State ex rel. N.R.Z. v. G.L.C.

• Decision Date: 08 November 1989
• Docket Number: No. 88-1635,88-1635
• Citation: 152 Wis.2d 97,447 N.W.2d 533
• Parties: STATE ex rel. N.R.Z., Petitioner-Respondent, v. G.L.C., Respondent-Appellant.
• Court: Wisconsin Supreme Court

Page 533

447 N.W.2d 533

152 Wis.2d 97

STATE ex rel. N.R.Z., Petitioner-Respondent, v. G.L.C., Respondent-Appellant.

No. 88-1635.

Supreme Court of Wisconsin.

Argued Sept. 7, 1989.

Decided Nov. 8, 1989.

Duane R. Stellmacher, Madison, on briefs (in Court of Appeals), for respondent-appellant.

Daniel Stier, Asst. Atty. Gen., argued, Donald L. Antoine, Asst. Dist. Atty., on brief (in Court of Appeals), for petitioner-respondent.

CECI, Justice.

This case is before the court on certification from the court of appeals, pursuant to sec. (Rule) 809.61, Stats. The appellant, G.L.C., a resident of the state of Florida, appeals from an order of the circuit court for Dane county, Susan Steingass, Circuit Judge, denying his motion to dismiss a paternity action for lack of personal jurisdiction. The issue certified to this court, as phrased by the court of appeals in its certification, is whether the acquisition by this state of personal jurisdiction over the appellant under sec. 767.01(2)(c), violates his due process rights. We hold that it does and reverse the order of the circuit court.

The facts of this case follow. The appellant is and at all times relevant to this action has been a Florida resident employed by Walt Disney World Company. The respondent, N.R.Z., is and at all times relevant to this action has been a Wisconsin resident. In January, 1985, the respondent, while on vacation with her family, visited the appellant in Florida. She returned to Wisconsin and, on October 18, 1985, gave birth to a child. Both the child and the respondent reside in Wisconsin and receive support from the state. In January, 1987, the appellant visited Wisconsin for a matter of hours and spoke with the respondent. The record provides no indication of the purpose of that visit, which was the appellant's only contact with the state.

The state of Wisconsin, on behalf of the respondent, commenced a paternity action in Dane county circuit court, alleging that the appellant was the father of her child. The appellant was served with a Wisconsin summons and petition in Florida on January 7, 1988. He subsequently filed a motion to dismiss the action on the grounds that he had insufficient minimal contacts with the state to warrant the exercise of jurisdiction over his person. ¹

The circuit court, by written decision and order dated August 24, 1988, denied the motion to dismiss. The court found that the state could exercise jurisdiction over the appellant pursuant to sec. 767.01(2)(c), Stats., provided that he had sufficient minimal contacts with the state to satisfy due process. ² The court found that the appellant visited Wisconsin on one occasion and spoke with the respondent. The court concluded that the visit constituted a single act or consummation of a transaction within the forum and that the cause of action was related to the appellant's contact with the forum because "he was in Wisconsin as a result of his contact with [the respondent] and his actions in Florida have resulted in the birth of a child who lives here." The court held that the appellant had sufficient minimal contacts with the state and that it was reasonable to subject him to suit in Wisconsin.

The court of appeals granted the appellant leave to appeal the nonfinal order denying his motion to dismiss and subsequently certified the appeal to this court, which we accepted.

In our review of questions of personal jurisdiction, the circuit court's findings of fact will not be set aside on appeal unless clearly erroneous. Section (Rule) 805.17(2), Stats. However, this court is not bound by the circuit court's ultimate legal conclusion that the appellant had sufficient minimal contacts with the state to warrant the exercise of jurisdiction in this case. That conclusion is one of law and is entitled to no special deference from a reviewing court. Afram v. Balfour, Maclaine, Inc., 63 Wis.2d 702, 708, 218 N.W.2d 288 (1974); see also In re Devanis v. Devanis, 132 Wis.2d 318, 331, 392 N.W.2d 108 (Ct.App.1986).

The due process clause of the fourteenth amendment operates as a limitation on the power of state courts to exercise personal jurisdiction over a nonresident defendant. Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 108, 107 S.Ct. 1026, 1031, 94 L.Ed.2d 92 (1987). Due process requires that the defendant have certain minimal contacts with the forum state such that the maintenance of the suit does not offend the traditional notions of fair play and substantial justice. Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978), citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). A defendant's minimal contacts with the forum state must have a basis in some act by which the defendant purposefully avails himself of the privilege of conducting activities in the state, thus invoking the benefits and protections of its laws. Asahi, 480 U.S. at 109, 107 S.Ct. at 1031, citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). An essential criterion in all cases is whether the quality and nature of the defendant's activity is such that it is reasonable and fair to require him to conduct his defense in the state. Kulko, 436 U.S. at 92, 98 S.Ct. at 1696, citing International Shoe, 326 U.S. at 316-17, 319, 66 S.Ct. at 158-59, 159.

A Wisconsin court may exercise jurisdiction over a nonresident defendant if there is a statutory basis for extending jurisdiction to the nonresident and if the foregoing requirements of due process are met. The burden is on the plaintiff to establish that a nonresident is subject to suit in this state under the provisions of a Wisconsin long-arm statute. Lincoln v. Seawright, 104 Wis.2d 4, 9, 310 N.W.2d 596 (1981). Once the plaintiff has demonstrated that the provisions of a long-arm statute confer jurisdiction over a nonresident defendant, this court will presume that the exercise of jurisdiction pursuant to the statute comports with due process. Id. at 10, 310 N.W.2d 596.

However, the scope of a long-arm statute and the possible infringement on the flexible reaches of due process that may occur in its application to a set of facts are ordinarily separate questions. Hasley v. Black, Sivalls & Bryson, Inc., 70 Wis.2d 562, 575, 235 N.W.2d 446 (1975). Our long-arm statutes are intended to confer jurisdiction over a nonresident defendant only to the extent consistent with the requirements of due process of law. Thus, each case arising under the statute poses a problem of statutory construction within the constitutional framework and its application to the factual background of each individual case. Zerbel v. H. L. Federman & Co., 48 Wis.2d 54, 59-60, 179 N.W.2d 872 (1970).

Accordingly, a defendant may rebut the presumption of due process by demonstrating that he has insufficient contacts with the state to subject him to suit in a Wisconsin forum. In determining whether a nonresident defendant has successfully rebutted the presumption of due process, a court must consider the quantity, quality and nature of the defendant's contacts with the state; the source and connection of the cause of action with those contacts; the state's interest in providing a forum for suit; and the inconvenience to the parties of litigating the suit in the state. See Lincoln, 104 Wis.2d at 11, 310 N.W.2d 596, citing Zerbel, 48 Wis.2d at 64-65, 179 N.W.2d 872.

Section 767.01(2), Stats., is a special jurisdictional statute which confers long-arm jurisdiction upon the courts of this state in paternity and child support actions commenced pursuant to CH. 767. SECTION 767.01(2)(C)³ allows for the exercise of jurisdiction in a paternity action where, as here, the child at issue resides in the state.

The appellant contends that sec. 767.01(2)(c) is unconstitutional both on its face and as applied to the facts of this case. The appellant argues that the statute is facially invalid because it subjects a nonresident defendant to suit in this state even though the defendant may have insufficient minimal contacts to satisfy the demands of due process. The appellant notes that sec. 767.01(2)(a), in comparison, limits jurisdiction in actions commenced pursuant to ch. 767, Stats., to those situations in which a nonresident has "the necessary minimum contact with this state" under the provisions of the general long-arm statute, secs. 801.05 and 801.07. The appellant contends that because subsection (c) does not explicitly refer to similar minimal contacts, it eliminates the need to analyze due process considerations once the fact of the affected child's residence in this state has been established.

We find the appellant's argument unconvincing. As previously mentioned, compliance with the language of sec. 767.01(2)(c) raises only a rebuttable presumption that the exercise of jurisdiction over a nonresident defendant is constitutional. This presumption does not obviate the need to determine whether due process has in fact been met when a defendant challenges the exercise of jurisdiction on constitutional grounds. Accordingly, we turn our analysis to a consideration of the factors specified by this court in Zerbel, 48 Wis.2d 54, 179 N.W.2d 872, to determine whether the appellant has rebutted the presumption of due process.

The circuit court found that the appellant has two relevant contacts with the state of Wisconsin. His alleged child resides in the state with the respondent, and the appellant briefly visited the state on one occasion and spoke with the respondent at that time. We conclude that these contacts are not sufficient to subject the appellant to suit in this state. In reaching this conclusion, we find the case of Kulko, 436 U.S. 84, 98 S.Ct. at...