S.L. ex rel. Susan L. v. Steven L.

• Citation: 274 Neb. 646,742 N.W.2d 734
• Decision Date: 14 December 2007
• Docket Number: No. S-06-563.,S-06-563.
• Parties: S.L., a Minor, by her next Friend, Guardian and Mother, SUSAN L., Appellant v. STEVEN L., Appellee.
• Court: Nebraska Supreme Court

742 N.W.2d 734

274 Neb. 646

S.L., a Minor, by her next Friend, Guardian and Mother, SUSAN L., Appellant v. STEVEN L., Appellee.

No. S-06-563.

Supreme Court of Nebraska.

December 14, 2007.

Joel Bacon, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., Lincoln, and Richard Ducote, New Orleans, LA, for appellant.

Elise Meerkatz and Christopher A. Furches, of Johnson, Flodman, Guenzel & Widger, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

In Susan L. v. Steven L.,¹ we held that pursuant to the Uniform Custody Jurisdiction and Enforcement Act, Neb.Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2004), Canadian courts had exclusive continuing jurisdiction over a custody dispute between Steven L., a resident and citizen of Canada, and Susan L., who resides with the parties' minor daughter, S.L., in Nebraska. The same parties are before us in this appeal from the dismissal of an intentional tort action filed in the district court for Lancaster County by Susan, on S.L.'s behalf, against Steven. Susan alleged that on multiple occasions, Steven transported S.L. from Nebraska to Canada for court-ordered visitation, during which visitation he intentionally abused her, and that such abuse resulted in injuries for which S.L. is entitled to recover compensatory damages. The question presented in this appeal is whether the district court erred in dismissing the action on the ground that it lacked personal jurisdiction over Steven.

BACKGROUND

PARTIES

S.L. was born in Canada on March 19, 1998, to Susan and Steven, who both resided in Canada at the time. On October 18, 2000, the Supreme Court of British Columbia, Vancouver, Canada, issued an "Interim Order" awarding custody of S.L to Susan and providing parenting time to Steven. The order contemplated that Susan and S.L. would relocate to Nebraska, which they did in October 2000. S.L. has resided in Nebraska since moving here with Susan, except for visits with Steven in Canada for the court-ordered parenting time.

Steven is a permanent resident of British Columbia and has never resided, owned property, or conducted any type of business in Nebraska. Since October 2000, he has traveled to Nebraska 12 to 14 times to pick up S.L. and transport her to British Columbia for court-ordered parenting time. In November 2004, a British Columbia court entered an order preventing Steven from transporting S.L., but the court did not suspend his visitation rights. After that order was entered, Steven's mother traveled to Nebraska to transport S.L. to British Columbia for two visits with Steven. The British Columbia court retains juris diction in the ongoing custody and visitation dispute between Susan and Steven.

DISTRICT COURT PROCEEDINGS

Acting as the next friend, guardian, and mother of S.L., Susan commenced this action against Steven in the district court for Lancaster County. In the complaint, Susan alleged that Steven committed repeated acts of battery and sexual abuse against S.L. during five visits in British Columbia from 2003 through 2005. Susan further alleged that in an effort to coerce silence or recantation, Steven withheld food from S.L. for long periods of time and threatened to prevent any future contact with Susan and other family members.

The complaint was served on Steven in British Columbia. In response, he filed a motion to dismiss pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(2) (rev. 2003) on the ground that the Nebraska court lacked jurisdiction over his person. The motion was submitted on the pleadings, as well as affidavits and exhibits submitted by the parties and received by the court. No oral testimony was heard.

The district court determined that it did not have personal jurisdiction over Steven and granted his motion to dismiss. The court noted that Steven's limited contacts with Nebraska for the purposes of transporting S.L. for court-ordered visitation were insufficient to subject him to the jurisdiction of Nebraska courts. The court also found that Canada, not Nebraska, was the focal point of the harm alleged and that there was no showing Steven foresaw or reasonably should have foreseen that his alleged conduct in Canada would have any effect in Nebraska. Susan moved to alter or amend the order of dismissal, which was denied by the district court. Susan then filed this timely appeal, and we granted her petition to bypass.²

ASSIGNMENTS OF ERROR

Susan assigns that the district court erred (I) in concluding that Nebraska lacked personal jurisdiction over Steven and (2) in failing to give S.L. the benefit of all reasonable inferences deducible from the pleadings and affidavits.

STANDARD OF REVIEW

When a jurisdictional question does not involve a factual dispute, the issue is a matter of law. An appellate court reviews questions of law independently of the lower court's conclusion.³ When reviewing an order dismissing a party from a case for lack of personal jurisdiction under rule 12(b)(2), an appellate court examines the question of whether the nonmoving party has established a prima facie case of personal jurisdiction de novo.⁴ An appellate court reviews a lower court's determination regarding personal jurisdiction based on written submissions in the light most favorable to the nonmoving party.⁵ If the lower court does not hold a hearing and instead relies on the pleadings and affidavits, then an appellate court must look at the facts in the light most favorable to the nonmoving party and resolve all factual conflicts in favor of that party.⁶

ANALYSIS

Personal jurisdiction is the power of a tribunal to subject and bind a particular entity to its decisions.⁷ Before a court can exercise personal jurisdiction over a nonresident defendant, the court must determine, first, whether the long-arm statute is satisfied and, if the long-arm statute is satisfied, second, whether minimum contacts exist between the defendant and the forum state for personal jurisdiction over the defendant without offending due process.⁸

LONG-ARM STATUTE

Nebraska's long-arm statute, Neb. Rev.Stat. § 25-536 (Reissue 1995), extends Nebraska's jurisdiction over nonresidents having any contact with or maintaining any relation to this state as far as the U.S. Constitution permits.⁹ Thus, we need only consider whether a Nebraska court's exercise of jurisdiction over Steven would be consistent with due process.

MINIMUM CONTACTS

In analyzing personal jurisdiction, we consider the quality and type of the defendant's activities to decide whether the defendant has the necessary minimum contacts with the forum state to satisfy due process.¹⁰ In this context, due process requires that a defendant's minimum contacts with the forum state be such that "`maintenance of the suit does not offend "traditional notions of fair play and substantial justice."'"<sup>11</sup> Two types of personal jurisdiction may be exercised depending upon the facts and circumstances of the case: general personal jurisdiction or specific personal jurisdiction.<sup>12</sup> In the exercise of general personal jurisdiction, the plaintiff's claim does not have to arise directly out of the defendant's contacts with the forum state, if the defendant has engaged in "`"continuous and systematic general business contacts"'" with the forum state.¹³ If the defendant's contacts are neither substantial nor continuous and systematic, but the cause of action arises out of or is related to the defendant's contact with the forum, a court may assert specific jurisdiction over the defendant, depending on the quality and nature of such contact.¹⁴ In this case, there is no allegation that Steven had substantial, continuous, or systematic contacts with Nebraska. Rather, Susan alleged that Steven came into the state on several occasions for the specific purpose of transporting S.L. to Canada for court-ordered visitation, during which visitation he committed intentional acts of abuse. We must determine whether these specific acts by Steven establish the necessary minimum contacts which would permit a Nebraska court to exercise jurisdiction over his person without violating his right to due process.¹⁵

The benchmark for determining whether the exercise of personal jurisdiction satisfies due process is whether the defendant's minimum contacts with the forum state are such that the defendant should reasonably anticipate being haled into court there.¹⁶ Whether a forum state court has personal jurisdiction over a nonresident defendant depends on whether the defendant has acted in a manner which creates substantial connections with the forum state, resulting in the defendant's purposeful availment of the benefits and protections of the law of the forum state.¹⁷ The "`purposeful availment'" requirement "ensures that a defendant will not be haled into a jurisdiction solely as a result of `random,' `fortuitous,' or `attenuated' contacts . . . or of the `unilateral activity of another party or a third person.'"<sup>18</sup> "Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a `substantial connection' with the forum State."¹⁹

Applying the principle that personal jurisdiction cannot be premised on the unilateral activity of another, several courts have held that a noncustodial parent's exercise of visitation rights or other routine communication with children in a state to which the custodial parent has relocated is not a sufficient contact with that state to subject the noncustodial parent to the jurisdiction of its courts. For example, in Miller v. Kite,²⁰ the custodial parent moved to North Carolina after the parties' divorce and commenced an action there to modify a child support award. The noncustodial parent, who was domiciled in California and resided in Japan, had never resided in North Carolina. The North Carolina Supreme Court held that neither the child's presence in that state nor the noncustodial parent's periodic...