State, Dept. of Social Services, on Behalf of Yankton v. Cummings, A-93-149

• Decision Date: 03 May 1994
• Docket Number: No. A-93-149,A-93-149
• Citation: 515 N.W.2d 680,2 Neb.App. 820
• Parties: , 62 USLW 2755 STATE of Nebraska, DEPARTMENT OF SOCIAL SERVICES, on Behalf of Tammy YANKTON, Appellee, v. Nicholas A. CUMMINGS, Appellant.
• Court: Nebraska Court of Appeals

Page 680

515 N.W.2d 680

2 Neb.App. 820, 62 USLW 2755

STATE of Nebraska, DEPARTMENT OF SOCIAL SERVICES, on Behalf of Tammy YANKTON, Appellee, v. Nicholas A. CUMMINGS, Appellant.

No. A-93-149.

Court of Appeals of Nebraska.

May 3, 1994.

Syllabus by the Court

1. Constitutional Law: Jurisdiction: Legislature: Intent. It is quite apparent from the language of the long-arm statute, Neb.Rev.Stat. § 25-536 (Reissue 1989), which states, "to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States," that it was the intention of the Legislature to provide for the broadest allowable jurisdiction over nonresidents.

2. Constitutional Law: Jurisdiction. The constitutional restriction on a state's power to obtain in personam jurisdiction is twofold: (1) that the defendant be given adequate notice and (2) that the defendant be subject to the personal jurisdiction of the court.

3. Due Process: Jurisdiction: States. To determine whether a court has personal jurisdiction over a nonresident defendant, one must examine the quality and nature of the nonresident's activities and ascertain that the nonresident has sufficient minimum contacts with the forum state to satisfy the requisite due process for exercise of jurisdiction.

4. Due Process: Jurisdiction: States. Fairness and reasonableness, essential to due process in personal jurisdiction over a nonresident defendant, require that the defendant's contact with the forum state must be of a quality and nature that the defendant should reasonably anticipate being haled into court in the forum state.

5. Default Judgments: Damages: Proof. Where a defendant is in default, the allegations of the petition are to be taken as true against him, except allegations of value and amount of damage, and if the petition states a cause of action, the plaintiff is entitled to judgment without proof except as to the quantum of damages.

Jerry Matthews, Chardon, for appellant.

John S. Burbridge, Gordon, for appellee.

HANNON and MILLER-LERMAN, JJ., and WARREN, District Judge, Retired.

WARREN, District Judge, Retired.

This is a paternity action in which the Department of Social Services (Department) sought a determination of paternity against the nonresident defendant, Nicholas A. Cummings, and an award of child support and medical expenses. Cummings was personally served with a summons in South Dakota and filed a special appearance with the court, alleging that the court had no personal jurisdiction over him. The court denied his special appearance and gave Cummings 20 days to file an answer. No answer was filed, and the Department made a motion for default judgment based on Cummings' failure to answer. The court granted the Department's motion and held a hearing to determine the amount of support to be ordered. Upon the hearing, the district court determined that Cummings should pay $265 per month in support of the minor child. Cummings appealed the district court's order. We hold that the district court had personal jurisdiction over Cummings and properly rendered a default judgment against Cummings.

I. STATEMENT OF FACTS

In June 1992, the Department of Social Services filed an action to determine the paternity of Tammy Yankton and to obtain an order of support for the child. Tammy's mother, Debbie Yankton, had filed a written application for financial assistance for the minor child with the Department. The Department alleged in its petition that the minor child was conceived in the State of Nebraska as a result of sexual intercourse between Debbie and Cummings and that such minor child was born in November 1979 and now resides with her mother in Sheridan County. Personal service was had on Cummings in South Dakota. Cummings then filed a special appearance with the court, alleging that the court lacked personal jurisdiction over Cummings under Nebraska's long-arm statute, Neb.Rev.Stat. § 25-536 (Reissue 1989). The court held a hearing regarding the special appearance and overruled Cummings' request to dismiss the action for lack of jurisdiction. The court gave Cummings 20 days in which to file an answer in the action; however, no answer was filed. As a result, the Department entered a motion for default judgment. A hearing was held, and the court found that Cummings had been served with process, but had not answered, and therefore was in default of appearance or pleading. Therefore, the court rendered judgment on the pleadings and set a hearing to determine the amount of child support Cummings must pay. Upon such hearing, the court determined that Cummings must pay $265 per month in child support.

II. ASSIGNMENTS OF ERROR

Cummings alleges that the district court erred when it (1) overruled Cummings' special appearance, (2) determined that Cummings was the father of the minor child with no evidence submitted in support of the petition, and (3) ordered support in the matter when it lacked jurisdiction. The first and third assignments are essentially the same; therefore, we will address whether the district court had jurisdiction over Cummings and whether it properly rendered default judgment.

III. STANDARD OF REVIEW

When a jurisdictional question does not involve a factual dispute, determination of the jurisdictional issue is a matter of law, which requires an appellate court to reach a conclusion independent from the trial court's conclusion on the jurisdictional issue. See 24th and Dodge Ltd. v. Commercial Nat. Bank, 243 Neb. 98, 497 N.W.2d 386 (1993).

IV. ANALYSIS

1. PROPER JURISDICTION IN SHERIDAN COUNTY

The narrow question presented is whether Nebraska's long-arm statute provides for in personam jurisdiction over a presently nonresident party to a paternity action when the child was conceived in Nebraska and the child currently resides with its mother in Nebraska. Nebraska's long-arm statute, § 25-536, provides: "A court may exercise personal jurisdiction over a person ... (2) [w]ho has any other contact with or maintains any other relation to this state to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States." The Nebraska Supreme Court has found that "[i]t is quite apparent from the language of the section, 'to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States,' that it was the intention of the Legislature to provide for the broadest allowable jurisdiction over nonresidents." York v. York, 219 Neb. 883, 885, 367 N.W.2d 133, 135 (1985). We note that Cummings cites State ex rel. Larimore v. Snyder, 206 Neb. 64, 291 N.W.2d 241 (1980), in support of his argument that the Nebraska courts have no jurisdiction over his person. In State ex rel. Larimore, a paternity action, the plaintiff attempted to establish personal jurisdiction over a nonresident by claiming that sexual intercourse, which resulted in pregnancy, was a tortious act. The court found that the act of sexual intercourse was not a tortious act and that the Nebraska courts had no jurisdiction over the nonresident defendant. However, State ex rel. Larimore was based on the original long-arm statute, § 25-536 (Reissue 1975), before it was amended in 1983 to add the current broad provision which exercises jurisdiction over any person who has any other contact with the state to afford a basis for the exercise of personal jurisdiction consistent with the U.S. Constitution. State ex rel. Larimore, therefore, is inapplicable to the case at hand.

The York court found that the constitutional restriction on a state's power to obtain in personam jurisdiction is twofold: (1) that the defendant be given adequate notice and (2) that the defendant be subject to the personal jurisdiction of the court. In the case at hand, there is no question of adequate notice because Cummings was personally served in South Dakota, where he resides, and responded by filing a special appearance. Therefore, we must determine whether Cummings has minimum contacts with the State of Nebraska so as to subject himself to the jurisdiction of its courts. See, York, supra; Internat. Shoe Co. v. Washington 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

The Nebraska Supreme Court has found that to determine whether a court has personal jurisdiction over a nonresident defendant, one must examine the quality and nature of the nonresident's activities and ascertain that the nonresident has sufficient minimum contacts with the forum state to satisfy the requisite due process for exercise of jurisdiction. See Williams v. Gould, Inc., 232 Neb. 862, 443 N.W.2d 577 (1989). In Williams, the court found:

Fairness and reasonableness, essential to due process in personal jurisdiction over a nonresident defendant, require that the defendant's contact with the forum state must be of a quality and nature that the defendant 'should reasonably anticipate being haled into court' in the forum state....

A defendant's purposeful act, directed to the forum state, not merely the unilateral activity of another who claims a relationship to the defendant, connects the defendant to the forum state.

(Citations omitted.) Id. at 876-77, 443 N.W.2d at 587. In addition, the Williams court found that

[a]fter the extent and nature of the nonresident defendant's contacts are analyzed, the court may apply other facts bearing on reasonableness and fairness in requiring the nonresident to defend a suit in Nebraska, such as the defendant's burden in the Nebraska litigation, Nebraska's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and efficient relief, the judicial system's interest in the efficient resolution of controversies, and the shared interest of the states in furthering fundamental substantive social policies.

Id. at 878-79, 443 N.W.2d at 588.

The court in In re Paternity of C.A.K., 159 Wis.2d 224, 464 N.W.2d 59 (Wis.App.1990), found that the defendant had minimum...