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Puhlman v. Turner (5/27/94), 874 P 2d 291
<![CDATA[
NOTICE: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
TERRENCE L. PUHLMAN, )
) Supreme Court No. S-5422
Appellant, )
) Superior Court No.
v. ) 3AN-92-5033 CI
)
CAROL A. TURNER, formerly )
known as Carol A. Puhlman, ) O P I N I O N
)
Appellee. ) [No. 4090 - May 27, 1994]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
John Reese, Judge.
Appearances: John C. Pharr, Law Offices
of John C. Pharr, Anchorage, for Appellant.
George E. Weiss, Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Bryner, Justice pro tem.,* not
participating].
COMPTON, Justice.
MATTHEWS, Justice, dissenting.
The superior court held that if a nonresident parent
seeks to enforce in Alaska the visitation provisions of an out-of-
state divorce decree, the Alaska court may exercise personal
jurisdiction over the nonresident in a proceeding to modify the
support provisions of the decree. We vacate the superior court's
order and direct entry of an order dismissing the support
modification proceeding.
I. FACTUAL AND PROCEDURAL BACKGROUND
Terrence L. Puhlman, a member of the United States
Armed Forces, and Carol A. Turner married and had two children.
On September 15, 1988, they obtained a divorce in Texas. A
modification decree entered by the Texas court on July 27, 1990
(Texas Order)1 provides in part that (1) Turner has primary
physical custody of the children; (2) Puhlman has visitation
rights including custody of the children for approximately three
months each summer; (3) Turner is to "deliver," i.e., be
financially responsible for transporting, the children to
Puhlman's residence at the beginning of the summer; (4) Puhlman
is to similarly "deliver"the children to Turner's residence at
the end of the summer; and (5) Puhlman is to pay child support in
the amount of $296.00 per month during the months in which Turner
has custody of the children. Turner and the children moved to
Anchorage between entry of the original and modification decrees.
In 1992 Puhlman was stationed in Germany. Turner
refused to pay for the children to fly to Germany that summer to
visit Puhlman. Puhlman flew to Anchorage in June and filed the
Texas Order with the superior court, AS 09.30.200, and sought a
Writ of Assistance to enforce it. He filed a motion for
expedited consideration, because he had to return to duty in
Germany. Turner filed a cross-motion which, inter alia, sought
an increase in child support.
The superior court enforced the Texas Order, directing
that the children be allowed to go to Germany for the remainder
of the summer, and that Turner bear the expense of their return
to Anchorage at the end of the summer. The court deferred
consideration of Turner's cross-motion to increase child support
to the regular motions calendar, but opined that it had personal
jurisdiction over Puhlman. Puhlman opposed the cross-motion,
challenging the Alaska court's exercise of personal jurisdiction
over him. The superior court ruled that Alaska did have personal
jurisdiction over Puhlman, and began proceedings to modify the
child support provisions of the Texas Order.2 Puhlman appeals.3
II. DISCUSSION
It is well-settled that Alaska courts follow federal
"minimum contacts" analysis when applying Alaska's long-arm
jurisdiction statute,4 consistent with the due process
requirements of the Fourteenth Amendment to the United States
Constitution. See, e.g., Glover v. Western Air Lines, Inc., 745
P.2d 1365, 1367 (Alaska 1987); Volkswagenwerk, A.G. v. Klippan,
GmbH, 611 P.2d 498, 500 (Alaska), cert. denied, 449 U.S. 974
(1980).
The United States Supreme Court analyzed minimum
contacts with regard to child support obligations in Kulko v.
Superior Court, 436 U.S. 84 (1978). The Kulkos separated in 1972
and were later divorced. Pursuant to a separation agreement
negotiated in New York, Kulko, a resident of New York, was
awarded custody of the two children. He was ordered to pay child
support during the children's visitation with Horn, their mother,
who had moved to California. Id. at 87-88. The children moved
to California in 1973 and 1976 respectively. Horn initiated suit
in California to obtain custody of the children and increase
child support payments. Id. at 88. Kulko defended on the
grounds that the California court lacked personal jurisdiction
over him. Id. The United States Supreme Court agreed:
"The unilateral activity of those who
claim some relationship with a nonresident
defendant cannot satisfy the requirement of
contact with the forum State. . . . [I]t is
essential in each case that there be some act
by which the defendant purposefully avails
[him]self of the privilege of conducting
activities within the forum State . . . ."
Id. at 93-94 (quoting Hanson v. Denckla, 357 U.S. 235, 253
(1958)) (alteration in original). The Court decided that neither
(1) Kulko's temporary presence in California, (2) his consent to
allow his children to live in California, nor (3) his financial
benefit in not having to pay certain living expenses for his
children constituted "minimum contacts"with California. Id. at
93-97. In conclusion, the court held that subjecting Kulko to
personal jurisdiction in California would "offend 'traditional
notions of fair play and substantial justice.'" Id. at 92, 97-98
(citing International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)).
Puhlman argues that Kulko is applicable to this case.
We agree. The Kulko court distinguished the concepts of being
forced into court and "purposefully availing"oneself of a court;
a court's assertion of personal jurisdiction is proper only in
the latter case. See Kulko, 436 U.S. at 93-94.
Turner attempts to distinguish Kulko because Puhlman
initiated the proceeding in superior court, thereby "purposefully
availing" himself of the Alaska court. The question becomes
whether Puhlman, in seeking to enforce the Texas Order in Alaska,
"purposefully availed" himself of the Alaska court, thereby
subjecting himself to the long-arm jurisdiction of Alaska. This
is an issue of first impression in Alaska. The Supreme Court of
California answered this question in the negative. In Kumar v.
Superior Court, 652 P.2d 1003, 1012-13 (Cal. 1982),5 the court
held that if a nonresident parent is forced to employ the courts
of the forum state to enforce visitation rights pursuant to an
out-of-state decree, the nonresident will not be subject to the
state's long-arm jurisdiction. Puhlman argues that he was forced
to avail himself of the Alaska court in the enforcement
proceeding and should not be subject to personal jurisdiction in
a collateral support modification proceeding.
This court is guided by the principle that due process
of law requires "'minimum contacts . . . such that the
maintenance of the suit does not offend traditional notions of
fair play and substantial justice.'" Glover, 745 P.2d at 1367
(quoting Calder v. Jones, 465 U.S. 783, 788 (1984)). This court
has deemed it fair to exercise personal jurisdiction where "the
defendant's contacts with the forum are substantial enough that
the defendant could reasonably anticipate being haled into court
. . . ." Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S.
462, 472 (1985)). In this regard the distinction between
enforcement of the visitation order and modification of the
support order is important. Had Puhlman sought to register the
Texas Order in Alaska in order to modify it, e.g., to decrease
child support or increase visitation rights, then he reasonably
could expect to be brought before the Alaska court on the cross-
motion to modify the Texas Order. However, because Puhlman
sought only to enforce6 the Texas Order, he could not reasonably
expect to be before the Alaska court on the cross-motion.
Indeed, fairness was the guiding principle for the
United States Supreme Court in Kulko and the Supreme Court of
California in Kumar:
Principles of fairness preclude the
exercise of personal jurisdiction where
connection with the state resulted from an
effort to encourage visitation with the non-
custodial parent. . . . [The father] was
virtually forced into the California court
because [the mother] denied him his
visitation rights. It would be grossly
unfair to allow her now to claim that he
thereby established "minimum contact"
sufficient to establish personal
jurisdiction.
Kumar, 652 P.2d at 1012-13 (citation omitted). Both cases noted
the strong importance of promoting visitation by non-custodial
parents. This policy would be undermined by subjecting to
jurisdiction in another state parents who actually visit their
children or seek to enforce visitation rights in that state.
Kulko, 436 U.S. at 98; Kumar, 652 P.2d at 1013 n.19.
Puhlman argues that it would be unfair for the superior
court to exercise personal jurisdiction over him:
If Puhlman wanted to see his children .
. . he had to come to Alaska. Even at that,
Turner made it clear that he was wasting his
time because she was not going to give him
the children to take back to Germany in
accordance with the Texas decree. Puhlman
therefore had to domesticate the Texas decree
in Alaska in order to physically get custody
of the children to take them out of state.
We agree. The superior court concluded that the children were
improperly withheld from Puhlman. Turner thus placed Puhlman in
danger of forfeiting 1992 summer visitation with the children.
He was forced to seek relief in the Alaska court to enjoy that
visitation.
III. CONCLUSION
Federal and state long-arm jurisprudence protects due
process rights by ensuring that courts exercise personal
jurisdiction consistent with "'traditional notions of fair play
and substantial justice.'" Glover, 745 P.2d at 1367 (quoting
Calder, 465 U.S. at 788). We conclude that considerations of
fairness preclude the Alaska court from exercising personal
jurisdiction over a nonresident parent who seeks only to enforce
visitation rights awarded in an out-of-state judgment.
For the foregoing reasons we VACATE the order of the
superior court and direct the superior court to GRANT Puhlman's
motion to dismiss Turner's cross-motion to modify child support.
MATTHEWS, Justice, dissenting.
I. FACTS
The facts necessary for an understanding of the issues
on this petition follow. Terrence Puhlman and Carol Turner were
divorced in Texas on September 15, 1988. They were both
residents of Texas. Carol was awarded custody of their two
children. Terrence was awarded visitation rights which included
summer vacation visits at his residence. Terrence was ordered to
pay child support.
On or about April 15, 1989, Carol and the children
moved from Texas. They have lived in Alaska since July 21, 1989.
On July 27, 1990, the Texas District Court modified the
divorce decree concerning visitation and support. In particular,
Terrence was required to pay the sum of $296 per month for the
support of both children except during the summer months "when he
has possession of the children,"and Carol was required to pay
the costs for the children to travel to Terrence's home at the
beginning of each vacation.7
In 1992 Terrence was stationed in Germany, although
Texas was still his legal residence. The present case was
initiated by Terrence on July 2, 1992, when he moved in the
superior court for a writ of assistance requiring Carol to turn
over the children to him for summer visitation pursuant to the
terms of the Texas decree. On July 6th Carol filed a pleading
entitled "Opposition to Emergency Motion for Writ of Assistance
and Cross Motion to Modify Visitation and for Other Relief." The
cross motion asked for the following modifications of the
visitation aspects of the Texas decree:
1. That Terrence be required to post bond
ensuring the return of the children to Alaska
prior to the exercise of any visitation in view of
his alleged "wilful and unjustified failures to
return the children for the past two years. . . ."
2. That Terrence be required to pay round
trip tickets for the children's visitation "[i]n
view of [Carol's] nominal income."
Carol also asked that child support be increased pursuant to
Alaska Civil Rule 90.3(a)(2)(B) to twenty-seven percent of
Terrence's net income and that support abate to fifty percent of
the normal monthly amount during summer visitation periods
pursuant to Civil Rule 90.3(a)(3).
A hearing was held on July 6, 1992. At the hearing the
trial court granted the writ of assistance and the children were
delivered to Terrence for visitation. After inquiring as to
whether Terrence had continuing contacts with the state of Texas
and learning that Terrence was still a resident there, the court
ruled that Texas had continuing jurisdiction to modify visitation
and that Alaska lacked modification jurisdiction. The court
deferred ruling on the subject of jurisdiction to modify the
Texas decree concerning child support until the parties were able
to brief that question. After considering the parties' briefs
the court ruled that Alaska had jurisdiction to modify the Texas
decree concerning child support. Subsequently Terrence filed a
child support guidelines affidavit, indicating that the amount of
child support he should pay under Civil Rule 90.3(a)(2)(B) was
$456 per month.
II. DISCUSSION
This case got off to a bad start when the court ruled
that it lacked jurisdiction to modify the visitation and custody
aspects of the Texas decree. Had the original decree come from
almost any other state, this ruling would have been accurate.
Most states exercise "significant connection" juris
diction under their equivalent to section 3(a)(2) of the Uniform
Child Custody Jurisdiction Act (UCCJA).8 This means that the
state that issues the original decree has exclusive jurisdiction
to modify the decree as to custody,9 even though the custodial
parent and the children have established a "home state"residence
in another state, so long as the non-custodial parent still has a
significant connection with the original state and substantial
evidence concerning the children is available there. These are
vague standards. The federal Parental Kidnapping Prevention Act,
28 U.S.C. 1738A (1980) (PKPA), has added a measure of certainty
by providing that significant connection jurisdiction for
modification purposes exists where the original state "remains
the residence of . . . any contestant"and "such court has
jurisdiction under the law of such state." 28 U.S.C. 1738A(d)
and (c)(1).
Texas law is unusual because it conditions the exercise
of significant connection jurisdiction on a showing that no other
state has "home state"jurisdiction. Tex. Fam. Code. Ann.
11.53(a)(2) (West 1994). Since Alaska became the home state of
the children six months after they moved to Alaska in July of
1989, Texas no longer had significant connection jurisdiction as
of the commencement of the attempted modification proceedings in
Alaska in July 1992.10 The trial court therefore should have
ruled that Alaska does have modification jurisdiction concerning
custody and visitation.11
If the trial court had correctly ruled that Alaska has
modification jurisdiction concerning custody, the case for
personal jurisdiction over Terrence regarding child support would
stand before us in a different light. The question would be
whether a state having and exercising jurisdiction under the
UCCJA and PKPA system to modify a decree from another state
concerning custody may also entertain a motion to modify the
child support aspects of the same decree. As the majority
opinion notes, the parties have not raised this issue and the
majority opinion expresses no view concerning it. However, since
hanging in the balance are prospective payments of child support
which will extend well into the next century, I would order
supplemental briefs on this issue.12 See Vest v. First National
Bank of Fairbanks, 659 P.2d 1233, 1234 n.2, reh'g granted, 670
P.2d 707 (Alaska 1983) ("Where . . . an issue that has not been
raised involves a question of law that is critical to a proper
and just decision, we will not hesitate to consider it,
particularly after calling the matter to the attention of the
parties and affording them the opportunity to brief the issue.").
Although a final decision must be withheld, I suggest
that a substantial case can be made that the same contacts and
interests, and the absence of contacts and interests elsewhere,
which have given Alaska exclusive jurisdiction over custody,
suffice to justify the assertion of personal jurisdiction over
the non-custodial parent on child support issues. In support of
this view the following points can be developed:
(1) Alaska, as the home state of the children, has a
vital interest in ensuring that the children residing in Alaska
are adequately supported. Kulko v. California Superior Court,
436 U.S. 84, 98 (1978); Perry v. Newkirk, __ P.2d __, Op. No.
4072 (Alaska, April 8, 1994); Commentary to Civil Rule 90.3,
IB.
(2) Custody, visitation and child support are
inseparably related. In general, the more visitation a non-
custodial parent is awarded, the less child support the non-
custodial parent has to pay. Civil Rule 90.3(a)(3), (b). The
converse is also true. A modification in visitation, or in
shared custody, will therefore often necessarily require a
modification in child support. Requiring the party who receives
the benefit of a visitation or custodial change in a forum having
jurisdiction under the UCCJA/PKPA system to file a separate
action in another forum for the child support changes made
necessary by the visitation or custodial changes has a number of
undesirable consequences. It is economically wasteful. The
integration of custody and visitation issues with child support
guidelines has not been achieved without complexity. Out-of-
state courts may have difficultly in applying another state's
guidelines or they may be reluctant to do so.13
(3) Kulko can be distinguished. The Court did not
address the question whether the forum state had jurisdiction
under the UCCJA. This is not surprising, as the underlying
action in Kulko was begun in 1976 and most jurisdictions had not
adopted the UCCJA before 1977. Congress added force to the
jurisdictional system of the UCCJA by enacting the PKPA in 1981.
The broad acceptance of the UCCJA/PKPA system is, in part, an
indication that its jurisdictional rules are fair and do not
offend "traditional notions of fair play and substantial
justice." This general consensus may carry over to child support
questions because of the inter-relatedness of custody and child
support. Another legal development that has taken place
subsequent to Kulko is the enactment in all jurisdictions of
child support guidelines pursuant to the Child Support
Enforcement Amendments of 1984 (Pub. L. No. 98-378, 98 Stat. 1305
(codified as amended in scattered sections of 26 U.S.C. & 42
U.S.C.)) and the Family Support Act of 1988. (Pub. L. No. 100-
485, 102 Stat. 2343 (codified as amended in scattered sections of
26 U.S.C. & 42 U.S.C.).) Under these guidelines, discretion
concerning the amount of child support to be awarded is greatly
reduced and, child support decrees are subject to frequent
formulaic modifications as the income of the parents changes.
In summary, rather than reverse, I would order the
parties to brief the question of whether the due process clause
of the Fourteenth Amendment allows the assertion of personal
jurisdiction over a non-resident parent for the purpose of
adjusting an out-of-state decree of child support in cases where
Alaska has and is exercising jurisdiction under the UCCJA/PKPA to
modify the same decree insofar as it relates to custody and
visitation.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 The registered Texas decree which included visitation
provisions was entered in November 1988. This case concerns an
order amending that decree to include extensive and specific
visitation provisions.
2 The superior court noted that it did not have
jurisdiction to modify the visitation provisions of the Texas
Order:
The Texas Order is not challenged as
being invalid. It is suggested that there
may be a need to modify it, although Alaska
does not have jurisdiction to modify it,
which the parties are fully aware of and Ms.
Turner's been aware of that fact for some
time because of the prior litigation here.
If it's to be modified, it'll be modified in
Texas.
The court did not state the legal basis for this conclusion.
At the time the superior court entered this order,
Alaska had become the "home state" of the children. AS
25.30.020(a)(1). It does not appear from the record that a
proceeding concerning the children was pending in a court in
Texas or any other state. AS 25.30.050(a). Texas, like Alaska,
surrenders modification jurisdiction to the new home state of the
custodial parent and children even though the non-custodial
parent remains a resident. Reppond v. Blake, 822 S.W.2d 759
(Tex. App. 1992); Tex. Fam. Code 1153(d) (Vernon 1986); see
Baumgartner v. Baumgartner, 788 P.2d 38 (Alaska 1990); Bock v.
Bock, 824 P.2d 723, 724 (Alaska 1992). Thus it appears that
Alaska would have jurisdiction to modify the Texas Order
regarding custody or visitation, were either of those issues
before it. See 28 U.S.C. 1738A(f)(1), (2) (1988).
We note that the Uniform Child Custody Jurisdiction Act
(UCCJA) has been adopted by every state in the Union and is
codified at AS 25.30.010-.910. The Alaska UCCJA provides in
part:
The superior court has jurisdiction to
make a child custody determination by initial
or modification decree . . . .
AS 25.30.020(a) (emphasis added). Nonetheless,
"custody determination". . . does not
include a decision relating to child support
or any other monetary obligation of any
person.
AS 25.30.900(2); See UCCJA 2(2), 9 U.L.A. 133 (1988). The
parties did not raise and we do not address the question whether
the contacts and interests which give Alaska modification
jurisdiction over custody and visitation under the UCCJA provide
a sufficient independent basis for personal jurisdiction under
the Fourteenth Amendment to the United States Constitution.
3 The order from which Puhlman "appeals"is not a final
order; hence it is not appealable. See AS 22.05.010(a); Alaska
Appellate Rule 202(a). However, because the issue questions the
power of the superior court to determine the underlying cause,
and the case has been briefed and argued, we elect to treat the
"appeal"as a petition for review, Appellate Rule 402(a)(1), and
grant the petition.
4 Alaska's long-arm jurisdiction is codified in AS
09.05.015. The superior court did not clarify which subsection
of this statute it relied upon in determining that it had
personal jurisdiction over Puhlman.
5 Kumar is similar to this case. The couple was divorced
in New York in 1974. The mother was awarded custody of the only
child. In 1979 she and the child moved to California without
informing the father. The father filed the New York decree in
California court along with a writ of habeas corpus. The court
enforced the father's visitation rights. When the mother sought
to modify the order in the California court, the father
successfully defended, based on the court's lack of personal
jurisdiction. Kumar, 652 P.2d at 1004.
6 Puhlman's application for a Writ of Assistance makes no
mention of modification.
7 The record does not indicate when the motion resulting
in the modification order of July 27, 1990, was filed. Neither
party contends that the Texas court lacked jurisdiction to make
the order.
8 Sections 3(a)(1) and (2) of the UCCJA provide:
A court of this State which is
competent to decide child custody matters has
jurisdiction to make a child custody
determination by initial or modification
decree if:
(1) this State (i)
is the home state of the child at
the time of commencement of the
proceeding, or (ii) had been the
child's home state within 6 months
before commencement of the
proceeding and the child is absent
from this State because of his
removal or retention by a person
claiming his custody or for other
reasons, and a parent or person
acting as parent continues to live
in this State; or
(2) it is in the
best interest of the child that a
court of this State assume
jurisdiction because (i) the child
and his parents, or the child and
at least one contestant, have a
significant connection with this
State, and (ii) there is available
in this State substantial evidence
concerning the child's present or
future care, protection, training,
and personal relationships[.]
9 "Custody"includes determinations of visitation rights.
UCCJA 2(2), 9 U.L.A. 133 (1988); AS 25.30.900(2); 28 U.S.C.
1738A(b)(3).
10 Alaska also does not exercise significant connection
jurisdiction where children have a new home state, as Alaska has
not enacted a subsection equivalent to section 3(a)(2) of the
UCCJA. Bock v. Bock, 824 P.2d 723, 724 (Alaska 1992);
Baumgartner v. Baumgartner, 788 P.2d 38, 40 (Alaska 1990).
11 That the court did not so rule is understandable since
neither counsel pointed out the fact that Texas law relinquishes
modification jurisdiction in favor of the new home state.
12 The issue is also not unique to the parties, or to
Texas decrees. It will arise most commonly when Alaska is the
home state of the children and one of the parties and the non-
custodial parent is not an Alaska resident and no longer is a
resident of the state in which the original decree was entered.
13 Choice of law would seem clearly to indicate that the
law to be applied is the law of the home state of the children.
See Kulko, 436 U.S. at 98 (noting that the presence of the
children and one parent in a particular state favors the
application of that state's law to determine child support
awards); Restatement (Second) of Conflict of Laws 6 (1971)
(listing factors relevant to choice of law determination).
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