Puhlman v. Turner , 1994 Alas. LEXIS 50 ( 1994 )

OPINION

COMPTON, Justice.

The superior court held that if a nonresident parent seeks to enforce in Alaska the visitation provisions of an out-of-state divorce decree, the Alaska court may exercise personal jurisdiction over the nonresident in a proceeding to modify the support provisions of the decree. We vacate the superior court’s order and direct entry of an order dismissing the support modification proceeding.

I. FACTUAL AND PROCEDURAL BACKGROUND

Terrence L. Puhlman, a member of the United States Armed Forces, and Carol A. Turner married and had two children. On September 15, 1988, they obtained a divorce in Texas. A modification decree entered by the Texas court on July 27, 1990 (Texas Order)¹ provides in part that (1) Turner has primary physical custody of the children; (2) Puhlman has visitation rights including custody of the children for approximately three months each summer; (3) Turner is to “deliver,” i.e., be financially responsible for transporting, the children to Puhlman’s residence at the beginning of the summer; (4) Puhlman is to similarly “deliver” the children to Turner’s residence at the end of the summer; and (5) Puhlman is to pay child support in the amount of $296.00 per month during the months in which Turner has custody of the children. Turner and the children moved to Anchorage between entry of the original and modification decrees.

In 1992 Puhlman was stationed in Germany. Turner refused to pay for the children to fly to Germany that summer to visit Puhl-man. Puhlman flew to Anchorage in June and filed the Texas Order with the superior court, AS 09.30.200, and sought a Writ of Assistance to enforce it. He filed a motion for expedited consideration, because he had to return to duty in Germany. Turner filed a cross-motion which, inter alia, sought an increase in child support.

The superior court enforced the Texas Order, directing that the children be allowed to go to Germany for the remainder of the summer, and that Turner bear the expense of their return to Anchorage at the end of the summer. The court deferred consideration of Turner’s cross-motion to increase child support to the regular motions calendar, but opined that it had personal jurisdiction over Puhlman. Puhlman opposed the cross-motion, challenging the Alaska court’s exercise of personal jurisdiction over him. The superior court ruled that Alaska did have personal jurisdiction over Puhlman, and began proceedings to modify the child support provisions of the Texas Order.² Puhlman appeals.³

II. DISCUSSION

It is well-settled that Alaska courts follow federal “minimum contacts” analysis when applying Alaska’s long-arm jurisdiction statute,⁴ consistent with the due process requirements of the Fourteenth Amendment to the United States Constitution. See, e.g., Glover v. Western Air Lines, Inc., 745 P.2d 1365, 1367 (Alaska 1987); Volkswagenwerk, A.G. v. Klippan, GmbH, 611 P.2d 498, 500 (Alaska), cert. denied, 449 U.S. 974, 101 S.Ct. 385, 66 L.Ed.2d 236 (1980).

The United States Supreme Court analyzed minimum contacts with regard to child support obligations in Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). The Kulkos separated in 1972 and were later divorced. Pursuant to a separation agreement negotiated in New York, Kulko, a resident of New York, was awarded custody of the two children. He was ordered to pay child support during the children’s visitation with Horn, their mother, who had moved to California. Id. at 87-88, 98 S.Ct. at 1693-1694. The children moved to California in 1973 and 1976 respectively. Horn initiated suit in California to obtain custody of the children and increase child support payments. Id. at 88, 98 S.Ct. at 1694. Kulko defended on the grounds that the California. court lacked personal jurisdiction over him. Id. The United States Supreme Court agreed:

“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State_ [I]t is essential in each case that there be some act by which the defendant purposefully avails [himjself of the privilege of conducting activities within the forum State.... ”

Id. at 93-94, 98 S.Ct. at 1698 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958)) (alteration in original). The Court decided that neither (1) Kulko’s temporary presence in California, (2) his consent to allow his children to live in California, nor (3) Ms financial benefit in not having to pay certain living expenses for his children constituted “minimum contacts” with Califorma. Id. 436 U.S. at 93-97, 98 S.Ct. at 1697-99. In conclusion, the court held that subjecting Kulko to personal jurisdiction in Califorma would “offend ‘traditional notions of fair play and substantial justice.’ ” Id. at 92, 97-98, 98 S.Ct. at 1696-97, 1699-1700 (citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)).

Puhlman argues that Kulko is applicable to this case. We agree. The Kulko court distinguished the concepts of being forced into court and “purposefully availing” oneself of a court; a court’s assertion of personal jurisdiction is proper only in the latter case. See Kulko, 436 U.S. at 93-94, 98 S.Ct. at 1697-98.

Turner attempts to distinguish Kulko because Puhlman imtiated the proceeding in superior court, thereby “purposefully availing” himself of the Alaska court. The question becomes whether Puhlman, in seeking to enforce the Texas Order in Alaska, “purposefully availed” himself of the Alaska court, thereby subjecting himself to the long-arm jurisdiction of Alaska. TMs is an issue of first impression in Alaska. The Supreme Court of Califorma answered this question in the negative. In Kumar v. Superior Court, 32 Cal.3d 689, 186 Cal.Rptr. 772, 781-82, 652 P.2d 1003, 1012-13 (1982),⁵ the court held that if a nonresident parent is forced to employ the courts of the forum state to enforce visitation rights pursuant to an out-of-state decree, the nonresident will not be subject to the state’s long-arm jurisdiction. Puhlman argues that he was forced to avail himself of the Alaska court in the enforcement proceeding and should not be subject to personal jurisdiction m a collateral support modification proceeding.

This court is gmded by the principle that due process of law requires “ ‘minimum contacts ... such that the mamtenance of the smt does not offend traditional notions of fair play and substantial justice.’ ” Glover, 745 P.2d at 1367 (quotmg Colder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984)). TMs court has deemed it fair to exercise personal jurisdiction where “the defendant’s contacts with the forum are substantial enough that the defendant could reasonably anticipate bemg haled into court_” Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985)). In tMs regard the distinction between enforcement of the visitation order and modification of the support order is important. Had Puhlman sought to register the Texas Order in Alaska m order to modify it, e.g., to decrease child support or increase visitation rights, then he reasonably could expect to be brought before the Alaska court on the cross-motion to modify the Texas Order. However, because Puhlman sought only to enforce⁶ the Texas Order, he could not reasonably expect to be before the Alaska court on the cross-motion.

Indeed, fairness was the guiding principle for the United States Supreme Court in Kul-ko and the Supreme Court of Califorma m Kumar:

Principles of fairness preclude the exercise of personal jurisdiction where connection with the state resulted from an effort to encourage visitation with the non-custodial parent.... [The father] was virtually forced into the Califorma court because [the mother] demed him his visitation rights. It would be grossly unfair to allow her now to claim that he thereby established “minimum contact” sufficient to establish personal jurisdiction.

Kumar, 652 P.2d at 1012-13 (citation omitted). Both cases noted the strong importance of promoting visitation by non-custodial parents. This policy would be undermined by subjectmg to jurisdiction in another state parents who actually visit their children or seek to enforce visitation rights in that state. Kulko, 436 U.S. at 98, 98 S.Ct. at 1700; Kumar, 652 P.2d at 1013 n. 19.

Puhlman argues that it would be unfair for the superior court to exercise personal jurisdiction over him:

If Puhlman wanted to see his children ... he had to come to Alaska. Even at that, Turner made it clear that he was wasting his time because she was not going to give him the children to take back to Germany in accordance with the Texas decree. Puhlman therefore had to domesticate the Texas decree in Alaska in order to physically get custody of the children to take them out of state.

We agree. The superior court concluded that the children were improperly withheld from Puhlman. Turner thus placed Puhlman in danger of forfeiting 1992 summer visitation with the children. He was forced to seek relief in the Alaska court to enjoy that visitation.

III. CONCLUSION

Federal and state long-arm jurisprudence protects due process rights by ensuring that courts exercise personal jurisdiction consistent with “ ‘traditional notions of fair play and substantial justice.’ ” Glover, 745 P.2d at 1367 (quoting Calder, 465 U.S. at 788, 104 S.Ct. at 1486). We conclude that considerations of fairness preclude the Alaska court from exercising personal jurisdiction over a nonresident parent who seeks only to enforce visitation rights awarded in an out-of-state judgment.

For the foregoing reasons we VACATE the order of the superior court and direct the superior court to GRANT Puhlman’s motion to dismiss Turner’s cross-motion to modify child support.

BRYNER, J. Pro. Tem.,^* not participating.

1 . The registered Texas decree which included visitation provisions was entered in November 1988. This case concerns an order amending that decree to include extensive and specific visitation provisions.

2 .The superior court noted that it did not have jurisdiction to modify the visitation provisions of the Texas Order:

The Texas Order is not challenged as being invalid. It is suggested that there may be a need to modify it, although Alaska does not have jurisdiction to modify it, which the parties are fully aware of and Ms. Turner’s been aware of that fact for some time because of the prior litigation here. If it's to be modified, it'll be modified in Texas.

The court did not state the legal basis for this conclusion.

At the time the superior court entered this order, Alaska had become the "home state” of the children. AS 25.30.020(a)(1). It does not appear tom the record that a proceeding concerning the children was pending in a court in Texas or any other state. AS 25.30.050(a). Texas, like Alaska, surrenders modification jurisdiction to the new home state of the custodial parent and children even though the non-custodial parent remains a resident. Reppond v. Blake, 822 S.W.2d 759 (Tex.App.1992); Tex.Fam.Code § 1153(d) (Vernon 1986); see Baumgartner v. Baumgartner, 788 P.2d 38 (Alaska 1990); Bock v. Bock, 824 P.2d 723, 724 (Alaska 1992). Thus it appears that Alaska would have jurisdiction to modify the Texas Order regarding custody or visitation, were either of those issues before it. See 28 U.S.C. 1738A(f)(l), (2) (1988).

We note that the Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by every state in the Union and is codified at AS 25.30.-010-.910. The Alaska UCCJA provides in part:

The superior court has jurisdiction to make a child custody determination by initial or modification decree....

AS 25.30.020(a) (emphasis added). Nonetheless, "custody determination” ... does not include a decision relating to child support or any other monetary obligation of any person.

AS 25.30.900(2); See UCCJA § 2(2), 9 U.L.A. 133 (1988). The parties did not raise and we do not address the question whether the contacts and interests which give Alaska modification jurisdiction over custody and visitation under the UCCJA provide a sufficient independent basis for personal jurisdiction under the Fourteenth Amendment to the United States Constitution.

3 . The order from which Puhlman "appeals" is not a final order; hence it is not appealable. See AS 22.05.010(a); Alaska Appellate Rule 202(a). However, because the issue questions the power of the superior court to determine the underlying cause, and the case has been briefed and argued, we elect to treat the "appeal” as a petition for review, Appellate Rule 402(a)(1), and grant the petition.

4 . Alaska's long-arm jurisdiction is codified in AS 09.05.015. The superior court did not clarify which subsection of this statute it relied upon in determining that it had personal jurisdiction over Puhlman.

5 . Kumar is similar to this case. The couple was divorced in New York in 1974. The mother was awarded custody of the only child. In 1979 she and the child moved to California without informing the father. The father filed the New York decree in California court along with a writ of habeas corpus. The court enforced the father’s visitation rights. When the mother sought, to modify the order in the California court, the father successfully defended, based on the court’s lack of personal jurisdiction. Kumar, 652 P.2d at 1004.

6 . PuHman's application for a Writ of Assistance makes no mention of modification.