State ex rel. McKenna v. Bennett

• Decision Date: 17 January 1977
• Citation: 558 P.2d 1281,28 Or.App. 155
• Parties: STATE of Oregon ex rel. Alice T. McKENNA, Respondent, v. Lonnie Steven BENNETT, Appellant.
• Court: Oregon Court of Appeals

Page 1281

558 P.2d 1281

28 Or.App. 155

STATE of Oregon ex rel. Alice T. McKENNA, Respondent, v. Lonnie Steven BENNETT, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Nov. 18, 1976.

Decided Jan. 17, 1977.

Robert Norman Ehmann, Oregon Legal Aid Society Corp., Pendleton, argued the cause for appellant. With him on the briefs was Norval E. Baran, Director, Sixth Judicial Dist. Legal Aid Society, Pendleton.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FORT and TANZER, JJ.

TANZER, Judge.

Respondent mother, a resident of Oregon, filed a filiation petition to establish paternity of her daughter against appellant. The petition alleged that the act or acts of intercourse occurred in Oregon, that the child resided in Oregon, and that the appellant had contributed nothing to the support of the child. Appellant was alleged at the time of filing of the petition to be a resident of Walla Walla County, Washington. He was personally served there with notice to appear at a time certain but made no appearance. The court thereafter entered a default against him, conducted a hearing, took sworn testimony, and found by a preponderance of evidence that appellant was the father. It then entered a support order against him in the sum of $75 per month. Several months later appellant, appearing specially, filed a motion, supported by his attorney's affidavit, to set aside the default, in which he acknowledged timely service of the original notice to appear and show cause, on the ground that the court lacked jurisdiction to enter the order of paternity and judgment of support. The court concluded that it had jurisdiction to enter the challenged order and judgment. The father appeals, asserting as his sole ground that the act or acts alleged did not constitute 'commission of a tortious act within this state' within the meaning of ORS 14.035(1)(b).

ORS 14.035, commonly referred to as the 'long-arm' statute, provides:

'(1) Any person, firm or corporation whether or not a citizen or a resident of this state, who, in person or through an agent, does any of the actions enumerated in this subsection, thereby submits such person and, if an individual, his personal representative to the jurisdiction of the courts of this state, as to any cause of action or suit or proceeding arising from any of the following:

'(a) The transaction of any business within this state;

'(b) The commission of a tortious act within this state;

'(c) The ownership, use or possession of any real estate situated in this state '(d) Contracting to insure any person, property or risk located within this state at the time of contracting.

'* * *

'(3) Service of summons on any person who is subject to the jurisdiction of the courts of this state, as provided in this section, may be made by personally serving the summons and copy of the complaint upon the defendant outside this state, in the manner provided in ORS 15.110. Such service shall have the same force and effect as though summons had been personally served within this state.

'(4) Only causes of action or suit or proceedings arising from acts enumerated in this section may be asserted against a defendant in an action or suit or proceeding in which jurisdiction over such defendant is based upon this section.

'(5) Nothing contained in this section limits or affects the right to serve any person in any other manner now or hereafter provided by law.'

First, we conclude that the Due Process Clause would not bar a state from exercising personal jurisdiction over a nonresident of Oregon who performs an act with foreseeable, actionable consequences in Oregon. State ex rel. Western Seed v. Campbell, 250 Or. 262, 442 P.2d 215 (1968), Cert. den.393 U.S. 1093, 89 S.Ct. 862, 21 L.Ed.2d 784 (1969); State ex rel. White Lbr. v. Sulmonetti, 252 Or. 121, 448 P.2d 571 (1968). The birth of the child in Oregon for whom the parent would have a legal obligation of support is a foreseeable consequence of an act of sexual intercourse in Oregon. Therefore, there is sufficient connection with Oregon for the legislature to constitutionally provide for long-arm jurisdiction in such a situation. Backora v. Balkin, 14 Ariz.App. 569, 485 P.2d 292, Rev den (1971).

The next issue is whether the logislature has done so. ORS 14.035(4) restricts long-arm jurisdiction to the specific causes 'enumerated' in the section. If this conduct is enumerated, then it must be under the 'tortious act' clause, ORS 14.035(1)(b). Therefore, the question which the Supreme Court expressly left open in State ex rel. Poole v. Dorroh, 271 Or. 410, 532 P.2d 794 (1975), is squarely presented in this case: When a voluntary act of sexual intercourse between two unmarried persons, committed within this state, results in the birth and residency of a child within this state, and the putative father has failed to support that child, has the putative father committed a tortious act within this state under ORS 14.035?

The definition of 'tort' or 'tortious act' is elusive, but has been summarized in this legal context as

'* * * any act committed in this state which involves a breach of duty to another and makes the one committing the act liable to respondent in damages. * * *' Poindexter v. Willis, 87 Ill.App.2d 213, 217--218, 231 N.E.2d 1, 3 (1967).

See also Kisle v. St. Paul Fire & Marine Ins., 262 Or. 1, 6, 495 P.2d 1198 (1972); 1 Restatement (Second) of Torts, § 6 (1965); Prosser, Torts 1, 2, § 1 (3d ed. 1964).

The conceptual act of intercourse, without some additional fact such as force, is not itself a tort. It is significant only as due process may require foreseeability of consequences. Similarly, whether the child lives in Oregon is relevant to jurisdiction, but not the existence or not of a tort.

That leaves only the failure of the respondent father to support his child as the purported tortious act which would bring filiation proceedings under the purview of the long-arm statutes.

Some courts have held that the failure of a nonresident putative father of an illegitimate child born to a resident mother as a result of conception occurring within the forum state is a tortious act which brings a filiation proceeding under the long-arm statute. The reasoning, however, is either Ipse dixit, State ex rel. Nelson v. Nelson, 298 Minn. 438, 216 N.W.2d 140 (1974), and Gentry v. Davis, 512 S.W.2d 4 (Tenn.1974), or fallacious, Poindexter v. Willis, supra. The Supreme Court of Colorado correctly identified the fallacy in the Poindexter case which the respondent urges upon us. In A.R.B. v. G.L.P., 180 Colo. 439, 442, 507 P.2d 468, 469 (1973), the court reasoned '* * * (Poindexter v. Willis) seems to go off on the premise that Failure to support was a wrong which the legislature intended to include within the meaning of 'tortious act.' But failure to support, is actually only an ancillary issue in a paternity case, where the main question for determination is: Is the respondent the father of the child? * * *.' (original emphasis.)

The decisional issue of this case, then, is whether a filiation proceeding, under Oregon law, arises from a tortious act. We held that it does not.

Failure to support the child, whether or not it is a tort, is not a necessary allegation in a filiation proceeding. ORS 109.125. Conversely, it is no defense to a filiation petition for the father to respond that he is providing the entire support for the child. The issue of a filiation proceeding is not whether a parent has failed to provide support, but whether the person is in fact the parent. Legal consequences and obligations flow from the establishment of that relationship, such as, for example, inheritance rights, social security benefits and the right to future support, but the existence of the commission of a tortious act in Oregon is not an element of the cause of suit in a filiation proceeding.

Similarly, liability for damages in tort flowing from the parent-child relationship is not in issue in a filiation proceeding. Possibly a suit for damages for tortious failure to pay back support could be based upon jurisdiction acquired under ORS 14.035. An order to pay future support, however, is based upon a relationship which is admitted or judicially determined, regardless of whether past support has been tortiously withheld.

The legislative concern that Oregon citizens have full benefit of long-arm jurisdiction to remedy wrongs done to them is well documented in the dissenting opinion. The restrictive language of subsection (4), however, reflects a balancing concern that out-of-state residents not be subjected to the expense and difficulty of defending against faraway lawsuits except in specifically enumerated situations. Had the legislature intended to include jurisdiction over filiation proceedings, we may infer it would have done so in the same manner as it included other domestic relations suits in subsection (2). ¹ Instead, that subsection refers specifically to domestic relations suits arising from ORS chapter 106 (marriage) and chapter 107 (dissolution, annulment and separation) and omits mention of chapter 109 (parent and child). Chapter 110 (Uniform Reciprocal Enforcement of Support Act) has been enacted to provide a remedy in situations like this. Particularly in light of the restrictive language of subsection (2) which tells us in effect 'this much and no more,' we decline to expand the definition of 'tortious act' to include filiation proceedings.

Therefore the order denying respondent's motion to vacate the filiation decree was error and must be reversed.

Reversed.

FORT, Senior Judge, dissenting.

The first question presented here is: When a voluntary act or acts of sexual intercourse between two unmarried consenting adults, committed within this state, results in the birth and residency of a child within this...