Perry v. Ponder

Citation604 S.W.2d 306
Decision Date07 July 1980
Docket NumberNo. 20240,20240
PartiesSheila Jean PERRY, Appellant, v. Davis L. PONDER, Appellee.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

James L. Irwin, Dallas, for appellant.

John McClellan Marshall, Norton, Morrison & Marshall, Dallas, for appellee.

Before GUITTARD, C. J., and AKIN and STOREY, JJ.

GUITTARD, Chief Justice.

This child support and custody suit was dismissed by the trial court for lack of personal jurisdiction over the father, a resident of Alabama. The court found that the father did not have those "minimum contacts" with the state of Texas required by due process. Insofar as the petition seeks to impose a personal obligation of support on the father, we affirm, but insofar as it seeks appointment of the mother as managing conservator, we reverse on the ground that since the child and the mother were residents of Texas at the time the suit was filed, the court should not have limited the inquiry to the father's contacts, but should have determined whether the child and the mother had resided in Texas long enough to give this state an interest in the child's welfare and access to evidence sufficient to enable it to make an informed decision concerning the child's best interests.

The evidence at the special appearance hearing is limited to the "minimum contacts" issue. The mother formerly lived with the father in Alabama. They were divorced there in June 1978 by a decree giving custody to the mother. On September 19, 1978, the mother moved with the child to Texas, where they have since resided. In April 1979 the father obtained a decree from the Alabama court modifying the divorce decree by granting custody to the father. Service of notice was attempted on the mother by registered mail, but the effectiveness of this service is disputed. On May 4, 1979, the mother filed the present suit in Dallas County, Texas, alleging that the Alabama modification decree was void because she and the child were then residents of Texas and she was given no notice or opportunity to appear in the Alabama proceeding. She alleged that it was in the best interest of the child that she be appointed managing conservator. She also alleged that the father should be ordered to make monthly payments for the support of the child.

The father was served in Alabama with nonresident notice pursuant to the provisions of rule 108 of the Texas Rules of Civil Procedure. He responded by a special appearance under Rule 120a of the Texas Rules of Civil Procedure and prayed that the suit be dismissed for lack of personal jurisdiction over him.

Both parties were present at the hearing. The father testified that the mother had brought the child to Texas without his consent. The mother testified that the father knew about and acquiesced in her plans to move to Texas with child. The court apparently resolved this dispute in favor of the father and recited in the order dismissing the suit that the father "did not have those minimum contacts with the State of Texas that would constitutionally support the assertion of jurisdiction."

On this appeal the mother asserts that she has established a basis for personal jurisdiction over the father under subdivisions (2) and (4) of section 11.051 of the Texas Family Code. 1

The mother contends that in determining the question of personal jurisdiction over a nonresident, the court should consider not only the specific requirements of section 11.051, but also should consider evidence of the court's ability to reach a result that would promote the child's best interest; and since she and the child had resided in Texas for approximately ten months, the state had an interest in providing an effective means of redress for its resident, and, also, the Texas court was the most convenient forum, based on its access to witnesses and evidence. Alternatively, she contends that even if the trial court had no personal jurisdiction over the father, it should have exercised subject-matter jurisdiction. In support of this contention, she relies on Thornlow v. Thornlow, 576 S.W.2d 697, 700 (Tex.Civ.App.-Corpus Christi 1979, writ dism'd w.o.j.), cert. denied, 445 U.S. 949, 100 S.Ct. 1596, 63 L.Ed.2d 784 (1980); Hilt v. Kirkpatrick, 538 S.W.2d 849, 851-52 (Tex.Civ.App.-Waco 1976, no writ) and also certain statements in Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 878 (1948) to the effect that the state has a sovereign's interest in the welfare of children within its borders.

The father contends that the court had no personal jurisdiction over him because of lack of the "minimum contacts" required by International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and also that in the absence of personal jurisdiction, the court properly declined to exercise subject-matter jurisdiction.

We observe first that the trial court's recited finding of lack of minimum contacts disposes of any question of the application of subdivision (2) of section 11.051, which authorizes personal jurisdiction over a nonresident if "the child resides in this state as a result of the acts or directives or with the approval of the person on whom service is required." The father's testimony fully sustains the court's implied finding that the father neither directed nor approved the mother's acts in bringing the child to Texas.

Subdivision (4) of section 11.051 raises a different question. That subdivision provides that the court may exercise "personal jurisdiction" over a nonresident parent if "there is any basis consistent with the constitution of this state or the United States for the exercise of personal jurisdiction."

With respect to the claim for support, we conclude that the due process standard in subdivision (4) has not been met. Due process with respect to support orders was authoritatively defined in Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). In that case both parties lived in New York until their separation. The mother moved to California, but agreed to a Haitian divorce which awarded custody of two children to the father for the school months. After the divorce the father permitted one of the children to live with her. The other child followed without his acquiescence. The mother then sued in California for custody and increased support. The father did not contest the custody issue, but appeared specially to object to lack of personal jurisdiction with respect to the issue of support. The California courts overruled his objection to personal jurisdiction, but the Supreme Court reversed on the ground that the "minimum contacts" test of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) had not been met, since the father "did not purposefully benefit from any activities relating to the State of California." 98 S.Ct. at 1699. In the present case the evidence shows no contacts with the forum state on the part of the nonresident father more significant than those in Kulko. Consequently, we conclude that the trial court properly sustained the special appearance with respect to the support issue.


A. Distinction Between Support and Conservatorship

Due process requirements have a different impact on the question of jurisdiction in a suit concerning conservatorship, as this court recognized in Zeisler v. Zeisler, 553 S.W.2d 927, 931 n. 3 (Tex.Civ.App.-Dallas 1977, writ dism'd). 2 A support claim is like a claim for debt in that it seeks a personal judgment establishing a direct obligation to pay money. As a practical matter, such a judgment can usually be enforced only by the courts of the state of residence of the parent on whom such a duty is to be imposed, and those courts are usually in a better position to determine the circumstances bearing on his ability to pay. Custody, on the other hand, is more in the nature of a status, which can be determined and enforced by the courts of the state where the child resides, without any personal judgment requiring affirmative action by the nonresident parent. If he defaults, the consequence of the decree for him is largely negative, reducing his rights rather than increasing his obligations. See Traynor, Is This Conflict Really Necessary?, 37 Texas L.Rev. 657, 660-61 (1959). Moreover, although in both types of litigation the interests of the child should be paramount, its interests are less easily identified with the interests of one parent if the issue is custody than if the issue is support. Bodenheimer & Neeley-Kvarme, Jurisdiction Over Child Custody and Adoption After Shaffer and Kulko, U.Cal.D.L.Rev. 299, 233 (1979). These differences suggest that there are good reasons to give the activities of the nonresident parent in the forum state greater weight in determining whether due process permits a support obligation to be imposed on him than in considering whether due process permits him to be bound by a decree affecting his right to custody of a child residing in the forum state.

We recognize the disadvantage of a custody adjudication by a court which has no jurisdiction to render a personal judgment for support against a nonresident parent. This difficulty, however, is inherent in the Supreme Court's holding in Kulko. Weintraub, Texas Long-Arm Jurisdiction in Family Law Cases, 32 Sw.L.J. 965, 981 (1978). In that case the jurisdiction of the California court to adjudicate custody was not contested. The Supreme Court recognized California's substantial interest in providing for the support of children residing in California, but observed that this interest was served by the state's participation in the Uniform Reciprocal Enforcement of Support Act, which had also been adopted in New York. The Court pointed out that under that Act the California plaintiff could vindicate her claim for additional support by filing a petition in a California court and having its merits adjudicated in New York...

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