F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 14 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
In re: MICHAEL R. READ, also known as Michael Read, also known as Mike Read,
Debtor, No. 99-5226 (D.C. No. 98-CV-887-BU) (N.D. Okla.) MICHAEL R. READ
Appellant,
v.
SHAWNA K. DUNN; SHANNON DAVIS,
Appellees.
ORDER AND JUDGMENT *
Before TACHA , PORFILIO , and EBEL , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Michael R. Read appeals from an order of the district court
affirming a decision of the bankruptcy court that upholds a state court order for
Read to pay child support to his ex-wife, appellee Shawna K. Dunn, and
attorney’s fees and costs to her attorney, appellee Shannon Davis. Read argues
that the bankruptcy court should not have given full faith and credit to the default
judgment entered against him in the state divorce proceeding because the notice
by publication Dunn used for service was insufficient to vest the state court with
personal jurisdiction over him. We have jurisdiction under 28 U.S.C. § 1291.
The following relevant facts appear in the record. Read and Dunn were
married in 1987. One child, Alicia, was born during the marriage. Read and
Dunn separated in 1988, and Read moved to New Jersey in 1989. See Appellant’s
App. at 18. Dunn remained in Oklahoma, filing for divorce in February 1990.
Although she had Read’s last known address in Oklahoma, she sought and
received court permission to serve the divorce petition upon Read by publication.
See id. at 6, 9. He did not answer it. The state court entered a default judgment
against Read on April 30, 1990, ordering him to pay Dunn $403.20 per month in
child support. Dunn filed a contempt proceeding in state court in December 1996
to enforce the judgment, after Read moved back to Oklahoma. Read entered a
-2- special appearance for the purpose of contesting the state court’s jurisdiction. He
then filed a petition to vacate the divorce decree, arguing that he was never
properly served in the divorce action and that the state court had no jurisdiction to
enter a default judgment against him. The state court held in May 1997 that Read
was properly served under state law and the divorce decree was valid, and ordered
Read to pay Dunn $403.20 per month in child support, $32,659.20 in unpaid child
support, $11,528.33 in interest, and $4,000.00 in attorney’s fees and costs. See
id. at 25-27; Appellee’s Supp’l App. at 40-41, 43. The Oklahoma Court of Civil
Appeals considered Read’s appeal on the merits and rejected it in a memorandum
opinion. See Appellant’s App. at 29-34. The Oklahoma Supreme Court denied
certiorari. See id. at 35.
Read then filed the underlying bankruptcy petition. He initiated this
adversary proceeding, seeking to block enforcement of the state court orders for
child support, interest, and attorney’s fees in his bankruptcy plan. See id. at 36.
On cross-motions for summary judgment, the bankruptcy court determined, based
on Oklahoma law, that Read had a full and fair opportunity to litigate the alleged
jurisdictional defects in the state courts and was collaterally estopped from raising
the same issues again in the bankruptcy proceeding. See id. at 113-16. The
bankruptcy court further concluded that Oklahoma laws providing for notice by
publication are constitutional. See id. at 116-17. Accordingly, the bankruptcy
-3- court denied Read’s motion for summary judgment and granted Dunn’s
cross-motion for summary judgment. See id. at 121. The district court adopted
the magistrate judge’s recommendation that the bankruptcy court’s decision be
affirmed, see id. at 150-59, and rejected Read’s petition for rehearing, see id.
at 164.
Read argues on appeal that: (1) notice by publication is a per se denial of
due process; (2) the state court judgment is void on its face and therefore may be
collaterally attacked in the bankruptcy proceeding; and (3) he is not barred from
raising new arguments for the first time on appeal to the district court because his
new arguments concern matters of subject matter jurisdiction.
We find no error. Under the Full Faith and Credit Act, federal courts
generally should respect state court judgments. See 28 U.S.C. § 1738; Matsushita
Elec. Indus. Co. v. Epstein , 516 U.S. 367, 373 (1996). In deciding whether the
state court’s judgment challenged here is entitled to preclusive effect, we
determine only whether it: (1) was entitled to preclusive effect under Oklahoma
law, see Fox v. Maulding , 112 F.3d 453, 456 (10th Cir. 1997); and (2) satisfied
minimum standards of federal due process, see Kremer v. Chemical Constr. Corp. ,
456 U.S. 461, 482 (1982). Read does not argue that the state divorce decree was
not entitled to preclusive effect under state law. Rather, he argues that it did not
comport with federal due process requirements. We disagree.
-4- The Supreme Court has “not hesitated to approve of resort to publication as
a customary substitute in [any] class of cases where it is not reasonably possible
or practicable to give more adequate warning.” Mullane v. Central Hanover Bank
& Trust Co. , 339 U.S. 306, 317 (1950). In the case of a missing person, notice by
publication “creates no constitutional bar to a final decree foreclosing [the
missing party’s] rights.” Id. A due process violation arises when notice is not
“‘reasonably calculated, under all circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present their
objections.’” Mennonite Bd. of Missions v. Adams , 462 U.S. 791, 795 (1983)
(quoting Mullane , 339 U.S. at 314). If Read’s address had been known to Dunn,
see id. , or “could have been ascertained by reasonably diligent efforts” by Dunn,
id. at 798 n.4, notice by publication would not have been sufficient. Read does
not argue that was the case here.
The state court’s divorce decree is not void for lack of personal or subject
matter jurisdiction unless the defect appears on the face of the record. See Dana
P. v.
Free access — add to your briefcase to read the full text and ask questions with AI
F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 14 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
In re: MICHAEL R. READ, also known as Michael Read, also known as Mike Read,
Debtor, No. 99-5226 (D.C. No. 98-CV-887-BU) (N.D. Okla.) MICHAEL R. READ
Appellant,
v.
SHAWNA K. DUNN; SHANNON DAVIS,
Appellees.
ORDER AND JUDGMENT *
Before TACHA , PORFILIO , and EBEL , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Michael R. Read appeals from an order of the district court
affirming a decision of the bankruptcy court that upholds a state court order for
Read to pay child support to his ex-wife, appellee Shawna K. Dunn, and
attorney’s fees and costs to her attorney, appellee Shannon Davis. Read argues
that the bankruptcy court should not have given full faith and credit to the default
judgment entered against him in the state divorce proceeding because the notice
by publication Dunn used for service was insufficient to vest the state court with
personal jurisdiction over him. We have jurisdiction under 28 U.S.C. § 1291.
The following relevant facts appear in the record. Read and Dunn were
married in 1987. One child, Alicia, was born during the marriage. Read and
Dunn separated in 1988, and Read moved to New Jersey in 1989. See Appellant’s
App. at 18. Dunn remained in Oklahoma, filing for divorce in February 1990.
Although she had Read’s last known address in Oklahoma, she sought and
received court permission to serve the divorce petition upon Read by publication.
See id. at 6, 9. He did not answer it. The state court entered a default judgment
against Read on April 30, 1990, ordering him to pay Dunn $403.20 per month in
child support. Dunn filed a contempt proceeding in state court in December 1996
to enforce the judgment, after Read moved back to Oklahoma. Read entered a
-2- special appearance for the purpose of contesting the state court’s jurisdiction. He
then filed a petition to vacate the divorce decree, arguing that he was never
properly served in the divorce action and that the state court had no jurisdiction to
enter a default judgment against him. The state court held in May 1997 that Read
was properly served under state law and the divorce decree was valid, and ordered
Read to pay Dunn $403.20 per month in child support, $32,659.20 in unpaid child
support, $11,528.33 in interest, and $4,000.00 in attorney’s fees and costs. See
id. at 25-27; Appellee’s Supp’l App. at 40-41, 43. The Oklahoma Court of Civil
Appeals considered Read’s appeal on the merits and rejected it in a memorandum
opinion. See Appellant’s App. at 29-34. The Oklahoma Supreme Court denied
certiorari. See id. at 35.
Read then filed the underlying bankruptcy petition. He initiated this
adversary proceeding, seeking to block enforcement of the state court orders for
child support, interest, and attorney’s fees in his bankruptcy plan. See id. at 36.
On cross-motions for summary judgment, the bankruptcy court determined, based
on Oklahoma law, that Read had a full and fair opportunity to litigate the alleged
jurisdictional defects in the state courts and was collaterally estopped from raising
the same issues again in the bankruptcy proceeding. See id. at 113-16. The
bankruptcy court further concluded that Oklahoma laws providing for notice by
publication are constitutional. See id. at 116-17. Accordingly, the bankruptcy
-3- court denied Read’s motion for summary judgment and granted Dunn’s
cross-motion for summary judgment. See id. at 121. The district court adopted
the magistrate judge’s recommendation that the bankruptcy court’s decision be
affirmed, see id. at 150-59, and rejected Read’s petition for rehearing, see id.
at 164.
Read argues on appeal that: (1) notice by publication is a per se denial of
due process; (2) the state court judgment is void on its face and therefore may be
collaterally attacked in the bankruptcy proceeding; and (3) he is not barred from
raising new arguments for the first time on appeal to the district court because his
new arguments concern matters of subject matter jurisdiction.
We find no error. Under the Full Faith and Credit Act, federal courts
generally should respect state court judgments. See 28 U.S.C. § 1738; Matsushita
Elec. Indus. Co. v. Epstein , 516 U.S. 367, 373 (1996). In deciding whether the
state court’s judgment challenged here is entitled to preclusive effect, we
determine only whether it: (1) was entitled to preclusive effect under Oklahoma
law, see Fox v. Maulding , 112 F.3d 453, 456 (10th Cir. 1997); and (2) satisfied
minimum standards of federal due process, see Kremer v. Chemical Constr. Corp. ,
456 U.S. 461, 482 (1982). Read does not argue that the state divorce decree was
not entitled to preclusive effect under state law. Rather, he argues that it did not
comport with federal due process requirements. We disagree.
-4- The Supreme Court has “not hesitated to approve of resort to publication as
a customary substitute in [any] class of cases where it is not reasonably possible
or practicable to give more adequate warning.” Mullane v. Central Hanover Bank
& Trust Co. , 339 U.S. 306, 317 (1950). In the case of a missing person, notice by
publication “creates no constitutional bar to a final decree foreclosing [the
missing party’s] rights.” Id. A due process violation arises when notice is not
“‘reasonably calculated, under all circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present their
objections.’” Mennonite Bd. of Missions v. Adams , 462 U.S. 791, 795 (1983)
(quoting Mullane , 339 U.S. at 314). If Read’s address had been known to Dunn,
see id. , or “could have been ascertained by reasonably diligent efforts” by Dunn,
id. at 798 n.4, notice by publication would not have been sufficient. Read does
not argue that was the case here.
The state court’s divorce decree is not void for lack of personal or subject
matter jurisdiction unless the defect appears on the face of the record. See Dana
P. v. State , 656 P.2d 253, 256 (Okla. 1982). Dunn stated in her divorce petition
that she had had no contact with Read since June 1988 and that, despite
exercising due diligence, she had been unable to determine Read’s whereabouts.
See Appellant’s App. at 6 ¶ 8. Nothing in the record disputes this assertion.
Thus, the divorce decree, on its face, falls within the constitutional parameters for
-5- notice by publication established in Mullane and Mennonite Board of Missions ,
and is entitled to full faith and credit in the federal courts. See Kremer , 456 U.S.
at 481; cf. Jackson v. Vance , 179 F.2d 154, 158 (10th Cir. 1949) (holding that
judgment void on its face is legal nullity and not res judicata).
Read has presented no authority holding that he may challenge a state
court’s subject matter jurisdiction for the first time in collateral federal
proceedings. Indeed, his argument contradicts the holding of the Supreme Court
that “[t]he principles of res judicata apply to questions of jurisdiction as well as
to other issues.” American Surety Co. v. Baldwin , 287 U.S. 156, 166 (1932).
The state courts adjudicated Read’s personal jurisdictional issues, finding them
without merit; he “cannot escape the effect of the adjudication there.” Id. at 165.
In addition, he is barred from raising new challenges to the state court’s subject
matter jurisdiction for the first time in the district court. Read’s argument that he
should have been allowed to contest the state court’s jurisdiction before entry of
the divorce decree is also without merit. “Due process requires that there be an
-6- opportunity to present every available defense; but it need not be before the entry
of judgment.” Id. at 168.
AFFIRMED.
Entered for the Court
Deanell Reece Tacha Circuit Judge
-7-