Clifton Franklin v. CW,D.S.S.,D.C.S.E., M. Franklin ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and
Bumgardner
Argued at Alexandria, Virginia
CLIFTON A. FRANKLIN
OPINION BY
v. Record No. 1045-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 14, 1998
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT
ex rel. MARIE CATHERINE FRANKLIN
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Ted Kavrukov (Kavrukov, Mehrotra & DiJoseph,
on briefs), for appellant.
William K. Wetzonis, Special Counsel
(Nancy J. Crawford, Regional Special Counsel;
Keith H. Warren, Special Counsel; Richard
Cullen, Attorney General; William H. Hurd,
Deputy Attorney General; Robert J. Cousins,
Jr., Senior Assistant Attorney General;
Craig M. Burshem, Regional Special Counsel,
on brief), for appellee.
Clifton A. Franklin (husband) appeals the circuit court's
order to pay child and spousal support. Husband argues the trial
court erred in: (1) finding that the service of process for the
juvenile and domestic relations district court proceedings was
sufficient; (2) finding that the trial court and the Division of
Child Support Enforcement have jurisdiction over the person of
husband; and (3) reversing the administrative hearing officer's
finding vacating the Administrative Support Order (ASO). For the
following reasons, we affirm the trial court's order.
I. Background
Husband and Marie Catherine Franklin (wife) were married in
California in 1981. They have two children: Lloyd, born
December 14, 1981, and Armelle, born September 15, 1985. Wife
testified the parties moved to Virginia in January 1991 and lived
here for three months, their last domicile prior to their move
overseas. Husband denied ever having resided in Virginia.
Husband obtained employment with John Snow, Inc. (JSI), a
Boston-based company, and he signed his employment contract at
the JSI field office in Arlington, Virginia in the fall of 1990.
Husband's job took the family to Africa, where they lived from
March 1991 until January 1994.
While the parties lived in Africa, their relationship
deteriorated and resulted in several physical altercations.
Eventually, husband ordered wife and the children to leave their
home. Wife went to the American Embassy for assistance in
returning to the United States. JSI, husband's employer, paid
travel expenses for the three family members, and they arrived at
Dulles Airport in Virginia in January 1994. Wife stayed with the
children in a Washington, D.C., hotel for a week and then moved
to Arlington, Virginia. They have remained residents of Virginia
since that time. After wife and the children returned to
Virginia, the parties orally agreed that husband would pay child
support, and he did so.
On April 22, 1994, wife applied for assistance from the
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Division of Child Support Enforcement (DCSE) to establish a child
support order against husband. On January 11, 1995, DCSE issued
an ASO that required husband to pay $1,111 per month in child
support and established a debt of $2,622 owed to the Commonwealth
for the public assistance received by wife. Husband was served
with the ASO by certified mail, return receipt, pursuant to Code
§ 63.1-252.1. 1
Meanwhile, on October 19, 1994, wife appeared before the
juvenile and domestic relations (JDR) district court and obtained
an ex parte emergency custody order preventing either parent from
removing the children from Virginia. The JDR court scheduled a
hearing for the following day, at which time husband, by counsel,
entered a special appearance to contest the jurisdiction of the
court to enter any orders. Pursuant to the Uniform Child Custody
Jurisdiction Act (UCCJA), Code § 20-126, 2 the JDR court assumed
1
"The Commissioner shall initiate proceedings by issuing
notice containing the administrative support order which shall
become effective unless timely contested. The notice shall be
served upon the debtor (i) in accordance with the provisions of
§§ 8.01-296, 8.01-327 or § 8.01-329 or (ii) by certified mail,
return receipt requested, or service may be waived." Code
§ 63.1-252.1.
2
"A court of this Commonwealth which is competent to decide
child custody matters has jurisdiction to make a child custody
determination by initial or modification decree if:
1. This Commonwealth (i) is the home state of the child at the
time of commencement of the proceeding . . . or
2. It is in the best interest of the child that a court of this
Commonwealth assume jurisdiction because (i) the child and his
parents, or the child and at least one contestant, have a
significant connection with this Commonwealth, and (ii) there is
available in this Commonwealth substantial evidence concerning
the child's present or future care, protection, training, and
personal relationships . . . ." Code § 20-126(A).
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jurisdiction to decide custody and issued an emergency order.
On November 16, 1994, wife filed a notice for an additional
hearing in the JDR court to determine temporary custody. In her
affidavit, wife stated that copies of the notice had been sent by
registered mail to the JSI corporate office in Boston, to JSI
field offices in Arlington, Virginia, and Bamako, Mali, to
husband's work station in Bamako, Mali, and to husband's counsel
in Arlington, Virginia. Neither husband nor his counsel appeared
to contest custody, and the JDR court granted temporary custody
to wife.
On February 8, 1995, husband's counsel filed a "limited
appearance" praecipe in the JDR court. In an order entered
February 14, 1995, the court, upon husband's oral motion
requesting relief, ordered telephone access to and summer
visitation with the children. In addition, upon wife's oral
motion to join the issues of child and spousal support, the JDR
court ordered the parties to submit points and authorities
regarding the court's jurisdiction over husband to hear issues
other than custody and visitation. The question of jurisdiction
was continued to March 8, 1995.
After the March 8, 1995 hearing, the JDR court entered an
order on May 10, 1995, which granted custody to wife, granted
visitation to husband, and stated "that the parties recognize
that all child support issues are currently being handled by DCSE
administratively."
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Meanwhile, on February 23, 1995, DCSE ordered JSI to
withhold child support from husband's earnings. Husband appealed
the withholding-from-earnings order to an administrative hearing
officer, contending the underlying ASO was invalid for lack of
jurisdiction over husband. The ASO's administrative
determination itself was never appealed. On June 13, 1995, the
hearing officer reversed the ASO, finding that DCSE had "no
jurisdiction administratively."
On July 18, 1995, wife appealed the hearing officer's
decision to the JDR court and also filed a motion for spousal
support. The JDR court notified husband of the appeal pursuant
to Code § 63.1-268.1. On July 25, 1995, husband's counsel again
entered a praecipe for a special appearance. The appeal was
scheduled for August 1, 1995, but was dismissed without prejudice
due to wife's failure to appear.
On August 3, 1995, husband filed a petition for a rule to
show cause against wife for violations of the JDR court's
visitation order of May 10, 1995. Wife agreed that she would not
interfere with husband's telephone contact with the children, and
husband withdrew his petition.
On December 20, 1995, after a hearing on wife's petition for
pendente lite support, the JDR court awarded temporary child
support, finding that: (1) husband's "request for visitation
. . . coupled with [his] request for a Show Cause Rule on this
issue of visitation, constitutes a waiver of [his] objection to
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this Court's jurisdiction over his person;" (2) "the issue of
child support is now ripe for adjudication, the administrative
process of the [DCSE] having been exhausted;" and (3) "over
[husband's] objection, this court has personal and subject matter
jurisdiction." On July 1, 1996, the JDR court awarded spousal
support of $500 per month for eighteen months and $1,230 per
month child support. Husband appealed this order to the circuit
court on the issue of jurisdiction.
The circuit court heard the case de novo on December 17,
1996. At the hearing, husband testified that he did not demand,
suggest, urge, advise, or insist that wife and the children move
to Virginia. Husband claimed his only connection with Virginia
was that his former employer, JSI, (he had since been terminated)
had a branch office in Arlington which arranged the family's
travel to Africa in 1990 and forwarded their mail to Africa while
they were there. Additionally, husband testified that he never
resided, owned property, paid taxes, or obtained a driver's
license in Virginia and that he has only been physically present
in Virginia three times in the last five years.
The circuit court found that husband caused wife and the
children to leave their home in Africa, and, although "he did not
direct [wife and the children] to go anywhere," wife's decision
to reside in Virginia was "completely logical because it provided
the nexus to the employer's office . . . . It provided a conduit
for communication, whether or not it was used, between the
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company, the mother, and the father of these two children." The
circuit court found that wife's decision to leave Africa and
reside in Virginia with the children was "the result of the acts
of the father" and that exercise of personal jurisdiction was
proper under Code § 20-88.35(5). 3 Additionally, the circuit
court reversed the hearing officer's decision, finding that the
ASO was valid under Code § 20-88.35(5). Husband filed a motion
for reconsideration which the circuit court denied on May 9,
1997.
II. Standard Of Review
"In its deliberation concerning a child's welfare, including
its determination of jurisdictional and enforcement issues, the
trial court must make the child's best interests its primary
concern." Johnson v. Johnson, 26 Va. App. 135, 144, 493 S.E.2d
668, 672 (1997). "[T]rial courts are vested with broad
discretion in making the decisions necessary to guard and to
foster a child's best interests." Farley v. Farley, 9 Va. App.
326, 328, 387 S.E.2d 794, 795 (1990). "'A trial court's
determination of matters within its discretion is reversible on
appeal only for an abuse of that discretion.'" Commonwealth ex
rel. Ewing v. Ewing, 22 Va. App. 466, 473, 470 S.E.2d 608, 612
(1996) (quoting Farley, 9 Va. App. at 328, 387 S.E.2d at 795).
3
"In a proceeding to establish, enforce, or modify a support
order or to determine parentage, a tribunal of this Commonwealth
may exercise personal jurisdiction over a nonresident individual
. . . [if the] child resides in this Commonwealth as a result of
the acts or directives of the individual." Code § 20-88.35(5).
7
"[W]e view the evidence in the light most favorable to the party
prevailing below, giving it all reasonable inferences fairly
deducible therefrom." Winfield v. Urquhart, 25 Va. App. 688,
690, 492 S.E.2d 464, 465 (1997). "'Where a trial court makes a
determination which is adequately supported by the record, the
determination must be affirmed.'" Haase v. Haase, 20 Va. App.
671, 684, 460 S.E.2d 585, 591 (1995) (citation omitted).
III. Jurisdiction Over Husband
Husband first argues that service upon him under the Uniform
Child Custody Jurisdiction Act (UCCJA) did not give the trial
court the authority to enter a support award against him. We
agree. The language of the UCCJA is clear: "'Custody
determination' means a court decision and court orders and
decrees providing for the custody of a child, including
visitation rights; it does not include a decision relating to
child support or any other monetary obligation of any person."
Code § 20-125(2). "[T]his section limits the application of Code
§ 20-126 to child custody matters only, not child support."
Johns v. Johns, 5 Va. App. 494, 496, 364 S.E.2d 775, 777 (1988).
However, this conclusion does not end our inquiry. Although
personal jurisdiction under the UCCJA was limited to issues of
custody and visitation, the trial court found jurisdiction over
husband for support issues under the Uniform Interstate Family
Support Act (UIFSA). 4 "In a proceeding to establish . . . a
4
Code § 20-88.32 et seq.
8
support order . . . a tribunal of this Commonwealth may exercise
personal jurisdiction over a nonresident individual . . . [if
the] child resides in this Commonwealth as a result of the acts
or directives of the individual." Code § 20-88.35(5).
The scope of Code § 20-88.35(5) is an issue of first
impression in Virginia. Although the UIFSA has been widely
adopted, our sister states also have yet to rule specifically on
this provision. Husband contends the plain meaning of this
provision confers jurisdiction over an individual who has done an
affirmative act, exerted power or influence, or given
instructions, orders, or commands to his children and spouse to
go and reside in a particular geographical location. Since
husband never specifically directed wife to move to Virginia, he
argues that Virginia courts failed to obtain jurisdiction over
him under Code § 20-88.35(5). We disagree.
In support of his position, husband cites several cases
decided under a similar provision predating the UIFSA in Texas in
which courts declined to exercise jurisdiction over fathers of
resident children. See Miles v. Perroncel, 598 So. 2d 662 (La.
App. 1992) (interpreting the Texas statute and declining to
exercise jurisdiction over father who failed to object when
mother moved child out of state); Ford v. Durham, 624 S.W.2d 737
(Tex. Civ. App. 1981) (no jurisdiction over father who acquiesced
to mother's move with child); Bergdoll v. Whitley, 598 S.W.2d 932
(Tex. Civ. App. 1980) (father's continued court-ordered support
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payments after ex-wife moved to Texas with children did not
confer personal jurisdiction). However, in each of these cases,
the children resided in Texas after their mother chose to move
out of state without any urging from their fathers.
In the instant case, wife made no such choice. After
several physical altercations, husband ordered wife and the
children from their home in Africa. They had to go somewhere.
Wife sought emergency assistance from the American embassy and
husband's employer. As a result of this assistance, she and the
children returned to the United States. Wife established a
permanent home for herself and the children in Virginia, the
family's home immediately prior to their departure for Africa,
the point of entry for her return to this country, and the
location of husband's employer's field office in charge of
distributing his mail. We hold that husband's children became
residents of this Commonwealth as a result of his acts, and
Virginia properly exercised jurisdiction over his person.
Husband's contention that unless he directed wife to this
Commonwealth, Virginia courts may not exercise personal
jurisdiction in support matters, is overly restrictive. If
widely adopted, such a construction would leave spouses similarly
situated without a forum in which to request child and spousal
support. "'It is the legal and moral duty of a [spouse] to
support his [or her] . . . family consistent with his [or her]
financial ability.'" L.C.S. v. S.A.S., 19 Va. App. 709, 715, 453
10
S.E.2d 580, 583 (1995) (citation omitted). To allow husband to
escape his support obligations merely because he failed to
dictate the specific destination when he ordered his family to
leave the marital home would frustrate the purpose of the
legislature in enacting the Uniform Interstate Family Support
Act. See Johns, 5 Va. App. at 495, 364 S.E.2d at 776 ("The
purpose of RURESA [the predecessor statute to UIFSA] is to create
an economical and expedient means of enforcing support orders for
parties located in different states. The act is remedial in
nature and should be liberally construed so that its purpose is
achieved.").
Additionally, the JDR court found personal jurisdiction on
alternative grounds. Code § 20-88.35(2) provides that courts may
exercise personal jurisdiction over an individual for support
purposes if "[t]he individual submits to the jurisdiction of this
Commonwealth . . . by entering a general appearance, or by filing
a responsive document having the effect of waiving any contest to
personal jurisdiction." "An appearance for any other purpose
than questioning the jurisdiction of the court . . . is general,
although accompanied by the claim that the appearance is only
special." 2A Michie's Jurisprudence of Virginia and West
Virginia, Appearances, § 4 (1997). Several states have held that
a request for affirmative relief constitutes a general appearance
and waives all objections to defects in service, process or
personal jurisdiction. See Weierman v. Wood Landscaping, 630
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N.E.2d 1298 (Ill. App. 1994) (pleading to vacate default
judgments was general appearance which waived objection to
process defects and submitted defendant to jurisdiction); In re
Marriage of Stafeil, 523 N.E.2d 1003 (Ill. App. 1988) (motion to
vacate temporary custody order waived special appearance);
Norwood v. Craig, 658 So. 2d 212 (La. App. 1995) (motion for
continuance in child support action submitted father to
jurisdiction of court); Bullard v. Bader, 450 S.E.2d 757 (N.C.
App. 1994) (father's submission of visitation and income
information waived his special appearance and his defense of lack
of personal jurisdiction).
In the instant case, husband filed a petition for a rule to
show cause on August 3, 1995, at a time when the issues of
custody and support were properly before the JDR court. At the
subsequent pendente lite hearing in December 1995, the JDR court
found that husband's request for relief waived his special
appearance and his jurisdiction defense. We agree and hold that
by making a request for affirmative relief, husband entered a
general appearance and submitted himself to the authority of the
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court.
5
Husband further contends he lacks the minimum contacts with
Virginia necessary for the exercise of personal jurisdiction.
"'[I]t is essential in each case that there be some act by which
the defendant purposefully avails [him]self of the privilege of
conducting activities within'" Virginia. Kulko v. Superior
Court, 436 U.S. 84, 94 (1978) (citation omitted). We have held
that husband's acts resulted in the children's residence in
Virginia. These contacts, combined with husband's motion for
visitation and petition for a rule to show cause, each a request
for affirmative relief from a Virginia court, satisfy this
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IV. Administrative Support Order
Husband also contends the circuit court erred in reversing
the hearing officer's determination that the ASO was invalid. He
claims DCSE lacked jurisdiction over him and that service under
Code § 63.1-252.1 was improper. We disagree. 6
Code § 63.1-252.1 provides:
In the absence of [a court order for support
of a child], the Commissioner may, pursuant
to this chapter, proceed against a person
whose support debt has accrued or is accruing
based upon payment of public assistance or
who has a responsibility for the support of
any dependent child or children and their
caretaker.
In the case of out-of-state obligors and in the absence of a
court order, DCSE "may establish an administrative support order
. . . if the obligor and the obligee maintained a matrimonial
domicile within the Commonwealth." Code § 63.1-250.1(G). In
these circumstances, notice containing the ASO may be served upon
the debtor by certified mail, return receipt requested. See Code
§§ 63.1-250.1(G), -252.1.
Viewing the evidence in the light most favorable to wife,
standard.
6
We note that husband appeals the withholding-from-earnings
order on the ground that the underlying ASO is invalid for want
of jurisdiction. The grounds for appeal of a
withholding-from-earnings order are limited to a mistake of fact.
See Code § 63.1-250.3(B). The proper avenue to contest
jurisdiction is to appeal the initial ASO pursuant to Code
§ 63.1-252.1.
Consequently, we reject husband's formulation and instead address
the jurisdictional validity of the ASO directly.
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the party prevailing below, the record establishes that the
parties lived in Virginia immediately before they departed for
Africa. The record further reveals that DCSE served notice of
the ASO on husband in Africa by certified mail, return receipt
requested, and that husband signed for the letter, acknowledging
receipt. Therefore, we hold that DCSE had jurisdiction to issue
the ASO, that husband was properly served, and that he had actual
notice of the support order. For the foregoing reasons, the
judgment of the circuit court is affirmed.
Affirmed.
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