Schilz v. Superior Court In and For Maricopa County

• Decision Date: 07 February 1985
• Docket Number: No. 17528-SA,17528-SA
• Citation: 144 Ariz. 65,695 P.2d 1103
• Parties: Brian Keith SCHILZ, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, Honorable Robert Pickrell, a Judge thereof, and The State of Oregon and Maricopa County Attorney's Office, Real Parties in Interest, Respondents.
• Court: Arizona Supreme Court

Page 1103

695 P.2d 1103

144 Ariz. 65

Brian Keith SCHILZ, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, Honorable Robert Pickrell, a Judge thereof, and The State of Oregon and Maricopa County Attorney's Office, Real Parties in Interest, Respondents.

No. 17528-SA.

Supreme Court of Arizona, In Banc.

Feb. 7, 1985.

Morris, Walker & Mecham by Mike Walker, Jeffrey A. Murphy, Phoenix, for petitioner.

Thomas E. Collins, Maricopa County Atty. by C.O. Lamp, Deputy County Atty., Phoenix, for respondents.

HOLOHAN, Chief Justice.

Petitioner brings this special action challenging the ruling of the respondent trial judge granting, over petitioner's objections, full faith and credit to a New Mexico judgment establishing petitioner's paternity of a certain child. We accepted jurisdiction under Ariz. Const. Art. 6, § 5 and Arizona Rules of Special Actions 4, 17A A.R.S. because petitioner has no equally plain, speedy, and adequate remedy by appeal.

The relevant uncontested facts are that petitioner and Joycelene Osborn were married in Gallup, New Mexico on May 27, 1979 and thereafter moved and lived in Peoria, Arizona. The parties separated in September 1979 and Joycelene moved to New Mexico with her child Kevin who had been born out of wedlock in 1976. A daughter, Kathlyn, was born on March 8, 1980.

On April 24, 1980, Joycelene filed a petition for dissolution of the marriage in the New Mexico District Court, alleging, in relevant part, that petitioner acknowledged paternity of Kevin, recognized his duty of support, and consented to the court's decreeing that such paternity and duty of support existed. The petition and summons were served on petitioner in Arizona by a Maricopa County deputy sheriff. Petitioner elected not to appear and contest the action. On November 16, 1980, the New Mexico trial court found petitioner in default and entered a decree of dissolution of marriage which granted the dissolution, found petitioner to be Kevin's father, and ordered the payment of monthly child support for both Kevin and Kathlyn.

At about that time, Joycelene Osborn and her children moved to the state of Oregon and became dependent on public assistance. Respondent State of Oregon, in October of 1980 (before the dissolution), initiated an Oregon petition for support of the two children against petitioner. On October 24, 1980, the Circuit Court of Oregon certified the petition and ordered the matter referred to the Superior Court of Maricopa County pursuant to the Oregon Uniform Reciprocal Enforcement of Support Act (URESA).

In January of 1981, Maricopa County Court Commissioner Roy R. Carson, in conformity with URESA, issued petitioner an order to show cause why he did not have a duty to support the children. Petitioner appeared and denied having had sexual relations with Joycelene during the medical, legal conception period for Kevin. Commissioner Carson found that petitioner owed a duty of support for Kathlyn but found petitioner's denial of paternity "not frivolous" and adjourned the hearing as to that matter.

On approximately December 14, 1983, respondent Maricopa County Attorney's Office filed a motion for an order to establish support of Kevin. It relied on both the New Mexico decree of dissolution, which had been sent by Oregon after the previous hearing was adjourned, and a handwritten letter which allegedly had been sent by petitioner to Joycelene's lawyer at the time of the dissolution proceedings in which he implied that Kevin was his natural child. Petitioner then filed a response to the motion to establish support order and a supplemental memorandum, both of which asserted that the New Mexico judgment was not entitled to full faith and credit because the New Mexico court had not had proper jurisdiction to make a finding of paternity. On March 23, 1984 respondent Judge Robert Pickrell denied petitioner's objection and reset a hearing on the motion to establish support which was continued on April 5. We then stayed the proceeding below and subsequently accepted jurisdiction.

The sole issue in this case is whether Judge Pickrell abused his discretion in according full faith and credit to the New Mexico judgment of paternity without granting a hearing on the claim of no jurisdiction.

"The full faith and credit clause of the United States Constitution requires that a judgment validly rendered in one state's court be accorded the same validity and effect in every other court in the country as it had in the state rendering it." Lofts v. Superior Court, 140 Ariz. 407, 410, 682 P.2d 412, 415 (1984). If the first state's court lacked personal jurisdiction to render the judgment, however, the judgment need not be given effect. Phares v. Nutter, 125 Ariz. 291, 609 P.2d 561 (1980) (contract); Smart v. Cantor, 117 Ariz. 539, 574 P.2d 27 (1977) (child custody); see also, Barker v. Barker, 94 N.M. 162, 608 P.2d 138 (1980) (divorce). The New Mexico dissolution decree states "[t]he Court based on personal service upon the Respondent in Maricopa County, Phoenix, Arizona, has jurisdiction of the subject matter and the parties." The court, however, gave no specific reasons for its finding. Petitioner's motion in the Arizona superior court challenging the New Mexico court's jurisdiction was denied, without a hearing.

Had the issue of jurisdiction been contested in the New Mexico proceeding through an appearance by petitioner or his attorney and fully and fairly litigated and finally decided there, we would not be questioning that court's jurisdiction. Lofts, supra, 140 Ariz. at 410, 682 P.2d at 415; State v. Drury, 110 Ariz. 447, 520 P.2d 495 (1974); 47 Am.Jur.2d, Judgments, § 933 (1969). Petitioner acted within his rights, however, in foregoing his opportunity to litigate in New Mexico, thereby compelling respondents to come to Arizona and litigate the fundamental issue of jurisdiction.

The New Mexico decree of dissolution specifically adopted as its findings of fact the allegations contained in Joycelene's petition for dissolution. The first of these allegations, that Joycelene was domiciled in New Mexico and had resided there for more than six months, combined with Joycelene's appearance before the New Mexico trial court, was sufficient to afford that court jurisdiction over the dissolution itself as it fulfills the domicile requirement of New Mexico Statutes Annotated (N.M.S.A.) § 40-4-5, New Mexico's dissolution statute. Such an action does not require personal jurisdiction over both spouses as it is an action in rem over the marriage status. Williams v. North Carolina (I), 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273 (1942). Jurisdiction over the divorce does not necessarily imply jurisdiction over related proceedings, however. Worland v. Worland, 89 N.M. 291, 551 P.2d 981 (1976) (no jurisdiction to award child custody when father and child lived in Colorado); Price v. Price, 134 Ariz. 112, 654 P.2d 46 (App.1982) (no jurisdiction to decree settlement of property in foreign state when no personal jurisdiction over spouse). The contention that paternity is an action in rem "has been universally rejected ... on the ground that there exists a fundamental difference between actions such as divorce which merely sever a personal status--although they may continue preexisting obligations--and actions like paternity which impose new affirmative duties and obligations." Developments in the Law--State Court Jurisdiction, 73 Harv.L.Rev. 909, 980; see, e.g., Conlon by Conlon v. Heckler, 719 F.2d 788 (5th Cir.1983), quoting Hartford v. Superior Court, 47 Cal.2d 447, 304 P.2d 1 (1956) (Traynor, J.); Brondum v. Cox, 292 N.C. 192, 232 S.E.2d 687 (1977). Thus personal jurisdiction over the putative father is required in paternity actions. N.M.S.A § 40-5-9; State v. Jojola, 99 N.M. 500, 660 P.2d 590, cert. denied 464 U.S. 803, 104 S.Ct. 49, 78 L.Ed.2d 69 (1983); In re Hindi, 71 Ariz. 17, 222 P.2d 991 (1950) (pre-long arm statute); Bebeau v. Berger, 22 Ariz.App. 522, 529 P.2d 234 (1975); see also, May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) (in personam jurisdiction required to cut off child custody rights of a nonresident parent). The remaining allegations in the petition for dissolution allege the date and location of the marriage, the birthdates of the two children, the incompatibility of the parties, the satisfactory division of the community property, and petitioner's acknowledgment of paternity of Kevin and his duty to support him. Of these, only the occurrence of the marriage placed petitioner within the borders of New Mexico at any time. There was no allegation in the petition that the child Kevin was conceived or born in New Mexico.

To satisfy the due process clause of the United States Constitution, a nonresident defendant must have reasonable notice that an action has been brought and sufficient connection with the forum so that it is reasonable and fair to require the defendant to defend the action there. Kulko v. Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696-97, 56 L.Ed.2d 132, 141 (1978); Northern Propane Gas Co. v. Kipps, 127 Ariz. 522, 622 P.2d 469 (1981); see also, United Nuclear Corp. v. General Atomic Co., 90 N.M. 97, 560 P.2d 161 (1976). Sufficient connection can occur if the cause of action itself "arises out" of defendant's activities in the forum or if defendant has "sufficient contacts" with the forum. Helicopteros Nacionales de Columbia, S.A. v. Hall, --- U.S. ----, ----, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404, 411 (1984). However, "[t]he unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283, 1298 (1958). This court has noted that the "threshold due process requirement for assertion of jurisdiction is contacts, ties or relation with the forum state," and...