Warwick v. Gluck

• Decision Date: 17 March 1988
• Docket Number: No. 61048,61048
• Parties: Angele P. WARWICK, Appellant, v. Robert Joseph Carl GLUCK, Appellee.
• Court: Kansas Court of Appeals

Page 1042

751 P.2d 1042

12 Kan.App.2d 563

Angele P. WARWICK, Appellant, v. Robert Joseph Carl GLUCK, Appellee.

No. 61048.

Court of Appeals of Kansas.

March 17, 1988.

Syllabus by the Court

1. The Uniform Child Custody Jurisdiction Act, K.S.A. 38-1301 et seq., does not grant a court subject matter jurisdiction to adjudicate child support or any other monetary obligation of the parties. K.S.A. 38-1302(b).

2. Notwithstanding the jurisdictional limitation imposed by the Uniform Child Custody Jurisdiction Act, Kansas courts have jurisdiction to modify a child support order of another state based on the common-law duty of a parent to support his or her child, Keller v. Guernsey, 227 Kan. 480, 608 P.2d 896 (1980), and on equity principles, Burnworth v. Hughes, 234 Kan. 69, 670 P.2d 917 (1983).

3. To enter an order adjudicating the child support obligation of a parent, a Kansas court must have subject matter jurisdiction and personal jurisdiction over the parent.

4. Jurisdiction over the person can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance. Haley v. Hershberger, 207 Kan. 459, 485 P.2d 1321 (1971).

5. A nonresident parent's appearance in an action initiated pursuant to the Uniform Child Custody Jurisdiction Act to restrict visitation does not subject the nonresident parent to the in personam jurisdiction of the court for the purpose of increasing child support if the nonresident has not been served in a method prescribed by statute, has not consented to the personal jurisdiction of the court, and has not voluntarily entered an appearance.

Richard D. Ralls and Patrick D. McAnany, of McAnany, Van Cleave & Phillips, P.A., Lenexa, for appellant.

Michael P. Carpenter and David K. Martin, of Payne & Jones, Chartered, Overland Park, for appellee.

Before BRISCOE, P.J., DAVIS, J., and FLOYD H. COFFMAN, District Judge Retired, Assigned.

DAVIS, Judge:

Angele Warwick appeals from an order denying her motion to increase child support. She filed an action under the Uniform Child Custody Jurisdiction Act (UCCJA), K.S.A. 38-1301 et seq., to restrict visitation with her children by her former husband, Robert Gluck, a nonresident of Kansas. Gluck appeared through counsel and sought extended visitation with the children, but objected to Warwick's several motions to increase child support on the ground that the court lacked jurisdiction to consider them. The issue on appeal is whether the district court had personal jurisdiction over Gluck for the purpose of increasing child support. The district court found that the action was initiated by Warwick under the UCCJA which "specifically excludes jurisdiction toward or any increase in child support."

Warwick and Gluck obtained a divorce in Philipsburg, St. Maarten, a protectorate of the Netherlands, in February 1983. By the terms of a separation agreement, Warwick became the guardian of the parties' two minor children. Gluck became the children's co-guardian. He agreed to pay $100 a month for child support.

In June 1983, Warwick and the children moved to Johnson County, Kansas. On May 3, 1984, Warwick filed a petition pursuant to the UCCJA in the District Court of Johnson County, requesting that the court restrain Gluck from removing the children from its jurisdiction, order him to undergo a psychological evaluation, and supervise his visitation with his children. The court issued an ex parte order granting the requested relief.

In response to the petition, Gluck filed a motion to dismiss, contending that the court lacked jurisdiction under the UCCJA. Alternatively, he asked that the court permit his children to visit him in St. Maarten during the summer.

The court held a hearing on May 24, 1984. Gluck appeared through counsel. On redirect examination, Warwick was asked by her counsel how much Gluck paid for child support. Gluck's attorney objected "to this in this proceeding," arguing that the UCCJA does not provide a basis for an order increasing child support. At the conclusion of the hearing, the court held that it had limited jurisdiction under the UCCJA and entered orders permitting Gluck to visit his children in Kansas City during the first ten days of June and requiring the parties to undergo a professional evaluation to determine the advisability of visitation in St. Maarten.

On August 1, 1984, Gluck filed a motion requesting that the court allow his children to visit him in St. Maarten for approximately two weeks prior to the start of school. Two days later Warwick moved for an increase in child support. She acknowledged that the UCCJA "does not provide for the plaintiff's motion herein," but asserted that the court has jurisdiction to increase child support "under the common law concepts of parens patriae." In his response to Warwick's motion, Gluck contended that the court lacked personal and subject matter jurisdiction.

On November 27, 1984, the court held a hearing on pending motions. It granted Gluck visitation with his children in Kansas on weekends, but rejected his request to take the children to St. Maarten. The court expressed doubts about its ability to enforce an order increasing Gluck's child support obligations. The order, entered on March 1, 1985, states, "Child support will not be increased at this time."

On July 8, 1985, the court granted Gluck's request for visitation with his children during the summer in Kansas City and in Naples and Fort Myers, Florida, where they were to visit their grandparents.

On October 17, 1985, the court addressed motions filed by the parties. In an order filed on October 24, 1985, the court denied Warwick's motions to increase child support and to impose sanctions for Gluck's failure to comply with discovery requests concerning his financial ability to make increased child support payments. The court held that the UCCJA "does not confer on this Court any jurisdiction to vary child support orders."

Warwick filed a timely motion to later or amend the October 24 order, contending that the court erred by holding it did not have jurisdiction to increase child support. In his response, Gluck argued that the court's ruling was correct because he had "not been personally served nor voluntarily entered his appearance in the case." In the alternative, Gluck contended that child support should be decreased, not increased, or that Warwick should be ordered to share in transportation expenses incurred in visitation.

On December 4, 1986, before the court ruled on the motion to alter or amend, Warwick filed another motion to increase child support. She asserted that the "court has jurisdiction over the parties and the subject matter under the common law doctrine of parens patriae " and that Gluck had submitted to and had invoked the court's jurisdiction by seeking affirmative relief in the case. On May 15, 1987, the court denied the motion to increase child support. In a journal entry filed on May 29, 1987, the court stated, "[T]his is an action initiated by the petitioner under the Uniform Child Custody Act and the Uniform Child Custody Act specifically excludes jurisdiction toward or any increase in child support."

By its terms, the UCCJA does not grant a court subject matter jurisdiction to order a party to pay child support or any other monetary obligation. The UCCJA grants the court jurisdiction to make a "custody determination." K.S.A. 38-1303(a). "Custody determination" is defined as "a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person." K.S.A. 38-1302(b). (Emphasis added.)

Although a court is not granted subject matter jurisdiction to decide child support issues by the UCCJA, the jurisdiction of a Kansas court to modify a child support order of another state is well-established and is based on the common-law duty of a parent to support his or her child, Keller v. Guernsey, 227 Kan. 480, 608 P.2d 896 (1980); and on equity principles, Burnworth v. Hughes, 234 Kan. 69, 670 P.2d 917 (1983).

On appeal, Gluck does not contend that the district court lacked subject matter jurisdiction to order an increase in child support. Rather, he contends that the court lacked personal jurisdiction over him.

Personal jurisdiction has not been at issue in the cases that have upheld the district court's authority to modify a child support order on the basis of common law or equity.

In Keller v. Guernsey, the nonresident mother filed an action in Wyandotte County, Kansas, seeking an order for future support of the parties' minor children. Personal service was obtained on the respondent. 227 Kan. at 481, 608 P.2d 896. On appeal, the Supreme Court held that the district court had subject matter jurisdiction based upon the parents' common-law duty of support. 227 Kan. at 488, 608 P.2d 896.

In Burnworth v. Hughes, the father initiated an action under the UCCJA to obtain custody of his minor children or, in the alternative, visitation rights. The nonresident mother appeared to contest both custody and visitation. The mother "never filed a counterclaim specifically praying for an order for child support." 234 Kan. at 71, 670 P.2d 917. Nevertheless, the trial court ruled that it "had jurisdiction to consider the custody and visitation rights raised in plaintiff's petition and also had jurisdiction to enter a child support order since plaintiff had consented to the jurisdiction of the court." 234 Kan. at 71, 670 P.2d 917. The court ordered the father to pay support at the rate of $600 per month and continued the custody hearing pending his compliance with the child support order. On appeal the father did not contest the trial court's finding that it had personal jurisdiction over the parties. Rather, he contended that since his former wife had not requested an increase in child support, the...