Moore v. McFarland , 187 Mich. App. 214 ( 1991 )

187 Mich. App. 214 (1990) 466 N.W.2d 309

MOORE
v.
McFARLAND

Docket No. 116810.

Michigan Court of Appeals.

Decided November 9, 1990. Approved for publication January 16, 1991, at 9:05 A.M.

Robbins & Robbins, P.C. (by Aimee C. Robbins), for the plaintiff.

Karbel, Brukoff, Rothstein, Stewart & Wallace, P.C. (by David Wallace), for the defendant.

Before: CAVANAGH, P.J., and McDONALD and MARILYN KELLY, JJ.

PER CURIAM.

This is a paternity action. Defendant appeals by leave granted from the circuit court's order denying his motion for summary disposition based on lack of personal jurisdiction. We reverse.

Plaintiff is the mother of a child born June 26, 1978. She alleges that defendant is the father. Plaintiff and her daughter now reside in Michigan. The child was conceived and born in Maryland while the plaintiff and defendant lived there. Defendant remains a resident of Maryland.

Defendant was personally served with the summons and complaint on December 20, 1988. Plaintiff moved for paternity testing. Defendant responded with a motion for summary disposition alleging lack of personal jurisdiction. The court denied defendant's motion, holding that the failure of a nonresident putative father to support a child residing in this state is a tortious act. Such an act provides an adequate basis for personal jurisdiction. MCL 600.705(2); MSA 27A.705(2); Black v Rasile, 113 Mich. App. 601; 318 NW2d 475 (1980).

A motion for summary disposition alleging lack of personal jurisdiction is resolved on the basis of the pleadings and evidentiary support submitted by the parties. MCR 2.116(C)(1) and (G)(5); Hillsdale Co Dep't of Social Services v Lee, 175 Mich. App. 95, 96; 437 NW2d 293 (1989). The burden of establishing the necessary jurisdictional facts is on the plaintiff. Id. p 97.

Michigan's long-arm statute gives our courts limited personal jurisdiction over nonresident individuals in certain circumstances. It provides in pertinent part:

The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships:

(1) The transaction of any business within the state.

(2) The doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort. [MCL 600.705; MSA 27A.705.]

Plaintiff first claims that certain of defendant's activities constituted doing business in Michigan: engaging in phone calls with plaintiff in the state, mailing periodic support payments to her, and visiting her in March 1988 to discuss the child. We note that plaintiff did not allege these facts in her complaint and has not provided evidentiary support for them. However, even assuming the activities occurred, they did not constitute "doing business" in Michigan. The activities were of a strictly personal nature.

Alternatively, plaintiff asserts that defendant committed a tort in the state by failing to support his child.

In Black, a panel of this Court held that the failure to pay costs and support, not the act of conception, is what triggers a statutory cause of action for paternity. Black, p 604. Thus, the failure to support a child residing in Michigan is a tortious act which occurs within the state. MCL 600.705(2); MSA 27A.705(2); Black, supra.

A subsequent panel of this Court rejected the reasoning in Black. Rainsberger v McFadden, 174 Mich. App. 660; 436 NW2d 412 (1989). It noted that the rationale of Black had been repudiated by the two jurisdictions on whose decisions it was based. The reasoning in Black was faulty, because it assumed as true the very facts which the plaintiff was trying to prove. Paternity must be established before a legal duty arises to support a child. Rainsberger, p 665; Hillsdale, pp 98-99. In addition, the Black panel did not consider due process requirements which must be satisfied before the court can exercise personal jurisdiction. Rainsberger, p 668.

Regardless of whether the failure to pay child support constitutes a tort, the exercise of personal jurisdiction over defendant in this case does not comport with constitutional due process.

The constitutional touchstone is whether the defendant purposefully established such minimum contacts in this state that the maintenance of the suit does not offend traditional notions of fair play. US Const, Am XIV; Gooley v Jefferson Beach Marina, Inc, 177 Mich. App. 26, 30; 441 NW2d 21 (1989). There is a three-part test to determine whether sufficient minimum contacts exist between a nonresident defendant and the state to support due process requirements of limited personal jurisdiction. First, the defendant must purposefully act in or towards the state, thus availing himself of the protection and benefits of its laws. Second, the cause of action must arise from the defendant's activities in the state. Third, the defendant's activities must be substantially connected with the state so that the exercise of personal jurisdiction over him would be reasonable. McGraw v Parsons, 142 Mich. App. 22, 26; 369 NW2d 251 (1985); Rainsberger, p 663.

In this case, the minimum contacts are those alleged by plaintiff in her brief: some support payments, telephone calls, and defendant's visit. The lack of evidentiary support makes it difficult to determine if these contacts were initiated by plaintiff or defendant. Thus we cannot conclude that plaintiff has proved that defendant purposefully acted in or towards this state. Insufficient minimum contacts were demonstrated to justify this state's exercise of personal jurisdiction over defendant.

Reversed.