. See Lozinski v. Lozinski, 185 W.Va. 558, 408 S.E.2d 310, 315 (1991) (“The intent and benefit of any long-arm statute is to permit the secretary of state to accept process on behalf......
  • Request a trial to view additional results

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