IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-20628
Summary Calendar
_______________
STEPHEN FROLICH,
Plaintiff-Appellant,
VERSUS
ORANGE COUNTY SUPPORT COLLECTION UNIT
and
KATHLEEN COMFORT,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-98-CV-1285)
_________________________
March 11, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Stephen Frolich sought a declaratory judgment that the
garnishment order obtained by Kathleen Comfort against his wages is
null by virtue of having been obtained from a court lacking in
personam jurisdiction over him. As did the district court, we find
Frolich’s claim foreclosed by res judicata, so we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I.
A.
Frolich was born in New York but moved to Kansas at the age of
six months. He returned to New York to attend college and married
Comfort in 1974. Although Frolich and Comfort spent their wedding
night in New York, they never resided there while married.
Furthermore, their two children were not born in New York.
Regrettably, the marriage did not last, and the two entered
into a signed agreement regarding custody, support, and property in
1979. Frolich executed the agreement in Georgia and Comfort in New
York. The agreement was incorporated into a judgment of divorce
issued by a New York court in 1979. This divorce was granted by
default; Frolich did not appear and agreed not to contest the
divorce so long as the separation agreement was incorporated into
the divorce decree.
Since the divorce, Frolich has lived in Georgia and Texas,
while his ex-wife Comfort and his children have lived in New York.
Except for his child support payments, Frolich has not had any
arguable contacts with New York since the divorce.
In 1985, a Texas Attorney General's action was instituted (by
Comfort and a New York family court) against Frolich to enforce
child support payments and arrearage. Frolich complied with the
Attorney General’s order.
B.
In 1996, Comfort initiated a proceeding in New York to
2
increase Frolich’s child support obligations to his now-emancipated
children. Frolich responded by contesting New York’s right to
assert in personam jurisdiction.
A New York family court judge agreed with Frolich, noting that
the requirements of New York’s long arm statute had not been met,
but was reversed by an appellate court that held that jurisdiction
under New York’s Family Court Act § 154(b)(4), under which Comfort
had sued, is not limited by the New York long arm statute. Under
the Family Court Act, a family court may exercise personal
jurisdiction over a non-custodial, non-resident parent solely on
the basis that he has furnished support for children residing in
New York.
On remand, the family court judge exercised jurisdiction over
Frolich and made new findings, enabling the Orange County Support
Collection Unit (“OCSU”) to issue a garnishment order. Frolich
filed the instant petition for declaratory judgment, asserting that
New York violated his due process rights by issuing a garnishment
order against him in the absence of in personam jurisdiction
pursuant to an unconstitutional statute (Family Court Act
§ 154(b)(4)). The federal district court dismissed his petition,
holding that res judicata barred him from proceeding with his
claim, and, in any event, that New York had properly exercised
personal jurisdiction.
II.
On appeal, Frolich reiterates his arguments that the Family
3
Court Act § 154(b)(4) is unconstitutional and that New York lacked
jurisdiction over him. We review both of these legal issues
de novo. See Byram v. United States, 705 F.2d 1418, 1421 (5th Cir.
1983). Finding each of these arguments precluded by res judicata,
we affirm.
A.
As the district court correctly explained, res judicata
prevents a plaintiff from relitigating an already-decided claim.
See Kaspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d
530, 535 (5th Cir. 1978). For res judicata to apply, the following
elements must be satisfied: (1) The parties to the previous suit
and the instant suit must be identical; (2) the prior judgment must
have been rendered by a court of competent jurisdiction; (3) the
prior judgment must have been final and on the merits; and (4) the
instant suit must involve the same cause of action. Nilsen v. City
of Moss Point, 701 F.2d 556, 559 (5th Cir. 1983) (en banc).
That the parties are identical, and that the prior judgment
regarding New York’s jurisdiction was final and on the merits, are
not in dispute. Rather, the parties disagree over whether the
prior judgment was rendered by a court of competent jurisdiction
and whether the instant suit involves the same cause of action.
B.
Frolich entered a limited appearance in the New York court to
contest its jurisdiction over him. In so doing, he voluntarily
4
acquiesced to that court’s jurisdiction over him for the limited
purpose of determining this question of jurisdiction. See Deckert
v. Wachovia Student Fin. Servs., Inc., 963 F.2d 816, 818-19 (5th
Cir. 1992); see also 18 MOORE’S FEDERAL PRACTICE § 131.30[1][e]
(Matthew Bender 3d ed. 1998). As a result, that court’s holding on
the issue of in personam jurisdiction is binding on Frolich. See
Deckert, 963 F.2d at 819; 18 MOORE’S FEDERAL PRACTICE § 131.30[1][e]
(Matthew Bender 3d ed. 1998).
C.
Frolich’s challenge to the constitutionality of New York’s
long arm statute is likewise barred by res judicata, for this claim
constitutes a challenge to New York’s jurisdiction over him. Res
judicata bars the making of arguments forsaken as well as those
previously made when their target is an identical cause of action.
Travelers Ins. Co. v. St. Jude Hosp., 37 F.3d 193, 195 (5th Cir.
1994). More specifically, “the critical issue is not . . . the
theory asserted but whether [the] plaintiff bases the two actions
on the same nucleus of operative facts.” Id. (citations omitted).
The challenge to the constitutionality of the long arm statute is
simply another argument as to why New York lacks in personam
jurisdictionSSa claim arising from the “same nucleus of operative
facts” as the previously litigated 1996 claim and therefore
precluded by res judicata.
Frolich attempts to evade res judicata by trying to squeeze
his argument into one of the narrow exceptions to the doctrine:
5
that of a change in law affecting one’s constitutional rights. See
Jackson v. DeSoto Parish Sch. Bd., 585 F.2d 726, 729 (5th Cir.
1978). Under this exception, courts have allowed a claimant to
relitigate an otherwise precluded constitutional claim if a
significant intervening change in the law has occurred. See id.;
Parnell v. Rapides Parish Sch. Bd., 563 F.2d 180, 185 (5th Cir.
1977). While there is some authority to the contrary, this court
has limited this exception to issues concerning constitutional
rights. See, e.g., Erspan v. Badgett, 659 F.2d 26, 27-28 (5th Cir.
Unit A Oct. 1981) (per curiam); see also 18 MOORE’S FEDERAL PRACTICE
§ 131.21[2] (Matthew Bender 3d ed. 1998).
Frolich’s claim does not qualify for this exception, because
it does not implicate an alteration in the law affecting his
constitutional rights. Although Frolich alleges the infringement
of his due process right to be free from the jurisdictional reach
of a state lacking “minimum contacts” with him, see Kulko v.
Superior Ct., 436 U.S. 84, 92 (1978), the change in law at issue
here is not one of constitutional consequence. The change in law
upon which Frolich seeks an exception to res judicata concerns New
York’s statutory basis for exercising jurisdiction, not its
constitutional basis. The repeal of the statute does nothing to
alter New York’s right to exercise jurisdiction over Frolich as a
constitutional matter and therefore does not amount to a change in
law capable of supporting the res judicata exception that Frolich
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seeks.1
AFFIRMED.
1
Frolich insinuates that the statute was repealed because it was believed
to be unconstitutional. Finding no support for this inference, we do not address
what effect such evidence would have on our analysis.
7