Particularly in these times when many people have had to travel out of state just to become or remain employed, an important but overlooked aspect of matrimonial law practice remains personal jurisdiction. It is well established that personal jurisdiction is not required to a dissolve the marriage or issue custody orders, (courts generally consider custody quasi in rem, In re Marriage of Schuham, 458 N.E.2d 559 (Ill. App. 1983)), but it is required to fully adjudicate property and support rights. In addition to constitutional limits, states employ Long-Arm statutes to determine whether causes of action fall within their limits. With respect to matrimonial cases, these statutes usually require maintenance in the state of a matrimonial domicile at the time the cause of action arose, or the commission in the state of any act giving rise to the cause of action. This can be difficult to determine, particularly with no-fault grounds now being the primary means of divorce. With respect to parentage actions, generally conception or acts in the state which could cause conception, as well as failure to support a child within the state (or directing the child to reside in the state) can provide Long-Arm jurisdiction in those cases. Also as explained below, amendments to these Long-Arm Statutes have changed the way courts analyze and decide jurisdictional issues.
PLEADING CONSIDERATIONS
Pleading requirements are often ignored by practitioners. In some states the Petition For Dissolution of Marriage or initial pleading, must allege the factual basis for personal jurisdiction when a nonresident is being sued.
Numerous cases hold that “[w]here a plaintiff seeks to hold a non-resident defendant liable, the complaint must allege the facts upon which jurisdiction under the Long-Arm Statute is based (citations omitted). Thus, we must first examine plaintiff’s complaint and determine whether a prima facie showing of jurisdiction appears therein.” Bobka v. Cook County Hospital, 453 N.E.2d 828, 829-30 (Ill.App.1983). In Bobka it was held that the allegations in the complaint “do not show the defendants invoked the benefit and protection of Illinois law or reasonably anticipated being called to defend themselves here because of their acts within this State. Plaintiff asked this court and the court below to infer from the allegations in the complaint that minimum contacts existed. . . We cannot infer jurisdictional acts without violating due process.” Bobka, 453 N.E.2d at 830-31.
It was held in McMahan v. McMahan, 826 So.2d 1024 (Florida 3d D.C.A. 2001) that the failure to allege jurisdictional facts (long arm provisions or Florida residency), voids any attempted service.
In Cabaniss v. Cabaniss, 620 S.E.2d 559 (Virginia App. 2005) personal jurisdiction was found. While it was noted that the initial pleading had to allege a factual basis for long-arm jurisdiction, it was held that by inference the allegation was that the parties had resided together in Virginia when the husband informed the wife that the marriage was over and that he wanted a divorce. It was held that the husband could not mistake the true nature of the claim, although the pleading might not have been the best drafted. But to be certain, make sure your allegations suffice. Do not assume you will be granted leave to amend your pleading.
JURISDICTIONAL STANDARDS
Even if a defendant’s acts fall within the specifics of the Long-Arm Statute, that does not mean that the exercise of jurisdiction over her is proper. The exercise of jurisdiction must be consistent with due process and the quality and nature of her acts must be such that it is reasonable and fair to require her to conduct her defense in Illinois. In Re Marriage of Brown, 506 N.E.2d 727, 729 (Ill.App. 1987) (court did not have in personam jurisdiction over non-resident defendant and could not resolve issues of property division, maintenance, or support though it could dissolve the marriage).
The purpose of the phrase “as to any cause of action arising from the doing of any of such acts” in the Long-Arm statute is to insure that there is a close relationship between a cause of action against a non-resident defendant and his jurisdictional activities. In Re Marriage of Brown, 506 N.E.2d 727, 730-731 (Ill.App. 1987) (defendant’s sending of letters into Illinois do not affect property division or support issues and do not bestow personal jurisdiction upon court although it could dissolve the marriage).
Courts are trending towards a focus on constitutional standards rather than the specifics of the Long-Arm Statute. “Literally interpreted, subsection (c) (the catch-all provision) makes the basis for exercising jurisdiction solely a constitutional analysis. Subsection (c) should obviate the need for the defendant to have committed one of the enumerated acts in subsection (a) and allow the inquiry to go directly to state and federal due process considerations.” The Long Reach of Illinois’ Long-Arm Statute: The Catch-All Provision,” Eric D. Anderson, Illinois Bar Journal, October, 1996, 84 Ill. B.J. 504. In Gordon v. Gordon, 887 N.E.2d 35 (Ill.App. 2008) the former wife moved to Illinois after the parties had been divorced in Florida. She filed a tort lawsuit for intentional and negligent infliction of emotional distress. The allegations dealt with the former husband’s alleged noncompliance with the Florida divorce decree. It was noted that most of the allegations never reached into Illinois, except for two acts alleged: an email sent into Illinois, and a call to the Illinois Department of Children and Family Services which initiated an investigation. It was held that those events did result in some contact but were insufficient to require the defendant to litigate in Illinois. In Illinois the Long-Arm statute was supplemented with a “catchall” provision, stating that a court may exercise jurisdiction on any other basis (in addition to specific acts set forth in the Long-Arm statute) permitted by either the United States or the Illinois Constitutions. Many states now have catchall provisions (and a trend may be emerging to make the catchall provision the exclusive provision, such as in California, Cal. Civ. Proc. Code 410.10). These are considered to be co-extensive with the due process requirements generally said to be the International Shoe minimum contacts test.International Shoe Company v. Washington, 326 U.S, 310, 316 (1945). Therefore, a trial court must determine whether “1) the nonresident defendant has sufficient minimum contacts with the forum state; 2) the cause of action arises from these contacts; and 3) it is reasonable to require the defendant to litigate in the forum state.” 887 N.E.2d at 39. As to the third requirement, in determining whether it is reasonable to require the defendant to litigate in the forum state, a trial court must consider: “1) the burden on the defendant; 2) the forum state’s interest in adjudicating the dispute; 3) the plaintiff’s interest in obtaining convenient and effective relief; 4) the interstate judicial system’s interest in obtaining the most efficient resolution of the action; and 5) the shared interests of the several states in advancing fundamental social policies.” Id. In this case it was felt that Florida had a much greater interest in resolving the dispute.
In In re Marriage of Peck, 920 P.2d 236 (Court of Appeals Washington 1996) it was held that the mere opening of an account with the Washington Office of Support Enforcement and paying support was not sufficient to create personal jurisdiction. The parties never lived together in Washington. It was also argued that the husband’s cessation of paying child support was a tortious act that conferred jurisdiction. However, citing Kulko v. Superior Court of California, 436 U.S. 84 (1978) the Court held that these facts did not establish purposefully making a transaction in Washington. Also, if it was a tortious act the lawsuit came before it, rather than arising from it.
In Babu v. Babu, 645 N.Y.S.2d 899 (New York App. Div. 1996) the parties had originally divorced in New York but resumed their status as a married couple under the common law of Georgia. The husband never went back to New York, but the wife, upon the husband’s request, brought his mother to New York. Citing the International Shoe case, the Court noted that besides establishing jurisdiction under the long-arm statute, the plaintiff must also show that the nonresident defendant has certain minimum contacts with the forum state. Here his contacts were held to be too attenuated to subject him to jurisdiction.
In Fraiberg v. Cuyahoga County Court, 667 N.E.2d 1189 (Ohio 1996), the parties had lived in Ohio throughout their marriage. Then they moved to Florida. They returned to Ohio for a visit and the wife remained there and filed an action for legal separation. An Ohio civil rule permitted service over a nonresident arising from the nonresident’s living in a marital relationship within the state. Even though Ohio’s long-arm statute did not contain a comparable provision, the civil rule controlled and the parties had spent more time in Ohio than in Florida. Also the majority of the marital assets were in Ohio and the acts allegedly giving rise to the wife’s action occurred in Ohio. Therefore, Ohio was ruled to have jurisdiction.
In C.L. v. W.S., 968 A.2d 211 (New Jersey App. 2009), jurisdiction over the nonresident father was affirmed in a parentage case. It was alleged that the child was conceived in New Jersey and this was considered sufficient. It was noted that both the New Jersey Long-Arm statute and the New Jersey version of UIFSA had a similar provision. Therefore, the Court’s decision was based on whether the exercise of long-arm jurisdiction was consistent with the Due Process clause. It was noted that caselaw distinguishes between cases where the cause of action directly relates to the defendant’s contacts with a state (specific jurisdiction) and when a cause of action is unrelated to those contacts (general jurisdiction). (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). With specific jurisdiction, one isolated act might be enough to subject the defendant to the jurisdiction of the forum. That was the case here; defendant was engaged to the plaintiff and he spent substantial time in New Jersey. It was held that these contacts in New Jersey established that he purposely availed himself of the privilege of engaging in sexual activity within New Jersey and that he should reasonably anticipate being brought into court in New Jersey if these actions resulted in the conception of a child. It was held that New Jersey also has an interest in providing a forum for a New Jersey resident to obtain support. See also Davis-Johnson v. Parmelee, 18 S.W.3d 347, 352 (Kentucky Court of Appeals 2000) (Jurisdiction found where both parties cohabited in the forum state; parentage could be decided, although support claim was untimely under this particular statute)
It was held however, in the C.L. v. W.S. case, although jurisdiction was found, that because the pleading did not have a claim for retroactive child support, that the judgment for $127,000.00 retroactive child support could not stand and that the case was remanded for a trial on that issue. It appears that merely adding the claim for retroactive child support might have saved that judgment on appeal.
On the other extreme is Katz v. Katz, 707 A.2d 1353 (New Jersey App. Division 1998). The issue in Katz was over college education expenses. In that case the parties were married in New Jersey but moved to Pennsylvania where they divorced. Thereafter plaintiff moved back to New Jersey. It was held that whatever jurisdiction New Jersey may have had over defendant many years ago, had evaporated over the years and that currently there was insufficient contact. This was despite the fact that there were certain contacts between the defendant and New Jersey, including that he was licensed to practice law there (but he did not practice there), that he was a limited partner in an entity which owned two buildings in New Jersey (but he only owned a very small percentage), and that his employer’s corporate headquarters were located in the forum state. Katz was a general jurisdiction case (and the court in C.L. v. W.S.distinguished Katz on that basis). It was also stated that under UIFSA and also the Restatement of Conflicts of Laws, Pennsylvania would continue to have jurisdiction over the child support issue.
LONG-ARM JURISDICTION AND UIFSA
Personal jurisdiction over employers dealing with support orders for withholding has been the subject of controversy. It is not an issue when you have a national or multinational corporation that does business in just about every state. But, sometimes there are smaller employers who only do business in one or a handful of states. Such a case recently occurred. Recently the Supreme Court of Illinois decided In re Marriage of Gulla and Kanaval, ______ N.E.2d ______, 2009 WL 1578521 (June, 2009). In that case a Mississippi employer was ordered to pay the former wife a penalty for failing to withhold child support from the employee’s wages. The Illinois statute contains a staggering $100.00 a day penalty for willful violation of this statute. In this case the former husband owed over $123,000.00 in past due support. A Uniform Order For Support was served on his Mississippi employer. Ultimately the trial court entered a $369,000.00 judgment against the employer and the Appellate Court affirmed. Upon further appeal the Supreme Court first dealt with the issue of personal jurisdiction. It was noted that the current financial connection between the former wife and her former husband’s employer was mandated by federal law (Query, can Congress override the Constitution?). In Title IV-D of the Social Security Act, Congress mandates that states enact withholding procedures, as a condition for receiving significant federal aid. Congress also mandated that the states adopt UIFSA (Uniform Interstate Family Support Act). UIFSA provides that an income withholding notice may be sent directly to the out of state employer. Unless the employee objects, the employer must begin to withhold. Section 502 of the model UIFSA requires the employer to treat an income withholding order issued in another state which appears regular on its face, as if it had been issued by a court of the employer’s state. The Court ruled there was “personal jurisdiction over (employer) because, as mandated by Congress, Mississippi essentially has directed (employer) to treat the income withholding notice as though it were issued by a Mississippi court. Based on the controlling statutes, we hold that these facts were sufficient to establish a prima facie case of personal jurisdiction over (employer).” However, the former wife’s victory was pyrrhic because since the jurisdictional basis required the employer to regard the notice as though it came from a Mississippi court, the Mississippi penalty applied. Whereas Illinois’ penalty was $100.00 a day, (resulting in the $369,000.00 judgment) the Mississippi statute carried a total maximum penalty of only $500.00. There is no doubt that the Mississippi employer did not purposely establish minimum contacts with Illinois. International Shoe Company v. Washington, 326 U.S, 310, 316 (1945).
The specially concurring opinion in Gulla pointed out the jurisdictional dilemma, noting that the International Shoe requirements were nowhere mentioned in the majority opinion. He also stated that mere receipt in Mississippi of the withholding order from Illinois, does not constitute purposeful availment of the privilege of conducting activities in Illinois. Hanson v. Denckla, 357 U.S. 235, 253 (1958). Chief Justice Fitzgerald did concur with the decision because he felt that the employer failed to provide a sufficient record on appeal to overturn the initial decision. He opined that sending the Illinois order to the employer in Mississippi, did not equal valid service of process. It was also noted that Section 201 of UIFSA requires jurisdiction to be exercised within constitutional limits. It was suggested that UIFSA does provide for registration of income withholding orders in the employer’s state, or administrative enforcement of these orders. The specially concurring opinion somewhat sarcastically concluded, “While these options may not be as expedient as the procedure the majority recognizes – simply haling the nonresident employer into Illinois – these options do have the advantage of preserving the nonresident employer’s due process rights.”
Although not that much tends to change in this area of the law for long periods of time, you must keep current because failure to do so can be disastrous to your client, and to you.
Paul L. Feinstein, a Chicago practitioner with over four decades of experience, practices family law with an emphasis on divorce litigation, consulting, and appeals. Paul is often hired by trial lawyers to handle appeals and to assist them with determining legal strategies and preserving a sufficient record at trial. He has belonged to the American Academy of Matrimonial Lawyers since 1991 and the Appellate Lawyers Association since 2010. He can be reached at (312) 346-6392. View his Divorce Magazine profile.
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