Kulko v. Superior Court

564 P.2d 353, 19 Cal. 3d 514, 138 Cal. Rptr. 586

Opinions

Opinion

SULLIVAN, J.

*

In this proceeding brought pursuant to section 418.10, subdivision (c), of the Code of Civil Procedure, petitioner Ezra Kulko seeks a writ of mandate directing respondent superior court to vacate its order denying petitioner’s motion to quash service of summons for lack of jurisdiction in the underlying action, to establish a foreign judgment of divorce, and to grant said motion. We have concluded that the trial court correctly denied the motion. We deny the petition.

Viewing the evidence under the well-settled rules governing review of an order based on affidavits,¹ we set forth the pertinent facts.

On September 25, 1972, after 13 years of married life, real party in interest Sharon Kulko (hereafter plaintiff) was granted a decree of divorce from petitioner Ezra Kulko (hereafter defendant) by the Civil Court of Port-au-Prince in the Republic of Haiti. There were two children bom of the marriage: Darwin, bom June 23, 1961, and lisa, bom July 10, 1962. Under a written separation agreement, entered into by the parties in New York, their marital domicile, and thereafter attached to and made a part of the decree, it was agreed that during the period of the year when they were attending school Darwin and lisa should reside with and remain in the care, custody and control of defendant and that during the summer months and Christmas and Easter vacation weeks, they should reside with and remain in the care, custody and control of plaintiff. The agreement recited that defendant resided in New York and plaintiff in San Francisco. Defendant agreed to pay $3,000 annually for the support of the children during the time they resided with their mother in California.

During 1973, in accordance with the agreement, both children were sent to San Francisco and returned to New York. However, in December 1973, on the eve of her departure to spend the Christmas vacation with her mother, lisa informed her father that she wanted to live in California with her mother. Defendant thereupon purchased a one-way airplane ticket for her and she left with all her clothes. Throughout 1974 and 1975 lisa resided with her mother in California during the school year and with her father in New York during the summer. At the end of each summer, defendant provided her with an airplane ticket and she returned to live with her mother in San Francisco during the school year.

Meanwhile, throughout this period Darwin had continued to live with his father during the school year and his mother during the summer and on vacation. On January 10, 1976, Darwin telephoned plaintiff from New York, informing her that he was in trouble, that his father did not want him and that he. wished to come to San Francisco to live with her. She sent him an airplane ticket and he immediately joined her in San Francisco.

Three weeks later, on February 5, 1976, plaintiff commenced the underlying action to establish the Haitian divorce as a judgment of this state, to award custody of the children to plaintiff and to receive increased child support from defendant. On the same day, the trial court granted plaintiff temporary custody of Darwin and lisa and restrained both parties from removing the children from plaintiff’s home. Defendant, who had been served with summons by mail in New York, made a special appearance in California and moved for an order to quash service of summons (Code Civ. Proc., § 418.10, subd. (a)(1)) for lack of personal jurisdiction in that he was not a resident of California and did not have the requisite minimum contacts with California to satisfy due process requirements. Defendant supported his motion with two personal affidavits and plaintiff responded with an affidavit in opposition. The trial court denied the motion. This proceeding for a writ of mandate followed. (Code Civ. Proc., § 418.10, subd. (c).)

No contention is made before us that the trial court lacked jurisdiction to determine the custody of Darwin and Ilsa. (See Civ. Code, § 5152; Titus v. Superior Court (1972) 23 Cal.App.3d 792, 797-798 [100 Cal.Rptr. 477]; see Sampsell v. Superior Court (1948) 32 Cal.2d 763, 777-779 [197 P.2d 739]; Rest.2d Conflict of Laws, § 79, pp. 237-240.) However, in order to impose upon defendant a personal liability to support the children, the court must secure personal jurisdiction over him. {Titus v. Superior Court, supra, 23 Cal.App.3d 792, 799; Schoch v. Superior Court (1970) 11 Cal.App.3d 1200, 1207 [90 Cal.Rptr. 365].) In order to secure personal jurisdiction over a nonresident defendant by service of summons by mail outside California, the trial court must have power to exercise such jurisdiction under section 410.10 of the Code of Civil Procedure which provides: “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” This section includes all the recognized bases of judicial jurisdiction (Quattrone v. Superior Court (1975) 44 Cal.App.3d 296, 302 [118 Cal.Rptr. 548]; Judicial Council comment to Code Civ. Proc., § 410.10, 14 West’s Ann. Code Civ. Proc. (1973 ed.) p. 459) and manifests an intent that the courts of California utilize all such bases, limited only by constitutional considerations. (Sibley v. Superior Court (1976) 16 Cal.3d 442, 445 [128 Cal.Rptr. 34, 546 P.2d 322].)

As we explained in Sibley, “One of the recognized bases for jurisdiction in California arises when the defendant has caused an ‘effect’ in the state by an act or omission which occurs elsewhere.” (16 Cal.3d at p. 445; see also Judd v. Superior Court (1976) 60 Cal.App.3d 38, 43 [131 Cal.Rptr. 246]; Quattrone v. Superior Court, supra, 44 Cal.App.3d 296, 304-306; Titus v. Superior Court, supra, 23 Cal.App.3d 792, 801-802.) It is at once apparent that the potential scope of this basis of jurisdiction is almost unlimited since any act or omission of a defendant anywhere in the world causing an “effect” in California could theoretically subject him to in personam jurisdiction in California. If this theoiy of jurisdiction were carried out to its full extremes, it is obvious that it would discourage those outside California from, having any contacts or relations with persons living in our state. It has therefore been recognized that the mere causing of an effect in California is not necessarily sufficient to supply a constitutional basis for jurisdiction. “A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an omission or act done elsewhere with respect to causes of action arising from these effects, unless the nature of the effects and of the individual’s relationship to the state make the exercise of such jurisdiction unreasonable.” (Judicial Council comment to Code Civ. Proc., § 410.10, 14 West’s Ann. Code Civ. Proc. (1973 ed.) p. 472.) In Sibley, after alluding to the principles set forth by the United States Supreme Court in International Shoe v. Washington (1945) 326 U.S. 310, 316-317 [90 L.Ed. 95, 101-103, 66 S.Ct. 154, 161 A.L.R. 1057], and in Hanson v. Denckla (1958) 357 U.S. 235, 253 [2 L.Ed.2d 1283, 1297, 78 S.Ct. 1228], we attempted to distill the criteria for determining whether or not the exercise of jurisdiction over a nonresident on this basis was reasonable. We emphasized the importance of a showing on the record that the nonresident “purposefully availed himself of the privilege of conducting business in California or of the benefits and protections of California laws . . . [or] anticipated that he would derive any economic benefit as a result of his” act outside of California. (16 Cal.3d at p. 447.) We conclude therefore that once it has been established that a nonresident defendant has caused an effect in this state by an act or omission elsewhere, the reasonableness of exercising personal jurisdiction over him on this basis may be determined according to the above criteria.

In the case at bench, we are called upon to apply the foregoing principles to an important area of family law, namely acts or omissions by nonresident parents outside of California which affect their children, and their relationship with their children, who are physically present in California. Initially we observe that probably no parental act more fully invokes the benefits and protections of California law than that by which a parent permits his minor child to live in California. The parent thereby avails himself of the total panoply of the state’s laws, institutions and resources—its police and fire protection, its school system, its hospital services, its recreational facilities, its libraries and museums, to mention only a few. Therefore, we start with the premise that a nonresident parent who allows his minor child or children to reside in California has by that act purposely availed himself of the benefits and protections of the laws of California to such an extent that absent unusual circumstances or countervailing public policies such act would support personal jurisdiction over the nonresident parent for actions concerning the support of these children.

Two recent opinions by the Courts of Appeal have identified strong public policies affecting the reasonableness of asserting personal jurisdiction over nonresident parents of children physically present in the state. In Titus v. Superior Court, supra, 23 Cal.App.3d 792, 803, the court said: “It is a strong policy of the law to encourage the visitation of children with their parents. Such a policy should be fostered rather than thwarted.” In Judd v. Superior Court, supra, 60 Cal.App.3d 38, 45, a different appellate district declared: “It should be a matter of strong public policy to encourage the payment of support and communication between a natural father and his children, not to discourage the same by subjecting the father to the expense and inconvenience of relitigating this matter of support in our state.” In each case the Court of Appeal, upon application of these strong public policies to the particular facts before it, concluded that it would be unreasonable to impose personal jurisdiction.

In Titus, the father, who had custody of the children under a Massachusetts divorce decree, sent the children to California to visit their mother for the summer, pursuant to a subsequent written custody agreement. The agreement specified that the children were to be returned to the father in Massachusetts by the end of August. The mother, in breach of the agreement, retained the children and brought an action in California to establish the foreign divorce decree as a judgment, to obtain custody of the children and to secure support payments from the father. While the father may have in a sense purposely availed himself of the benefits and protections of the laws of California by sending his children here, his purpose was merely to have them visit their mother for a limited time and in compliance with the written agreements between the parents, which also provided for child support payments by him to the mother during the visit. It was clear that the purpose of the father’s act was supported by a strong policy of the law which would be thwarted if the parent thereby became subject to personal jurisdiction. “If a parent, who has custody of his children, is faced with the prospect of submitting himself to the jurisdiction of another state by the mere act of sending his children to that state for the purpose of visiting with the other parent, it is reasonable to assume that he would refrain from doing so rather than running such risk, particularly in view of the inconvenience and costs attendant to litigating in another state.” (23 Cal.App.3d at p. 803.)

In Judd, the parties had lived in New York and Connecticut until their separation. They entered into a written separation agreement and the wife then obtained a Mexican divorce decree which incorporated the terms of the separation agreement. She then moved to California with the minor children of whom she had custody. The father never resided in California but visited the children there and, pursuant to their agreement, sent the mother spousal and child support payments. Ten years after her Mexican divorce, the mother filed a petition for dissolution of marriage in California, seeking among other things custody of the children and spousal and child support. The Court of Appeal issued a writ of mandate directing the quashing of the service of summons on the father insofar as the summons purported to exercise personal jurisdiction over the father for spousal and child support. In Judd the father had not purposely availed himself of the protections and benefits of the laws of California since he had never had custody of the children and had not sent them to California. The Court of Appeal concluded that it would be neither fair nor reasonable to hold that this state acquired jurisdiction over the father merely because he sent support payments to California, communicated with his children by mail or telephone, and visited them here, since to do so would thwart the public policy of encouraging a parent’s support of, and communication with his children.

In the case at bench, defendant sent lisa to California in December 1973 to visit her mother for the Christmas vacation in accordance with terms of the separation agreement incorporated in the divorce decree. Under Titus it is clear that this act in itself would not confer jurisdiction over defendant. At that time, however, defendant knew that lisa wanted to stay permanently with her mother in California and in apparent recognition of this desire he purchased for lisa only a one-way ticket and allowed her to take all her clothing. These facts would suggest that defendant at least contemplated surrendering custody of lisa to the mother in California and sent her to California with an apparent intention of allowing her to remain and thereafter reside permanently there. This intention was finalized in 1974 when lisa returned to New York to spend the summer with defendant. At the end of the summer, he bought her a ticket to return to California to live with her mother for the school year. The same procedure was repeated in the summer of 1975. Thus it is clear that defendant actively and fully consented to lisa living in California for the school year and that he twice sent her to California for that purpose. Here, unlike Titus, defendant did not send lisa to California for a mere temporary visit, but for permanent residence with plaintiff subject only to summer visits in New York. By doing so, defendant purposely availed himself of the full protection and benefit of California laws for the care and protection of lisa on a permanent basis. In view of the factor of lisa’s permanent residence here, we apprehend no thwarting of the public policy supported by the Titus court.

We deem it fair and reasonable to extend the jurisdiction of the courts of this state over defendant on the basis of his acts of sending lisa into this state to reside permanently with her mother. Not only has defendant by these acts availed himself of the full benefit and protection of the laws of this state, but he has also derived immediate economic benefit from them. Under the terms of the decree, he had custody of lisa and was liable for her support while she lived with him. He paid support to the mother under the decree only for the summer, Christmas and Easter vacations. Therefore, by allowing the child to live with the mother throughout the school year, he was no longer liable for the child’s support for that period—a clear economic benefit.

We observe, however, that while defendant’s acts with respect to lisa form a basis to confer personal jurisdiction over him, he has not by any act or omission outside California with respect to his other child, Darwin, caused an effect in this state which independently of the foregoing considerations would confer such jurisdiction. It will be recalled that Darwin came to California to live permanently with his mother at his own request, by an airplane ticket paid for and sent to him by his mother, and without defendant’s knowledge. It would appear that subsequently defendant consented to this fait accompli in that he has not undertaken any action to retrieve the child and has even indicated his assent to this state of affairs by letter. Nevertheless, although he has consented to Darwin’s permanent residence in California, and he will thereby derive economic benefit by no longer being liable for Darwin’s support throughout the school year, the fact remains that he at no time undertook any affirmative act to purposely avail himself of the benefit and protection of the laws and institutions of this state. He did not send Darwin to California, nor indeed know of the latter’s departure from New York beforehand. Therefore, under the principles set forth above, defendant would not have been subject to jurisdiction in personam in California for Darwin’s support, if Darwin were the sole child of the parties.

Nonetheless, we conclude that this fact does not deprive the court of personal jurisdiction over defendant for the support of both children since the support of both is presented as a single issue in the underlying action. The separation agreement, which was incorporated into the Haitian decree sought to be established as a judgment of this state, provided for the payment of $3,000 annually for the support of both children. The complaint seeks support for both children. Defendant’s motion to quash and supporting affidavits assert lack of jurisdiction over both children. We deem it fair and reasonable for defendant to be subject to personal jurisdiction for the support of both children, where he has committed acts with respect to one child which confers personal jurisdiction and has consented to the permanent residence of the other child in California.²

The alternative writ of mandate is discharged and the petition for a peremptory writ is denied.

Tobriner, Acting C. J., Mosk, J., and Wright, J.,* concurred.

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.

1 “ ‘An appellate court will not disturb the implied findings of fact made by a trial court in support of an order, any more than it will interfere with express findings upon which a final judgment is predicated. When the evidence is conflicting, it will be presumed that the court found every fact necessary to support its order that the evidence would justify. So far as it has passed on the weight of evidence or the credibility of witnesses, its implied findings are conclusive. This rule is equally applicable whether the evidence is oral or documentary. In the consideration of an order made on affidavits involving the decision of a question of fact, the appellate court is bound by the same rule as where oral testimony is presented for review.’ [Citations.] When an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed.” (Griffith Co. v. San Diego Col. for Women (1955) 45 Cal.2d 501, 507-508 [289 P.2d 476, 47 A.L.R.2d 1349]; see also Lynch v. Spilman (1967) 67 Cal.2d 251,259 [62 Cal.Rptr. 12,431 P.2d 636]; Doak v. Bruson (1907) 152 Cal. 17, 19 [91 P. 1001]; Detsch & Co. v. Calbar, Inc. (1964) 228 Cal.App.2d 556, 563 [39 Cal.Rptr. 626]; DeWit v. Glazier (1957) 149 Cal.App.2d 75, 81-82 [307 P.2d 1031].)

2 To the extent that Starr v. Starr (1953) 121 Cal.App.2d 633 [263 P.2d 675], is inconsistent with the views expressed in this opinion, it is disapproved.

Retired Chief Justice of California sitting under .assignment by the Acting Chairman of the Judicial Council.