Vaile v. Porsboll CA1/4 ( 2015 )

Filed 5/22/15 Vaile v. Porsboll CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
ROBERT SCOTLUND VAILE,
Plaintiff and Respondent,
A140465
v.
CISILIE A. PORSBOLL, (Sonoma County
Super. Ct. No. SFL-49802)
Defendant and Appellant.
I.
INTRODUCTION
This case arises out of a long-running child support dispute that has spawned
litigation in California, Nevada, Norway, England, Texas, Virginia, Michigan and
Kansas, in federal and state courts, including the Nevada Supreme Court, with attempts to
involve the California Supreme Court and the United States Supreme Court.
Unsurprisingly, the multiple jurisdictions have produced an array of conflicting support
orders, with California and Kansas holding that a 2003 child support document from
Norway governs the father’s financial obligations, while Nevada continues to proclaim its
1998 support order controlling. The underlying dispute concerns the proper application
of the Uniform Interstate Family Support Act (UIFSA), adopted in California as Family
Code section 49001 et seq. (§ 4911.) But we resolve the appeal on the basis that the
California court did not have, and could not, acquire personal jurisdiction over
1
Statutory references are to the Family Code unless otherwise indicated.
1
Norwegian resident Cisilie Porsboll when it decided in November 2012 that the Norway
order was controlling. Therefore, we reverse the Sonoma County Superior Court’s order
refusing to set aside the controlling order determination and remand with an instruction to
dismiss the case.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In 1989, Robert Scotlund Vaile, a United States citizen, met Porsboll in her native
Norway when both were 20 years old. They returned to the United States together and
were married in Utah in 1990. They settled in Ohio, where their two daughters were born
in 1991 and 1995. The children have dual United States and Norwegian citizenship.
After Vaile finished graduate school in 1996, the family moved to Virginia, where
Vaile was employed as an engineer. Vaile’s employer transferred him to London in
August 1997, and the family was living in London when the marriage broke down. The
couple agreed to divorce in the spring of 1998.
In June 1998, fearing Vaile would try to take the children to the United States,
Porsboll filed an action in a London court to prohibit removal of the children. On the day
before the scheduled hearing, Vaile presented Porsboll with a 23-page separation
agreement that covered, among other things, child custody, support and visitation, and
also stipulated to their getting a divorce in Nevada, where Vaile’s mother and stepfather
were then living. Porsboll signed the agreement. The court in England entered an order
granting Porsboll physical custody of both children and permission to remove them from
the country. Vaile returned to the United States, and Porsboll took the children to
Norway.
On July 14, 1998, five days after returning to the United States, Vaile signed a
verified complaint asserting that he was “a resident of Nevada and that he had been
physically present in Nevada for more than six weeks prior to the filing of the
complaint.” None of this was true. Eight days after signing the complaint, Vaile left
Nevada, vacationed briefly in California, and then returned to his job in London. The
complaint for divorce was filed in Las Vegas on August 7, 1998, with the parties’
2
separation agreement attached. A pro se answer signed by Porsboll was filed the same
day. Three days later a divorce decree was entered by the Nevada family court without a
hearing.2 Porsboll was given initial custody of the children and child support was
ordered in accordance with a formula contained in the separation agreement.3 The
agreement acknowledged that Porsboll would initially live in Norway with the children
until at least July 1, 1999, and after that would live with the girls in the United States
within 20 miles of Vaile’s residence, which could be anywhere within the metropolitan
area of seven named cities.
In November 1999, Porsboll informed Vaile that she planned to remarry. Vaile
told her he was moving from London back to the United States and demanded that she
and the children also relocate. Porsboll refused and initiated legal steps to be allowed to
remain in Norway with the children.
Vaile then filed a motion in the Nevada family court seeking physical custody of
the children. Before the court in Norway ruled, the Nevada court awarded custody to
Vaile, while holding Porsboll in contempt of court for refusing to return with the children
to the United States. The Nevada court’s ruling was based on an in-court statement by
Vaile that the children had lived “here” “all their lives.” Vaile’s lawyer also falsely told
the Nevada family court the children “lived in Las Vegas prior to leaving.”
In May 2000, Vaile took the Nevada custody order to Norway to reclaim the
children. He did not file the order with any government body in Norway to have it
enforced, however. Rather, he left the order with a desk clerk at a hotel where the
children were staying with their mother and kidnapped them from the hotel. Vaile got
2
The trial court was the Nevada District Court for the Eighth Judicial District,
Family Court Division, Clark County. For ease of reference we shall call it the Nevada
family court or some variant.
3
The formula designated 25 percent of the parties’ combined income for support
of the children while both were minors and 18 percent when only one minor child
remained. The noncustodial parent was to pay child support in an amount bearing the
same relationship to the total amount of child support as that parent’s income bore to the
parties’ combined income.
3
them out of the country despite Porsboll’s efforts to stop him via the Norwegian police
and courts. Vaile took the children back to the United States, where they settled on a
farm in West Texas. After the kidnapping, Vaile paid no further child support to Porsboll
until his salary was attached in July 2006.
It took Porsboll two years to regain custody of the children through the courts in
Nevada and Texas. In September 2000, she filed in the Nevada family court motions
seeking return of the children, and to set aside the “fraudulently obtained divorce.” The
Nevada family court acknowledged that its earlier custody order favoring Vaile had been
based on misrepresentations but, exercising emergency custody jurisdiction, it left
custody temporarily with Vaile.
Porsboll filed a petition for a writ of mandamus in the Nevada Supreme Court,
challenging Nevada’s subject matter and personal jurisdiction. (Vaile v. Eighth Judicial
Dist. Court (2002) 118 Nev. 262, 265-266.) In April 2002, the Nevada Supreme Court
held the family court lacked both personal and subject matter jurisdiction because Vaile’s
residency requirement had not been met. (Id. at p. 268.) The Nevada Supreme Court
concluded that Vaile “had never lived in Nevada, and had not even been physically
present in Nevada for the requisite six-week period,” and his contrary statements in his
verified complaint for divorce were “false.” (Id. at pp. 268, 270.)
The court noted the children had never been to Nevada and held the child custody
and visitation orders were made without jurisdiction and were void. (Vaile v. Eighth
Judicial District Court, supra, 118 Nev. at p. 275.) However, because there was a
“colorable case for jurisdiction,” the court held the remainder of the divorce decree was
voidable, but not void. (Id. at p. 272.) It implicitly found Vaile had voluntarily
submitted to Nevada’s jurisdiction by filing the complaint for divorce, and explicitly
found Porsboll was estopped to deny Nevada’s jurisdiction because her answer also
falsely affirmed Vaile’s residence in Nevada. (Id. at pp. 273-274.)
The court further concluded, or at least implied, that because the family court had
“colorable personal jurisdiction over the parties and the subject matter of their marital
status,” both the divorce itself and the child support provision remained enforceable.
4
(Vaile v. Eighth Judicial Dist. Court, supra, 118 Nev. at p. 275.) It remanded the case to
the family court with instruction to order the children returned to Norway. (Id. at p. 277.)
The two children are now 20 and 24 years old, and custody is no longer in controversy,
although the parties continue to litigate the issue of arrearages in past-due child support.4
After Porsboll and the children returned to Norway, a child support calculation
was rendered by a Norwegian agency called Folketrygdkontoret for utenlandssaker, or
“National Office for Social Insurance Affairs.” That agency issued a document entitled
“Child Support Order” dated March 17, 2003.5 The document states that a copy was sent
to both parties.6
Porsboll insists she did not seek a child support order in Norway. Rather, “the
child support order issued in Norway was an administrative action taken by the child
support agency pursuant to that country’s ‘welfare’ laws to give the agency an entry on
which to base requests to recoup money it was providing for the support of the children
due to Mr. Vaile[’s] refusing to support his children.” Yet, the Norwegian order itself
states that Porsboll “applied” on May 20, 2002, “for stipulation of child support.” No
statement under oath by any participant in the Norway proceedings explains how the
4
While it appears that Vaile never paid child support in accordance with the
formula in the separation agreement, he did pay $1,300 per month from the time of the
divorce until approximately April 2000. Wage withholding commenced in July 2006,
and as of May 2012, Vaile had paid a total of approximately $90,000 in child support.
5
The exact nature of the Norwegian agency is not clear, but the caption suggests
it was an administrative agency rather than a court of law. Still, the agency could
potentially be a child support “tribunal” for purposes of UIFSA. (§ 4901, subd. (v).)
6
We place no credence in Vaile’s repeated assertion that Porsboll “intentionally”
“concealed” the Norwegian orders from him. The Norwegian support order itself recites
the agency’s efforts to contact Vaile, including by means that appear to comply with The
Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters (1965) 20 U.S.T. 361, T.I.A.S. No. 6638 (Hague Service
Convention). According to the document, Vaile wrote a letter in November 2002 asking
for an extension of time. He ultimately failed to provide the agency with any financial
information, forcing it to make its support award based on the average income for an
engineer in the United States, which, Porsboll alleged, was less than Vaile’s actual
income.
5
Norwegian order came into existence, and no expert testimony was introduced regarding
the nature, origin or purpose of the Norwegian document or the procedures employed in
Norway for issuing child support orders consistent with UIFSA.7
The child support amount was twice modified by the Norwegian National Office
for Social Insurance Abroad. That agency’s documents recite, “The question of child
support can be handled by the national insurance Service or a Norwegian court of law
b) [sic] if one of the parties or the child resides in Norway.” There is no evidence that
Vaile ever made support payments under the Norwegian orders.
In November 2007, Porsboll asked the Nevada family court to set a fixed amount
of monthly child support based on Nevada statute, rather than on the formula in the 1998
separation agreement, and also to render into a judgment the arrearage owed for child
support. The Nevada family court issued several temporary support orders, culminating
in an order in October 2008 granting Porsboll the requested relief. The court calculated
the arrearage based on a support obligation of $1,300 per month. (See fn. 4, ante.) Vaile
appealed.
In late April 2008, Vaile was then living in Sonoma County. At that time, he was
notified by a representative of the California Department of Child Support Services
(DCSS) that Porsboll had requested the agency to “open . . . a child support case” against
him. After Vaile’s employer notified him that it intended to start salary withholding,
Vaile sued his employer in San Francisco City and County Superior Court for abuse of
process and conversion, also naming Porsboll and her lawyers as defendants. In March
2010 the San Francisco court dismissed the action against Porsboll for lack of personal
jurisdiction, and stayed the action against her lawyers on grounds of forum
7
Norway has been a foreign reciprocating country under 42 U.S.C. § 659a since
June 10, 2002. (Notice of Declaration of Foreign Countries as Reciprocating Countries
for the Enforcement of Family Support (Maintenance) Obligations, 73 Fed. Reg. 72555
(Nov. 28, 2008); see generally, Willmer v. Willmer (2006) 144 Cal. App. 4th 951,
956-957.)
6
non conveniens, deferring to the Nevada courts. Vaile’s appeal to this court was
dismissed.
In February 2010, Vaile filed a request for a hearing in Sonoma County Superior
Court on the earnings assignment. (§ 4945.) On the same date he also filed a separate
request for registration in the Sonoma County court, attaching several of the Nevada child
support orders. He sought to register only the 1998 Nevada order, claiming the later
modifications were made without UIFSA modification jurisdiction. He asked the court to
change the “venue” of the support proceedings to California, to declare all of the Nevada
orders void for lack of personal and subject matter jurisdiction, or alternatively, to
register and modify the 1998 Nevada order. Porsboll was served with the registration
documents only by mail in Norway.
A hearing was held in March 2010, not attended by Porsboll or her counsel, but
attended by an attorney from DCSS, which had intervened in the action. (See § 17400,
subd. (k).) The DCSS attorney told the court the case should be transferred to Nevada,
reciting her discussion with Vaile that the wage garnishment issue would be decided in
California, while other issues would be decided in Nevada.
In April 2010, the Nevada family court held that Vaile had no valid cause of
action. It ordered attachment of Vaile’s wages and awarded Porsboll attorney fees.
On September 27, 2010, the Sonoma County court issued an order vacating
Vaile’s attempted registration of the 1998 Nevada order. It held Nevada did not have
continuing, exclusive jurisdiction to modify its 1998 support order, so the more recent
Nevada support orders were not in compliance with UIFSA or the federal Full Faith and
Credit for Child Support Orders Act (FFCCSOA) (28 U.S.C. § 1738B). The court also
refused to modify the 1998 Nevada order, concluding that California had no jurisdiction
to do so. Vaile’s remedies, it said, were “elsewhere.”
On January 26, 2012, the Nevada Supreme Court issued its opinion on Vaile’s
appeal of the October 2008 order, which addressed whether the Nevada family court
could properly enforce or modify its 1998 child support order. (Vaile v. Porsboll (2012)
7
268 P.3d 1272.) Without evidence of the Norwegian orders before it,8 the court
concluded the 1998 order could still be enforced. (Id. at pp. 1274-1275; Nev. Rev. Stat.
Ann. § 130.207(1) (2014); § 4911.) It held, however, that Nevada did not have
modification jurisdiction because the parties did not reside in Nevada and had not
consented to Nevada’s modification jurisdiction. (See Nev. Rev. Stat. Ann.
§ 130.205(1)(a), (b) (2014); §§ 4909, 4960; In re Marriage of Haugh (2014) 225
Cal. App. 4th 963, 970-971.) Because the October 2008 order constituted an unauthorized
modification, it was unenforceable. (Vaile v. Porsboll, supra, 268 P.3d at
pp. 1275-1278.)
The Nevada Supreme Court remanded the matter to the Nevada family court to
calculate the amount due in arrearage, interest and penalties using the formula contained
in the 1998 support order. It further ordered the family court to determine whether a
Norwegian child support order “exists and assess its bearing, if any, on the district court’s
enforcement of the Nevada support order.” (Vaile v. Porsboll, supra, 268 P.3d at
p. 1275, fn. 4.) Although the court’s remand did not instruct the family court to make a
controlling order determination under section 207 of UIFSA, that was its practical effect.
In March 2012, Vaile registered the Norwegian orders in the Nevada family court.
On July 10, 2012, the Nevada family court found it unnecessary to determine which order
was “controlling” because there was only one UIFSA-compliant child support order, not
two. (See § 4911, subd. (a); Nev. Rev. Stat. Ann. § 130.207(1) (2014).) The court held
the Norwegian orders were not issued in compliance with UIFSA’s requirements for
modification jurisdiction, and thus had “no bearing” on the enforceability of the 1998
Nevada order. It ordered Vaile’s “notice of controlling Norwegian child support order”
stricken from the record.
The Nevada family court recalculated Vaile’s arrearage applying the formula from
the parties’ separation agreement. It concluded the principal amount of child support
8
The Norwegian support orders were alluded to by the parties but were not before
the court.
8
arrears, after all payments were credited, was more than $126,000, with interest of more
than $62,000, for a total of more than $188,000. Vaile was held in contempt for failing to
pay child support from April 2000 to July 2006 and was sanctioned $38,000. He was
ordered to pay $15,000 in attorney fees to Porsboll. Finally, Vaile was ordered to pay
$2,870 per month going forward until all current support and all arrearages were paid.
Vaile’s petition to the Nevada Supreme Court for a writ of mandamus was denied.
He also appealed the July 2012 family court order. The Nevada Supreme Court ordered
the entire trial record transmitted to it (docket no. 61415), and on January 6, 2015, that
court ordered the matter transferred to the newly created Court of Appeals for decision.
Meanwhile, in May 2012, Vaile had filed a “notice of motion” in the Sonoma
County docket, which attached points and authorities requesting registration of the
Norwegian support orders and a determination that they were “controlling” under UIFSA.
(§ 4911.) Again, Porsboll was served by mail in Norway.
On November 1, 2012, despite having been made aware of the ongoing
proceedings in Nevada, the court in Sonoma County entered its order finding the
Norwegian orders were controlling. (§ 4911.) Given the payments Vaile had made, the
Sonoma County court calculated he had a remaining support arrearage of only $3,919
under the Norwegian orders, considerably less than he owed under the Nevada decree.
The court also ordered: “No agency, enforcement officer, or employer shall collect or
demand child support from [Vaile] contrary to this order, or based on child support orders
other than the 2003 Norwegian child support order registered in Sonoma County pursuant
to this order.” There is no proof that the November 1, 2012 order was served on Porsboll.
Also in November 2012, Vaile moved to Kansas. He registered the California
order in Kansas and obtained a similar order from a Kansas court, which held the
California order (and thus the Norwegian order) was controlling. In February 2013, the
Kansas court concluded, without Porsboll’s input, that “the Nevada court lost jurisdiction
in this matter when the Norwegian order sought by Porsboll in Norway became effective
on April 1, 2002.” The Kansas order was later filed in the Nevada family court. In the
9
meantime, in January 2013, the Nevada family court had found Vaile in contempt and
issued a bench warrant for his arrest.
On June 10, 2013, Porsboll filed a request in Sonoma County for an order setting
aside the controlling order determination of November 1, 2012, accompanied by the
declaration of her attorney setting forth the history of the dispute and attaching multiple
exhibits. She argued: (1) the California court had no personal jurisdiction over her;
(2) Nevada retained jurisdiction to enforce its 1998 order; and (3) the doctrines of comity
and abstention counseled deference to the Nevada courts. The motion was denied by
written order and findings on September 11, 2013. Porsboll filed a motion for
reconsideration on October 1, 2013, supported by additional exhibits. Porsboll invoked
both Code of Civil Procedure section 473 and the court’s inherent power to reconsider its
own prior determinations.9 Porsboll appeals the denial of her request for reconsideration.
III.
DISCUSSION
A. The parties’ contentions
Porsboll raises the following issues on appeal: (1) the court that issued the
November 2012 order lacked personal jurisdiction over her; (2) it lacked subject matter
jurisdiction over the controversy; (3) the Sonoma County court’s earlier September 2010
order dismissing registration of the Nevada orders for lack of jurisdiction was a final
order binding on the same court; (4) Nevada had continuing jurisdiction over issues of
child support, whereas Norway did not; and (5) as a matter of comity, abstention, res
judicata, or full faith and credit, the California court should have deferred to the courts in
Nevada. Due to these deficiencies, she argues, the November 2012 order should have
been set aside at her request, and her request for reconsideration should have been
granted.
9
Vaile claims section 3691 governs this appeal. We have considered that section
and conclude it does not prevent our reversal of the order here under review for lack of
personal jurisdiction over Porsboll in the controlling order proceedings. (See County of
San Diego v. Gorham (2010) 186 Cal. App. 4th 1215, 1228-1229, 1232 (Gorham).)
10
Because we resolve this case based on lack of personal jurisdiction, we address
that issue only. Porsboll contends the court in Sonoma County lacked personal
jurisdiction over her in part because she was not properly served in compliance with the
Hague Service Convention. More fundamentally, she claims she did not have the
minimum contacts with the forum necessary for exercise of jurisdiction over her in
compliance with due process. (Kulko v. Superior Court (1978) 436 U.S. 84, 92-94
(Kulko).)
Vaile responds that: (1) service in accordance with the Hague Service Convention
was not required; (2) personal jurisdiction over Porsboll was not required; and (3) even
assuming personal jurisdiction over Porsboll were required, she voluntarily submitted to
California’s jurisdiction by (a) seeking the assistance of Solano County DCSS in having
the Nevada support order enforced in California, (b) seeking to attach Vaile’s salary in
California, and (c) making arguments in her motion to set aside the November 2012 order
that amounted to a general appearance rather than a special appearance.
B. Standards of review
A motion for reconsideration is ordinarily reviewed for abuse of discretion. (New
York Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 212; Glade v. Glade
(1995) 38 Cal. App. 4th 1441, 1457.) Here, however, the nature of the ruling for which
reconsideration was sought requires a different standard of review. A motion to set aside
an order filed more than six months after the order was entered may be granted on
statutory grounds if the underlying order was void on its face (Code Civ. Proc., § 473,
subd. (d); Dill v. Berquist Construction Co. (1994) 24 Cal. App. 4th 1426, 1441), which is
an issue of law subject to de novo review.10 (Ramos v. Homeward Residential, Inc.
(2014) 223 Cal. App. 4th 1434, 1440-1441 & fn. 5 (Ramos); Cruz v. Fagor America, Inc.
(2007) 146 Cal. App. 4th 488, 495-496 (Cruz).)
10
To be void on its face, the error must appear in the judgment roll. (Ramos,
supra, 223 Cal.App.4th at p. 1441; Cruz, supra, 146 Cal.App.4th at p. 496.) Because
Porsboll never appeared in the action, the judgment roll included the proof of service.
(Code Civ. Proc., § 670, subd. (a).)
11
A default order made without proper service of process, even if proved by
extrinsic evidence, is likewise void and may be challenged as a violation of due process
after the six-month period. (Gorham, supra, 186 Cal.App.4th at pp. 1226-1228.) Such a
determination, to the extent it does not turn on the trial court’s resolution of factual
issues, is subject to de novo review. (Id. at pp. 1228-1229; BBA Aviation PLC v.
Superior Court (2010) 190 Cal. App. 4th 421, 429.) If the facts are disputed, we review
the lower court’s factual determinations for substantial evidence, but still review its legal
conclusions de novo. (BBA Aviation PLC v. Superior Court, supra, 190 Cal.App.4th at
p. 429.) Similarly any issue of statutory interpretation is subject to de novo review.
(In re Marriage of Pearlstein (2006) 137 Cal. App. 4th 1361, 1371-1372; In re Marriage
of Crosby & Grooms (2004) 116 Cal. App. 4th 201, 205.) A motion to set aside a prior
order or judgment may also be granted after the six-month period for equitable reasons
and will be reviewed for abuse of discretion. (Rappleyea v. Campbell (1994) 8 Cal. 4th
975, 981.)
C. UIFSA and federal laws regarding enforcement of child support orders
1. UIFSA
We begin with a brief overview of UIFSA, which governs the underlying dispute.
UIFSA was intended to establish an efficient, fair and uniform means of enforcing
support orders across jurisdictional lines. One of its core concepts is that only one
support order may be in force at any given time, which is enforceable but not modifiable
by other states. (9 U. Laws Ann. (2005) Interstate Family Support Act (1996) Prefatory
Note to Background Information, p. 284; de Leon v. Jenkins (2006) 143 Cal. App. 4th 118,
124.) This was a significant departure from earlier law, under which multiple and
conflicting child support orders were both possible and problematic. (9 U. Laws Ann.,
supra, Prefatory Note to Establishing a Support Order, p. 287; see also Pub.L. 103-383
(Oct. 20, 1994) § 2, 108 Stat. 4063.) UIFSA was unanimously approved by the National
Conference of Commissioners on Uniform State Laws in August of 1992, and has since
12
been adopted by all 50 states.11 (9 U. Laws Ann., supra, Interstate Family Support Act
(1991) Prefatory Note to Background Information, pp. 161-162.)
UIFSA includes several jurisdictional provisions designed to work together to
implement the one-order system. Once personal jurisdiction has been acquired over the
parties, it continues for the life of the order (§ 4906). A state or country12 that acquires
personal and subject matter jurisdiction to issue an initial support order under UIFSA has
continuing and exclusive jurisdiction to modify that order until all parties and any
children for whose benefit the order was issued have left the state or the parties have
consented to assumption of jurisdiction by a different state (§§ 4909, 4960). Even if all
parties and children have left the issuing state so that it loses jurisdiction to modify a
support order, it retains continuing jurisdiction to enforce the order (§ 4910); (4) a state
other than an issuing state may (indeed, must) enforce an out-of-state support order if it
was issued in accordance with UIFSA’s jurisdictional requirements or a “substantially
similar” law (§ 4909, subds. (b), (c), 4952, subd. (c)). But, the court may not modify an
out-of-state order unless it has acquired modification jurisdiction under the provisions of
UIFSA (§§ 4909, subd. (d), 4952, 4960).
11
UIFSA was amended in 1996, 2001 and 2008. (9 U. Laws Ann., supra,
Interstate Family Support Act (2001), Prefatory Note to Background Information,
pp. 161-162, (2014 Supp.) Interstate Family Support Act (2008), Prefatory Note to
History of Uniform Family Support Acts, pp. 100-102.) California currently follows the
1996 version, while Nevada now follows the 2001 version, with the 2008 version adopted
but not yet effective. (9 U. Laws Ann. (2014 Supp.) Uniform Interstate Family Support
Act (2008), p. 99; see History and Statutory Notes, 29F, pt. 2, West’s Ann. Fam. Code
(2013 ed.) preceding § 4900, p. 6; Nev. Rev. Stat. Ann. § 130.0902 (2014), Ed. Note.)
California adopted the 2001 version in 2002, but its effective date is contingent upon acts
by the federal government that apparently have not yet been taken. (In re Marriage of
Haugh, supra, 225 Cal.App.4th at p. 968, fn. 2.) California has not yet adopted the 2008
version of UIFSA.
12
“State” is defined to include foreign countries that have procedures for issuance
and enforcement of support orders “substantially similar” to the procedures under
UIFSA. (§ 4901, subd. (s)(2).) Federal law provides that the federal government may
establish a reciprocating agreement with any foreign country. (42 U.S.C. § 659a(a).)
13
Modification jurisdiction is proper only where (a) the parties have agreed to have
the tribunal assume modification jurisdiction (§ 4960, subd. (a)(2)) , or (b) the obligor,
individual obligee and children have all left the issuing jurisdiction, a nonresident seeks
modification in the forum state, and the other party is subject to personal jurisdiction in
the forum state. (§ 4960, subd. (a)(1).) In either case, the preexisting order must first be
registered with the appropriate tribunal in the state where modification is sought.
(§ 4958.) Once a proper modification has been ordered, that tribunal assumes continuing,
exclusive jurisdiction over the question of child support, and the preexisting order is
unenforceable. (§ 4960, subd. (d).)
These provisions strictly limit the power of courts to modify preexisting support
orders from other states, thereby helping to ensure that only one enforceable order
prevails at any given time. The registration requirement puts the modifying tribunal on
notice that it is being asked to modify another state’s order, not to issue an initial order.
The tribunal will thus be alerted to make sure it has jurisdiction under UIFSA to modify a
preexisting order.
In addition, UIFSA forces the party who seeks modification to “ ‘play an away
game on the other party’s home field’ ” so as to ensure the modifying state has personal
jurisdiction over both parties. (9 U. Laws Ann., Interstate Family Support Act (2001)
com. foll. § 611, p. 256.) In practice, this usually means the parent seeking modification
must make any request for modification in the state of the other parent’s residence. Even
under preexisting uniform laws a modifying order had to be identified on its face as such,
or it was not enforceable. (In re Marriage of Gerkin (2008) 161 Cal. App. 4th 604, 617
[enforceable under prior law only “if the modification was litigated and noted explicitly
on the new order”]; Lundahl v. Telford (2004) 116 Cal. App. 4th 305, 317-318 [applying
UIFSA and comparing its procedures to prior law].)
A modification not issued in accordance with UIFSA jurisdictional principles is
not entitled to enforcement. (§ 4952, subd. (c) [state must enforce out-of-state order “if
the issuing tribunal had jurisdiction”].) “[U]nder the one-order-at-a-time system, the
validity and enforceability of the controlling order continues unabated until it is fully
14
complied with, unless it is replaced by a modified order issued in accordance with the
standards established by [UIFSA]. That is, even if the individual parties and the child no
longer reside in the issuing State, the controlling order remains in effect and may be
enforced by the issuing State or any responding State without regard to the fact that the
potential for its modification and replacement exists.” (9 U. Laws Ann., Interstate
Family Support Act (2001), com., § 206, p. 196, italics added; accord, Uniform Interstate
Family Support Act Com. (2001), 29F, Pt. 2, West’s Ann. Fam. Code (2013 ed.) foll.
§ 4910, pp. 50-51.)
2. Federal Law
Federal law specifically requires state adoption of UIFSA in order to receive
certain federal funds. (42 U.S.C. § 666(f); 9 U. Laws Ann., Interstate Family Support
Act (1996) Prefatory Note to Background Information, pp. 284-285; see generally Social
Security Act Title IV-D, 42 U.S.C. §§ 651-669b (Title IV-D).) One reason for the federal
law was to lighten the public burden of supporting children whose parents were not
supporting them. (42 U.S.C. §§ 651, 652; § 17400, subd. (a).) The federal legislation
requires states to create or designate an organizational unit devoted to collection and
distribution of child support payments. (42 U.S.C. § 654(3), (4).) Only support orders
“issued by a court or an administrative agency of competent jurisdiction” qualify for
enforcement under Title IV-D. (42 U.S.C. § 653(p).)
3. California Law
In California, DCSS was established in 1999 to more effectively administer the
state’s Title IV-D program. (§ 17303, subd. (a).) DCSS and its local child support
agencies (LCSA) are authorized broadly to establish, modify and enforce child support
orders and to collect and distribute child support payments, including by enforcement of
out-of-state support orders. (42 U.S.C. §§ 651, 654(4)(A)(i), (ii), 654b; §§ 4921, 17200,
17202, 17208, 17400, subd. (a), 17500.) The law requires LCSA’s to provide services to
assist members of the public, including both recipients of public assistance and families
whose children have never received public assistance, in determining parentage and
locating noncompliant parents, as well as in collecting child support payments.
15
(42 U.S.C. §§ 651, 654A(8); § 17400, subd. (a).) Child support agencies are expected to
work cooperatively with other states to enforce child support orders against obligors
located within their states. (42 U.S.C. § 654A(9).)
An LCSA may initiate court action to establish an initial child support order, “to
increase an existing child support order,” or to respond to a motion “brought by an
obligor parent to decrease an existing child support order.” (§ 17400, subd. (h)(2), (3).)
It is not, however, authorized to seek independently an order to decrease an existing child
support order. An LCSA may also “intervene . . . in any action under this code, or other
proceeding in which child support is an issue,” as it has done in this case. (§ 17400,
subd. (k).)
An LCSA is also authorized to enforce child support orders by nonjudicial means,
such as wage withholding (§ 17400, subd. (j)(1)), tax refund interception (42 U.S.C.
§ 664), withholding of unemployment benefits (§ 17518), administrative levies on bank
accounts (§§ 17453-17456), suspension of licenses (§ 17520), placing holds on passports
(42 U.S.C. § 652(k)), and other collection methods. (California Child and Spousal
Support: Establishing, Modifying and Enforcing (CEB 2010) §§ 10.2, 10.6-10.15.) It
must take such action, if requested, on behalf of both children who receive public
assistance and those who do not and never have. (§ 17400, subd. (a); 42 U.S.C. § 651.)
Indeed, an LCSA is required to initially use any authorized “administrative procedure” to
enforce an out-of-state child support order without registering it. (§ 4946, subd. (b).)
In addition to the foregoing, Congress enacted the FFCCSOA in 1994 to regulate
enforcement of child support orders across state boundaries. Within the United States, an
out-of-state child support order that purports to modify an earlier support order is
enforceable only to the extent it complies with the jurisdictional requirements for
modification under FFCCSOA, which closely track the requirements of UIFSA,
including that a party seeking modification must file in a state that has personal
jurisdiction over the opposing party and must register the preexisting order prior to
seeking modification. (See 28 U.S.C. § 1738B(a), (c), (e), (f), (i); Holdaway-Foster v.
Brunell (Nev. 2014) 330 P.3d 471, 473-474.)
16
4. The conflicting California and Nevada rulings on enforceability of the
Norwegian orders.
Under UIFSA, when more than one support order has been issued, a request may
be filed in an appropriate tribunal in the state of residence of either the obligor or
individual obligee for an order determining which order is “controlling.” (§ 4911.) Such
a determination is necessary to effectuate UIFSA’s one-order policy. In theory, however,
there should be no reason to use this provision in cases where the support orders both
were issued purportedly in compliance with UIFSA, since UIFSA contains jurisdictional
limitations designed to prevent the issuance of competing orders. In fact, the controlling
order provision was included in UIFSA for the express purpose of resolving priority of
preexisting conflicting orders issued under prior law. (Uniform Family Support Act
Com. (2001), 29F, Pt. 2, West’s Ann. Fam. Code (2013 ed.) foll. § 4911, pp. 60-61.)
The jurisdictional rules under UIFSA makes it appropriate for a court considering
a controlling order determination to inquire into whether the tribunals that made the
vying support orders had jurisdiction under UIFSA to do so. (See Stone v. Davis (2007)
148 Cal. App. 4th 596, 602 [concluding state that issued subsequent support order did not
have modification jurisdiction under UIFSA].) As discussed, the Nevada Supreme Court
has already decided that its state’s 1998 support order is enforceable.
When the case was remanded to the Nevada family court, that court looked into
the propriety of Norway’s assertion of modification jurisdiction when it issued its July
2012 order. This was the first order to consider the question of the enforceability of
Norway’s orders under UIFSA. The Nevada family court concluded that Norway had no
proper modification jurisdiction under UIFSA. It reasoned that the agency in Norway
could only have validly assumed modification jurisdiction if either (1) Vaile as a
nonresident of Norway had petitioned for modification in Norway; or (2) both parties had
filed written consents in the Nevada court allowing the Norway tribunal to modify the
child support order and assume jurisdiction. (Nev. Rev. Stat. Ann. § 130.611(1)(a), (b)
(2014); § 4960, subd. (a)(1), (2).) Neither of those provisions applied because it was
Porsboll, not Vaile, who had sought the Norwegian orders, and the parties never agreed
17
to jurisdiction in Norway.13 Thus, the Nevada family court enforced the 1998 Nevada
support order.
Yet, four months later, the Sonoma County court appears to have accepted the
Norwegian orders at face value, without examining whether the Norwegian agency had
properly assumed modification jurisdiction under UIFSA. It proceeded directly to the
question of which order should control and ruled in favor of the Norwegian orders
because (1) Norway was the children’s home state; (2) the Nevada family court did not
have continuing jurisdiction to modify the 1998 child support order; and (3) Norway had
“continuing and exclusive jurisdiction.”
Of course, Porsboll was not present or represented by counsel so as to alert the
court to the potential jurisdictional defects in Norway. Because we conclude that the
Sonoma County court did not have personal jurisdiction over her when it made its
controlling order determination, we need not decide whether the Norwegian orders were
enforceable in California.
D. Personal jurisdiction over Porsboll was required for a “controlling
order” determination under section 4911.
At the most fundamental level, Vaile flatly asserts that personal jurisdiction over
Porsboll was not required, despite the fact that his request for a controlling order
determination sought to reduce the past-due child support owed to Porsboll. Precisely
because the decision on such a motion will generally benefit one parent and adversely
affect the other, the request must be made in a tribunal having personal jurisdiction over
both parties.
Section 4911, subdivision (c) requires a party seeking a controlling order
determination to give “notice of the request to each party whose rights may be affected
13
We note, as well, there is no evidence to suggest that Porsboll registered the
1998 Nevada support order in Norway before the Norwegian agency rendered its support
order, as would have been required under UIFSA for a valid modification. (§ 4958;
UIFSA § 609.) She explained under oath that she believed the Nevada decree was void
at that time based on the Nevada Supreme Court’s opinion in April 2002.
18
by the determination.” Thus, a party who has not sought a controlling order
determination and “may be affected” by it is entitled to notice and an opportunity to be
heard.
This requirement is no doubt intended in part to ensure the court has jurisdiction
over the parties. Section 4911, subdivision (b) currently in force provides: “If a
proceeding is brought under this chapter, and two or more child support orders have been
issued by tribunals of this state or another state with regard to the same obligor and child,
a tribunal of this state shall apply the following rules in determining which order to
recognize for purposes of continuing, exclusive jurisdiction[.]” It then lists the rules that
must be followed in making the controlling order determination. Significantly, the 2002
version of section 4911 (not yet in effect; see fn. 11, ante) added language making it clear
that such a determination may only be made if the court can acquire personal jurisdiction
over both parties: “If a proceeding is brought under this chapter, and two or more child
support orders have been issued by tribunals of this state or another state with regard to
the same obligor and same child, a tribunal of this state having personal jurisdiction over
both the obligor and individual obligee shall apply the following rules and by order shall
determine which order controls,” and then lists the relevant factors. (§ 4911, as amended
2002, operative date contingent, italics added.)
We are confident the not-yet-operative 2002 amendment to section 4911 merely
clarified a requirement already existing in the then-current version. This view is
confirmed by the official comment to UIFSA section 207 (correlative to § 4911): “The
2001 amendment to Subsection (b) [of section 207] clarifies that a tribunal requested to
sort out the multiple orders and determine which one will be prospectively controlling of
future payments must have personal jurisdiction over the litigants in order to ensure that
its decision is binding on all concerned. For UIFSA to function, one order must be
denominated as the controlling order, and its issuing tribunal must be recognized as
having continuing, exclusive jurisdiction.” (Uniform Interstate Family Support Act Com.
(2001), 29F, pt. 2, West’s Ann. Fam. Code, § 4911, p. 61, italics added; see generally
In re Marriage of Crosby & Grooms, supra, 116 Cal.App.4th at p. 206, fn. 3 [noting
19
relevance of Commissioners’ comments]; Smith v. Superior Court (1977) 68 Cal. App. 3d
457, 463 [Commissioners’ comments entitled to “ ‘ “substantial weight in construing the
statutes” ’ ”].)
This is dispositive of Vaile’s claim. His contrary position is untenable.
E. Porsboll was not properly served in Norway
Vaile states without elaboration that Porsboll was “properly served,” yet he has
made no effort to show he complied with the Hague Service Convention. The proof of
service on the controlling order request shows that Vaile served Porsboll by mail in
Norway. Likewise, the earlier registration action showed only service by mail in
Norway.
Vaile argues that compliance with the Hague Service Convention is not required in
UIFSA “registration” actions, apparently suggesting we treat his “motion” for a
controlling order determination as a continuation of his earlier vacated “registration”
action, rather than an initial filing. He cites no case to support his position. We conclude
service by mail in Norway was inadequate, especially because Vaile’s intervening
attempt to register and modify the Nevada orders in California had been vacated.
The Hague Service Convention requires each member nation to designate a central
authority to receive documents that a foreign party wants to serve on one of its residents.
That central authority then effectuates service on its resident in accordance with local law
and returns a proof of service. (Hague Service Convention, arts. 2, 5 & 6; see generally,
Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 698.) When a party
has not previously appeared in an action, service of process on a resident of a member
nation in a civil or commercial matter must comply with the Hague Service Convention.14
(Code Civ. Proc., § 413.10, subd. (c); see In re Vanessa Q. (2010) 187 Cal. App. 4th 128,
14
Norway is a signatory of the Hague Service Convention.
(as of May 22,
2015.) It has objected to article 10, which means service by ordinary mail is not
authorized. ( (“Table
Reflecting Applicability of Articles 8(2), 10(A)(B) and (C), 15(2) and 16(3) of The
Hague Service Convention” [as of May 22, 2015].)
20
134-136; Dahya v. Second Judicial Dist. Court (2001) 117 Nev. 208, 211-213.) A
party’s actual knowledge of the proceeding, without proper service, does not confer
personal jurisdiction. (Lebel v. Mai (2012) 210 Cal. App. 4th 1154, 1160-1161.)
The parties have not cited and our research has not disclosed any case deciding
whether a request for a controlling order determination must be served in accordance
with the Hague Service Convention. (But see Zwerling v. Zwerling (N.Y. Sup. 1995) 167
Misc. 2d 782, 785-786, 636 N.Y.S.2d 595, 598-599 [compliance with Hague Service
Convention necessary in divorce proceeding for purpose of child support].) Although the
answer seems to depend on the circumstances in which the controlling order
determination is requested, we conclude such compliance was required here because the
request for a controlling order determination was a new request for relief by Vaile as to
which notice was expressly required and personal jurisdiction over Porsboll had not
previously been established.
The closest analogy we have found is to dependency proceedings, where it has
been generally recognized that the initial petition filed in the action―the document that
summons the parties into court―must be served in accordance with the Hague Service
Convention (In re Vanessa Q., supra, 187 Cal.App.4th at pp. 134-136; In re Alyssa F.
(2003) 112 Cal. App. 4th 846, 852 [failure to comply “renders all subsequent proceedings
void” as to the improperly served party]; In re Jorge G. (2008) 164 Cal. App. 4th 125,
134), whereas later documents filed in the same action after personal jurisdiction over the
parties has been acquired may be served by less formal means (Kern County Dept. of
Human Services v. Superior Court (2010) 187 Cal. App. 4th 302, 309-311 [personal
jurisdiction acquired through personal appearance at detention hearing; court not required
to comply with Hague Service Convention for subsequent and supplemental petitions];
In re Jennifer O. (2010) 184 Cal. App. 4th 539, 545-548 [where jurisdiction over father
was obtained by general appearance, not necessary to comply with serve him in Mexico
in accordance with Hague Service Convention with notice of subsequent periodic review
hearings].) This is true even though in dependency actions “there is no service of process
in the technical sense.” (Id. at p. 547.)
21
But even if Vaile were correct that compliance with the Hague Service Convention
is not required in the case of a simple registration and enforcement action,15 his motion to
make a controlling order determination was more: it was a new request for relief that
carried with it the prospect of adversely affecting Porsboll’s rights. As such, it required
proper international service to acquire jurisdiction over Porsboll. Because the defect in
service was apparent from the judgment roll, the court erred as a matter of law in denying
the request to set aside the November 1, 2012 order, and reversal is required. (Honda
Motor Co., Ltd. v. Superior Court (1992) 10 Cal. App. 4th 1043, 1048.) Even if extrinsic
evidence were required to show the lack of proper service, the default order would have
to be set aside. (Gorham, supra, 186 Cal.App.4th at pp. 1226-1227.)
F. California did not have general or specific personal jurisdiction over Porsboll
1. The Sonoma County court did not have general jurisdiction over Porsboll.
We proceed beyond the question of improper service because Vaile contends
Porsboll’s actions subjected her to personal jurisdiction in California regardless of
whether she was properly served. We conclude Porsboll had insufficient contacts with
California to allow the Sonoma County court to assert jurisdiction over her, and even if
her contacts were deemed sufficient to subject her to specific personal jurisdiction, there
are strong public policy reasons for declining to assume jurisdiction.
“Personal jurisdiction may be either general or specific. A nonresident defendant
may be subject to the general jurisdiction of the forum if his or her contacts in the forum
state are ‘substantial . . . continuous and systematic.’ [Citations.] In such a case, ‘it is not
necessary that the specific cause of action alleged be connected with the defendant’s
15
When enforcement of an out-of-state support order is the only remedy sought,
the parties have already had their day in court when the order was issued. Therefore, “an
enforcement remedy may be summarily invoked” (9 U. Laws Ann., supra, Interstate
Family Support Act (1992) com. foll. § 611, p. 514), with or without prior registration,
and with or without personal jurisdiction over the obligor. (Gingold v. Gingold (1984)
161 Cal. App. 3d 1177, 1183 [decided under prior law].) “On the other hand, modification of
an existing order presupposes a change in the rights of the parties,” and UIFSA therefore
imposes “explicit and restrictive” jurisdictional requirements to ensure personal
jurisdiction over both parties. (9 U. Laws Ann., supra, com. foll. § 611, p. 514.)
22
business relationship to the forum.’ [Citations.] Such a defendant’s contacts with the
forum are so wide-ranging that they take the place of physical presence in the forum as a
basis for jurisdiction. [Citation.]” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996)
14 Cal. 4th 434, 445-446, italics omitted (Vons Companies).)
The requirement of minimum contacts with the forum must be met if a court’s
order is to comply with due process. (Kulko, supra, 436 U.S. at p. 94; Internat. Shoe Co.
v. Washington (1945) 326 U.S. 310, 316-317 (Internat. Shoe).) Thus, a New York
resident who had never lived in or traveled to California, except to be married here nearly
20 years earlier, was not subject to California’s jurisdiction merely because he permitted
his children to live here with his ex-wife. (Kulko, supra, 436 U.S. at p. 94.)
Likewise, it is abundantly clear that Porsboll did not subject herself to general
personal jurisdiction in California. She never lived in California, never traveled to
California, and never had any other contacts with this state, except to enforce her Nevada
judgment here administratively. Without such minimal contacts, exercising general
jurisdiction over her would have violated due process. (Kulko, supra, 436 U.S. at
pp. 91-92.)
2. Porsboll’s efforts to have the Nevada order enforced by non-judicial means in
California and her efforts to attach Vaile’s salary here did not subject her to
specific personal jurisdiction in California.
A closer question is whether Porsboll voluntarily submitted to the specific
jurisdiction of California by seeking the assistance of DCSS/LCSA in enforcing the
March 20, 2008 Nevada support order. “If the nonresident defendant does not have
substantial and systematic contacts in the forum sufficient to establish general
jurisdiction, he or she still may be subject to the specific jurisdiction of the forum, if the
defendant has purposefully availed himself or herself of forum benefits [citation], and the
‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’
[Citations.]” (Vons Companies, supra, 14 Cal.4th at p. 446, original italics.) “[T]he
purposeful availment prong is only satisfied when the defendant ‘ “purposefully and
voluntarily directs his activities toward the forum so that he should expect, by virtue of
23
the benefit he receives, to be subject to the court’s jurisdiction based on” his contacts
with the forum.’ [Citation.]” (Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal. App. 4th
1254, 1260.) The concept is further circumscribed by the requirement that the assertion
of personal jurisdiction must comport with fair play and substantial justice. (Id. at
p. 1258.)
“ ‘[O]nce it has been decided that a defendant purposefully established minimum
contacts within the forum State, these contacts may be considered in light of other factors
to determine whether the assertion of personal jurisdiction would comport with “fair play
and substantial justice.” ’ [Citation.] Courts may evaluate the burden on the defendant of
appearing in the forum, the forum state’s interest in adjudicating the claim, the plaintiff’s
interest in convenient and effective relief within the forum, judicial economy, and ‘the
“shared interest of the several States in furthering fundamental substantive social
policies.” ’ [Citation.]” (Vons Companies, supra, 14 Cal.4th at pp. 447-448.)
Vaile claims Porsboll voluntarily submitted to the state’s jurisdiction because she
(1) sought “services” from the California DCSS and “sought to register” the March 2008
Nevada order in California; (2) attempted to attach Vaile’s salary in California; and
(3) made a general appearance in California (even though denominated a “special
appearance”). (See generally, In re Vanessa Q., supra, 187 Cal.App.4th at p. 135
[general appearance or consent to jurisdiction cures defective service under Hague
Service Convention].)
Vaile relies largely on In re Marriage of Aron (1990) 224 Cal. App. 3d 1086
(Aron), decided by this division, which held that by registering a foreign support order in
California and seeking a writ of execution, a nonresident wife subjected herself to
personal jurisdiction in California. Aron involved a Texas resident who had obtained a
divorce and child support order in Texas and later brought an action in a California court
seeking to enforce the Texas order. Though she had no other California contacts, this
division held she submitted to the jurisdiction of California by registering the Texas
support order here and then by requesting and receiving a writ of execution. (Id. at
pp. 1089, 1094-1096 [“By bringing the registration action in California, [wife] placed the
24
issue of enforcement of support before the court and personally submitted to its
jurisdiction for that cause”].) Aron held the California court acquired jurisdiction not
only to enforce the Texas order, but to modify it downward on the California husband’s
motion. (Id. at pp. 1091-1092.)
Firstly, we note that Aron was decided before UIFSA was in effect. In the ensuing
years, state and federal lawmakers have redoubled their efforts to improve interstate
collection of child support payments based on the overriding national need for such
innovation. (Pub.L. 103-383 (Oct. 20, 1994) § 2, 108 Stat. 4063.) UIFSA’s one-order
system has completely replaced the preexisting uniform laws (see generally, 9 U. Laws
Ann., Interstate Family Support Act (2001), Prefatory Note to Background Information,
pp. 161-162; In re Marriage of Gerkin (2008) 161 Cal. App. 4th 604, 611-612) and now
works hand-in-hand with the federal Title IV-D program to make inter-jurisdictional
collection of support payments more efficient. Had UIFSA been in effect when Aron was
decided, the California court would not have had modification jurisdiction, although it
could have enforced the Texas support order. (§§ 4952, 4960.) And while the panel that
decided Aron thought it proper for California to exercise modification jurisdiction, doing
so under the present regime would cast into disarray UIFSA’s one-order system and the
Title IV-D plan for nationwide enforceability.
In addition, we find Aron distinguishable factually from our case. To begin with,
Porsboll’s contacts with California appear to have been less substantial and more indirect
than those of the Texas wife in Aron. In Aron the wife initiated legal action in the
superior court in California, whereas Porsboll neither initiated any court action in
California nor appeared in the actions initiated by Vaile. Porsboll never “registered” the
Nevada orders in California. Rather, it was Vaile who registered the Nevada orders in
superior court, simultaneously requesting their modification. (See §§ 4901, subds. (n), (p)
[registration occurs when order is filed in superior court], 4902 [superior court is
California’s child support “tribunal”], 4952, subd. (a).)
Because he initiated the action in California, it was Vaile’s burden to establish by
a preponderance of the evidence the facts showing that Porsboll had sufficient contacts
25
with California to allow the Sonoma County court to exercise personal jurisdiction over
her. (See Shisler v. Sanfer Sports Cars, Inc., supra, 146 Cal.App.4th at p. 1259; Dill v.
Berquist Construction Co., supra, 24 Cal.App.4th at p. 1441.) If Vaile were to carry that
burden, it would become Porsboll’s burden to demonstrate that the exercise of
jurisdiction would be unreasonable. (Vons Companies, supra, 14 Cal.4th at p. 449.) We
conclude that Vaile failed to meet his burden of proof, and Porsboll, if she had a burden
at all, satisfied it.
Documents in the record show that in late March 2008, one of Porsboll’s attorneys
filled out a UIFSA “registration statement” for a temporary Nevada child support order
entered March 20, 2008. In filling out the form, Porsboll’s attorney provided the
addresses of the parties and their Social Security numbers to the child support
enforcement authorities, as well as identifying information concerning the Nevada order
to be enforced and the amount of monthly support and arrearage established by the order.
The parties do not dispute that the registration statement ended up in the hands of the
DCSS in Sonoma County, but they do dispute how it got there. Vaile suggests it was
“submitted” by Porsboll’s attorneys. Porsboll claims it was sent by the district attorney’s
office in Nevada in an administrative effort to enforce the Nevada order in California
under Title IV-D.
While it can be inferred from the signing of the “registration statement” that one of
Porsboll’s attorneys may have known that the Nevada order was to be enforced in
California, we find no evidence in the record that her attorneys transmitted the
registration statement to California or directly contacted DCSS or the LCSA to have the
order enforced. We also see nothing in the record to suggest that Porsboll sought any
assistance in California beyond administrative efforts to collect the Nevada support
obligation, thereby requesting only such assistance from California DCSS as federal law
required of it. (42 U.S.C. §§ 651, 654A(4)(A)(i), (ii); see also, §§ 4921, 17500.)
On the other hand, the record shows collection efforts were actively pursued by
Nevada authorities through a wage withholding notice. By early April 2008, they were
communicating directly with Vaile’s employer about wage withholding. (§ 4940.) By
26
statute, neither the Nevada authorities nor DCSS and its attorneys represented Porsboll in
its collection efforts, or when it intervened in Vaile’s action. Instead the Title IV-D
agents operated in their respective states by representing the “public interest” of those
states in the mutual enforcement of child support orders. (§ 17406, subd. (a); see also
§ 4921, subd. (c).)
Thus, we find no substantial evidence in the record to show that Porsboll or her
attorneys purposefully availed themselves of any benefit in California. The actions by
Porsboll’s attorneys in March 2008 were as a matter of law insufficient to subject her to
California’s jurisdiction for purposes of Vaile’s request for a controlling order
determination in mid-2012.
But even if we were to consider Porsboll’s contacts with California sufficient to
exercise specific personal jurisdiction over her, we find countervailing considerations
counseling against such action to overshadow the justifications for exercising
jurisdiction. This factor―the interstate interest in child support collection―weighs
heavily in our analysis that, even if Porsboll’s actions were deemed sufficient to
potentially warrant the exercise of specific jurisdiction over her, it would not comport
with “fair play and substantial justice” to do so. (Internat. Shoe, supra, 326 U.S. at
p. 316.) Examining the factors identified in Vons Companies, supra, we find the burden
on Porsboll in appearing in California, the judicial economy achieved by allowing
Nevada to continue to litigate this matter without California’s interjection, and most
importantly, “ ‘ “the shared interest of the several States in furthering fundamental
substantive social policies” ’ ” (Vons Companies, supra, 14 Cal.4th at p. 448) outweigh
any interest that California may have had in the resolution of the dispute in the relatively
short time when Vaile lived here, and those factors certainly outweigh California’s
interest now that none of the parties lives here.
Likewise, the convenience to Vaile in litigating the matter in California was of
questionable weight when the decision was before the Sonoma County court in
November 2012, and has completely dissipated now that he has moved to Kansas.
Especially since Vaile sought his remedy in California after seeking the same remedy in
27
Nevada, and continued to encourage California to issue a conflicting order even after
Nevada had resolved the issue, we place little or no weight on the convenience factor.
Therefore, the balance of the factors identified in Vons Companies, supra, dictate beyond
doubt that the Sonoma County court should not exercise personal jurisdiction over
Porsboll upon remand.
The use of wage attachment and other non-judicial means of support collection
across state boundaries benefits both individual obligees and the state and federal
governments. The use of such interstate remedies must not be allowed to open up the
matter of support for renewed litigation in every state where enforcement is sought. To
hold as Vaile suggests would subject an individual obligee to personal jurisdiction in any
state to which his or her ex-spouse happened to move, work, buy property, or open a
bank account. Such a rule would work at cross-purposes to the integrated state and
federal statutory scheme for expedited collection of child support under UIFSA,
FFCCSOA and Title IV-D. We conclude that Porsboll did not submit to personal
jurisdiction in California merely by seeking assistance from an administrative agency in
Nevada to enforce a Nevada support order by nonjudicial means in California.
For the same reasons, to the extent that an effort was made to attach Vaile’s salary
in California through the administrative offices of Title IV-D agents, that action did not
subject Porsboll to personal jurisdiction in California courts, because we conclude that by
this contact Porsboll did not “purposefully avail” herself of the judicial processes of our
state, but rather, at most, sought help through an interstate enforcement mechanism by
contacting the Title IV-D agency in Nevada. (42 U.S.C. §§ 654, 666(a)(8)(A); 28 U.S.C.
§ 1738B.) Under the circumstances, the California superior court did not acquire
personal jurisdiction over Porsboll.
3. Porsboll did not make a general appearance in California.
Porsboll has denominated her appeal a “special appearance,” and she made a
similar statement in her papers filed in the superior court. Vaile nevertheless contends
Porsboll subjected herself to personal jurisdiction in California by making arguments on
the merits in her briefs in addition to opposing personal jurisdiction. As Vaile argues, if a
28
party who disputes personal jurisdiction nevertheless appears in the action personally or
through counsel in such a manner as to recognize the authority of the court to proceed, he
or she may be deemed to have made a general appearance, thereby negating any
deficiency in personal service. (Dial 800 v. Fesbinder (2004) 118 Cal. App. 4th 32,
52-53.)
That is not what happened here. Porsboll took none of the actions recognized as a
general appearance in Code of Civil Procedure section 1014 [a defendant makes a general
appearance when he or she “answers, demurs, files a notice of motion to strike, files a
notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant
to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney
gives notice of appearance for the defendant”].
It is true that Porsboll’s briefs contain argument related to the California court’s
lack of subject matter jurisdiction, as well as arguments about comity and abstention. But
all of Porsboll’s arguments were directed toward convincing the California court not to
exercise jurisdiction over the matter. Porsboll did not voluntarily submit to the court’s
jurisdiction by making a general appearance.
Vaile cites Wolfe v. City of Alexandria (1990) 217 Cal. App. 3d 541, 549 for the
proposition that “a non-resident defendant who challenges the subject matter jurisdiction
of the court makes a general appearance.” The case actually held that the defendants did
not make a general appearance and “the true issue was that of personal jurisdiction.” (Id.
at p. 550.) The same is true here.
In fact, Vaile’s argument on this point was explicitly rejected by the California
Supreme Court many years ago. Goodwine v. Superior Court (1965) 63 Cal. 2d 481, 484
(Goodwine) held: “An answer, a demurrer, and a motion to strike constitute a general
appearance (Code Civ. Proc., § 1014), since a court does not decide questions raised by
such pleadings at the behest of persons over whom it has no jurisdiction. A court need
not have jurisdiction over the person, however, to dismiss for lack of subject-matter
jurisdiction. Indeed, the court must dismiss on that ground on its own motion.
[Citations.] Thus, a challenge to the subject-matter jurisdiction of the court is not
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inconsistent with a challenge to personal jurisdiction. Moreover, since the court must
dismiss on its own motion, an appropriate challenge to subject-matter jurisdiction aids the
court in performing its duty. The defendant should therefore be allowed to point out lack
of subject-matter jurisdiction without making a general appearance.”
Vaile further argues that Porsboll “requested relief that could only be granted if
the Court had authority to proceed on the merits with personal jurisdiction of the parties.”
We disagree. The only affirmative relief Porsboll sought was to set aside the earlier order
for lack of jurisdiction and a “clear order stating that this [c]ourt lacked jurisdiction both
over the subject matter and the person of Cisilie Porsboll . . . to ensure that Mr. Vaile
[cannot] further attempt to mis-use the Order in other jurisdictions.” (Original italics.) A
court may issue a statement that it has no jurisdiction without first having obtained
jurisdiction. (Goodwine, supra, 63 Cal.2d at p. 484.) This is not the type of request for
affirmative relief that would subject Porsboll to personal jurisdiction in California. (See
Renoir v. Redstar Corp. (2004) 123 Cal. App. 4th 1145, 1154.) Porsboll also requested
attorney fees in connection with her motion for reconsideration, but making such a
request does not amount to a general appearance. (Shisler, supra, 167 Cal.App.4th at
p. 8.) And finally, Porsboll requested that Vaile be reported to the State Bar of
California.16 Again, such a request did not amount to a request for affirmative relief and
did not transform Porsboll’s special appearance into a general appearance.
Thus, we conclude not only that Porsboll was not properly served, but the
jurisdictional problems run deeper. They require not just that the November 2012 order
be set aside, but that the action be dismissed.
16
During this protracted litigation, Vaile attended and graduated from law school
and sat for and passed the California bar exam. He has not been admitted to the state bar
on fitness grounds.
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IV.
DISPOSITION
The Sonoma County Superior Court’s order denying Porsboll’s renewed motion to
set aside the November 1, 2012 order is reversed. The case is remanded to the superior
court which, after setting aside the November 1, 2012 order, shall dismiss the action for
lack of personal jurisdiction. Porsboll is entitled to costs on appeal.
Vaile is ordered to file a copy of this opinion in the District Court for the Twenty-
First Judicial District, Riley County, Kansas (docket no. 2012-DM-775). Porsboll’s
attorneys are ordered to file a copy of this opinion in the Nevada family court and the
Nevada Court of Appeals, and with the agencies in Norway that issued the child support
orders there.
_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
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