Opinion · Kansas Court Opinions
SWARTS v. DEAN, 13 Kan. App. 2d 228 (1989)
SARA ANN (DEAN) SWARTS, Appellant, v. JOHN WILLARD DEAN, JR., Appellee., 766 P.2d 1291 (Kan. Ct. App. 1989)
- Type
- Opinion
- Court
- Kansas Court Opinions
- Jurisdiction
- Kansas
- Date
- 1989-01-13
- Topic
- general
SWARTS v. DEAN, 13 Kan. App. 2d 228 (1989) 766 P.2d 1291 SARA ANN (DEAN) SWARTS, Appellant, v. JOHN WILLARD DEAN, JR., Appellee. No. 62,238Court of Appeals of Kansas Opinion filed January 13, 1989 SYLLABUS BY THE COURT 1.
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SWARTS v. DEAN,13 Kan. App. 2d 228(1989)
766 P.2d 1291
SARA ANN (DEAN) SWARTS,Appellant,v. JOHN WILLARD DEAN, JR.,Appellee.
No. 62,238
Court of Appeals of Kansas
Opinion filed January 13, 1989
1. CIVIL PROCEDURE —Personal Service — Service on NonresidentDefendant.Minimum contacts analysis is applied to cases in which a nonresident defendant is served with process outside the forum state; such analysis is not required when a defendant is personally served while physically present within the forum state.
2. SAME —Personal Service — Service on Nonresident Defendant— Jurisdiction of Forum State over Nonresident Father ofMinor Children in Action to Increase Child Support.Personal service upon a nonresident former husband while temporarily physically present in Kansas is sufficient to confer personal jurisdiction over him in an action to increase child support.
3. JURISDICTION —Forum Non Conveniens — Determination byTrial Court.Applicability of the theory of inconvenient forum is a factual consideration which must be determined by the trial court and may not be considered in the first instance on appeal.
4. SAME —Child Support — Subject Matter Jurisdiction of Courtin Action to Increase Support from Nonresident Parent.The trial court has subject matter jurisdiction over an action in Kansas to increase child support based upon an absent parent's common-law duty.
Before DAVIS, P.J., JACK L. BURR, District Judge, assigned, and DANIEL L. HEBERT, District Judge, assigned.
On January 6, 1988, Swarts filed in the District Court of Johnson County, Kansas, a motion to modify the child support order. Dean was personally served with summons on January 7,Page 2291988, while visiting his children in Kansas. The motion to modify was thereafter dismissed by the district court, citing lack of personal jurisdiction over Dean. Swarts timely appeals.
The trial court based its dismissal upon the decision of the United States Supreme Court inKulko v. California SuperiorCourt,436 U.S. 84,56 L.Ed.2d 132,98 S.Ct. 1690(1978). We find this reliance to be misplaced since there is a significant factual distinction betweenKulkoand the instant case.
InKulko, the couple was married in California, subsequently lived in New York, and obtained a divorce in Haiti. The mother returned to California, where the children resided with her during vacations. The children resided with the father in New York during the school year. The mother subsequently filedinCaliforniaa motion to modify custody; the father was served with process inNew York.
In the instant case, the children resided with their mother in Kansas, the motion was filed in Kansas, and the father was personally served with a Kansas court summons while physically present in Kansas. Such personal service is proper under K.S.A. 1987 Supp.60-304(a)(1).
TheKulkodecision was premised upon the "minimum contacts" analysis formulated by the United States Supreme Court inInternational Shoe Company v. State of Washington,326 U.S. 310,316,90 L.Ed. 95,66 S.Ct. 154(1945):
"[D]ue process requires only that in order to subject a defendant to a judgment in personam,if he be notpresent within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." (Emphasis added.)
The Court inKulkoconsidered the minimum contacts analysis as applied inShaffer v. Heitner,433 U.S. 186,198-200,53 L.Ed.2d 683,97 S.Ct. 2569(1977), and concluded that it was improper to find personal jurisdiction in a state "merely because the mother was residing there."436 U.S. at 93.
WhileKulkoandShaffermake clear that a motion to modify child custody or support does not provide a state withlong-armjurisdiction over a respondent absent significant contact with the forum state, neither of these cases addresses the question of personal servicewithinthe forum state.
A number of decisions subsequent toShafferandKulkohave considered the general proposition that personal service withinPage 230the forum state remains sufficient to confer jurisdiction.Opertv. Schmid,535 F. Supp. 591,593(S.D.N.Y. 1982), stated:
"[I]t is black letter law that personal service within its geographical area establishes a court's personal jurisdiction over a defendant. [Citations omitted.]"
InAmusement Equipment, Inc. v. Mordelt,779 F.2d 264,270(5th Cir. 1985), the court offered the following analysis:
"While the due process clause necessarily restricts the state's sovereign power, no case has yet held that it eliminates that power altogether. That the requirement of personal jurisdiction rests in all cases on the due process clause does not weaken the proposition that the exercise of jurisdiction, as distinguished from its limitation, is a sovereign act.If there is anything that characterizessovereignty, it is the state's dominion over itsterritory and those within it." (Emphasis added.)
Several state courts have reached the same conclusion. InInre Marriage of Pridemore,146 Ill. App.3d 990,497 N.E.2d 818(1986), the petitioner filed a petition in Illinois to modify a Tennessee divorce decree to increase child support payments. The nonresident respondent was personally served while in Illinois attending his parents' wedding anniversary. The court held:
"[T]he Supreme Court has not imposed a minimum contacts requirement on a State's assertion of jurisdiction over a natural person who is personally served within its boundaries. . . . [M]ere presence of the person in this State is a sufficient basis upon which to establish personal jurisdiction over him."146 Ill. App.3d at 992.
The North Carolina Supreme Court considered the issue inLockert v. Breedlove,321 N.C. 66,361 S.E.2d 581(1987), and concluded:
"[T]he minimum contacts test is inapplicable to cases in which the defendant is personally served within the forum state. [Citations omitted.] . . . NeitherInternational Shoenor its progeny have questioned the constitutionality of a state's exercise of personal jurisdiction based solely on personal service within its borders."321 N.C. at 69,71.
North Carolina subsequently applied personal service jurisdiction inJenkins v. Jenkins,89 N.C. App. 705,367 S.E.2d 4(1988), to facts similar to the present case. Following a Tennessee divorce, the husband moved to Georgia and the wife moved to North Carolina where she filed a motion to modify child support. The husband was served with process while temporarily in North Carolina in connection with his employment. The court held that personal service conferred personal jurisdictionPage 231and the minimum contacts test of due process was inapplicable.89 N.C. App. at 706. SeeStevens v. Stevens,44 Colo. App. 252,611 P.2d 590(1980).
We conclude that personal service upon Dean while he was physically present within the State of Kansas was sufficient to confer personal jurisdiction over him and that the trial court erred in dismissing the motion to modify.
Dean next contends that, even if the trial court had personal jurisdiction, it should dismiss the action because Kansas is an inconvenient forum. The trial court did not address this issue in its written order of dismissal. The applicability of the theory of inconvenient forum is a factual consideration which must be determined by the trial court and may not be considered in the first instance by an appellate court.
Dean finally argues that the trial court lacks subject matter jurisdiction over a common-law motion to modify support. The trial court did not address this issue in its written order of dismissal; statements on the record, however, suggest an opinion that proceeding through the Uniform Reciprocal Enforcement of Support Act was at least a prerequisite, if not the exclusive means of seeking modification.
InDipman v. Dipman,6 Kan. App. 2d 844,845,635 P.2d 1279(1981), this court clearly stated:
"Jurisdiction to determine a parent's duty to support a minor child has been held to proceed in Kansas from three sources: (1) K.S.A. 1980 Supp.60-1610(a) (pertaining to Kansas divorces); (2) K.S.A.23-451et seq.(Uniform Reciprocal Enforcement of Support Act); and (3) common law concepts ofparens patriae. Keller v. Guernsey,227 Kan. 480,608 P.2d 896(1980)."
K.S.A.38-1121and38-1123also set forth provisions governing the establishment and collection of child support obligations under certain circumstances. However, there is no statute which establishes any priority or prerequisite to the filing of an action in Kansas to increase child support based upon the absent parent's common-law duty.
Reversed and remanded.Page 232