Clifton Franklin v. CW,D.S.S.,D.C.S.E., M. Franklin

• Court: Court of Appeals of Virginia
• Decided: April 14, 1998
• Docket: 1045974
• Status: Published

Opinion

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

2 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).

3 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."

4 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

5 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

6 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

9 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

11 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 5 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

12 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.

13 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.