Ventura County, State of Cal. v. Neice

• Decision Date: 03 May 1982
• Docket Number: No. 1-681A200,1-681A200
• Parties: COUNTY OF VENTURA, STATE OF CALIFORNIA, Petitioner-Appellant, v. Donnie Lue NEICE, a/k/a Tony Mirano, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 907

434 N.E.2d 907

COUNTY OF VENTURA, STATE OF CALIFORNIA, Petitioner-Appellant, v. Donnie Lue NEICE, a/k/a Tony Mirano, Respondent-Appellee.

No. 1-681A200.

Court of Appeals of Indiana, First District.

May 3, 1982.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for petitioner-appellant.

Eric N. Allen, Kevin P. McGoff, Free, Brand, Tosick & Allen, Greenfield, for respondent-appellee.

NEAL, Judge.

Petitioner-appellant County of Ventura, State of California (Ventura County) appeals the Hancock Circuit Court's dismissal of a suit under the Uniform Reciprocal Enforcement of Support Act to enforce a California support order against respondent-appellee Donnie Lue Neice a/k/a Tony Mirano (Neice), an Indiana resident.

We reverse.

STATEMENT OF THE FACTS

Donnie Neice, Jr. (Donnie) filed a paternity action against Neice in a Superior Court of California, County of Ventura, and Neice does not dispute that he was properly served with summons. However Neice made no appearance in the California proceedings, and on December 7, 1979 the court entered a default judgment against him and ordered him to pay $140 monthly child support. The judgment stated that the support order could be modified for change of circumstances. Payments were to begin on January 1, 1980. On July 17, 1980, after Neice failed to make payment, Ventura County filed a petition for reimbursement and support under California's version of the Uniform Reciprocal Enforcement of Support Act (URESA), Calif.Code Civ.Proc. § 1650 et seq. (See Ind.Code 31-2-1-1 et seq. for Indiana's version of URESA.) Ventura County sought reimbursement of $700 it spent for the support of Donnie between January 1, 1980 and May 31, 1980, and the enforcement of Neice's continuing support obligation. On September 11, 1980 the Hancock County prosecutor's office petitioned the Hancock Circuit Court for enforcement of the California support order. Neice appeared and filed a motion to dismiss under Ind. Rules of Procedure, Trial Rules 12(B)(2) and 12(B)(6) with an accompanying memorandum and affidavit. Neice's affidavit was the only evidence before the trial court, and in it Neice gave the following account of the events surrounding Donnie's birth. At various times during the mid 1960's Neice resided alternately in Indiana and California. While in California Neice met Diana L. Paulin (Paulin), Donnie's mother, who at that time was known as Diana Lynn Hoover. While he was in California, Neice had sexual intercourse with Paulin. In 1965, after residing in Indiana for the preceding six months, Neice returned to California. Paulin then informed him that she was in the early stages of pregnancy. At that time Paulin was living with another man. Paulin gave birth to Donnie on February 6, 1966. Neice believes one of the other men Paulin lived with was Donnie's father. Neice claimed it was impossible for him to have fathered Paulin's child, stating that they had not had intercourse for two years prior to Donnie's birth. Neice also denied that he had ever admitted paternity or supported Donnie. Neice claimed there is no physical resemblance between Donnie and himself. Neice stated he had not seen or spoken with Paulin since 1969.

Initially the court denied Neice's motion to dismiss, but following a motion to reconsider and oral arguments, the motion to dismiss was granted. The court made no findings of fact, and the parties requested none.

ISSUE

We have condensed the issues raised by Ventura County into the following:

Whether full faith and credit, the Uniform Reciprocal Enforcement of Support Act, and comity require the enforcement of a California default judgment of paternity which includes a modifiable award of child support.

DISCUSSION AND DECISION

This case is controlled by principles of full faith and credit, comity, personal jurisdiction, and URESA. Article 4 § 1 of the United States Constitution provides:

"(F)ull faith and credit should be given in each state to the public acts, records, and judicial proceedings of every other state...."

This requirement applies to all final judgments. Those portions of a judgment which are not final fall within the doctrine of comity and may be enforced to the same extent as in their state of origin.

Comity, unlike full faith and credit, is not a constitutional requirement but a rule of convenience and courtesy. "Comity represents a willingness to grant a privilege, not as a matter of right, but out of deference and good will. Its primary value is to promote uniformity of decision by discouraging repeated litigation of the same question." State of Florida ex rel. O'Malley v. Department of Insurance of the State of Indiana, (1973) 155 Ind.App. 168, 176-177, 291 N.E.2d 907. However, Indiana and California both have adopted versions of the Uniform Reciprocal Enforcement of Support Act (URESA). Ind.Code 31-2-1-1 et seq.; Calif.Code Civ.Proc. § 1650 et seq. Hence, both states have strong policies favoring the enforcement of support obligations when the state imposing them has jurisdiction. Under URESA a foreign support order, once confirmed by an Indiana court, is enforced as if entered in this state. Ind.Code 31-2-1-37. Nevertheless, all foreign judgments are open to collateral attack for lack of jurisdiction. Taylor v. Landsman, (1981) Ind.App., 422 N.E.2d 403; Podgorny v. Great Central Insurance Company, (1974) 160 Ind.App. 244, 311 N.E.2d 640; McCarthy v. McCarthy, (1971) 150 Ind.App. 640, 276 N.E.2d 891; See Ind.Code 31-2-1-36. In the instant case Neice's attack of the California court's jurisdiction fails, and the California judgment must be enforced.

Neice's motion to dismiss under Trial Rules 12(B)(2) and (6) was accompanied by an affidavit and a memorandum of law. Hence, the trial court was required to treat it as a motion for summary judgment under Ind.Rules of Procedure, Trial Rule 56. T.R. 12(B)(8). T.R. 56(C) provides in part:

"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law .... The court shall designate the issues or claims upon which it finds no genuine issue as to any material facts. ¹ Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or such evidence."

On review this court must determine whether there was any genuine issue of material fact and whether the law was correctly applied. State v. Wayne Township Marion County, (1981) Ind.App., 418 N.E.2d 234; Campbell v. Eli Lilly and Company, (1980) Ind.App., 413 N.E.2d 1054. Summary judgment cannot and should not be used as an abbreviated trial; even when the facts are not disputed, if they give rise to conflicting inferences which may alter the result, summary judgment is inappropriate. Carrell v. Ellingwood, (1981) Ind.App., 423 N.E.2d 630; Letson v. Lowmaster, (1976) 168 Ind.App. 159, 341 N.E.2d 785. In ruling on a summary judgment motion the court accepts the facts set forth by the nonmoving party as true, and all doubts are resolved in his favor. Campbell, supra; See Wayne Township, supra.

Neice, as proponent of the motion for summary judgment, carried the burden of proof. Campbell, supra. In attempting to undermine the judgment of a sister state, Neice was also required to rebut the presumption in favor of its validity. Podgorny, supra; McCarthy, supra; Kniffen v. Courtney, (1971) 148 Ind.App. 358, 266 N.E.2d 72. He raised four arguments attacking the judgment: (1) the California court lacked personal jurisdiction, (2) the statute of limitations for paternity actions had run, (3) the support order was modifiable and therefore not entitled to full faith and credit, and (4) the enforcement of the judgment under the circumstances of this case would be inequitable. Since the trial court did not designate the facts which were undisputed or the legal basis for its judgment, we assume the judgment was based on one of these arguments and will discuss them in order.

Personal Jurisdiction

It is well established that collateral attack of a foreign judgment is permitted only in regard to the jurisdiction of the rendering court. McCarthy, supra; Kniffen, supra; See Podgorny, supra. Therefore, only jurisdictional facts on which a foreign judgment is founded may be considered in determining whether full faith and credit must be extended to such a judgment. See Irons v. Irons, (1961) 242 Ind. 504, 178 N.E.2d 156; McCarthy, supra.

California has enacted the following statute governing personal jurisdiction in paternity actions:

"Jurisdiction; superior court; place of act of conception; venue

(a) The superior court has jurisdiction of an action brought under this part.

(b) A person who has sexual intercourse in this state thereby submits to the jurisdiction of the courts of this state as to an action brought under this part with respect to a child who may have been conceived by that act of intercourse.

(c) The action may be brought in the county in which the child resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced."

Calif. Civil Code § 7007. California also follows the rule that its courts may exercise personal jurisdiction on any basis not inconsistent with the Constitution of the United States or the Constitution of California. Calif.Code Civ.Proc. § 410.10.

Neice admits he had sexual intercourse with Paulin in California, but argues that this alone does not constitute the minimum contact due process requires for personal jurisdiction under International Shoe Co. v. State of Washington, (1945) 326...