Daniel D. Phillips, Appellant, v. Lynn F. Fallen, Director of Division of Child Support Enforcement, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Daniel D. Phillips, Appellant, v. Lynn F. Fallen, Director of Division of Child Support Enforcement, Respondent. Case Number: 55199 Handdown Date: 01/26/1999 Appeal From: Circuit Court of Jackson County, Hon. John R. Gray Counsel for Appellant: David Simpson Counsel for Respondent: Breck Burgess Opinion Summary: Father appeals the circuit court's judgment affirming the decision of the director of Division of Child Support Enforcement to enforce a child support order entered by a Washington court contending that the Washington court lacked personal jurisdiction to enter the order of support. AFFIRMED. Division One holds: Father failed to rebut the strong presumption of validity of the Washington child support order, and the circuit court did not err in enforcing the sister state's order. Citation: Opinion Author: Paul M. Spinden, Judge Opinion Vote: AFFIRMED. Lowenstein, P.J., and Howard, J., concur. Opinion: Daniel D. Phillips appeals the circuit court's judgment affirming the decision of Lynn F. Fallen, director of the Division of Child Support Enforcement, to enforce a child support order by the courts of Washington. We affirm the circuit court's judgment affirming Fallen's decision.

In his first point on appeal, Phillips accuses the Department of Social Services' Division of Legal Services of acting "arbitrarily, capriciously and unreasonably" in deciding to enforce an order to pay child support entered by the superior court of King County, Washington,(FN1) without "addressing [Phillips'] collateral attack on the order[.]" Michael D. Dyer, an administrative hearing officer for the Division of Legal Services, entered the findings of fact and conclusions of law which Phillips challenges. Section 454.475.5, RSMo 1994, provides that "the findings and order of the hearing officer shall be the decision of the director," and section 454.460(5), RSMo 1994, defines "director" as "the director of the division of child support enforcement[.]" We, therefore, treat Dyer's findings of fact and conclusions of law as Fallen's decision and deem Phillips, notwithstanding his reference to the Division of Legal Services, to be appealing Fallen's decision. Phillips' first point concerning Fallen's not addressing Phillips' collateral attack of the Washington judgment is without merit. Although the wording of Fallen's decision implies that Fallen did not address Phillips' collateral attack, this is not the proper interpretation in light of the context. Phillips' confusion results from this paragraph in the findings of fact and conclusions of law: [Phillips'] argument [that] the Washington state modification should not be honored was not found [by me](FN2) to be persuasive. The Washington order was determined [by me] to be facially valid and therefore [Phillips'] collateral attack of that order in this forum was not addressed.(FN3) A foreign judgment, regular on its face, is entitled to a strong presumption that the foreign court had subject matter jurisdiction over parties to the case and the laws of that state were followed in the rendering of said decision, In re Marriage of Caby, 825 S.W.2d 56, Johnson v. Johnson, 770 S.W.2d 483 (Mo. App. 1989), and State of Minnesota, Marshall County v. Bybee, 744 S.W.2d 511, 513 (Mo. App. 1988). It was determined [by me that Phillips'] evidence did not rebut the presumption of the Washington state court order's validity, and as [Phillips] offered no other evidence to dispute the [Division of Child Support Enforcement's] calculations, they were determined [by me] to be correct and this decision was rendered accordingly. Phillips concludes that the italicized words mean that the hearing officer did not consider at all his evidence collaterally attacking the Washington order. The paragraph, read as a whole, belies this interpretation. First, the decision says that Phillips' evidence was not persuasive. Second, it says that Phillips' evidence did not rebut the strong presumption of validity. Whatever the administrative hearing officer meant when he said that Phillips' collateral attack "was not addressed," we do not understand him to mean that he ignored Phillips' evidence. Phillips' second and third points concern the sufficiency of his evidence attacking the Washington judgment. We examined the record in detail in reviewing these points. We discerned no basis for overturning the decision's conclusion that Phillips' evidence did not overcome the strong presumption of validity. The Washington court's judgment listed four bases for its jurisdiction over Phillips: (a) Pursuant to [Wash. Rev. Code '] 26.21.075(6), [Owen](FN4) asserts jurisdiction is appropriate in that the parties engaged in sexual intercourse in this state, during a family visit to Wenatchee and Seattle in November 1982, and the child . . . (d.o.b. 8/23/83) may have been conceived as a result of that act;

(b) [Phillips] has consented to jurisdiction by entering into a Washington State Parenting Plan; and (c) State of Kansas issued original order, but has since closed its case, finding that as both parties have moved out of the state, jurisdiction is no longer with the Kansas court.(FN5) . . . (d) [Owen] and child are residents of the state of Washington, and have been for three years. Section 26.21.075 of Washington's revised code provides: In a proceeding to establish, enforce, or modify a support order or to determine parentage, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if: (1) The individual is personally served with summons within this state; (2) The individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; (3) The individual resided with the child in this state; (4) The individual resided in this state and provided prenatal expenses or support for the child; (5) The child resides in this state as a result of the acts or directives of the individual; (6) The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse; or (7) There is any other basis consistent with the Constitutions of this state and the United States for the exercise of personal jurisdiction. Because the Washington judgment listed bases of jurisdiction consistent with its long-arm statute, the judgment was regular on its face. The only attack which Phillips made concerning the judgment's regularity was to note that a court commissioner, not a judge, entered it. Phillips contends that, because a court commissioner issued the Washington judgment, the judgment should not be afforded the same faith and credit as it would be had a judge issued the order. The Washington court had inherent authority to appoint commissioners, even commissioners pro tempore. Nothing in the record indicates that the commissioner acted "other than in his authorized capacity." Lake v. Butcher, 679 P.2d 409, 412 (Wash. App. 1984). We, therefore, afford the order the same faith and credit which we would accord any other Washington judgment. "[A] foreign judgment, regular on its face, . . . is entitled to a strong presumption that the foreign court had jurisdiction both over the parties and the subject matter and that the court followed its laws and entered a valid judgment." Johnson v. Johnson, 770 S.W.2d 483, 485 (Mo. App. 1989). Phillips did not attack the Washington order as irregular on its face, so his burden was to overcome the presumption of validity and jurisdiction with "the clearest and most satisfactory

evidence." Trumbull v. Trumbull, 393 S.W.2d 82, 89 (Mo. App. 1965). He did not meet his burden. Phillips argues that he did not have sufficient "contact" with Washington for its courts to assert jurisdiction over him. This case grows out of Phillips' and Owen's divorce in Kansas in 1993. Kansas relinquished jurisdiction of the case in 1995 after Phillips and Owen moved out of the stateCPhillips to Missouri and Owen to Washington. Phillips argues that medical records show "conclusively" that his son "could not possibly have been conceived in . . . Washington" and that none of his involvement with the caseCincluding his entering into a parenting planCevidenced his consent to Washington's jurisdiction. He also argues that, under the Uniform Interstate Family Support Act (UIFSA) adopted by Washington, the Washington court had no authority to modify a foreign judgment because the statutory criteria for modification did not exist. We agree that UIFSA did not authorize the Washington court to modify Kansas' child support order. The Uniform Reciprocal Enforcement of Support Act (URESA), in effect in Missouri at the time of this action, and USIFA provide a means for modifying and enforcing child support obligations in addition to simple registration of child support orders.(FN6) See Kulko v. Superior Court of California, in and for the City and County of San Francisco, 436 U.S. 84, 98-100 (1978). These uniform laws provide an interstate mechanism for initiating an action for child support in the obligee's state of residence and then taking the child support enforcement action to the obligor's state of residence. Kulko, 436 U.S. at 98-

1. The responding court in a URESA action has the ability to require an obligor to pay an amount different than the one

specified in the underlying support order without modifying the order. State ex rel. Osborne v. Goeke, 806 S.W.2d 670, 672 (Mo. banc 1991). Under UIFSA, adopted by Washington, a party or child support enforcement agency may petition the courts to modify a child support order issued by another jurisdiction. Wash. Rev. Code f0 section 26.21.580 (1994) provides: (1) After a child support order issued in another state has been registered in this state, the responding tribunal of this state may modify that order only if, after notice and hearing, it finds that: (a) The following requirements are met: (i) The child, the individual obligee, and the obligor do not reside in the issuing state; (ii) A petitioner who is a nonresident of this state seeks modification; and (iii) The respondent is subject to the personal jurisdiction of the tribunal of this state; or (b) An individual party or the child is subject to the personal jurisdiction of the tribunal and all of the individual parties have filed a written consent in the issuing tribunal providing that a tribunal of this state may modify the support order and assume continuing, exclusive jurisdiction over the order. These provisions require that an action to modify child support be initiated in the state of the obligor's residence unless the

obligor consents to Washington's jurisdiction. Neither the elements of subsection (1)(a) nor subsection (1)(b) were fulfilled in this case. UIFSA did not authorize the Washington court to modify the child support order issued by the Kansas court. Because of the Kansas courts' declining jurisdiction over the case after Phillips and Owen left the state, no court had continuing jurisdiction over the matter. The National Conference of Commissioners on Uniform State Laws addressed this problem in its comments to UIFSA, section 611 (1996), upon which Wash. Rev. Code section 26.21.580 apparently was based: Modification of child support under Subsections [(a) and (b)] is distinct from custody modification under the federal Parental Kidnapping Prevention Act, 42 U.S.C. section 1738A, which provides that the court of continuing, exclusive jurisdiction may "decline jurisdiction." Similar provisions are found in the UCCJA, section 14. In those statutes the methodology for the declination of jurisdiction is not spelled out, but rather is left to the discretion of possibly competing courts for case-by-case determination. The privilege of declining jurisdiction, thereby creating the potential for a vacuum, is not authorized under UIFSA. Once an initial child support order is established, at all times thereafter there is an existing order in effect to be enforced. Even if the issuing tribunal no longer has continuing, exclusive jurisdiction, its order remains fully enforceable until a tribunal with modification jurisdiction issues a new order in conformance with this article. This paradigm works when all states involved have adopted the UIFSA. In this case, Kansas had not adopted the UIFSA when it declined jurisdiction, so it was not deterred from declining jurisdiction. Nonetheless, the door was not closed to Washington's intervention. Wash. Rev. Code section 26.21.025 (1994), a UIFSA statute, said, "Remedies provided by this chapter are cumulative and do not affect the availability of remedies under other law." The determinative issue then is whether the Washington court's asserting jurisdiction over Phillips under its "long- arm" statutes was consistent with due process. Under Washington's statutes governing modification of child support obligations generally, "the practice in civil action . . . govern[s] . . . except that trial by jury is dispensed with." Wash. Rev. Code section 26.09.010(1) (1994). The Washington civil procedure code provides for jurisdiction over nonresidents in Wash. Rev. Code section 4.28.185 (1994), which says: (1) Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts in this section enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts: . . . . (e) The act of sexual intercourse within this state with respect to which a child may have been conceived[.] A court exercising long-arm jurisdiction over a nonresident must satisfy both the provisions of Wash. Rev. Code section 4.28.185 (1994) and provide sufficient due process. In re Marriage of Yocum, 870 P.2d 1033, 1035 (Wash. App. 1994).

To establish jurisdiction in a Washington court, a petitioner need only demonstrate by prima facie evidence that a nonresident respondent committed one of the acts enumerated in the long-arm statute, and the Washington courts deem the petitioner's averments to be true for purposes of determining jurisdiction. Id. (citing Lewis v. Bours, 835 P.2d 221, 223 (Wash. 1992)). In her petition for support modification, Owens asserted jurisdiction on the basis of Phillips' engaging in sexual intercourse in Washington in November 1982 during which the couple's child "may have been conceived," on the basis of Phillips' consenting to jurisdiction by virtue of entering into a parenting plan, and on Kansas' declining jurisdiction over the case. Phillips did not contest the petition, so the Washington court heard no evidence contradicting Owen's averments. In response to Owen's contention that the couple engaged in sexual intercourse in Washington, Phillips testified at the administrative hearing that he did not remember it, although he acknowledged visiting Washington with Owen during Thanksgiving 1982. He asked the administrative hearing officer to review medical records of Owen's pregnancy and the child's birth. Phillips contended that the records showed that the child's conception could not have occurred during the couple's visit to Washington. While the medical records suggest that the child was born prematurely by approximately three weeks, these records were not authenticated, and Phillips did not present any medical testimony supporting his interpretation of them. We discern no basis for concluding that the decision erred in rejecting Phillips' interpretation. The child was born 271 days after Thanksgiving 1982. A normal gestational period is 280 days, but a range of 250 to 310 days is not abnormal.(FN7) The facts of Lake v. Butcher, 679 P.2d 409, 411 (Wash. App. 1984), are quite similar to this case. In Lake, a Washington appellate court considered a nonresident father's claim that jurisdiction based on an act of sexual intercourse performed in Washington was improper because Washington was an inconvenient forum and that the mother had "wandered" into the state. The parties had married in Minnesota in 1978 and had divorced in Iowa in 1980. For one month, beginning on November 7, 1978, the couple had cohabitated in King County, Washington, and a child was born on August 15, 1979, in Seattle. The father filed a motion to dismiss, which the court denied. The father did nothing else to respond to the mother's petition that Butcher be declared the father of her child and that he be ordered to provide for custody and child support. The court entered a default judgment against Butcher. Id. Observing the due process requirements set forth in Kulko, 436 U.S. at 91, and Tyee Construction Co. v. Dulien Steel Products, Inc., of Washington, 381 P. 2d at 245 (Wash. 1963),(FN8) the Lake court said: Obtaining personal jurisdiction over Butcher on the basis of [Wash. Rev. Code '] 26.26.080(2) is proper. First, Butcher was served and had actual knowledge of the action. Second, the cause of action arises from Butcher's act of sexual intercourse in this state. Finally, it does not offend traditional notions of fair play or substantial justice to hold that a man who fathers a child in the state has established sufficient

contacts with the state to support the assertion of personal jurisdiction over him in an action concerning that child. Lake, 679 P.2d at 411-12. See also In re the Marriage of Myers, 594 P.2d 902 (Wash. banc 1979) (jurisdiction based on sexual intercourse in Washington resulting in a child's conception and couple's living in a marital relationship in Washington). In Phillips' case, as in Lake, Phillips was served and had actual notice of the proceeding to modify his child support obligation, and the child support action arose a result of Phillips' obligation to support his son. He did not overcome adequately Owen's averment that the couple had sexual intercourse in Washington which may have resulted in their child's conception. Owen also asserted that the Washington courts had jurisdiction over Phillips because of his participation in a Washington parenting plan entered by the King County, Washington, superior court on February 4, 1994. The parenting plan specified a schedule for Phillips' visiting his son. Although Phillips contends that he participated only by means of special appearance to contest jurisdiction, we find nothing in the record supporting his contention. Further, although Phillips contends he sought no affirmative relief from the Washington court, the original custody decree entered by the Kansas courts did not specify a visitation schedule, and Phillips first raised the issue of modifying visitation in a petition to the Kansas court. Owen petitioned the Kansas court to decline jurisdiction in favor of Washington on the ground that Kansas no longer had jurisdiction under the Uniform Child Custody Jurisdiction Act. She averred to the Kansas court that Washington did have jurisdiction as the child's home state. We also find guidance in Livingston v. Livingston, 719 P.2d 166, 167 (Wash. App. 1986), in which a father residing in Washington sued a nonresident mother for payment of child support. The mother contested jurisdiction but asked for enforcement of a New York decree granting visitation and awarding her attorney fees. The superior court dismissed the father's petition for child support for lack of jurisdiction over the mother but granted the mother's motion to enforce visitation. The father appealed. The Livingston court held that a defendant may waive the lack of jurisdiction by asking for affirmative relief from the court. Id. at 167. It found that the mother had sought affirmative relief of the superior court to enforce visitation which arose out of the same decree from which the father was seeking child support and that "the judge determined the conditions under which visitation was appropriate under the present circumstances." Id. at 168. Under these circumstances, the court said, the mother waived her defense of lack of personal jurisdiction on the issue of child support. Id. In Phillips' case, although the issue of visitation specified by the enactment of the Washington parenting plan and

the subsequent petition for modification of child support arose from the same decree, these issues were litigated in Washington in two separate actions at two different times. Whether a court in Washington would find that jurisdiction was waived consistent with Lake, we cannot speculate. However, even if Phillips' seeking affirmative relief in the visitation plan did not, by itself, waive personal jurisdiction in the support proceeding, it is evidence of Phillips' additional contact with the forum state to support a finding in the third step of the due process analysis. Phillips argues that personal jurisdiction cannot be conferred on the basis of his "glancing presence" in the state of Washington and relies on In re the Marriage of Peck, 920 P.2d 236 (Wash. App. 1996). This case does not aid him, however, because the nonresident father in it performed no act enumerated in Washington's long-arm jurisdictional statute or sought affirmative relief of the Washington court. The father's only "contact" with Washington was to visit to his former wife's family. Because the petition for modification and the order of modification listed bases of jurisdiction which Phillips failed to contest in Washington, and because it was possible that the child was conceived in the state of Washington and Phillips had other contacts with the state of Washington which did not offend traditional notions of fair play under the due process clause, we find that Phillips failed to rebut the presumption of validity of the Washington child support order. The Division of Child Support Enforcement properly sought to enforce the Washington order. Phillips next contends that the decision was erroneous "because it failed to consider substantial and competent evidence that the state of Washington lacked subject matter jurisdiction over child support matters under the Uniform Child Custody Jurisdiction Act." Even though the Uniform Child Custody Jurisdiction Act (UCCJA) does not purport to encompass child support issues,(FN9) Phillips' participation in Washington's parenting plan was not the only basis for Washington's assertion of jurisdiction over him. The Supreme Court of Washington said, in In re Marriage of Myers, 594 P.2d 902, 903 (Wash. banc 1979), "We have long adhered to the domicile rule which holds the domicile of the children follows that of the parent having legal custody, and the children must be Washington domicilaries before the courts of this state can exercise jurisdiction in disputes involving custody, support and visitation rights." The Washington child support order noted that the child had been a resident of Washington for three years. Because the Washington court was able to obtain personal jurisdiction over Phillips under its long-arm statute, it was free to determine questions concerning child support. Id. at 904. Phillips' contention that the decision's not considering whether the UCCJA provided subject matter jurisdiction for child support issues was, therefore, without merit. We, therefore, affirm the circuit court's judgment affirming the decision of the director of the Division of Child

Support Enforcement to enforce Washington's order concerning Phillips' child support payments. Footnotes: FN1.The Washington court entered a default order on July 27, 1995, when Phillips failed to appear or properly contest his former wife's petition to modify Phillips' child support obligation for the only child born of the couple's marriage. FN2.Because Dyer wrote in the passive voice, we must presume that he was saying that he was not persuaded by the evidence. This appears to be a safe presumption, but the division's hearing officers would assist us greatly in future findings of fact and conclusions of law if they would write in the active voice. FN3.We added the emphasis. FN4.Kimbra Lee Owen is Phillips' former wife, and mother of the child for whose benefit the child support order was entered. FN5.Phillips and Owen lived in Kansas when they divorced in 1993. The Kansas courts relinquished jurisdiction over the matter in 1995 after Phillips and Owen moved out of the stateCPhillips to Missouri and Owen to Washington. FN6.When this action began in Washington, legislatures in Kansas, Washington and Missouri had enacted different versions of uniform child support enforcement statutes. Washington had adopted the Uniform Interstate Family Support Act of 1992, which had more stringent criteria than that of URESA for permanent modification of foreign support judgments. Washington's enactment of UIFSA superseded its prior enactment of the Uniform Reciprocal Enforcement of Support Act of 1950. When Kansas declined to continue exercising jurisdiction over the case in April 1995, the applicable Kansas law was the Revised Uniform Reciprocal Enforcement of Support Act of 1968 which permitted multiple states to issue child support orders for the same parties. When Washington issued its modification of support order in July 1996, however, Kansas had enacted UIFSA. When Washington asked Missouri authorities to enforce its order, the applicable Missouri statute was based on the Uniform Reciprocal Enforcement of Support Act of 1950, sections 454.010-454.360, RSMo 1994, which governed all actions initiated prior to January 1, 1997. After January 1, 1997, the Uniform Interstate Family Support Act, sections 454.800-454.980, took effect. Section 454.997, RSMo Supp. 1996. FN7.Blakiston's Gould Medical Dictionary 556 (4th ed. 1979). FN8.The Washington Supreme Court set out the due process requirements for the exercise of personal jurisdiction under the long arm statute: "The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation." Tyee, 381 P.2d at 251. FN9.Wash. Rev. Code section 26.27.020(2) (1994) defines "custody determination" as used in the Uniform Child Custody Jurisdiction Act in Washington, as "a court decision and court orders and instructions 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." Missouri's enactment of section 452.445(1), RSMo 1994, permits the court to adjudicate child support in a custody determination, but due process requirements under the minimum contacts test must still be met to assert personal jurisdiction over a nonresident party. Elbert v. Elbert, 833 S.W.2d 884, 887 (Mo. App. 1992). Separate Opinion: None

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.