MJ v. CR . ( 2021 )

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2021
09:52 AM
Dkt. 92 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
MJ, Plaintiff-Appellee,
v.
CR, Defendant-Appellant
and
CHILD SUPPORT ENFORCEMENT AGENCY,
STATE OF HAWAI#I, Defendant.
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-P NO. 16-1-6470)
June 30, 2021
GINOZA, CHIEF JUDGE, LEONARD AND HIRAOKA, JJ.
OPINION OF THE COURT BY GINOZA, CHIEF JUDGE
Defendant-Appellant CR (Father) appeals from (1) the
"Order" (Temporary Order), filed on January 26, 2017, in favor of
Plaintiff-Appellee MJ (Mother); and (2) the "Decision and Order"
(Decision) filed September 1, 2017, by the Family Court of the
First Circuit (Family Court).1
1
The Honorable R. Mark Browning entered the Temporary Order. The
Honorable Catherine H. Remigio presided over the trial held on June 14, 2017,
and entered the Decision.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, Father contends the Family Court erred in
its Temporary Order and its Decision because: (1) it lacked
subject matter jurisdiction with respect to the "Petition for
Paternity" (Petition) filed by Mother in this matter;2 and (2) it
lacked personal jurisdiction over Father for purposes of
determining parentage or ordering child support and monetary
obligations with respect to Father and Mother's minor child
(Child). Father asserts the Family Court violated his rights to
due process by not allowing him to argue the issue of personal
jurisdiction at trial. Father also challenges many of the Family
Court's conclusions of law (COLs) and findings of fact (FOFs).3
We conclude the Family Court had jurisdiction to decide
custody in this case, but lacked personal jurisdiction over
Father to decide Father's paternity and Father's obligations for
child support and other monetary expenses related to Child.
Therefore, we affirm in part and vacate in part the Temporary
Order and Decision entered by the Family Court.
I. Background
Mother and Father met in Texas in September 2014 and
began dating. At the time, Mother was obtaining a divorce from
her then-husband, HF (HF).4 Mother became pregnant in January
2016. In April 2016, Mother moved into Father's home with her
two minor children from her marriage with HF. After an argument,
Mother and Father separated approximately June 2, 2016, when
Father told Mother she needed to leave his residence. Mother
moved out of Father's home.
On June 27, 2016, Mother visited her parents in
Mililani, Hawai#i, and asked if she could move in with them.
2
In the Petition, Mother sought, inter alia, to establish that Father
was Child's natural father, sole legal and physical custody of Child, and to
have Father pay child support and other expenses related to Child.
3
Specifically, Father challenges COLs 2, 4-13 entered by Judge
Browning, as well as FOFs 8, 10-16, 18-21, 23-26, 28, 31, 34, 37, 42, 45, 74-
90, and COLs 1, 7, 11, 12, 15, 16, 18, 19-27 entered by Judge Remigio. Father
does not address each challenged COL and FOF distinctly, but as part of his
broader arguments that the Family Court lacked jurisdiction in this case.
4
HF was named as a party below, but is not a party to this appeal.
2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Sometime in or around July 2016, Mother left Texas and began
living in Hawai#i with her parents. After Mother moved to
Hawai#i, she traveled between Texas and Hawai#i for various
reasons, including court hearings and visitation with the
children she had with HF.
Child was born in Honolulu in October 2016. In
September 2016, Father filed a paternity action in Texas.
Pursuant to an order in that Texas case, Father submitted to a
paternity test in November 2016,5 which confirmed his biological
paternity of Child.
On November 15, 2016, Mother filed the Petition
initiating this action in Hawai#i and seeking to establish
Father's paternity of Child, sole custody of Child, child
support, and other payments from Father under Hawaii Revised
Statutes (HRS) Chapters 346, 571, 576D, and 584. Father was
personally served with the Petition at his place of employment in
Texas.
On January 23, 2017, Father filed his "Special
Appearance and Answer to Petition for Paternity" (Answer to the
Petition)and argued, inter alia, that the Petition should be
dismissed because the Family Court lacked both personal and
subject matter jurisdiction. Father declared that he had only
been in Hawai#i once, on vacation as a teenager, had never lived
in the state, did not own property in Hawai#i, and did not
conduct any business in Hawai#i. He also challenged Mother's
residency, arguing that she was a resident of Texas, and asserted
that Child was conceived in Texas.
A. Pre-Trial Hearing in Hawai#i
At the hearing for temporary custody on January 26,
2017, Mother's attorney made an offer of proof that: Mother
resided in Hawai#i since June 27, 2016; she initially lived in
Mililani with her father, stepmother, brother, and grandmother
5
The Family Court's findings incorrectly list several events as taking
place in 2017 instead of 2016, including the date of the paternity test as
November 2017, which the parties concede are typographical errors.
3
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
before renting her own apartment on December 12, 2016; Mother was
going through a divorce in Texas and had traveled to Texas since
moving to Hawai#i; Mother went back to Texas for a week, because
the Texas court ordered Mother to appear personally for Father's
paternity petition.
Father's attorney asked Mother whether her Texas
attorney filed papers that listed her address as being in Texas.
Mother's attorney objected and the Family Court stopped the
questioning, stating:
Look, I've taken everything into consideration. The Court
in Hawaii has jurisdiction, all right? And I had a
conversation with the judge in Texas, discussed this matter,
and decided based upon our conversation that if the facts
that had initially been proceeded [sic] were testified to,
that Texas would agree, and it did, to Hawaii taking
jurisdiction.
Father's counsel asked that the Family Court state the basis for
personal jurisdiction over Father for the record. The court
replied:
THE COURT: The only personal jurisdiction issue, you can
call it what you may, it -- it has to do with the issues
related to whether or not he wants his rights with respect
to visitation. If he wants to contest any of that, then
he'll have to submit to this court's personal jurisdiction.
If he doesn't, that's up to him, but we still have subject
matter jurisdiction over the issue of custody and over the
child, so –
[Father's counsel]: All right. If the Court wants --
THE COURT: -- it's his call.
[Father's counsel]: So if the Court wants to hold my client
responsible for paying child support --
THE COURT: Since the baby --
[Father's counsel]: -- it would --
THE COURT: -- lives here, yes --
[Father's counsel]: Would it not --
THE COURT: -- I can issue those orders.
[Father's counsel]: It would not need personal jurisdiction
over the -- over the person who's supposed to pay?
THE COURT: As I said, with respect to all issues related to
this child and the responsibilities associated with this
child's care under all the various different laws that
exist, both state and federal, this court has jurisdiction
to make whatever orders are necessary.
As you know, we operate a calendar every Friday that has to do
with child support orders that are issued by states outside other
than Hawaii, where, say, California or Texas are asking that we
enforce their orders that are issued with respect to parents who
may be residing here now. We do that routinely. So, yes, the
4
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
answer is we can issue those orders, and I will.
[Father's counsel]: All right. Thank you, Your Honor.
THE COURT: And Texas will abide by those orders.
The Temporary Order entered on January 26, 2017, states
that "Hawaii has jurisdiction in this case because Hawaii is
[C]hild's home state and may enter temporary orders and
adjudicate the issues in this matter including child custody,
visitation, child support and related matters." The Temporary
Order then granted Mother temporary sole legal and physical
custody of Child, and ordered Father to pay temporary child
support of $1,455 per month including past due child support for
half of November 2016 as well as December 2016 and January 2017
totaling $3,637.50.
B. Trial
Father again raised the issue of personal jurisdiction
in his trial memo. Trial was held June 14, 2017, at which Mother
and Father testified.6 A certified public accountant also
testified regarding Father's income as the president and an owner
of a family-owned chain of convenience stores in Texas.
On September 1, 2017, the Family Court entered its
Decision, finding that Child's natural parents are Mother and
Father. The court noted the Temporary Order had held that the
court had jurisdiction "over Father and the subject matter
sufficient to enter orders pertaining to custody, paternity,
child support and any other orders in support of those orders."
In the Decision, the Family Court further determined
that the parties shall share legal custody and that when the
parties live within 150 miles of each other, they shall share
physical custody; if the parties live more than 150 miles apart,
the Family Court determined it was in Child's best interest that
Mother have primary physical custody, subject to visitation by
Father. The Family Court awarded monthly child support of $2,784
to Mother, based on Father's gross monthly income of $45,416 and
Mother's monthly income, comprised of alimony and imputed income,
6
The Decision mistakenly states the trial date was June 17, 2017.
5
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
of $2,643. The Decision also addressed other expenses related
to, inter alia, insurance and educational expenses, and Father
was ordered to reimburse Mother a portion of birth expenses and
other reasonable child-related expenses incurred by Mother.
II. Standards of Review
A. Jurisdiction
"The jurisdiction of the family court is reviewed de
novo under the right/wrong standard." Hsieh v. Sun, 137 Hawai#i
90, 98, 365 P.3d 1019, 1027 (App. 2016) (citing Puckett v.
Puckett, 94 Hawai#i 471, 477, 16 P.3d 876, 882 (App. 2000)).
B. Findings of Fact and Conclusions of Law
A family court's findings of fact are reviewed on
appeal under the "clearly erroneous" standard. A finding of
fact is clearly erroneous when (1) the record lacks
substantial evidence to support the finding, or (2) despite
substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made. "Substantial
evidence" is credible evidence which is of sufficient
quality and probative value to enable a person of reasonable
caution to support a conclusion.
The family court's conclusions of law are reviewed on
appeal de novo, under the right/wrong standard. Conclusions
of law are not binding upon an appellate court and are
freely reviewable for their correctness.
DL v. CL, 146 Hawai#i 328, 336, 463 P.3d 985, 993 (2020)
(citations, brackets, and internal quotation marks omitted).
III. Discussion
A. The Family Court Had Subject Matter Jurisdiction Under HRS
§ 583A-201 to Make an Initial Child Custody Determination
Father challenges the Temporary Order issued on January
26, 2017, asserting the Family Court "lacked subject matter
jurisdiction over this [Petition] because the court did not find,
and the facts did not support, that Mother and Child lived
continuously in Honolulu between Child's birth and the filing of
Mother's [Petition]."7 With regard to the Decision issued on
September 1, 2017, Father asserts the Family Court "lacked
subject matter jurisdiction" over the Petition because the order
7
Father does not challenge the family court's personal jurisdiction
over him related to the initial child custody determination.
6
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
regarding jurisdiction did not contain the requisite findings for
subject matter jurisdiction.
We first address the Family Court's subject matter
jurisdiction relating to custody. The Uniform Child Custody
Jurisdiction Enforcement Act (UCCJEA) "governs jurisdictional
issues that arise in interstate child custody proceedings and is
codified in Hawai#i in HRS chapter 583A." See NB v. GA, 133
Hawai#i 436, 440, 329 P.3d 341, 345 (App. 2014). In this regard,
HRS § 583A-201 (2006) provides the Family Court has jurisdiction
to determine a child's initial custody, as specified therein,
stating:
Initial child-custody jurisdiction. (a) Except as
otherwise provided in section 583A–204, a court of this
State has jurisdiction to make an initial child-custody
determination only if:
(1) This State is the home state of the child on the
date of the commencement of the proceeding, or
was the home state of the child within six
months before the commencement of the proceeding
and the child is absent from this State but a
parent or person acting as a parent continues to
live in this State;
(2) A court of another state does not have jurisdiction
under paragraph (1), or a court of the home state of
the child has declined to exercise jurisdiction on the
ground that this State is the more appropriate forum
under section 583A–207 or 583A–208, and:
(A) The child and the child's parents, or the
child and at least one parent or a person
acting as a parent, have a significant
connection with this State other than mere
physical presence; and
(B) Substantial evidence is available in this State
concerning the child's care, protection,
training, and personal relationships;
(3) All courts having jurisdiction under paragraph
(1) or (2) have declined to exercise
jurisdiction on the ground that a court of this
State is the more appropriate forum to determine
the custody of the child under section 583A–207
or 583A–208; or
(4) No court of any other state would have
jurisdiction under the criteria specified in
paragraph (1), (2), or (3).
(b) Subsection (a) shall be the exclusive jurisdictional
basis for making a child-custody determination by a court of this
State.
(c) Physical presence of, or personal jurisdiction
over, a party or a child shall not be necessary or
sufficient to make a child-custody determination.
7
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
HRS § 583A-201. The UCCJEA defines "home state" as:
the state in which a child lived with a parent or a person
acting as a parent for a period of at least six consecutive
months immediately before the commencement of a
child-custody proceeding. In the case of a child less than
six months of age, the term means the state in which the
child lived from birth with any of the persons mentioned. A
period of temporary absence of any of the mentioned persons
is part of the period.
HRS § 583A-102 (2006) (emphasis added).
On March 14, 2018, the Family Court entered its FOFs
and COLs related to the January 26, 2017 temporary custody
hearing. Citing relevant provisions of the UCCJEA, the Family
Court concluded:
1. When the Petition was filed, Mother lived in Mililani[,]
Hawaii, and Hawaii was also [Child's] residence since her
birth.
2. The State of Hawai#i has jurisdiction to determine child
custody and related orders for the support of the child in
this case pursuant to the [UCCJEA] - [HRS] § 583A.
. . . .
5. Hawaii has jurisdiction in this case because Hawaii is
the subject child's home state and may enter temporary
orders and adjudicate the issues in this matter including
child custody, visitation, child support and related
matters.
6. After speaking with a Texas judge familiar with this
case; both the Texas Judge and Judge Browning are in
agreement that under the facts of this case, Hawaii has
jurisdiction over this matter.
(emphases added).
The Family Court found, and Father does not contest on
appeal, that Hawai#i was Child's residence since her birth.
Father also fails to cite to any authority in support of his
contention that Mother's trips to Texas were not "temporary
absences" under HRS § 583A-201(a)(1). Instead, Father asserts
that the Family Court erred in asserting subject matter
jurisdiction because the Court made no specific finding that
Mother and Child's visits to Texas were "temporary absences" for
purposes of determining Child's home state. However, even
without findings of all the facts upon which jurisdiction rests,
"the record enables us to confirm the factual foundation for
acceptance of jurisdiction by the family court." Griffith v.
Griffith, 60 Haw. 567, 571, 592 P.2d 826, 829-30 (1979).
8
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The record shows that between June 27, 2016 and January
26, 2017, Mother traveled to Texas on multiple occasions, where
she was going through a divorce and where her other children
still live. On one of those occasions, she was in Texas for
approximately a week because a Texas court ordered her to appear
for a paternity suit brought by Father. After Child's birth,
Mother took Child with her on the trips to and from Texas because
Child was still breastfeeding. Furthermore, Mother testified
during cross-examination that she started moving her bank
accounts and transferring her medical bills to Hawai#i beginning
July 1, 2016, and that Mother told the Texas court she had been a
resident of Hawai#i since July.
Mother's testimony is sufficient evidence to show that
Mother and Child's trips were temporary absences. "[T]he
testimony of a single witness, if found by the trier of fact to
have been credible, will suffice." In re Doe, 95 Hawai#i 183,
196, 20 P.3d 616, 629 (2001). The finding that Hawai#i was
Child's "home state" was not clearly erroneous because Child was
born in Hawai#i, had lived in Hawai#i since birth, and the record
indicates Child was only temporarily absent from the state.
Thus, pursuant to HRS § 583A-201, the Family Court had
jurisdiction to enter the child custody orders in this case.
B. The Family Court Did Not Have Personal Jurisdiction Over
Father Under HRS § 576B-201
Father asserts that the Family Court lacked personal
jurisdiction over him to determine parentage or to order him to
pay child support and monetary obligations. In this regard, we
agree with Father.
1. The basis for jurisdiction to decide paternity and
child support issues differs from the initial custody
determination
Under the UCCJEA, a "[c]hild-custody determination," by
definition, "does not include an order relating to child support
or other monetary obligation of an individual." See HRS
§ 583A-102 (2006). Instead, the Uniform Interstate Family
Support Act (UIFSA) governs jurisdictional issues related to
9
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
paternity or child support issues in interstate cases. See HRS
Chapter 576B; HRS § 576B-201 (Supp. 2015). The Official Comment
of the National Conference of Commissioners on Uniform State Laws
for the UIFSA also acknowledges this bifurcated jurisdiction and
notes that "a tribunal may have jurisdiction to establish a
child-support order based on personal jurisdiction over the
obligor under Section 201, but lack jurisdiction over child
custody, which is a matter of status adjudication usually based
on the home state of the child." See UIFSA § 201 cmt. (Unif. Law
Comm'n 2008).
Personal jurisdiction is required before the Family
Court can enter child support orders. See Hart v. Hart, 110
Hawai#i 294, 296, 132 P.3d 862, 864 (App. 2006). Therefore,
although the Family Court could exercise jurisdiction over the
parties relating to the initial custody determination, that
jurisdiction did not automatically entail personal jurisdiction
over Father with respect to the issues of paternity and child
support.
2. Personal jurisdiction over Father for purposes of
paternity and child support under the UIFSA
The UIFSA sets forth statutory authority for a tribunal
in Hawai#i to have personal jurisdiction over a nonresident
individual, for purposes of child support and paternity issues,
as follows:
§ 576B-201. Bases for jurisdiction over nonresident .
(a) In a proceeding to establish or enforce a support order
or to determine parentage of a child, a tribunal of this
State may exercise personal jurisdiction over a nonresident
individual or the individual's guardian or conservator if:
(1) The individual is personally served with summons
or notice within this State;
(2) The individual submits to the jurisdiction of
this State by consent in a record, by entering a
general appearance, or by filing a responsive
document having the effect of waiving any
contest to personal jurisdiction;
(3) The individual resided with the child in this
State;
(4) The individual resided in this State and
provided prenatal expenses or support for the
child;
(5) The child resides in this State as a result of
the acts or directives of the individual;
(6) The individual engaged in sexual intercourse in
this State and the child may have been conceived
10
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
by that act of intercourse;
(7) The individual asserted parentage of the child
in the office of health status monitoring
maintained in this State by the department of
health; or
(8) There is any other basis consistent with the
constitutions of this State and the United
States for the exercise of personal
jurisdiction.
(b) The bases of personal jurisdiction set forth in
subsection (a) or in any other law of this State may not be
used to acquire personal jurisdiction for a tribunal of this
State to modify a child support order of another state
unless the requirements of section 576B-611 are met, or in
the case of a foreign support order, unless the requirements
of section 576B-615 are met.
HRS § 576B-201 (Supp. 2015).
On March 14, 2018, the Family Court entered Findings of
Fact and Conclusions of Law (Findings and Conclusions)8 related
to the trial, citing portions of the UIFSA long-arm statute for
personal jurisdiction over Father as follows:
9. HRS §§ 576B-201, et seq., the [UIFSA] codified, states
the requirements for the State of Hawai#i to assert
jurisdiction over a nonresident individual for actions to
establish, enforce, or modify a child support order.
10. HRS § 576B-201(a)(5) [sic] states the circumstances
under which a tribunal of this State may exercise personal
jurisdiction over a nonresident individual or the
individual's guardian or conservator in a proceeding to
establish or enforce a support order or to determine
parentage of a child, including, but not limited to:
(2) The individual submits to the jurisdiction of this
State by consent, by entering a general appearance,
or by filing a responsive document having the effect
of waiving any contest to personal jurisdiction;
. . .
(5) The child resides in this State as a result of the
acts or directives of the individual;
. . .
(8) There is any other basis consistent with the
constitutions of this State and the United States for
the exercise of personal jurisdiction."
(ellipses in original).
8
In addressing the Family Court's jurisdiction, the Findings and
Conclusions refer in part to the ruling in the Temporary Order that the Family
Court had jurisdiction to address, inter alia, custody and child support.
However, neither the Temporary Order nor the Findings and Conclusions make
findings supporting the ruling as to jurisdiction in the Temporary Order,
other than that Hawai#i is Child's home state. At trial, the Family Court
relied on the Temporary Order's determination as to personal jurisdiction and
did not make an independent assessment of jurisdiction.
11
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Family Court then concluded that,
11. Mother's decision to move to Hawaii to live with her
parents occurred as a result of Defendant/Father's refusal
to provide living assistance for Mother in a meaningful and
sustained manner prior to [Child]'s birth. Aside from
Defendant/Father, Mother had no other means to maintain a
Texas residence, or family to live with in Texas, pending
[Child]'s birth.
12. Defendant/Father's belief that Mother should not have
moved to Hawaii flies in the face of the economic realities
of Mother's living situation - particularly when she
repeatedly requested his assistance and informed him that
his failure to respond led her to make other living
arrangements.
Thus, the Family Court found Father's failure to
provide financial support for Mother, when she had repeatedly
requested his assistance and informed him that his failure to
respond led her to make other living arrangements, to be an "act
or directive" that caused Child to reside in Hawai#i, and thus
was sufficient to subject Father to personal jurisdiction under
HRS § 576B-201(a)(5).9
The Hawai#i Supreme Court has stated that, "[p]ersonal
jurisdiction exists when (1) the defendant's activity falls under
the State's long-arm statute, and (2) the application of the
statute complies with constitutional due process." Norris v. Six
Flags Theme Parks, Inc., 102 Hawai#i 203, 207, 74 P.3d 26, 30
(2003) (citation omitted).
The Uniform Law Comment addressing the long-arm
provisions for the UIFSA states that, "[t]he intent is to ensure
that every enacting state has a long-arm statute that is as broad
9
The cases relied upon by Mother interpreting provisions equivalent to
subsection (5), by courts in other jurisdictions, involve allegations that the
nonresident parent abused or harassed the resident parent and/or abused the
children. See In re the Marriage of Malwitz, 99 P.3d 56, 61 (Colo. 2004);
Sneed v. Sneed, 842 N.E.2d 1095, 1099-1100 (Ohio Ct. App. 2005); Franklin v.
Commonwealth, Dept. of Soc. Services, Div. of Child Support Enf't ex rel.
Franklin, 497 S.E.2d 881, 885-86 (Va. Ct. App. 1998). Accordingly, in these
cases the fleeing parent left the marital home and the nonresident spouse had
a duty to support the children for whom the court ordered support.
In this case, the Family Court did not find abuse, but rather that
Mother "felt physically threatened" by Father when she left the home in Texas.
Additionally, when Mother moved to Hawai#i, Mother was still legally married
to HF, with whom she shared two minor children who resided in Texas. The
cases cited by Mother are not dispositive or persuasive in our analysis of
personal jurisdiction over Father.
12
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
as constitutionally permitted." UIFSA § 201 cmt. (Unif. Law
Comm'n 2008). The Uniform Law Comment also notes that with
regard to subsections (3) through (6), these sections:
identify specific fact situations justifying the assertion
of long-arm jurisdiction over a nonresident. Each provides
an appropriate affiliating nexus for such an assertion, when
judged on a case-by-case basis with an eye on procedural and
substantive due process. Further, each subsection does
contain a possibility that an overly literal construction of
the terms of the statute will overreach due process.
Id. (emphasis added).
"A court's power to exercise jurisdiction over
non-residents is limited by the operation of the fourteenth
amendment's due process clause." In Interest of Doe, 83 Hawai#i
367, 373, 926 P.2d 1290, 1296 (1996).
Due process requires that a nonresident defendant have
sufficient "minimum contacts" with the forum state "such
that the maintenance of the suit does not offend
'traditional notions of fair play and substantial justice.'"
International Shoe Co. v. Washington, 326 U.S. 310, 316, 66
S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citation omitted).
"'[I]t is essential in each case that there be some act by
which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its laws.'"
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct.
2174, 2183, 85 L.Ed.2d 528 (1985) (quoting Hanson v.
Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d
1283 (1958)). The determining inquiry is whether "'the
defendant's conduct and connection with the forum State are
such that he should reasonably anticipate being haled into
court there.'" Id. at 474, 105 S.Ct. at 2183 (quoting
World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297,
100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)). There is no
"talismanic jurisdictional formula" and the court weighs
each case on its facts. Id. at 485–86, 105 S.Ct. at 2189(citation omitted).
Id. (quoting Shaw v. North Am. Title Co., 76 Hawai#i 323, 329-30,
876 P.2d 1291, 1297-98 (1994).10
a. General and specific jurisdiction
An individual is subject to personal jurisdiction in
either of two ways, general jurisdiction or specific
10
Mother urges this court to ignore International Shoe and its progeny
because the jurisdictional issues in those cases arose in commercial
transactions and should not be applied to a deeply personal family matter such
as a parent-child relationship. However, Mother fails to mention or
distinguish Kulko v. Super. Ct. of California In & For City & Cty. of San
Francisco, 436 U.S. 84 (1978), a Supreme Court case which applies
International Shoe and its progeny to jurisdictional issues arising out of a
family matter involving child custody and support.
13
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
jurisdiction. 83 Hawai#i at 374, 926 P.2d at 1297. "First,
general jurisdiction exists where a defendant has continuous and
systematic contacts with the forum; the exercise of jurisdiction
in such a case does not offend traditional notions of fair play
and substantial justice." Id. Here, Father had only been in
Hawai#i once on vacation as a teenager prior to the circumstances
related to this case, does not own property in the state, and
does not conduct any business within the state. Thus, there is
no question that Hawai#i lacks general jurisdiction over Father.
Second, specific jurisdiction may exist even if a
defendant's contacts with the forum are not continuous and
systematic. Id. In these circumstances, due process requires
the following three-part test:
(1) The nonresident defendant must purposefully direct his
activities or consummate some transaction with the forum or
resident thereof; or perform some act by which he
purposefully avails himself of the privilege of conducting
activities in the forum, thereby invoking the benefits and
protections of its laws;
2) the claim must be one which arises out of or relates to
the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play
and substantial justice, i.e. it must be reasonable.
Id.The Family Court's findings suggest that in applying
the UIFSA's long-arm statute, it focused on the personal and
economic relationship between Father and Mother including
conversations between Father and Mother during July 2016, around
the time Mother was relocating prior to Child's birth in Hawai#i.
On appeal, Father disputes these findings and the court's
conclusion from them: that he "refus[ed] to provide living
assistance for Mother."
The Family Court's FOFs are supported by credible
evidence in the form of Mother's testimony, and the findings
support the conclusion that Father's order that Mother leave his
home without financial support caused her move to Hawai#i.
However, "[t]he unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy the
14
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
requirement of contact with the forum State." Kulko v. Super.
Ct. of California In & For City & Cty. of San Francisco, 436 U.S.
84, 93–94 (1978). In Kulko, the U.S. Supreme Court rejected the
California Supreme Court's rationale for affirming the exercise
of personal jurisdiction in California, i.e., that the defendant
father's consenting to his daughter living with her mother in
California had been a purposeful act warranting the exercise of
personal jurisdiction over him in California. Id. at 88-90, 94-
95.
Here, although Father was aware that Mother's parents
lived in Hawai#i, there is nothing in the record to suggest
Father was aware Mother planned to move to Hawai#i. Mother
testified that she and Father only communicated through emails
from July 5, 2016 through October 4, 2016, after Mother had
already started moving her bank accounts and transferring her
medical bills to Hawai#i. However, Mother does not mention her
move to Hawai#i in the emails and only informs Father that she
was "out of town" and that she "had to pursue other living
arrangements." Instead, on July 13, 2016, while requesting
financial assistance and delivery of baby items, Mother provides
Father with a Texas mailing address. Additionally, in the
emails, Mother and Father discuss multiple doctor's appointments
which Mother invited Father to attend in Texas. Therefore,
Mother does not demonstrate and the record does not reflect that
Father had notice that his order that she leave his home without
financial support would cause Mother to move to Hawai#i.
We also note that, although Mother and Child moved to
Hawai#i because of a lack of financial support in Texas, the lack
of financial support cannot be solely attributed to Father given
that Mother was married to HF and sometimes had her other two
children stay with her. HF had previously assisted Mother with
living arrangements by subleasing apartments to Mother. When
Mother moved out of Father's home, HF refused to assist Mother in
obtaining a rental agreement.
15
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Additionally, "[t]he inquiry whether a forum State may
assert specific jurisdiction over a nonresident defendant
'focuses on the relationship among the defendant, the forum, and
the litigation.'" Walden v. Fiore, 571 U.S. 277, 283–84 (2014)
(internal quotations omitted) (quoting Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 775 (1984)). That "relationship
must arise out of contacts that the 'defendant himself' creates
with the forum State." Id. at 283–84 (quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 475 (1985) (emphasis in original
omitted)).
Here, Father's actions in Texas cannot be said to be
"purposefully direct[ed]" at Hawai#i or a Hawai#i resident, as
Mother was a Texas resident at the time the couple separated.
Father also had no connection to Hawai#i prior to Mother's
unilateral decision to move to Hawai#i to receive support from
her family.
Further, it cannot be said that Father availed himself
of the resources of Hawai#i, however broadly interpreted. The
Family Court's finding that Mother depends on state aid, although
underscoring Hawai#i's interest in exercising jurisdiction, is
not sufficient to establish personal jurisdiction over Father.
See Kulko, 436 U.S. at 100–01 ("It cannot be disputed that
California has substantial interests in protecting resident
children and in facilitating child-support actions on behalf of
those children. But these interests simply do not make
California a 'fair forum[.]'").
In Kulko, the U.S. Supreme Court also rejected the
California Supreme Court's reasoning that the father in that case
received the benefit of California's police and fire protection,
its school system, its hospital services, its recreational
facilities, its libraries and museums because "these services
provided by the State were essentially benefits to the child, not
the father, and in any event were not benefits that appellant
purposefully sought for himself." Id. at 94 n.7. Here,
consistent with Kulko, the state aid provided to Mother did not
16
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
constitute benefits that Father sought for himself and instead
they arose out of Mother's decision to move to Hawai#i.
Finally, Mother argues that under the catch-all
provision HRS § 576B-201(a)(8) of the UIFSA, Father's refusal to
support his child was sufficient to confer jurisdiction under
Hawai#i's general long-arm statute, HRS § 634-35(a)(2) (1993)
which provides:
§ 634–35 Acts submitting to jurisdiction. (a) Any
person, whether or not a citizen or resident of this State,
who in person or through an agent does any of the acts
hereinafter enumerated, thereby submits such person, and, if
an individual, the person's personal representative, to the
jurisdiction of the courts of this State as to any cause of
action arising from the doing of any of the acts:
. . .
(2) The commission of a tortious act within this State[.]
Mother, citing In re Custody of Miller, 548 P.2d 542(Wash. 1976) (en banc), contends that failure to support a child
is tortious conduct. However, we need not decide whether
Father's conduct fell under HRS § 634-35(a)(2) as tortious
conduct, because Miller is distinguishable on due process
grounds. The Court in Miller held that jurisdiction over the
putative father was proper, inter alia, where the father
purposely brought the children to the forum and could therefore
fully anticipate that a custody proceeding could be initiated in
Washington. Id. at 549. To the contrary, in this case, Father
did not purposefully bring Child to Hawai#i and, as noted above,
the record does not indicate Father had notice that his actions
would cause Mother to move to Hawai#i.
Therefore, for the reasons explained above, the
exercise of personal jurisdiction over Father under HRS § 576B-
201(a)(5) or (8) was not reasonable. To hold otherwise would
prescribe a construction to the UIFSA which would overreach due
process, which the commentary to the UIFSA specifically cautions
against.
b. Father did not consent to personal jurisdiction
Mother contends that Father consented to personal
jurisdiction or waived his defense by: (1) taking advantage of
17
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the Family Court's discovery procedures beyond what was
reasonably related to the issue of jurisdiction; and (2)
simultaneously contesting the merits of custody, visitation and
child support while contesting personal jurisdiction.
(1) Discovery by Father
Mother first argues that Father submitted to the
jurisdiction of the State under HRS § 576B-201(a)(2) when he
served her with a request for answers to interrogatories before
filing his first responsive pleading. In this regard, Mother
cites cases from California, including Roy v. Super. Ct., 25 Cal.
Rptr. 3d 488 (Cal. Ct. App. 2005), and a Maryland case,
Friedetzky v. Hsia, 117 A.3d 660 (Md. Ct. Spec. App. 2015).
Those cases are inapposite and Mother fails to explain how
Father's discovery request went beyond issues related to
jurisdiction.
In Roy, the California Court of Appeals held that the
trial court had properly denied the defendants' motion to dismiss
for lack of personal jurisdiction. In that case, the defendants
filed a joint answer in which they asserted lack of jurisdiction
as a defense among 24 affirmative defenses. 25 Cal. Rptr. 3d at
489. However, the defendants failed to immediately act on their
assertion that the California trial court lacked personal
jurisdiction and actively participated in the case by, inter
alia, filing a case management statement, attending conferences,
propounding discovery, filing numerous motions to compel when
satisfactory responses were not received, and filing a motion for
summary judgment. Id. at 490. Given these circumstances and its
reading of applicable California law, the California Court of
Appeals held that the defendants did not have the "option to
plead lack of jurisdiction as a defense and reserve determination
of the issue until as late as trial." Id. at 493. Rather, the
defendants should have immediately raised the jurisdictional
defect in a motion. Id. at 493-94.
In Friedetzky, the mother filed a petition for custody
of child, and in response father filed an answer requesting that
the court order paternity testing and initiated discovery to
18
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
acquire information relevant to matters of paternity and child
support. 117 A.3d at 661. Mother then filed an amended
complaint to include claims for paternity, child support, and
counsel fees and father filed a motion to dismiss for lack of
personal jurisdiction. Id. The court in Friedetzky stated that
the father "invoked the court's jurisdiction by affirmatively
requesting relief, particularly coupled with his requests for
discovery on the issues of paternity and child support, which
extend beyond the realm of custody alone." Id. at 673 (footnote
omitted). Friedetzky further expressed that father anticipated
receiving the benefits of the paternity testing if it was ordered
by the lower court and thus availed himself of the advantages and
protections of the State of Maryland. Id. at 674. Thus, the
Friedetzky court held the trial court could exercise jurisdiction
over father with regard to paternity and child support. Id.
Here, Mother filed her Petition on November 15, 2016,
and Father was personally served with the Petition in Texas on
November 21, 2016. On December 23, 2016, Father filed a
certificate of service in this case indicating that he had served
a "First Request for Answers to Written Interrogatories and
Production of Documents to [Mother]" (Request for Answers to
Interrogatories).11 A month later, on January 23, 2017, Father
filed his Answer to the Petition contesting the Family Court's
jurisdiction over the proceedings. Unlike the defendants in Roy
and Friedetzky, Father did not request affirmative relief from
the Family Court and asked only for dismissal on jurisdictional
grounds. See UIFSA § 201 cmt. (Unif. Law Comm'n 2008).
("Subsection (2) expresses the principle that a nonresident party
concedes personal jurisdiction by seeking affirmative relief or
11
On March 22, 2017, Mother filed a certificate of service that her
responses to Father's Request for Answers to Interrogatories was served the
day before. Thus, Mother did not provide her answers to Father's Request for
Answers to Interrogatories until Father had already filed his Answer to the
Petition and the Family Court entered its Temporary Order stating it had
jurisdiction over the proceedings.
19
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
by submitting to the jurisdiction by answering or entering an
appearance.").
Father's Request for Answers to Interrogatories was not
filed below and is not part of the record on appeal. Father
asserts his Request for Answers to Interrogatories focused
entirely on jurisdiction and that Mother fails to explain how
Father went beyond issues of jurisdiction in his request. In
turn, Mother argues that Father used information obtained from
this initial discovery request at trial for issues beyond the
scope of jurisdiction and appears to argue that the request alone
is a general appearance; however, Mother provides no authority to
support this contention.
On the question of personal jurisdiction over a
defendant, the plaintiff bears the burden of establishing that
the court has personal jurisdiction. See AlixPartners, LLP v.
Brewington, 836 F.3d 543, 548 (6th Cir. 2016); Johnston v.
Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008).
If the [trial court] chooses not to conduct a full-blown
evidentiary hearing on a pretrial motion to dismiss for lack
of personal jurisdiction, plaintiff need make only a prima
facie showing of jurisdiction through its own affidavits and
supporting materials, even though plaintiff eventually must
establish jurisdiction by a preponderance of the evidence
either at a pretrial evidentiary hearing or at trial and,
before the hearing is held, a prima facie showing suffices
notwithstanding any controverting presentation by the moving
party to defeat the motion.
Shaw 76 Hawai#i at 327, 876 P.2d at 1295 (emphasis added)
(citation omitted); Morrill v. Scott Fin. Corp., 873 F.3d 1136,
1141 (9th Cir. 2017); Grayson v. Anderson, 816 F.3d 262, 268 (4th
Cir. 2016) (holding that ultimately "a plaintiff must establish
facts supporting jurisdiction over the defendant by a
preponderance of the evidence").
Here, Mother has not carried her burden to show that
Father sought affirmative relief by serving the Request for
Answers to Interrogatories on her. Thus, Father did not waive
his challenge to personal jurisdiction or make a general
appearance by serving the Request for Answers to Interrogatories.
20
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(2) Contesting the merits as to custody,
visitation, and child support, while also
contesting personal jurisdiction
Mother next argues Father consented to the Family
Court's jurisdiction and that he could not maintain his
jurisdictional objection while simultaneously contesting the
merits of custody, visitation and child support.
Father contested jurisdiction from the outset in his
first responsive pleading to the Petition. Father then raised
the jurisdictional issue at the January 26, 2017 hearing but was
unsuccessful. During the hearing, the Family Court stated that:
The only personal jurisdiction issue, you can call it what
you may, it -- it has to do with the issues related to
whether or not [Father] wants his rights with respect to
visitation. If he wants to contest any of that, then he'll
have to submit to this court's personal jurisdiction. If he
doesn't, that's up to him, but we still have subject matter
jurisdiction over the issue of custody and over the child[.]
(emphasis added).
Thus, once the Family Court asserted jurisdiction over
Father, he was given the choice of either defaulting on the issue
of visitation or proceeding on the merits. Moreover, based on
Mother's Petition, other issues related to custody and child
support were actively at issue in the case. Given these
circumstances, Father proceeded on the merits as to custody,
visitation and child support, but he also continued to contest
the Family Court's personal jurisdiction.
On May 17, 2017, after a pretrial conference, the
Family Court ordered, inter alia, that the parties provide a memo
regarding the application of the UIFSA to this case given the
jurisdiction decisions made in the Temporary Order. On June 5,
2017, Father filed his trial memo in which he continued to
contest the Family Court's personal jurisdiction over him.
Father argued, inter alia, that he does not do any business in
the state, has never availed himself of Hawai#i's courts or laws,
and that Father reasonably assumed Child would be born and raised
in Texas along with Mother's other children. Father also argued
that the Family Court's prior determination, that Hawai#i is
Child's home state for purposes of child custody, is not
21
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
dispositive as to whether the Family Court had personal
jurisdiction over Father for purposes of child support.
On June 14, 2017, the Family Court held trial in the
case and noted Father's running objection to the Family Court's
personal jurisdiction over him and that Father had preserved the
objection for appeal. The Family Court did not make any further
ruling regarding its jurisdiction before proceeding with the
trial, during which Father contested the merits as to custody,
visitation and child support.12
We first note that Mother's argument is inconsistent
with Hawai#i Family Court Rule (HFCR) 12(b), which states in
relevant part: "No defense or objection is waived by being joined
with one or more other defenses or objections in a responsive
pleading or motion." See In Interest of Doe, 83 Hawai#i at 372,
926 P.2d at 1295; see also Federal Rules of Civil Procedure
(FRCP) Rule 12(b).
In Romero v. Star Markets, Ltd., 82 Hawai#i 405, 922
P.2d 1018 (App. 1996), this Court interpreted Hawai#i Rules of
Civil Procedure (HRCP) Rule 12(b), relying on FRCP Rule 12(b) by
analogy,13 and noted that "Respondents did not waive their
jurisdictional objection by actively participating in the court's
hearing on the merits of its purported defenses[.]" Id. at 416,
922 P.2d at 1029 (citation, brackets and quotation marks
omitted). We held that "Respondents' joinder of their
jurisdictional defense with their affirmative defense of accord
and satisfaction did not waive their assertion of the former."
Id.12
On June 8, 2017, Father and Mother filed a "Stipulation Regarding
Texas Law and Custody Issues" which states in part: "WHEREAS Petitioner [MJ]
(hereinafter "Mother") and Defendant [CR] (hereinafter "Father") are the
parents of [Child], born in 2016[.]" Father did not contest paternity during
trial.
13
FRCP Rule 12(b) provides, in pertinent part: "No defense or
objection is waived by joining it with one or more other defenses or
objections in a responsive pleading or in a motion." This language is
substantially similar to HRCP Rule 12(b) and thus we can rely on legal
authorities interpreting this aspect of FRCP Rule 12(b). Romero, 82 Hawai #i
at 414, 922 P.2d at 1027.
22
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Moreover, FRCP Rule 12(b) has been interpreted such
that "[a] party who has unsuccessfully raised an objection under
Rule 12(b)(2) may proceed to trial on the merits without waiving
the ability to renew the objection to the court's jurisdiction."
5B Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1351 (3d ed.); see also Northern Laminate Sales, Inc.
v. Davis, 403 F.3d 14, 23 (1st Cir. 2005) (quoting an earlier
version of Wright & Miller); Mullins v. TestAmerica, Inc., 564
F.3d 386, 399 (5th Cir. 2009) (a prima facie showing of personal
jurisdiction does not foreclose a defendant from holding
plaintiff to his or her ultimate burden at trial of establishing
contested jurisdictional facts by a preponderance of the
evidence); Mimco Inc. v. Virginia Iron & Metal Recycling, Inc.,
840 F.Supp. 1171, 1174 (S.D. Ohio 1993) (holding plaintiff met
the burden for prima facie finding of jurisdiction to defeat
motion to dismiss and noting the defendant could raise the issue
of personal jurisdiction again at trial on the merits).
Here, after Father's challenge to the Family Court's
jurisdiction was rejected at the January 26, 2017 hearing, he
could proceed to trial on the merits, while continuing to
challenge the Family Court's jurisdiction. See Lamarche v.
Lussier, 844 N.E.2d 1115, 1119-20 (Mass.App.Ct. 2006) (holding
nonresident father did not waive his jurisdictional challenge by
appearing personally for a hearing where he challenged personal
jurisdiction at the outset and throughout the proceedings prior
to his appearance); see also Donaldson v. Donaldson, 729 P.2d
426, 429 (Idaho Ct.App. 1986) (holding nonresident husband did
not waive jurisdictional challenge by signing a stipulation on
the merits of child support and attorney fees after his motion to
dismiss had been denied); cf. Puckett, 94 Hawai#i at 480, 16 P.3d
at 885 (lack of personal jurisdiction waived where defendant
fails to assert the defense in their first responsive pleading).
23
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
c. Personal service on Father at the Hawai#i
courthouse the day of trial did not establish
personal jurisdiction
Mother argues that Father was personally served at the
Family Court's Kapolei courthouse on June 14, 2017, the day of
trial in this case, and Father failed to move to quash the
service or argue that the service was improper. The record
contains a proof of service indicating Father was served with the
Petition on the morning of June 14, 2017. Thus, Mother contends
this personal service on Father in Hawai#i results in the Family
Court having personal jurisdiction over Father.
HRS § 576B-201(a)(1) states, in relevant part, that:
§ 576B-201. Bases for jurisdiction over nonresident.
(a) In a proceeding to establish or enforce a support order
or to determine parentage of a child, a tribunal of this
State may exercise personal jurisdiction over a nonresident
individual or the individual's guardian or conservator if:
(1) The individual is personally served with summons
or notice within this State[.]
The Uniform Law Comment for the UIFSA states that, this section
is designed to be as broad as constitutionally permissible and
"[s]ubsection (1) codifies the holding of Burnham v. Super. Ct.,
495 U.S. 604 (1990), which reaffirms the constitutional validity
of asserting personal jurisdiction based on personal service
within a state." UIFSA § 201 cmt. (Unif. Law Comm'n 2008).
Mother also cites to Burnham. We must, however, consider the
context in Burnham, where the U.S. Supreme Court reiterated the
proposition that "jurisdiction based on physical presence alone
constitutes due process because it is one of the continuing
traditions of our legal system that define the due process
standard of 'traditional notions of fair play and substantial
justice.'" Id. at 619. In Burnham, the U.S. Supreme Court held
that personal service in the forum state was sufficient where the
nonresident defendant was served after he voluntarily traveled to
the forum state on business and to visit his children. Id. at
608, 628; see also Northern Light Tech. Inc. v. Northern Lights
Club, 236 F.3d 57, 63 (1st Cir. 2001) (upholding personal
24
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
jurisdiction where the defendant voluntarily entered the State to
attend proceedings as a spectator in the same case in which he
was served with process).
Here, the circumstances are quite different. Unlike
Burnham, Father was served in Hawai#i while here for trial that
same day in this case, and after his challenge to the Family
Court's personal jurisdiction had previously been rejected by the
Family Court. Father had filed his answer contesting
jurisdiction almost six months earlier, on January 23, 2017.
Further, as previously noted, Father continued to contest
personal jurisdiction in the proceeding. Indeed, on the same day
that Father was served in Hawai#i, the Family Court noted
Father's running objection based on his contention that the
Family Court lacked personal jurisdiction over him.
Burnham recognized that there are some exceptions to
jurisdiction based on in-state service upon individuals brought
into the forum by force or fraud, or who are in the forum as a
party or witness in unrelated judicial proceedings. Id. at 613.
Further, in Lamb v. Schmitt, 285 U.S. 222, 225 (1932), the U.S.
Supreme Court stated that "[t]he general rule that witnesses,
suitors, and their attorneys, while in attendance in connection
with the conduct of one suit, are immune from service of process
in another, is founded, not upon the convenience of the
individuals, but of the court itself." The Supreme Court held
that the test for immunity is "whether the immunity itself, if
allowed, would so obstruct judicial administration in the very
cause for the protection of which it is invoked as to justify
withholding it." Id. at 228.
Here, Father was not served process regarding a
separate suit such that the immunity recognized in Lamb would
apply. Rather, he was served in regard to the very case he was
defending against –- in which he had already unsuccessfully
challenged the court's personal jurisdiction –- while appearing
for trial in the proceedings during which he continued to
25
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
challenge the court's personal jurisdiction. Mother's argument
in this case, that the Family Court has personal jurisdiction
over Father based on the in-state service alone, would render
Father's previous timely challenge to the Family Court's personal
jurisdiction moot and would obstruct the judicial administration
regarding Father's defense to personal jurisdiction. See Glynn
v. EDO Corp., 641 F.Supp.2d 476, 486-87 (D. Md. 2009); Lester v.
Lester, 637 So.2d 1374, 1375-76 (Ala. Civ. App. 1994) (holding
defendant was immune from service regarding the instant suit
while in the jurisdiction to attend a hearing challenging
personal jurisdiction); Stewart v. Stewart, No. 110058, 2015 WL
326424 at *6 (Kan. Ct. App. Jan. 16, 2015) (unpublished) (holding
personal service on nonresident father was not valid personal
service under Kansas long-arm statute where he was in the state
for a hearing on his motion to dismiss for lack of personal
jurisdiction).
In Glynn, the plaintiff served a nonresident defendant
while he was in the forum state to file a motion to extend the
time to file a motion challenging jurisdiction in the same case.
Id. at 481, 486. Glynn rejected the plaintiff's theory of
personal jurisdiction based on the in-state service because
"[t]he constitutional due process protections of 'minimum
contacts' and 'fair play and substantial justice' would be
illusory, for as soon as the defendant entered the state to
assert these protections, the defendant would lose them by being
subject to in-state service of process." Id. at 487. Finally,
Glynn notes that the plaintiff's theory of personal jurisdiction
would lead to an illogical result where a defendant could lose
their jurisdictional defense if they are served in-state while in
the jurisdiction to raise the jurisdictional defense. Id. at
487-88; see also, Stewart, 2015 WL 326424 at *6 (explaining that
recognition of personal service over a nonresident litigant
present in the state while moving to dismiss for lack of personal
jurisdiction would "seem to make a mockery of a nonresident
litigant's right to challenge personal jurisdiction.").
26
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Here, Father objected to the Family Court's personal
jurisdiction over him from the beginning, continued to contest
jurisdiction during the proceedings, and raised his objection
again at trial after being served that morning. Thus, we
conclude that under these circumstances, the in-state service of
the Petition on Father the morning of trial did not establish
personal jurisdiction over him.
3. Mother and Child were not without remedy in this case
In Hart, this court noted that the resident parent and
child were not without remedy when the Family Court cannot
maintain personal jurisdiction over the respondent. Hart, 110
Hawai#i at 297, 132 P.3d at 865. The UIFSA provides two general
avenues of relief: (1) file a petition "in an initiating tribunal
for forwarding to a responding tribunal" or (2) file "directly in
a tribunal of another state which has or can obtain personal
jurisdiction over the respondent." Id. (quoting HRS
§ 576B–301(c)).14 Mother did not take either of these actions in
this case.
Thus, although the Family Court had jurisdiction to
make the initial custody determination of Child under the UCCJEA,
it did not have personal jurisdiction over Father required to
determine his paternity or to order him to pay child support. "A
judgment rendered in the absence of personal jurisdiction is void
and must be set aside." Romero, 82 Hawai#i at 413, 922 P.2d at
1026 (citation omitted).
IV. Conclusion
For the foregoing reasons, to the extent they address
the issue of custody, we affirm the "Order" entered on January
26, 2017, and the "Decision and Order" entered on September 1,
2017. We vacate these orders to the extent they address Father's
paternity, child support, or other monetary obligations from
14
Hart cites to HRS § 576B-301(c), but the pertinent provision is HRS
§ 576B-301(b).
27
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Father, but without prejudice to Mother seeking to address those
issues through appropriate proceedings in an appropriate forum.
On the briefs:
/s/ Lisa M. Ginoza
Peter Van Name Esser, Chief Judge
and
Curtis Kam (Lynnae Lee /s/ Katherine G. Leonard
& Associates), for Associate Judge
Defendant-Appellant.
/s/ Keith K. Hiraoka
Robert H. Thomas Associate Judge
Ross Uehara-Tilton
(Damon Key Leong Kupchak
Hastert), for Plaintiff-Appellee.
28