Marriage of Hall, In re

• Decision Date: 07 March 1980
• Docket Number: No. 3968-II,3968-II
• Citation: 607 P.2d 898,25 Wn.App. 530
• Court: Washington Court of Appeals
• Parties: In re the MARRIAGE of Raymond W. HALL, Sr. and Eileen L. Hall.

Page 530

25 Wn.App. 530

607 P.2d 898

In re the MARRIAGE of Raymond W. HALL, Sr. and Eileen L. Hall.

No. 3968-II.

Court of Appeals of Washington, Division 2.

March 7, 1980.

Jay C. Immelt, Tacoma, Craig W. Weston, Tacoma, for appellant.

Joseph F. Quinn, Pierce Co. Deputy Pros. Atty., Gary A. Burns, Tacoma, for respondent.

REED, Judge.

Eileen L. Hall, a nonresident respondent in a Washington dissolution action, appeals from the trial court's denial of her motion to set aside the decree's award of permanent custody of their son to the boy's father, Raymond W. Hall, Sr. Mrs. Hall contests Washington's jurisdiction to make the custody award. We agree with her, reverse that portion of the decree dealing with custody and remand for proceedings under the Uniform Child Custody Jurisdiction Act.

Raymond and Eileen Hall were married in the state of Maryland on April 22, 1972. They resided in Washington for a time and their son, Raymond Hall, Jr., was born in Tacoma in 1973. They moved back to Maryland. Mrs. Hall moved out of the family home in 1975, taking the child with her. Mr. Hall filed a divorce action in Maryland, claiming the boy was being abused under Mrs. Hall's care, and was awarded temporary custody of the boy in March 1976. The Maryland divorce action came on for trial in 1977 but did not proceed to judgment. The trial aborted when a witness stated he had been threatened and assaulted by Mrs. Hall's boyfriend. Claiming fear of physical harm to both of them, Mr. Hall moved with the boy to Virginia and to North Carolina, where divorce proceedings were begun but later dismissed. During his stays in Virginia and North Carolina, he took the boy to Maryland for occasional weekend visitations by the mother. In late 1977, Mr. Hall brought young Ray to Washington, took up residence, and obtained a job. In December of 1977, Mrs. Hall obtained an ex parte order in Maryland granting her temporary custody of the boy. Mr. Hall contends he had no notice of that custody modification, but has not challenged it in court, to our knowledge.

On February 24, 1978, Mr. Hall filed a petition for dissolution of the marriage and for custody in Pierce County Superior Court. He gave notice by publication and mailed a copy of the summons and petition to his wife in Maryland by registered mail, pursuant to RCW 4.28.100. She actually received notice of the Pierce County action. The Pierce County court awarded Mr. Hall temporary custody pending trial. Nevertheless, apparently under color of her ex parte Maryland custody order, Mrs. Hall traveled to Washington and, on March 12, 1978, took the child from Sunday school and attempted to take him back to Maryland. That effort was thwarted by police. The next day, while under arrest, and pursuant to a "request" by the prosecuting attorney, Mrs. Hall stipulated that Raymond, Jr. could be placed temporarily in the custody of Mr. Hall's brother, Claude, in Olalla, Washington, "until pending divorce litigation is resolved or until further order of a Court of competent jurisdiction." She then apparently returned to Maryland and remained there. Mrs. Hall was not served with any process while in the state of Washington.

On June 8, 1978, Pierce County Commissioner Krilich found Mrs. Hall in default for failure to appear and awarded Mr. Hall a divorce and custody of Raymond, Jr., subject to reasonable visitation for Mrs. Hall. On July 17, 1978, Mrs. Hall moved to set aside the decree of dissolution on grounds that Pierce County court had never acquired jurisdiction over her. The motion was denied. This appeal followed.

At the time these proceedings were initiated in 1978 the law in this state was that a court had jurisdiction in child custody matters if it had jurisdiction of the subject matter and personal jurisdiction of the contending parties. Subject matter jurisdiction depended on the domicile of the child, which followed that of the parent having legal custody. In re Marriage of Dunkley, 89 Wash.2d 777, 575 P.2d 1071 (1978); In re Marriage of Saucido, 85 Wash.2d 653, 538 P.2d 1219 (1975). The domicile of young Raymond was in Maryland at the time his father filed for divorce in that state. The Maryland court had jurisdiction over its resident parties and their child when it granted temporary custody to the father.

The order did not require Mr. Hall to secure court approval before removing the boy from the state, however, and he continued to make the boy available for visitation until he moved to Washington in late 1977. Thereafter his affidavit states that he has "offered her two trips to see our child and on one occasion I have offered to pay for her round-trip fare from Maryland to Washington . . . (and) the hospitality of my brother's home to see our child." Without deciding whether such a long-distance arrangement can always afford the other parent "reasonable visitation" as ordered by the Maryland court, and without condoning the deplorable practice of one parent's taking a child around the country in hopes of finding a favorable forum in which to litigate custody, In re Marriage of Dunkley, supra, we hold that, in bringing his son to Washington, Mr. Hall did not breach a "binding and permanent custody decree" and was able to establish domicile in Washington without violating this state's "clean hands" doctrine. See In re Marriage of Verbin, 92 Wash.2d 171, 179, 595 P.2d 905 (1979); In re Marriage of Saucido, supra ; Ehrich v. Ehrich, 7 Wash.App. 275, 499 P.2d 216 (1972). The Pierce County court had subject matter jurisdiction to enter its custody decree. ¹

The crucial question which remains is whether the court acquired in personam jurisdiction over the nonresident mother. Mr. Hall contends that the State of Washington may assert personal jurisdiction over his wife pursuant to RCW 4.28.185, our long-arm statute. ²

Prior to adoption of the Uniform Child Custody Jurisdiction Act in 1979, Washington consistently followed the much-maligned rule of May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), which requires in personam jurisdiction over both parties to a custody dispute. In re Miller, 86 Wash.2d 712, 714, 548 P.2d 542 (1976). 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 Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (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 Wash.2d 106, 115-16, 381 P.2d 245, 251 (1963); In re Miller, supra, 86 Wash.2d at 719, 548 P.2d 542.

The first factor in the Tyee formulation merely reiterates the requirements of RCW 4.28.185(1) that there be some purposeful act or transaction in this state. The second factor expresses the limitations set forth in RCW 4.28.185(1) and (3) that the cause of action must arise from, or be connected with, the act or transaction purposely done or consummated in this state. The third factor does not arise from the statute at all. It expresses the due process limitation that the imposition of personal jurisdiction over a nonresident defendant must not offend traditional notions of fair play and substantial justice. Callahan v. Keystone Fireworks Mfg. Co., 72 Wash.2d 823, 835, 435 P.2d 626 (1967); Puget Sound Bulb Exchange v. Metal Bldgs. Insulation, Inc., 9 Wash.App. 284, 291, 513 P.2d 102 (1973). Mr. Hall advances several theories of jurisdiction. We review them in light of the foregoing principles, bearing in mind that upon a challenge to jurisdiction, the party asserting jurisdiction has the burden of establishing its existence. Access Road Builders v. Christenson Electrical Contracting Engr. Co., 19 Wash.App. 477, 576 P.2d 71 (1978).

(1) Tortious Conduct. Mr. Hall argues that Eileen Hall committed a tortious act by attempting to remove their son from Washington, and that she thereby submitted herself to this state's jurisdiction under RCW 4.28.185(1) (b), In re Miller, supra. The tort of deliberate interference with a parent's lawful custody of a child has been discussed in Washington cases, see Snyder v. State, 19 Wash.App. 631, 577 P.2d 160 (1978); Strode v. Gleason, 9 Wash.App. 13, 510 P.2d 250 (1973), and recognized elsewhere, e. g., McGrady v. Rosenbaum, 62 Misc.2d 182, 308 N.Y.S.2d 181 (1970), aff'd mem., App.Div., 324 N.Y.S.2d 876 (1971); McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978); W. Prosser, Law of Torts § 124, p. 883 (4th ed. 1971); Restatement (Second) of Torts § 700, Comment c at 505 (1977).

Solely for the sake of addressing this argument, we will assume that Mr. Hall had custody of the boy, either because the Maryland modification order was invalid due to lack of notice, or because of the Washington court's award of temporary custody to him pending trial of the action in Pierce County. We will further assume that a cause of action for custodial interference will lie in Washington. Nevertheless, Mrs. Hall's alleged tort cannot provide the basis for in personam jurisdiction in Washington. The long-arm statute requires that the cause of action must arise from the tortious...