Mori v. Mori

896 P.2d 1237, 266 Utah Adv. Rep. 11, 1995 Utah App. LEXIS 52, 1995 WL 327254
CourtCourt of Appeals of Utah
DecidedJune 1, 1995
Docket940251-CA
StatusPublished
Cited by3 cases

This text of 896 P.2d 1237 (Mori v. Mori) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mori v. Mori, 896 P.2d 1237, 266 Utah Adv. Rep. 11, 1995 Utah App. LEXIS 52, 1995 WL 327254 (Utah Ct. App. 1995).

Opinion

*1238 OPINION

BENCH, Judge:

Appellant filed this interlocutory appeal challenging the trial court’s assertion of jurisdiction over him in Appellee’s attempt to “register” a Japanese divorce decree in Utah. We remand the case for further proceedings.

FACTS

Appellant was born and raised in Utah. He and Appellee met and courted while both attended Brigham Young University in Provo. The parties were married in West Jordan in 1983. For a few days after the marriage, the parties stayed in Utah with Appellant’s parents. The parties then departed for New York, where Appellant attended graduate school. After Appellant obtained his graduate degree, the couple moved to Japan on a work assignment. The parties’ only child was born in 1986.

On May 25,1987, the parties were divorced by order of the Tokyo Family Court. The Tokyo decree provided for property distribution, support, and custody of the couple’s child as follows:

a) Custody of the child to Appellee with visitation provision for Appellant and his parents;
b) Appellant to pay Appellee $20,000 at the time of the divorce and another $10,000 by January 1989;
c) Appellant to pay child support of $800 per month and cover medical and accident insurance for the child;
d) Appellant to purchase a house at 1698 North 80 West, Orem, Utah.

Pursuant to the Tokyo divorce decree, Appellant purchased the house in Orem. Ap-pellee and the child moved into the Orem house. Appellant moved from Tokyo, Japan, to London, England, but has made mortgage and child support payments from a Utah bank account.

In 1991, Appellee filed a complaint in Utah seeking “registration” of the Tokyo Family Court’s decree. Appellant made a special appearance to challenge jurisdiction, to quash service of process, to oppose enlargement of time for service of process, and to strike an affidavit supporting service of process by alternative means. The trial court denied Appellant’s challenge to jurisdiction and accepted Appellee’s alternate service of process. Appellant again made a special appearance to challenge the trial court’s jurisdiction to adopt the Tokyo divorce decree. The trial court again denied Appellant’s jurisdictional challenge. This court granted Appellant permission to pursue an interlocutory appeal.

ANALYSIS

Service of Process

Appellant argues that the court erred in allowing alternative service of process and enlargement of time for service. Appellee had difficulty serving Appellant and moved the court to enlarge time for service and to allow for service on Appellant’s secretary, receptionist, or wife. The motion was accompanied by an affidavit of Appellee’s counsel. The trial court permitted Appellee to enlarge time and to effectuate service on Appellant by alternative means. Appellant claims that the “necessary foundation was not established to permit alternative service of process or enlargement of time for service of process.”

Pursuant to Rule 4 of the Utah Rules of Civil Procedure, trial courts have discretion to determine the type of process to be served upon parties “provided that the means of notice employed shall be reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action to the extent reasonably possible or practicable.” Utah R.Civ.P. 4(g). The record shows that previous efforts to serve process on Appellant had been unsuccessful. Therefore, pursuant to Rule 4(g), the court properly allowed Appellee to personally serve Appellant’s secretary, receptionist, or wife. Support for the trial court’s order is found in the affidavit that accompanied the motion and in counsel’s amended supplemental affidavit. The supplemental affidavit showed proof of attempted service in Clare-mont, California, receipts of registered mail to London, England, and signed affidavits of service. The court permitted Appellee to file *1239 the supplemental affidavit pursuant to Rule-4(i), which states:

At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Utah R.Civ.P. 4(i). Under the circumstances of this case, the court did not abuse its discretion in allowing Appellee’s counsel to amend and supplement his affidavit to support service of process by alternative methods.

Personal Jurisdiction

The trial court determined that it had general jurisdiction over Appellant. It is undisputed that Appellant has not resided in Utah since 1983. The contacts that Appellant has had with Utah since he left the state have not been “substantial and continuous.” Arguello v. Industrial Woodworking Mach. Co., 838 P.2d 1120, 1122 (Utah 1992). Thus, Utah courts cannot assert general jurisdiction over Appellant.

The trial court also determined that it had specific jurisdiction over Appellant. The circumstances under which Utah courts can assert specific jurisdiction were recently explained in Radcliffe v. Akhavan, 875 P.2d 608, 611-12 (Utah App.1994). This court stated that

“[t]o determine whether Utah courts can exercise personal jurisdiction over nonresidents, a two-part test must be met. First, the claim against the nonresident defendant must arise from the activities enumerated in the Utah long-arm statute.” Anderson v. American Soc’y of Plastic Surgeons, 807 P.2d 825, 827 (Utah 1990). Second, the defendant’s contacts with Utah must be sufficient to allow jurisdiction to be exercised without violating the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Id. at 828. 1

Id. at 611; accord Rocky Mountain Claim Staking v. Frandsen, 884 P.2d 1299, 1301 (Utah App.1994).

The first part of the Radcliffe test requires that the claim arise from activities enumerated in the Utah long-arm statute. Our long-arm statute specifically provides for divorce and support claims against nonresidents.

Any person ... who in person or through an agent does any of the following enumerated acts, submits himself ... to the jurisdiction of the courts of this state as to any claim arising from:
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(6) with respect to actions of divorce, separate maintenance, or child support, [i] having resided, in the marital relationship, within this state notwithstanding subsequent departure from the state; Or

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Cite This Page — Counsel Stack

Bluebook (online)
896 P.2d 1237, 266 Utah Adv. Rep. 11, 1995 Utah App. LEXIS 52, 1995 WL 327254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mori-v-mori-utahctapp-1995.