Taylor v. Taylor, 317
| Decision Date | 18 January 1996 |
| Docket Number | 1995,No. 317,317 |
| Citation | 672 A.2d 44 |
| Parties | Lynn W. TAYLOR, Respondent Below, Appellant, v. Anna W. TAYLOR, Petitioner Below, Appellee. . Submitted: |
| Court | Supreme Court of Delaware |
Upon Certification of Questions of Law from Family Court. QUESTIONS ANSWERED.
Certification of Questions of Law from the Family Court of the State of Delaware in and for Sussex County, File No. CS88-4064.
Richard E. Berl, Jr., Berl & Jones, P.A., Georgetown, for appellant.
Peter S. Feliceangeli, and W. Michael Tupman (argued), Deputy Attorneys General, Department of Justice, Wilmington, for appellees, Anna W. Taylor and Division of Child Support Enforcement.
Before WALSH, HOLLAND, and HARTNETT, JJ.
This matter is before the Court as the result of the certification of two questions of law pursuant to Article IV, § 11(9) of the Delaware Constitution and Delaware Supreme Court Rule 41. The questions that have been certified by the Family Court of the State of Delaware and accepted by this Court are, as follows:
(1) Whether the Family Court of the State of Delaware has been properly interpreting the "continuing jurisdiction" provisions of 13 Del.C. § 513(d) and (f) to allow notice of a petition for modification of child support to be served on a non-resident obligor by [a means other than] Delaware's long arm statute, as set forth in 10 Del.C. § 3104? 1
(2) If it is determined by the Supreme Court of Delaware that use of the long arm statute is not required by the United States and Delaware Constitutions, then is service by regular mail, pursuant to 13 Del.C. § 513(f), or by certified mail, pursuant to 13 Del.C. § 513(d)(2), required?
The following undisputed facts were set forth in the Certificate of Questions of Law ("Certificate") submitted by the Family Court to this Court. 2 Lynn W. Taylor ("Father") and Anna W. Taylor ("Mother") were divorced by final decree of the Family Court in December, 1991. Since the parties last resided together in Delaware, the Family Court had undisputed jurisdiction over the divorce, and settled numerous matters ancillary to the divorce, including division of marital property, custody, visitation, and child support.
The Mother first petitioned the Family Court for child support on November 14, 1991. The Mother and the child had remained in Delaware since the parties' separation, and still reside in Sussex County. By that time, however, the Father had moved to Princess Anne, Maryland.
The Father was served by registered mail with a copy of the summons and petition for support on November 18, 1991. The Family Court record reflects that the procedures of Delaware's long arm statute were not followed when the Father was served in November, 1991. 10 Del.C. § 3104. No objection to service was made by the Father at that time.
The Father filed an answer to the 1991 child support petition through his attorney. The parties participated in mediation but did not reach a complete agreement. Following a hearing before a Family Court Master, on January 29, 1992, the Father's support obligation was determined to be $125.00 bi-weekly.
As part of the 1991-92 child support proceedings, both parties were asked to read and sign the Family Court's Rules of Support. Those Rules of Support include the following statements:
The [Family] Court has acquired continuing jurisdiction over you for the life of the support order for the purpose of enforcement and modification of the Order.... Notification for any subsequent Court appearances under this Order shall be by mail....
In order to ensure the Family Court's ability to reach each of the parties by mail, its Rules of Support also set forth the duty of the parties to inform the court of "any change of address within five (5) working days of any such change." After a support order has been entered, if an obligor does not notify the Family Court within 5 working days after a change of residential address, the Family Court may hold the obligor in contempt and attach the obligor's wages. 13 Del.C. § 513(a)(12).
On September 23, 1994, the Mother filed a Petition for Modification of the Father's child support obligation. Notice of the Mother's petition was served on the Father by regular mail. On October 18, 1994, the Father's Delaware attorney filed another entry of appearance.
On November 29, 1994, the Father's attorney filed a Motion to Dismiss the modification petition based on a lack of personal jurisdiction. The Mother's attorney filed a response to the Motion to Dismiss. A hearing on the Motion to Dismiss was held before a Master of the Family Court on December 13, 1994.
The Master determined that due process does not require the use of the procedures in the long arm statute when modifying or enforcing an existing support order, because the Family Court has continuing jurisdiction over its own support orders. The Master determined that this continuing jurisdiction allowed service by regular mail. Thus, the Master concluded that the Family Court had properly acquired personal jurisdiction over the Father, and denied the Motion to Dismiss.
On January 6, 1995, the Father filed a Petition for Review de Novo of the Master's decision. 10 Del.C. § 913(d)(1). The parties filed briefs in the Family Court on the issue of whether it had properly acquired personal jurisdiction over the Father. The Family Court then certified the two questions of law which are now before this Court.
Continuing Jurisdiction
The first certified question to this Court relates to whether the Family Court has been properly interpreting the "continuing jurisdiction" provisions of 13 Del.C. § 513 to allow notice of a petition for modification of a child support order to be served on a non-resident obligor by a means other than the Delaware long arm statute. 10 Del.C. § 3104. The Delaware long arm statute sets forth the circumstances under which a Delaware court may exercise in personam jurisdiction over a non-resident party. See 10 Del.C. § 3104. Under the long arm statute, service of process on a non-resident is accomplished by service upon the Secretary of State. See 10 Del.C. § 3104(d). Then, within 7 days following return of service or filing of proof of nonreceipt of notice, a plaintiff must send the non-resident a copy of the process and complaint by registered mail. Id.
The statute governing enforcement and modification of child support orders does not include or incorporate by reference the procedures of the long arm statute for effectuating service on non-resident parties. See 13 Del.C. § 501 et seq. Rather, section 513(d)(1) of Title 13 provides:
The [Family] Court shall have continuing jurisdiction to modify prospectively an order of child support entered by the Court including orders issued prior to March 31, 1987, so long as the obligated parent has a duty of support under this chapter, Chapter 6 or Chapter 15 of this title and at least 1 of the parents or the child whose support is at issue resides in the State.
The Father argues that § 513(d)(1) only gives the Family Court subject matter jurisdiction over subsequent modifications of a child support order entered by the Family Court. The Father submits that § 513(d)(1) does not alleviate the Family Court's obligation to satisfy the due process "minimum contacts" test in order to exercise in personam jurisdiction over a non-resident obligor. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Therefore, the Father contends, the Family Court was required to utilize the procedures set forth in the Delaware long arm statute in order to properly exercise in personam jurisdiction over him with respect to the Mother's petition for modification of a child support order. See 10 Del.C. § 3104.
The proper construction of the continuing jurisdiction provisions of 13 Del.C. § 513 presents this Court with a question of first impression. 4 The highest court in every other state that has considered the issue, however, has held that a trial court has continuing jurisdiction to enforce or modify its own child support order against a non-resident obligor. 5 Similarly, those highest state courts have concluded that due process does not require compliance with the provisions of a long arm statute in such circumstances. We agree.
The purpose of the long arm statute is to obtain jurisdiction over a non-resident party. However, with regard to petitions to enforce or modify its orders of child support, the Family Court does not need to acquire jurisdiction through the long arm statute. The United States Supreme Court has held "that if a judicial proceeding is begun with jurisdiction over the person of the party concerned, it is within the power of a state to bind him by every subsequent order in the cause." Michigan Trust Co. v. Ferry, 228 U.S. 346, 353, 33 S.Ct. 550, 552, 57 L.Ed. 867 (1913). 6
The filing of a petition for a modification of child support in the court which entered the order is not the institution of an independent proceeding or the commencement of a new action. It is ancillary or incidental to the original action. 7 The continuing jurisdiction of the Family Court cannot be defeated by a party's moving from the state. 8 Once the Family Court obtains jurisdiction over the parties to a child support proceeding, that jurisdiction continues throughout all subsequent proceedings which arise out of the original action. 9 Id. See also 13 Del.C. § 614. 10
We hold that the Family Court has continuing subject matter and in personam jurisdiction over non-resident child support obligors with regard to petitions to modify its own orders. Michigan Trust Co. v. Ferry, 228 U.S. 346, 353, 33 S.Ct. 550, 552, 57 L.Ed. 867 (1913). See 13 Del.C. § 513(d)(1) and (e). The Family Court's continuing jurisdiction over its own child support orders obviates the need to comply with the requirements of the...
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