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McCaffery v. Green (2/7/97), 931 P 2d 407
Notice: This opinion is subject to 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, phone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
KERRI ANN (GREEN) McCAFFERY, )
) Supreme Court No. S-6705
) Superior Court No.
v. ) 4FA-94-1334 CI
DAVID ERIC GREEN, ) O P I N I O N
Appellee. ) [No. 4472 - February 7, 1997]
Appeal from the Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks,
Niesje J. Steinkruger, Judge.
Appearances: Zane D. Wilson, A. Rne Broker, Cook Schuhmann
& Groseclose, Inc., Fairbanks, for Appellant. David E. Green,
pro se, Wilsonville, Oregon.
Before: Compton, Chief Justice, Rabinowitz, Matthews,
Eastaugh, and Fabe, Justices.
RABINOWITZ, Justice, dissenting in part.
This case presents an issue expressly left undecided in Puhlman v. Turner, 874
P.2d 291 (Alaska 1994): whether an Alaska court which is already exercising jurisdiction over
a nonresident defendant on custody and visitation issues under the Uniform Child Custody
Jurisdiction Act may also exercise personal jurisdiction over that defendant on child support
II. FACTS AND PROCEEDINGS
A Texas court issued a final decree divorcing Kerri McCaffery and David Green
on June 29, 1987. Under the decree, Kerri was given legal and physical custody of their three
children and David was given visitation rights. David was ordered to pay $350 per month in
child support. A 1991 modification order, entered under the Texas court's continuing
jurisdiction, raised David's child support obligation to $375 and provided a detailed visitation
schedule. Under the order, David was to buy one-way tickets for the children when exercising
his visitation rights; Kerri was required to buy one-way tickets so that the children could return
Kerri moved to Alaska in 1991 with the children. David moved to Oregon in
January 1994. Neither of the parties now lives in Texas.
On May 19, 1994, Kerri filed a complaint in the Alaska superior court for
modification of the child support and the transportation cost provisions of the modified Texas
decree. David filed an answer objecting to the exercise of personal jurisdiction by the Alaska
court over the support issue.
The superior court denied Kerri's motion, noting that Kerri had failed to register
the Texas judgment under what was then AS 09.30.180 and AS 25.25.254. It also noted that,
had Kerri registered the Texas judgment in Alaska, Alaska would have had jurisdiction over
custody and visitation issues under the Uniform Child Custody Jurisdiction Act (UCCJA), AS
25.30.010 et seq., but would have no jurisdiction over David with respect to child support since
David lacked any contacts with the state. The superior court allowed Kerri twenty days to
comply with the registration requirements and to renew her motion to modify the transportation
cost arrangement. Kerri filed a motion for reconsideration on the child support jurisdictional
issue; the motion was denied. Kerri then registered the Texas judgment and renewed her
motion to modify the transportation cost arrangement. David opposed, and the court denied the
motion to modify. Kerri appeals both the child support jurisdiction issue and the transportation
A. Child Support Issue
1. Kerri's failure to register the Texas order
In its written opinion, the superior court's first reason for dismissing Kerri's
motion to modify the Texas support order was her failure to register the Texas judgment in
Alaska, as provided for in AS 09.30.180 (EN1) and former AS 25.25.254. (EN2)
The superior court allowed Kerri twenty days to register the Texas judgment and
to pursue her transportation cost motion, recognizing that it would have jurisdiction to determine
that issue. The failure to register the Texas order presents the same problem to the motion to
modify the transportation cost arrangement as it does to the support issue, however. The only
reason the court could have had to dismiss the second claim while allowing the first to proceed
was its belief that it lacked personal jurisdiction over David to hear the second. We thus turn
to the jurisdictional issue, noting that if personal jurisdiction existed, the claim should have been
allowed to proceed.
2. Personal jurisdiction (EN3)
We have consistently interpreted Alaska's long-arm statute, AS 09.05.015, to be
as encompassing as permitted by the due process clause of the Fourteenth Amendment to the
federal constitution. See Glover v. Western Air Lines, Inc., 745 P.2d 1365, 1367 (Alaska
1987). The list of circumstances provided in AS 09.05.015 under which an Alaska court may
exercise personal jurisdiction is not exclusive. Alaska Telecom, Inc. v. Schafer, 888 P.2d 1296,
1299 (Alaska 1995). Alaska courts may exercise jurisdiction whenever the federal minimum
contacts requirements are satisfied. Id.; Glover, 745 P.2d at 1367; Volkswagenwerk, A.G. v.
Klippan, GmbH, 611 P.2d 498, 500 (Alaska), cert. denied, 449 U.S. 974 (1980).
The superior court noted that it had jurisdiction under the UCCJA to hear the
custody and visitation issues. (EN4) It found that it lacked jurisdiction over child support,
however, citing Puhlman v. Turner, 874 P.2d 291 (Alaska 1994), and Kulko v. Superior Court,
436 U.S. 84 (1978).
(a) Puhlman v. Turner
We held in Puhlman v. Turner, 874 P.2d 291 (Alaska 1994), that a nonresident
father who flew to Anchorage to file a Texas visitation order and enforce his visitation rights
did not thereby subject himself to personal jurisdiction in Alaska for a support modification
claim. We noted that the father did not "purposely avail"himself of the protection of the Alaska
courts, but rather was forced into court by his wife's refusal to allow visitation. Id. at 294. To
subject a nonresident parent to personal jurisdiction based on the parent's use of an Alaska court
to enforce a foreign judgment would undermine the strong public policy of promoting visitation
and would discourage parents from enforcing visitation orders. Id. at 294-95.
The superior court in Puhlman, however, had also ruled that Alaska had no
jurisdiction under the UCCJA to modify the visitation provisions at the wife's request. Id. at
293 n.2. We noted that this was a mistake, since the Texas version of the UCCJA surrendered
jurisdiction to a child's new home state. Id. But since the parties did not address the issue, we
specifically reserved judgment on whether the exercise of UCCJA jurisdiction over child custody
or visitation issues could provide an independent basis for personal jurisdiction under the
Fourteenth Amendment. Id.; see also id. at 297 (Matthews, J., dissenting) (suggesting that a
state's vital interest in protecting resident children and the interrelatedness of visitation and
support issues might give a state already exercising jurisdiction under the UCCJA jurisdiction
over support issues as well).
The superior court was therefore incorrect in its reliance upon Puhlman as a basis
for dismissing Kerri McCaffery's claim. We address the issue left undecided by Puhlman:
whether the contacts that give a state jurisdiction under the UCCJA will also allow it to address
a request to modify a child support order.
(b) Kulko v. Superior Court
The United States Supreme Court addressed the exercise of personal jurisdiction
in a child support proceeding in Kulko v. Superior Court, 436 U.S. 84 (1978), and held that
California lacked personal jurisdiction over a New York resident who had sent his children to
live with their mother in California.
In Kulko, the husband and wife resided in New York for approximately thirteen
years; their two children were born there. 436 U.S. at 86-87. When the couple separated, the
wife moved to California and the husband remained in New York. Id. at 87. The children were
originally to spend the school year with the father and Christmas, Easter, and summers with the
mother; the father was to pay some support to the mother for the time the children spent with
her. Id. In December 1973 the daughter told her father that she wanted to move to California
to be with her mother; the father bought a one-way plane ticket for her. Id. In January 1976
the son followed. Id. at 88. Less than a month later, the mother sought to modify the divorce
decree to obtain full custody and to increase the father's child support obligations. Id.
The United States Supreme Court held the exercise of personal jurisdiction by
California to be an unwarranted extension of the "minimum contacts"test of International Shoe
Co. v. Washington, 326 U.S. 310 (1945). The Court began its minimum contacts analysis by
Like any standard that requires a determination of
"reasonableness,"the "minimum contacts"test of International
Shoe is not susceptible of mechanical application; rather, the facts
of each case must be weighed to determine whether the requisite
"affiliating circumstances"are present. . . . We recognize that
this determination is one in which few answers will be written in
black and white. The greys are dominant and even among them
the shades are innumerable.
Kulko, 436 U.S. at 92 (citations and quotations omitted) (emphasis added). The Court later
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)) (alterations in original).
Under this analysis, the Court found no sufficient purposeful act by the father to
avail himself of the benefits and protections of California's laws. Kulko, 436 U.S. at 94. The
Court noted that "basic considerations of fairness"pointed toward New York as the proper
forum, since the father "remained in the State of the marital domicile, whereas it is [the mother]
who has moved across the continent." Id. at 97.
The Court recognized that California had "unquestionably important"interests in
protecting the welfare of its minor residents, but it noted that those interests were already being
served by URESA. (EN5) Id. at 98. Finally, it suggested that the outcome might be different
if California had asserted a "particularized interest in trying such cases in its courts by, e.g.,
enacting a special jurisdiction statute." Id. It concluded: "[T]he mere act of sending a child to
California to live with her mother is not a commercial act and connotes no intent to obtain or
expectancy of receiving a corresponding benefit in the State that would make fair the assertion
of that State's judicial jurisdiction." Id. at 101.
(c) Applying Kulko to the present case
The Kulko decision has not been received with universal satisfaction. In some
ways, it places less importance on a personal and moral obligation, than it does on a merely
economic obligation. (EN6) By extending the purposeful availment standard to the parent-child
relationship, it gives great emphasis to the "contacts"requirement of International Shoe.
International Shoe and subsequent cases held that the Due Process Clause "does not contemplate
that a state may make binding a judgment in personam against an individual or corporate
defendant with which the state has no contacts, ties, or relations." International Shoe, 326 U.S.
at 319 (emphasis added); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294
(1980). Some commentators have suggested that the ties and relations between a parent and
child create ties and relations between the parent and the state in which the child lives sufficient
to satisfy notions of fairness in exercising personal jurisdiction in support proceedings. (EN7)
In other words, the parent-child relationship may be seen as the archetype of "affiliating
circumstances." See Hanson, 357 U.S. at 246.
Others have suggested that Kulko relies too heavily upon URESA as an
alternative. URESA has been criticized as ineffective at preserving the interests of the obligee
and child adequately. (EN8) Moreover, while the Kulko Court treated the statute as if it could
be used to seek the modification of a support order, 436 U.S. at 99-100, many states allow
URESA to be used only for enforcement of an existing support order. See URESA sec. 1, 9B
U.L.A. 568 (West 1987) ("The purposes of this act are to improve and extend by reciprocal
legislation the enforcement of duties of support and to make uniform the law with respect
thereto."); Revised Uniform Reciprocal Enforcement of Support Act (RURESA) sec. 1, 9B
U.L.A. 394 (West 1987) (substantially the same); Vix v. State of Wis. ex rel. Vix, 686 P.2d
226, 227 (Nev. 1984); Coons v. Wilder, 416 N.E.2d 785, 789 (Ill. App. 1981); Littrell v.
Littrell, 601 S.W.2d 207, 209 (Tex. Civ. App. 1980); 1 Clark, sec. 13.4, at 760 ("The Act as
it has been applied may be used only to enforce claims for support."). (EN9)
We are, of course, bound by Kulko and not by its critics. But significant
distinctions suggest that Alaska may still exercise personal jurisdiction here without violating the
notions of fundamental fairness with which the Kulko court was concerned. For example, the
obligor in Kulko remained in the state of marital domicile (436 U.S. at 97); here, both parents
have "moved across the continent." This has two effects. First, it removes any doubt that
Alaska has exclusive subject matter jurisdiction under the UCCJA as the child's home state.
(EN10) Second, it relieves any federalism concerns in the personal jurisdiction analysis, since
Texas now has a significantly diminished interest in seeing its divorce decree recognized as
We consider it significant that the Supreme Court in Kulko emphasized that the
mother could have brought all of her claims in New York. 436 U.S. at 95. Here, if Alaska
cannot hear the support claim then there is no one state where all of Kerri's claims can be
litigated. Alaska, as the child's home state, has exclusive jurisdiction over custody (and
visitation) issues under the UCCJA and PKPA. Thus neither Texas nor Oregon may modify the
custody or visitation provisions. See Rogers v. Rogers, 907 P.2d 469, 471-72 (Alaska 1995)
(holding that home state's jurisdiction to modify custody decree is exclusive under PKPA). But
under David's analysis only Oregon, a state with no relation to the mother, the children, or the
marriage, could hear the support issue. (EN12) Even if Kerri could have used URESA to
modify the Texas decree in Oregon, as the Kulko Court suggested, she would still have had to
maintain two separate actions upon substantially similar evidence since the Oregon court could
not address any custody or visitation issues.
We also consider it significant that Kulko was decided before the widespread
enactment of the UCCJA. (EN13) The defendant in Kulko had no contacts with California; the
Court's analysis focused on the fairness of haling him into court in California and whether he
could reasonably expect to be subjected to personal jurisdiction in California. 436 U.S. at 97-
98. Here, David is already before an Alaska court with respect to issues of visitation and
transportation expenses. He does not dispute that Alaska has jurisdiction over him with respect
to these issues. (EN14) The question now becomes, once David is haled into court in Alaska
on a custody claim, would making him answer the support modification claim violate "traditional
notions of fair play and substantial justice"? (EN15) International Shoe, 326 U.S. at 316. It
may be in David's interest to have an Oregon court hear the support issue, but that is not the
issue. If making him defend the support claim in Alaska would not impermissibly burden his
right to due process, then Alaska may assert jurisdiction.
Kulko involved a complex balance of interests: the father's, the mother's, the
children's, and the potential fora's. It would be easy to reduce it to a simple rule -- there is no
personal jurisdiction over nonresidents in child support proceedings -- and affirm. But we
believe that such a holding would ignore important differences between that case and this one.
No party has remained in the issuing state. URESA has not proven as effective as the Kulko
Court had hoped; it remains to be seen what difference the UIFSA will bring. (EN16) The
father is already before the Alaska court under the UCCJA to determine visitation issues. There
is no concern that the exercise of jurisdiction would "discourage parents from entering into
reasonable visitation agreements." Kulko, 436 U.S. at 93. Any discouragement would result
from the UCCJA scheme, which extends jurisdiction to visitation agreements already, and not
of the exercise of jurisdiction here.
Furthermore, assertion of jurisdiction by Alaska here simply makes sense. An
Alaska court is already deciding issues of custody and visitation. A visitation determination
inherently affects the amount of child support owed by the obligor parent. Alaska Civil Rule
90.3(a)(3) specifically links the two issues: a court may allow an obligor parent to reduce child
support payments up to fifty percent for any period in which that parent has extended visitation
of over twenty-seven consecutive days. This rule recognizes that a parent's own expenses are
greater (and the other parent's expenses less) when that parent exercises visitation rights. To
decide custody and visitation issues without being able to make the logically concomitant support
modification could result in an imbalance between visitation allowed and support owed.
Other commentators have noted that support and custody issues are intertwined:
Dissolution of marriage determines status and does not
carry with it any inevitable consequences. The parties are not
presumed to have any ongoing obligation to one another.
Therefore, in a divorce action it is conceptually justifiable to sever
the economic issues from the status issues and require personal
jurisdiction to resolve the former. In contrast, divorce does not
extinguish a parent's obligation to his or her children. While the
amount of monthly payments is certainly a subject of frequent
dispute, the fact remains that the noncustodial parent can
reasonably anticipate being liable for some amount of child
support. The parent's obligation to support the child is not merely
related to the status determination; it is an inevitable concomitant
of custody decisions.
Monica J. Allen, Child-State Jurisdiction: A Due Process Invitation to Reconsider Some Basic
Family Law Assumptions, 26 Fam. L.Q. 293, 307 (1992). The close relationships between
visitation and support and between custody and support, and the inverse effect each can have on
the other, suggest that a court with exclusive jurisdiction to modify visitation rights under the
UCCJA should have the power concurrently to adjust support obligations. (EN17), (EN18)
B. Transportation Cost Issue
Kerri's original motion to modify the transportation cost arrangement asked that
the court order the parties to alternate buying round-trip airplane tickets for visitation so that the
parties could avoid wasting money on separate one-way tickets. David responded by objecting
that the burden of paying for an entire round-trip ticket every other visit may be harder to bear
than paying for a one-way ticket for each visit. He wrote: "Mr. Green is requesting that . . .
they continue to divide the expense of travel equally per visit or at the very least be able to fly
their children one way as is currently in force." Kerri filed a reply that indicated she did not
oppose David's suggestion that they divide expenses and asked that the parties thus split the cost
of a round-trip ticket for every visitation trip. In this way, the parties could both save money
without putting an additional burden on David's finances by requiring him to make a significant
outlay every other trip.
Because the parties seem to have agreed on a reasonable procedure to save money
by avoiding the purchase of two separate one-way tickets for each visitation, the superior court's
denial of the motion to modify, issued without explanation, is perplexing. The court may not
have appreciated that the parties at the time were purchasing separate one-way tickets and were
agreeing to split the round-trip cost instead.
We remand the transportation cost modification issue so that the superior court
can reconsider in light of David's suggestion and Kerri's agreement.
Alaska is currently exercising personal jurisdiction over David Green under the
UCCJA and PKPA for child custody and visitation-related issues. Texas, the issuing state, no
longer has jurisdiction over any issues since all parties have moved away. Given the
interrelatedness of custody and visitation with child support issues, given that all parties have
left the marital domicile, and given that David is already before the Alaska courts, it would not
violate "traditional notions of fair play and substantial justice"to exercise personal jurisdiction
over David on child support issues.
The superior court also denied a motion to modify where the parties seem to have
agreed upon a mutually acceptable cost-saving arrangement.
The case is REVERSED and REMANDED on both the child support and the
transportation cost issues.RABINOWITZ, Justice, dissenting in part.
Article VI of the Constitution of the United States provides in Clause 2:
This Constitution, and the laws of the United States which shall be
made in pursuance thereof; and all treaties made, or which shall
be made, under the authority of the United States, shall be the
supreme law of the land; and the judges in every state shall be
bound thereby, anything in the Constitution or laws of any state to
the contrary notwithstanding.
With regard to the Supremacy Clause of the Federal Constitution, we said in Totemoff v. State,
905 P.2d 954, 963 (Alaska 1995):
We are not obliged to follow Katie John, since this court is
not bound by decisions of federal courts other than the United
States Supreme Court on questions of federal law. In re F.P., 843
P.2d 1214, 1215 n.1 (Alaska 1992), cert. denied, ___ U.S. ___,
133 S. Ct. 2441, 124 L. Ed. 2d 659 (1993).[ (EN1)]
The basic principle operative here is that all
American courts, state and federal, owe obedience to the decisions
of the Supreme Court of the United States on questions of federal
law, and a judgment of the Supreme Court provides the rule to be
followed in all such courts until the Supreme Court sees fit to
reexamine it.[ (EN2)]
1B James W. Moore, Moore's Federal Practice sec. 0.402, at I-10 (2d ed. 1996).
Given the mandate of the Supremacy Clause and this court's acknowledgment that
it is obligated to follow the decisions of the United States Supreme Court on questions of federal
law, I dissent from the majority's departure from the holding of Kulko v. Superior Court, 436
U.S. 84 (1978).
In Kulko, the United States Supreme Court held that California lacked personal
jurisdiction over Ezra Kulko, who had sent one of his daughters to live with her mother in
California. The Court ruled:
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
. . . .
436 U.S. at 93-94 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)) (alterations in
original). In my view, this is the core holding of Kulko. In the instant case, David Green has
done even less in the way of "purposefully availing himself of the privilege of conducting
activities within the forum state"than Ezra Kulko did. Ezra Kulko actually placed one of his
children on a plane to California. Here David Green did nothing directed toward Alaska.
I readily concede that there are numerous grey areas implicated in the
methodology of personal jurisdiction analysis once the "essential"element of "the defendant
purposefully availing himself"of the privilege of conducting activities within the forum state is
satisfied. Nevertheless, the purposeful availment element is the sine qua non of personal
jurisdiction. Since Kulko is squarely on point, I am not persuaded that we are free to disregard
its teachings. Thus I would affirm the superior court's denial of Kerri's motion for modification
of child support on the basis that under Kulko the superior court lacked personal jurisdiction
over David Green. (EN3)
1. Alaska Statute 09.30.180 provides only the short title for the Uniform Foreign Money-
Judgments Recognition Act, AS 09.30.100 - .180. It seems likely that the superior court meant
to refer to AS 09.30.200, which is part of the Uniform Enforcement of Foreign Judgments Act,
and which provides that a copy of a foreign judgment may be filed with the court and that a
judgment so filed has the same effect as a domestic judgment.
2. Former AS 25.25.254 provided a mechanism whereby an obligee could register a foreign
support order with the superior court such that the support order would be treated in the same
manner as a support order issued by the superior court. See Ch. 126, sec. 15, SLA 1977. That
statute was in effect at the time Kerri filed the motion at issue; it was repealed in 1995 when the
legislature replaced the Uniform Reciprocal Enforcement of Support Act (URESA), AS
25.25.010-.100, .110-.200, and .210-.270, with the Uniform Interstate Family Support Act
(UIFSA), AS 25.25.101-.103, .201-.209, and .301-.903. See 1995 Senate Journal 517
(governor's transmittal letter).
3. Jurisdictional issues are questions of law subject to this court's independent judgment.
See Andrews v. Alaska Operating Engineers-Employers Training Trust Fund, 871 P.2d 1142,
1144 (Alaska), cert. denied, 155 S.Ct. 201 (1994). This court's duty is "to adopt the rule of
law that is most persuasive in light of precedent, reason and policy." Langdon v. Champion,
752 P.2d 999, 1001 (Alaska 1988) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
4. Under the UCCJA, Alaska has jurisdiction "to make a child custody determination by
initial or modification decree if . . . (1) this state (A) is the home state of the child at the time
of commencement of the proceeding . . . ." AS 25.30.020(a). "Home state"is defined as the
state in which the child had lived immediately preceding the time involved for at least six
months. AS 25.30.900(5).
"Custody determination"is defined expressly to include visitation rights, but expressly
to exclude "a decision relating to child support or any other monetary obligation of any person."
AS 25.30.900(2). It would be incorrect, however, to say that UCCJA jurisdiction may never
be exercised over decisions involving monetary obligations, since, as this case illustrates, the
exercise of visitation rights often involves significant financial expense on the part of one or both
We need not distinguish between the UCCJA and the Parental Kidnapping Prevention Act
(PKPA), 28 U.S.C. sec. 1738A, since the two do not conflict here.
5. URESA, enacted in some form in all fifty states, allowed a custodial parent to file a
petition in the court of his or her home state and to receive a hearing in the "responding state"
where the obligor parent resided. The obligee parent would typically be represented by the
public prosecutor of the responding state. See generally 9B U.L.A. 381-608 (West 1987). See
also Lisabeth Hughes, Note, Interstate Enforcement of Support Obligations Through Long Arm
Statutes and URESA, 18 J. Fam. L. 537, 540 (1979). Some states, including Alaska and
Oregon, have now replaced URESA with the UIFSA. See AS 25.25.101 et seq.; ORS 110.300
6. Professor Clark has written:
In the ordinary sense of the phrase it seems clear that the
defendant in Kulko purposely availed himself of the protection and
benefits of California law when he sent his daughter there to live.
If the defendant here had been an insurance company which sent
one of its policies into California, it would have apparently been
liable to suit in California [citing McGee v. International Life Ins.
Co., 355 U.S. 220 (1957)]. The Kulko opinion suggests that this
standard is only met when the defendant has sought a commercial
benefit in the forum state. . . . A rule of law which gives greater
weight to the enforcement of commercial contracts than to the
enforcement of duties of support in the family can only be
characterized as enacting a topsy-turvy system of values.
1 Homer H. Clark, Jr., The Law of Domestic Relations sec. 13.4, at 761 (2d ed. 1987).
7. The United States Commission on Interstate Child Support has proposed that personal
jurisdiction be founded upon the parent-child bond "child-state jurisdiction." Concerning this
proposal one commentator has written:
Child-state jurisdiction is based on the understanding that the ties
between parent and child are unique and exist regardless of the
father's intentions or his actions.
Child-state jurisdiction is also an implementation of the
universally accepted notion that the duty to support one's children
is an inevitable consequence of one's status as a parent. . . . [T]he
child's presence in a given state does not link nonresident parents
to the state for all purposes, but only for those purposes which
inevitably flow from their status as a parent.
Monica J. Allen, Child-State Jurisdiction: A Due Process Invitation to Reconsider Some Basic
Family Law Assumptions, 26 Fam. L.Q. 293, 311 (1992).
8. See Allen, supra at 300 ("Prosecutors may bargain away the interests of an absent obligee
or may prosecute her claim less zealously. Gathering evidence concerning the obligor's ability
to pay can be especially difficult from afar."); David J. Benson, Can a Case Be Made for the
Use of the Uniform Child Custody Jurisdiction Act in Child Support Determinations?, 26 Gonz.
L. Rev. 125, 128 (1990) (noting perception that URESA is used primarily by state to recoup
funds expended on AFDC; noting that local official is often less zealous advocate); 1 Clark, sec.
7.6, at 488 (2d ed. 1987) (Due to inefficiencies, "it is unrealistic to assume, as Kulko does for
example, that an obligee always can fall back on the URESA proceeding when long-arm
jurisdiction is unavailable."); id. sec. 13.4, at 760 (URESA is "not an adequate substitute for
the kind of suit the plaintiff sought to bring in Kulko.").
The United States Supreme Court itself recognized URESA's shortcomings in 1981.
Jones v. Helms, 452 U.S. 412, 425 & n.26 (1981) ("Although appellant's argument [that
URESA is inadequate to enforce support obligations] is persuasive, for purposes of deciding this
case we need neither accept nor reject it.") (citing commentators critical of URESA).
9. The limitation of URESA to enforcement actions is by no means universal. See, e.g.,
Bjugan v. Bjugan, 710 P.2d 213, 216-17 (Wyo. 1985) (holding foreign support decree
modifiable by responding court); Ibach v. Ibach, 600 P.2d 1370, 1373 (Ariz. 1979) (holding that
responding court may fix support level at amount different from that of original judgment); cf.
Burke v. Burke, 617 N.E.2d 959, 963 (Ind. App. 1993) (distinguishing modification and
supersession from modification without supersession under RURESA). We also note that the
UIFSA specifically provides a mechanism through which a responding state may modify another
state's support decree under certain circumstances. See AS 25.25.611; ORS 110.432.
For our purposes, however, it is sufficient to note that Oregon law on the use of URESA
to modify a foreign support decree is unsettled. See State ex rel. Neb. v. Brooks, 580 P.2d 206,
207 (Or. App.) (holding that Oregon may not modify foreign decree under URESA), opinion
withdrawn, result adhered to on other grounds, 583 P.2d 12 (Or. App. 1978) (leaving question
open); State ex rel. La. v. Phillips, 591 P.2d 1196 (Or. App.) (holding modification possible),
aff'd on reh'g, 595 P.2d 1276 (Or. App. 1979); In the Matter of Marriage of Tavares, 651 P.2d
133, 137 n.5 (Or. 1982) (citing above cases, noting that Oregon Supreme Court has never
decided whether foreign decree may be modified).
It is also not clear that Oregon would represent Kerri at all in a URESA action. See In
the Matter of Marriage of Hazen and Henderson, 702 P.2d 1143, 1147 n.5 (Or. App. 1985)
("[R]ealistically . . . it would be highly unlikely that the prosecutors' offices in Oregon . . .
would represent mother under URESA in view of the fact that there is no support arrearage."),
overruled on other grounds by In the Matter of Marriage of Horn, 775 P.2d 338, 339 (Or. App.
1989). We further note that the UIFSA did not take effect in Oregon until after Kerri had filed
her complaint. See ORS 110.300 et seq.; 9 U.L.A. 255 (West Supp. 1996) (noting Oregon
enacted UIFSA effective July 1, 1994).
10. See 1 Clark, sec. 13.5, at 809 (2d ed. 1987) ("One type of case does seem clear under
the UCCJA. When all parties, parents and child, have left the state in which the initial decree
was entered, and have been away for an appreciable period, jurisdiction to modify the decree
no longer continues in the court of that state.").
11. Federalism has traditionally been a part of the due process equation in personal
jurisdiction issues. See World-Wide Volkswagen, 444 U.S. at 294 ("Even if the defendant
would suffer minimal or no inconvenience from being forced to litigate before the tribunals of
another State; even if the forum State has a strong interest in applying its law to the controversy;
even if the forum State is the most convenient location for litigation, the Due Process Clause,
acting as an instrument of interstate federalism, may sometimes act to divest the State of its
power to render a valid judgment."). Some commentators have questioned why this is so, since
the Due Process Clause says nothing about federalism and since this is the only due process
context in which federalism concerns have been voiced. See, e.g., Martin H. Redish, Due
Process, Federalism, and Personal Jurisdiction: A Theoretical Evaluation, 75 Nw. U. L. Rev.
1112 (1981); Russell J. Weintraub, Due Process Limitations on the Personal Jurisdiction of State
Courts: Time for Change, 63 Or. L. Rev. 485, 503 (1984).
Indeed, Justice White later retreated somewhat from his own World-Wide Volkswagen
language, quoted above, in Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 n.10 (1982) (The restriction on jurisdiction "must be seen as
ultimately a function of the individual liberty interest preserved by the Due Process Clause.
That Clause is the only source of the personal jurisdiction requirement and the Clause itself
makes no mention of federalism concerns.").
12. It is possible that Texas could also exercise personal jurisdiction over David in a motion
to modify the support decree since it was the state of marital domicile. However, Texas still
may not hear the custody issue, and it would seem to serve as an especially inconvenient forum
to both parties.
13. The UCCJA was enacted in Alaska in 1977. Ch. 61, SLA 1977. It had been adopted
in all fifty states by 1983. See 1 Clark, sec. 13.5, at 783.
14. The United States Supreme Court has never addressed whether the exercise of personal
jurisdiction under the UCCJA satisfies Fourteenth Amendment due process concerns, but the
UCCJA and PKPA have been widely accepted and utilized. See Puhlman, 874 P.2d at 297
(Matthews, J., dissenting); Benson, supra note 8, at 134 (courts which have considered the Act
have sustained it). In any event, David has submitted to personal jurisdiction here on the
visitation issue under the UCCJA.
15. We held in Puhlman that being forced into court to enforce a visitation judgment does
not create contacts for jurisdiction over other issues, 874 P.2d at 295, so being forced into court
to defend a visitation-related claim could do no better. But the existence of UCCJA jurisdiction
in Alaska does affect the fairness analysis under the Fourteenth Amendment of haling David into
court on a different but related issue. And the primary concern of Puhlman -- that exercising
jurisdiction over a nonresident who comes to Alaska to file a foreign visitation order would
discourage the enforcement of visitation rights -- does not exist here.
16. Among other changes, the UIFSA does include a specific long-arm statute intended "to
facilitate one-state proceedings whenever possible"in the child's home state. See UIFSA
Prefatory Note, 9 U.L.A. 257 (West Supp. 1996). It is not clear, however, that the statute
would allow personal jurisdiction over David under these facts except under its catch-all
provision even if it had been in force when Kerri filed her complaint. See AS 25.25.201(8).
17. An Indiana court has held that the UCCJA may apply to contempt proceedings where
they are "inextricably interwoven"with issues of custody or visitation. Funk v. Macaulay, 457
N.E.2d 223 (Ind. App. 1983). There, a father was found in contempt for his disruptive
exhortations to the children over the telephone; the court recognized that telephonic
communication is an "important facet"of visitation rights. Id. at 225. That case was decided
under the UCCJA alone, however, without resort to an independent Fourteenth Amendment
analysis, since the UCCJA provides jurisdiction over visitation rights but denies jurisdiction over
monetary obligations. The remedy sought in that contempt proceeding was non-monetary. Id.
Kerri cites Plucker v. Plucker, 338 N.W.2d 842 (S.D. 1983), for the proposition that a
child's domicile in a state alone can give that state personal jurisdiction over a nonresident parent
for child support issues. But Plucker is not quite on point, since the forum state there was the
marital domicile and the father abandoned the mother and children in that state. Id.
18. Kerri labels this argument "jurisdiction by necessity." This is not the "jurisdiction by
necessity"often discussed by commentators and implicitly recognized by the U.S. Supreme
Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), and Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 419 n.13 (1984). That theory addresses
multiple defendants who cannot be brought before any single forum to decide a central issue.
Here, there is only one defendant, but multiple issues, and different considerations are involved.
The analogy has some merit, though, since a decision on the custody and visitation issues may
be logically inconsistent with a support decision from another court.
1. In re F.P., 843 P.2d 1214, 1215 n.1 (Alaska 1992), declares:
As the court of appeals observed in Harrison v. State, 791 P.2d
359 (Alaska App. 1990):
Where a federal question is involved, the courts of
Alaska are not bound by the decisions of a federal court
other than the United States Supreme Court.
Id. at 363 n.7 (citations omitted).
See also Freeman v. Lane, 962 F.2d 1252, 1258 (7th Cir. 1992); Kraus v. Board of Ed. of
Jennings, 492 S.W.2d 783, 784-85 (Mo. 1972).
2. Cf. Booster Lodge No. 405, Int. Ass'n of M. & A.W. v. N.L.R.B., 459 F.2d 1143,
1150 (D.C. Cir. 1972), aff'd, 412 U.S. 84 (holding the court of appeals may not properly
overrule a decision of the Supreme Court in order to force its reconsideration).
3. I agree with the majority's disposition of the transportation cost modification issue.