Sullivan v. Smith

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15-P-1626 Appeals Court

EARLINE SULLIVAN vs. CRAIG S. SMITH.

No. 15-P-1626.

Hampden. September 20, 2016. - December 16, 2016.

Present: Meade, Carhart, & Kinder, JJ.

Parent and Child, Child support. Probate Court, General equity
power, Notice. Jurisdiction, Equitable. Uniform
Interstate Family Support Act. Jurisdiction, Personal.
Due Process of Law, Jurisdiction over nonresident.
Practice, Civil, Service of process. Notice.

Complaint in equity filed in the Hampden Division of the
Probate and Family Court Department on November 12, 2014.

Judgment was entered by David G. Sacks, J.; a motion for
postjudgment relief, filed on July 31, 2015, was considered by
him; a motion to dismiss, filed on September 3, 2015, was heard
by him; and a corrected order lifting a stay on child support
payments was entered by him.

Ann E. Dargie for the defendant.

KINDER, J. Craig S. Smith (Smith or father), a Georgia

resident, appeals from a judgment and orders of the Probate and

Family Court ordering him to pay postminority child support to
 2

Earline Sullivan (Sullivan or guardian), the former guardian of

Smith's unemancipated eighteen year old son. On appeal, Smith

argues that the Probate and Family Court lacked personal

jurisdiction over him, and that the judgment is therefore void.

He also challenges the sufficiency of both service of the

complaint and notice of the hearing at which the judgment

entered. We affirm, concluding that the long-arm provisions of

the Uniform Interstate Family Support Act (UIFSA), G. L.

c. 209D, § 2-201,1 provide personal jurisdiction over Smith, that

service of process was sufficient, and that he had adequate

notice of the hearing.

Background. We summarize the relevant factual and

procedural history from the undisputed facts set forth in the

judge's orders, as well as the verified complaint and the

relevant dockets. See Eccleston v. Bankosky, 438 Mass. 428, 429

(2003). See also Brookline v. Goldstein, 388 Mass. 443, 447

(1983) (both trial judge and appellate court may take judicial

notice of court records in related action); Jarosz v. Palmer,

436 Mass. 526, 530 (2002).

Smith is the father of a son born on July 13, 1996. Smith

acknowledged paternity in an action brought first by the mother

1
Throughout our discussion, we refer to the provisions of
UIFSA as in effect before its repeal and replacement by St.
2016, c. 53, § 1.
 3

pursuant to G. L. c. 209C, and later by the Department of

Revenue pursuant to G. L. c. 119A and G. L. c. 209C. Smith was

ordered to pay support, and, at his request, was awarded

visitation rights. Sullivan, the maternal grandmother, was

appointed the child's guardian on February 11, 2004, after the

death of the mother. Smith appeared voluntarily and was ordered

to pay the guardian $118.75 each week by wage assignment

beginning February 13, 2004. That support order terminated on

July 13, 2014, when Smith's son reached eighteen years of age.

See G. L. c. 190B, § 5-210; Eccleston, 438 Mass. at 429.

Sullivan and the child are residents of Massachusetts.

Smith was a resident of Connecticut at the time the paternity

and guardianship proceedings were initiated, and has since moved

to Georgia, where he has resided at all other times material to

this appeal. He has never been a resident of or domiciled in

Massachusetts.

One month before the guardianship terminated, Sullivan

filed petitions to extend the child support obligation under

both the paternity action and the guardianship action. Smith's

son was scheduled to enter his final year of high school in the

fall of 2014, and planned to attend college in the fall of 2015.

The judge dismissed the petitions without prejudice to refiling

as a complaint in equity. See Eccleston, supra.
 4

The guardian filed a "Complaint in Equity for Child Support

of Unemancipated Child Previously Under Guardianship" on

November 12, 2014. After several attempts to make service at

Smith's home,2 the Georgia sheriff executed a return of service

on December 12, 2014, stating that service was not made.3 The

guardian then moved for authority to make service by mail and

publication. The motion was allowed, and the guardian made

proper service by publication on April 2, 9, 16, and 23, 2015.4

See G. L. c. 227, § 7; Mass.R.Civ.P. 4(d), as amended, 370 Mass.

918 (1976); Mass.R.Civ.P. 4(e)(1) and (f), 365 Mass. 733 (1974).

2
Sullivan's verified complaint sets forth Smith's address
in Snellville, Georgia. In his verified concise statement of
facts and law, Smith does not dispute the accuracy of the
address.
3
Although both the Massachusetts Rules of Civil Procedure
and Georgia statutes permit service on an out-of-State defendant
by leaving copies of process at the defendant's last and usual
place of abode, the sheriff did not make service in this manner.
See Mass.R.Civ.P. 4(d), as amended, 370 Mass. 918 (1976);
Mass.R.Civ.P. 4(e)(1), (2), 365 Mass. 733 (1974); Christian Book
Distributors, Inc. v. Wallace, 53 Mass. App. Ct. 905, 905-906
(2001). Compare Ga. Code Ann. § 9-11-4(e)(7) (permitting
service on in-State defendant "personally, or by leaving copies
thereof at the defendant's dwelling house or usual place of
abode with some person of suitable age and discretion residing
therein" or by delivery to an authorized agent).
4
The record shows that the equity complaint was served by
registered/certified mail, but does not contain a signed
receipt. In the absence of a receipt, there is no proof of
service by mail in the record, and service by publication is the
form of service upon which we rely. See Mass.R.Civ.P. 4(f), 365
Mass. 733 (1974).
 5

No answer was filed within the sixty-day period specified in the

order for service by publication.

The Probate and Family Court scheduled a case management

conference for August 7, 2015. Sullivan sought a continuance,

and the court scheduled a hearing on her motion to continue for

July 21, 2015. Smith admits he received notice of the August 7

case management conference. The motion to continue included the

date of the hearing on that motion (July 21, 2015), and was

accompanied by a certificate of service to Smith by mail.

The time in which to answer passed, and the judge, seeing

no answer in the file, consolidated the motion to continue with

the case management conference. See Probate and Family Court

Standing Order 1-06, par. 2(g) (2006). On July 21, 2015,

judgment entered against Smith, ordering him to pay $250 per

week in child support so long as the "child remains domiciled

with a[nd] principally dependent upon . . . [his former

guardian], to otherwise terminate at age 23, . . . unless the

child . . . shall earlier receive an undergraduate degree, or

terminate undergraduate studies." See Probate and Family Court

Standing Order 1-06, par. 4(b)(6) (2006).

Upon receipt of the judgment, Smith first moved for relief

from judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828

(1974), on the grounds that Sullivan failed to perfect service

of the complaint, and that he did not receive notice of the July
 6

21 hearing. The motion was denied on August 12, 2015, but, "in

the interest of justice," the judge scheduled a hearing for

September 22, 2015, to determine whether the amount of child

support ordered in the judgment should be modified, and ordered

Smith to present a current financial statement and the child

support guidelines worksheet. Some three weeks before the

scheduled hearing date, Smith filed a "motion to dismiss"

pursuant to Mass.R.Civ.P. 12(b)(2), 365 Mass. 754 (1974), for

lack of personal jurisdiction.5 After a hearing on September 21,

2015, the judge denied the motion, but suspended any obligation

to pay child support, and set a new date by which Smith's

financial statement and child support guidelines worksheet were

due. The judge set a further hearing date of October 27, 2015,

on the sole question of the amount of Smith's child support

obligation. Smith failed to file the financial statement and

child support guidelines worksheet and, in a corrected order

dated October 27, 2015, the judge lifted the stay on child

support payments and allowed the judgment to stand with no

modification. Smith appeals from the judgment and the

postjudgment orders.

5
Because the motion was filed after judgment had entered,
the judge treated it as a rule 60(b)(4) motion. Mass.R.Civ.P.
60(b)(4), 365 Mass. 828 (1974).
 7

Discussion. 1. Personal jurisdiction. Because Smith

raised the issue of personal jurisdiction after the entry of

judgment, the judge properly treated his motion as one for

relief from judgment pursuant to Mass.R.Civ.P. 60(b)(4). See

I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 557 (2013). "A motion

for relief from judgment pursuant to . . . [rule] 60(b)(4) . . .

seeks to set aside a final judgment on the basis that it is

void. A judgment is void if the court from which it issues

lacked jurisdiction over the parties." Ibid. (quotation

omitted). We review the question of personal jurisdiction de

novo. See Colley v. Benson, Young & Downs Ins. Agency, Inc., 42

Mass. App. Ct. 527, 533 (1997).

"In order for a court to exercise personal jurisdiction

over a defendant, the assertion of jurisdiction must be both

authorized by statute and consistent with due process." I.S.H.

v. M.D.B., 83 Mass. App. Ct. at 561, citing Good Hope Indus.,

Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6 (1979). The judge

predicated his ruling regarding personal jurisdiction on the

long-arm statute, G. L. c. 223A, § 3(h), as amended through St.

1993, c. 460, § 86, which provides in pertinent part:

"Section 3. A court may exercise personal jurisdiction
over a person, who acts directly or by an agent, as to a
cause of action in law or equity arising from the person's

. . .
 8

"(h) having been subject to the exercise of personal
jurisdiction of a court of the commonwealth which has
resulted in an order of alimony, custody, child support or
property settlement, notwithstanding the subsequent
departure of one of the original parties from the
commonwealth, if the action involves modification of such
order or orders and the moving party resides in the
commonwealth, or if the action involves enforcement of such
order notwithstanding the domicile of the moving party"
(emphasis added).

Smith entered a general appearance in both the paternity and

guardianship actions, resulting in, among other things, an order

of child support. However, Smith contends that there is no

long-arm jurisdiction under G. L. c. 223A, § 3(h), because the

complaint in equity is an independent action, and does not

involve either modification or enforcement of a prior order.

The judge construed the term "modification" broadly to reach the

separate action, ruling that any other construction of the term

would deprive unemancipated children who have reached the age of

majority, but who live with a former guardian, of the equal

protection of the law. We agree that there is personal

jurisdiction over the father, but arrive at that conclusion for

a different reason. We conclude that G. L. c. 223A, § 3(h),

does not provide jurisdiction over the father, but UIFSA does.

Unemancipated children born out of wedlock who have reached

the age of majority, but do not reside with a parent, fall into

a gap in the statutory scheme; that scheme is intended to

provide such children with "the same rights and protections of
 9

the law as all other children." G. L. c. 209C, § 1, inserted by

St. 1986, c. 310, § 16. See Eccleston, 438 Mass. at 429.

Neither the support provisions of the divorce statute, G. L.

c. 208, § 28, nor the paternity statute, G. L. c. 209C, § 9,

provide for postminority support to a child who does not reside

with a parent. Eccleston, supra at 435-437. Unlike children

who have "aged out" of foster care, for whom there is explicit

statutory authorization to provide postminority support, see

G. L. c. 119, § 23(f), there is no statutory mechanism to

provide child support to a former guardian once a dependent

child reaches the age of eighteen and the guardianship

terminates. Eccleston, supra at 436-437. See G. L. c. 190B,

§ 5-209 (allowing award of support to guardian); G. L. c. 190B,

§ 5-210 (terminating guardianship when child reaches age of

majority). In Eccleston, the guardian of a child residing with

her sought continuing child support once the child reached age

eighteen.6 The Supreme Judicial Court, "act[ing] to close [the]

unintended gap" in the statutory scheme, held that the general

equity jurisdiction of the Probate and Family Court, conferred

by statute, is "broad enough to permit a judge to impose a

postminority support order on the child's financially able

noncustodial parent or parents." Id. at 437. In invoking the

6
There was no issue as to long-arm jurisdiction in
Eccleston; there, the father/obligor resided in Massachusetts.
 10

Probate and Family Court's general equity jurisdiction, however,

the Supreme Judicial Court explicitly rejected the notion that

an award of postminority support for a dependent "adult" child

residing with a guardian could be made in a modification

proceeding pursuant to G. L. c. 208, § 28. Eccleston, supra at

433.

The same reasoning applies here. As in the case of a child

of divorce, the paternity statute permits postminority support

payments only to a child "who is domiciled in the home of a

parent and is principally dependent upon said parent for

maintenance." G. L. c. 209C, § 9(a), as amended through St.

1996, c. 199. See Eccleston, supra at 436-437. Sullivan was

not the child's "parent," the child was not "domiciled in the

home of a parent," and no modification of the support order in

the guardianship could be made once the child reached the age of

eighteen. Thus, the present matter does not come within the

provisions of our long-arm statute, G. L. c. 223A, § 3(h),

applying to actions involving the "modification" of child

support orders.

It is equally clear, however, that the Legislature intended

to give broad reach to the jurisdictional components of the

interrelated statutes governing the support of children. In

addition to amendments extending the jurisdictional reach of
 11

G. L. c. 223A, § 3,7 the Legislature enacted UIFSA in 1995,

extending personal jurisdiction in interstate support

proceedings to the full limit of the Federal and State

constitutions. G. L. c. 209D, § 2-201(8).

UIFSA applies not only to minors, but also to children who

have reached the age of majority but who are in need of support

from a parent. See G. L. c. 209D, § 1-101(1) (definition of

"Child"). Here, the Probate and Family Court had continuing,

exclusive jurisdiction over the equity complaint seeking

support, as it had issued an order of support and was the State

of residence of the child and the former guardian. See G. L.

c. 209D, § 2-205(a)(1); Cohen v. Cohen, 470 Mass. 708, 713-714

(2015) ("Under UIFSA, once one court enters a support order, no

other court may modify that order for as long as the obligee,

obligor, or child for whose benefit the order is entered

continues to reside within the jurisdiction of that court unless

each party consents in writing to another jurisdiction"

[quotation omitted]).8

The Probate and Family Court had personal jurisdiction over

the father under § 2-201(7) and (8) of UIFSA. Section 2-201(7)

7
See St. 1987, c. 100 (inserting § 3[h]); St. 1993, c. 460,
§ 86 (amending § 3[h]).
8
No other tribunal of any other State has issued a support
order in this matter. See G. L. c. 209D, § 2-205(b-d).
 12

extends jurisdiction over "the individual [defendant who]

asserted parentage under the provisions of chapter forty-six or

chapter two hundred and nine C." G. L. c. 209D, § 2-201(7).

The father asserted parentage in the paternity proceeding

brought pursuant to G. L. c. 209C. He voluntarily appeared

through counsel and filed an answer to the complaint in the

paternity action in which he acknowledged that he was the

father, requested parenting time, and sought permission to

declare the child as a dependent on his taxes. He sought to

enforce his parenting time by both motion and a complaint for

contempt. Section 2-201(7) of UIFSA constitutes the requisite

statutory "authorization" for the exercise of jurisdiction. See

I.S.H. v. M.D.B., 83 Mass. App. Ct. at 561 ("[T]he assertion of

[personal] jurisdiction must be . . . authorized by statute").

The exercise of jurisdiction pursuant to § 2-201(7) comports

with due process because the father "purposefully avail[ed]

[himself] of the privilege of conducting activities within the

forum State, thus invoking the benefits and protections of its

laws." Windsor v. Windsor, 45 Mass. App. Ct. 650, 652 (1998),

quoting from Hanson v. Denckla, 357 U.S. 235, 253 (1958).

Section 2-201(8) of UIFSA, the catchall provision, provides

a separate and independent statutory basis for asserting

personal jurisdiction in the forum State. It extends personal

jurisdiction on "any other basis consistent with the
 13

constitutions of the commonwealth and the United States for the

exercise of personal jurisdiction." G. L. c. 209D, § 2-201(8).

The question here is whether, having obtained jurisdiction over

the father and having issued a valid order of support, the

Probate and Family Court retained personal jurisdiction over him

once the child, though unemancipated, reached the age of

majority. We conclude that it did. Once a forum State acquires

personal jurisdiction over a party, it retains continuing

jurisdiction "throughout all subsequent proceedings which arise

out of the original claim." Restatement (Second) of Conflict of

Laws § 26 (1988 rev.). See Leman v. Krentler-Arnold Hinge Last

Co., 284 U.S. 448, 454-455 (1932). Cf. Heider v. Heider, 34

Mass. App. Ct. 634, 635-636 (1993) (General Laws c. 223A,

§ 3[h], dispels any doubt that Probate and Family Court has

continuing personal jurisdiction to modify and enforce its

support orders).9

The touchstone of due process in this context is fairness

to the defendant. See Kulko v. Superior Ct., 436 U.S. 84, 91

(1978) (due process requires "sufficient connection between the

9
Smith's argument that the jurisdictional provisions of
UIFSA do not apply because UIFSA was not specifically pleaded in
the Family and Probate Court is unavailing. Nothing in G. L.
c. 209D limits application of its jurisdictional language to
cases in which it has been pleaded. We may affirm a judgment on
any proper ground where, as in this case, it is apparent on the
record. See Richardson v. Board of Appeals of Chilmark, 81
Mass. App. Ct. 912, 913-914 (2012).
 14

defendant and the forum State to make it fair to require defense

of the action"); Restatement, supra at § 26 comment a. In

evaluating fairness, we look to the nature of the relationship

between the original claim and the newly asserted claim.

Restatement, supra at § 26 comment d. The claim of support here

is the same as the claim for support made in the guardianship

and paternity proceedings. The only reason for the separate

equity action is the gap in the statutory scheme. In every

other sense, the judgment ordering child support here derives

from the support orders previously entered. Because this action

arises directly out of the two previous cases (the paternity and

guardianship proceedings), the exercise of personal jurisdiction

(under § 2-201[7], [8] of UIFSA) comports with notions of "fair

play and substantial justice." International Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945).10

10
Cases from other jurisdictions support this view. See
McCaffery v. Green, 931 P.2d 407, 413 (Alaska 1997) (Alaska
courts had jurisdiction over complaint for support where
nonresident father was already before court on custody and
visitation proceedings brought under Uniform Child Custody
Jurisdiction Act). See also Glading v. Furman, 282 Md. 200
(1978) (where court had issued divorce decree that was silent on
issue of child support, court had continuing personal
jurisdiction over nonresident ex-husband on petition for child
support). Compare Hornblower v. Hornblower, 151 Conn. App. 332,
339-340 (2014) ("To conclude that a party can simply move out of
state to avoid a modification of a spousal support order would
frustrate the intent of UIFSA and its related jurisdictional
provisions"); McAleavy v. McAleavy, 150 Wis. 2d 26, 34 (1989)
(court had continuing personal jurisdiction over nonresident in
 15

2. Service and notice. Although personal jurisdiction is

continuous, due process requires that defendants be given notice

and an opportunity to be heard. See Restatement, supra at § 26,

Reporters' Note to comment f, citing Griffin v. Griffin, 327

U.S. 220 (1946). Smith claims that the trial judge abused his

discretion in denying the motion for relief from judgment

because service was insufficient, and he did not have notice of

the hearing at which judgment was entered. We disagree.

a. Service. First, Smith argues that Sullivan failed to

perfect service within ninety days of the filing of the

complaint because she did not file her motion for service by

publication until February 12, 2015, ninety-two days after the

complaint was filed. As a result, Smith claims the case should

have been dismissed automatically "upon the court's own

initiative." Mass.R.Civ.P. 4(j), as appearing in 402 Mass. 1401

(1988).

Rule 4(j) is not a rule of mandatory dismissal. See Shuman

v. Stanley Works, 30 Mass. App. Ct. 951, 953 (1991). It

provides for dismissal where the plaintiff "cannot show good

cause why such service was not made within [the ninety-day]

period." Rule 4(j), supra. Here, the record demonstrates a

diligent effort to serve notice on Smith. The judge's order

separate complaint for modification of divorce judgment as to
spousal maintenance).
 16

denying Smith's motion to dismiss explicitly recognized the

judge's discretion to extend the time for service. This

constituted an implicit, if not explicit, finding of good cause.

Smith has shown neither "a good reason to remove the default

[nor] the existence of meritorious claims or defenses." Clamp-

All Corp. v. Foresta, 53 Mass. App. Ct. 795, 806 (2002).

b. Notice. Smith's contention that his rule 60(b) motion

should have been allowed because he did not receive notice of

the hearing at which the judge entered the judgment is equally

unavailing. Even if we accept his claim that he did not receive

a copy of the motion to continue, Smith gambled at his peril

when, having been served with notice by publication of the

complaint, and having received notice of the case management

conference, he did nothing. The "information was certainly

sufficient to put [Smith] on notice, for '[n]otice of facts

which would incite a person of reasonable prudence to an inquiry

under similar circumstances is notice of all the facts which a

reasonably diligent inquiry would develop.'" Commonwealth v.

Delaney, 425 Mass. 587, 592 (1997), quoting from Commonwealth v.

Olivo, 369 Mass. 62, 69 (1975). Commonwealth v. Henderson, 434

Mass. 155, 162 (2001). Here, Smith failed to answer the

complaint or file a responsive pleading within the sixty-day

period allotted, and failed to apprise himself of the docket and

the applicable probate court orders. In these circumstances,
 17

under Probate Court Standing Order 1-06, the judge was

authorized to consolidate the case management conference with

the hearing on the merits. In short, the judge did not abuse

his discretion by entering judgment, where Smith had failed to

answer or appear. See Atlas Elevator Co. v. Stasinos, 4 Mass.

App. Ct. 285, 288 (1976).

Conclusion. The judgment is affirmed. The orders dated

August 12, 2015, and September 21, 2015, on the postjudgment

motions, and the corrected order dated October 27, 2015, are

affirmed.

So ordered.