IN THE SUPREME COURT OF THE STATE OF MONTANA
NO. 93-353
OCT 0 5 1993
HOWARD R. HEINLE,
Petitioner,
v. j
1 O P I N I O N
FOURTH JUDICIAL DISTRICT COURT 1 A N D
OF THE STATE OF MONTANA, IN AND ) O R D E R
FOR THE COUNTY OF MISSOULA, 1
HONORABLE DOUGLAS G. HARKIN, )
Presiding Judge, )
)
Respondent. 1
1
Justice Terry N. Trieweiler delivered the opinion and order of the
Court.
Howard R. Heinle petitioned this Court for a writ of
certiorari requesting that a default judgment entered against him
by the District Court for the Fourth Judicial District, Missoula
County, be declared void on the basis that the court exceeded its
jurisdiction when it modified the provisions of a California
dissolution decree with respect to child support.
On January 21, 1987, the Superior Court of California, County
of San Joaquin, dissolved the marriage of Verleen V. Heinle and
Howard R. Heinle. In the dissolution decree, Howard was ordered to
pay Verleen $180 per month for the support of the parties' two
minor children.
In August 1990, Verleen and the children moved to Montana.
Seven months later, Verleen moved the District Court in Missoula to
modify the California decree with respect to child support and
visitation. Verleen stated that the visitation provisions of the
original decree were no longer practical due to the geographical
locations of the parties, and that Howard had sufficient earning
capacity to pay child support consistent with Montana's child
support guidelines. No evidence was presented regarding a basis
for the court to exercise personal jurisdiction over Howard, and
Verleen's petition contained no recitations to satisfy the
jurisdictional requirements of § 40-4-210, MCA, or Rule 4B,
M.R.Civ.P., for the exercise of personal jurisdiction over
nonresident defendants in matters of child support.
Howard was personally served in California in accordance with
Rule 4D(3), M.R.Civ.P., on February 28, 1991. On April 15, 1991,
Verleen petitioned the District Court for a default judgment on the
basis that Howard had made no appearance as of that date. The
court entered a default judgment on that same day, ordering Howard
to pay $602 per month in child support, and modifying his
visitation rights.
The default judgment was sent to Howard in California: he does
not allege that it was not received, nor that he was unaware of the
judgment entered against him.
On May 6, 1992, Verleen petitioned the District Court for an
order requiring that the support payments be made through the clerk
of court's office, and requested the court to reduce child support
arrearages to a judgment amount. Howard had been paying the
support due under the California decree, although he was
approximately three months delinquent in those payments, but had
not been paying the amounts required under the Montana order. He
was served by mail with Verleen's motions and notice of the
scheduled court date. Howard did not appear at the hearing, and a
judgment was subsequently entered against him in the amount of
$6656.
Approximately one year later, on April 20, 1993, Verleen
applied to the Superior Court of California to obtain an order for
the sale of Howard's California residence in order to satisfy the
judgment. Howard then filed a motion in the Montana District Court
for a restraining order to enjoin Verleen from executing on the
judgment on the basis that the 1991 default judgment entered by the
Montana court was void for lack of subject matter and personal
jurisdiction. He also claimed that Verleen's subsequent motions
had been defectively served on him because service had been by
mail, and therefore, the judgment based on those motions was also
void.
Howard's motion was denied on the basis that he had waived the
defense of lack of personal jurisdiction pursuant to Rule 12(h),
M.R.Civ.P., by his failure to appear in the action prior to the
entry of the default judgment. The court also rejected Howard's
arguments regarding service of process defects because Verleen's
subsequent motions did not constitute "new or additional claims"
which would have required personal service.
On a motion to reconsider, Howard claimed that he had not
waived the right to object to personal jurisdiction because he had
not made a voluntary appearance, as contemplated by Rule 12(h),
before the judgment was entered against him. The court denied this
motion.
The petition for writ of certiorari was filed with this Court
on July 20, 1993. Howard claims that the court exceeded its
jurisdiction when itmodifiedthe California decree with respect to
child support because it lacked personal jurisdiction over him. He
does not challenge the District Court's jurisdiction to modify the
original decree's provisions in regard to visitation. Howard seeks
relief through a writ of certiorari because his home is in danger
of being sold to satisfy the Montana judgment and he has no "plain
or speedy remedy" through the usual course of appeal.
Under S 27-25-102, MCA, a writ of certiorari may be granted
when an inferior tribunal has exceeded its jurisdiction and there
is no appeal or, in the judgment of the court, any plain, speedy,
and adequate remedy. Ct of Helena v. Buck (1991), 247 Mont. 313, 806
iy
P.2d 27. A certiorari proceeding is limited to a review of the
lower court's record for the sole purpose of determining from such
record whether the tribunal had jurisdiction to do the act, to make
the order, or to render the judgment about which the petitioner
District C u t (l948), 122 Mont. 61, 198 P.2d 761. For
complains. L u ~ v . or
reasons which will be set forth, we conclude that certiorari is a
proper remedy in this instance because the District Court exceeded
its jurisdiction when it entered the default judgment on April 15,
1991, and Howard has no other adequate remedy.
Although Howard raises several issues regarding jurisdiction
and service of process, the arguments set forth by the parties
focus mainly on the question of whether Howard waived his right to
raise a personal jurisdiction objection by not filing a timely
objection under Rule 12 (b), M.R. Civ.P. However, after reviewing
the record, and based on our decision in Prentice Lumber Company v. Spahn
(1970), 156 Mont. 68, 474 P.2d 141, we conclude that the
dispositive question is whether the court had a constitutional
basis to exercise personal jurisdiction over Howard and enter a
money judgment against him. It is well established that if a court
does not properly acquire personal jurisdiction over a defendant,
a default judgment entered against that defendant is void. Mam'age
ofBlaskovich (1991), 249 Mont. 248, 250, 815 P.2d 581, 582; Shieldsv.
PirkleRefrigeratedFreightLines, Inc. (1979), 181 Mont. 37, 45, 591 P.2d 1120,
1125.
In Prentice Lumber, we considered whether a defendant had waived
his right to assert lack of personal jurisdiction by not raising
this defense in his initial response. Because the defendant had
filed a motion pursuant to Rule 12(b), M.R.Civ.P., in which subject
matter, but not personal, jurisdiction was challenged, we held that
the defense had been waived pursuant to the explicit provisions of
Rule 12 (h), M.R.Civ.P. However, that holding was immaterial
because we concluded that, regardless of the question of waiver,
the dispositive issue in that case was whether the Montana court
had proper jurisdiction overthe person of a nonresident defendant.
Prentice Lumber, 474 P.2d at 143. After analyzing constitutional
considerations, and whether the state had long-arm jurisdiction
under Rule 4B, M.R.Civ.P., we found that the defendant was subject
to the jurisdiction of the court.
We believe that same analytic approach is proper in this
instance; the question of waiver is immaterial because the
controlling consideration is whether the Montana court had a
constitutional basis to exercise personal jurisdiction over Howard
and whether the judgment against him was, therefore, valid and
binding.
In Mam'ageofAppIeton (1988), 234 Mont. 345, 763 P.2d 658, we
clarified that courts of this state must have in personam
jurisdiction over a nonresident parent before a judgment ordering
child support can be entered. In that case, although the court's
custody determination was upheld because the court had jurisdiction
over the children living in the state, the husband demonstrated
that he had been residing in Tennessee when served with process and
had taken no actions which would subject him to the long-arm
jurisdiction conferred in Rule 4B, M.R.Civ.P. On that basis, we
held that the court lacked inpersonam jurisdiction to enter a money
judgment against the defendant, and the court's support order was
vacated. Appleton, 763 P.2d at 350.
Section 40-4-210, MCA, allows Montana courts to exercise
personal jurisdiction over nonresident parents in child support
matters in situations where a parent previously resided in the
state with the child, or when the child was conceived or adopted in
the state when at least one parent was a resident. Absent those
specific situations, which are not applicable in this case, a court
can exercise personal jurisdiction over a nonresident defendant
only if "there is any basis consistent with the constitutions of
this state and the United States." Section 40-4-210(4), MCA.
This Court has consistently held that in order to satisfy
constitutional guarantees, a court must undertake an analysis of
whether a nonresident defendant has sufficient contacts with the
forum state in order for that state to assume personal
jurisdiction. EdrallComtruction Co. v Robinson (1991), 246 Mont. 378, 804
.
P.2d 1039; SimmomOilv.Ho1lyCop (1990), 244 Mont. 75, 796 P.2d 189;
Nelsonv.SanJoaquinHelicopters (1987), 228 Mont. 267, 742 P.2d 447.
Rule 4B, M.R.Civ.P., sets forth the types of activities undertaken
by nonresidents which can give rise to the acquisition of personal
jurisdiction by courts of this state and which comport with
constitutional guarantees. In this instance, there are simply no
facts in the record to suggest that Howard engaged in any of these
activities, nor are there any facts to suggest that Howard had
sufficient "minimum contactsgf warrant a Montana court assuming
to
personal jurisdiction over him. Other than assisting the family in
moving to Montana and arranging for visitation, the record contains
no evidence that Howard had any contact with Montana prior to the
entry of the default judgment.
Court (1978), 436 U. S. 84, the United
In Kuko v California S~perior
.
States Supreme Court considered a similar situation to the one
presented here. In K u k o , the Court held that a nonresident father
whose only contact with the forum state was that his children
resided there could not be haled into court in an action for
increased child support payments. The Court concluded that the
state's interest in protecting resident children did not make that
state a proper forum if the nonresident parent lacks sufficient
minimum contacts with the forum state.
Although this Court similarly recognizes the need to ensure
that nonresident parents provide support for their children, we
conclude, as did the Court in K u h , that, in the absence of
evidence that Howard had contacts with this state other than the
mere fact that his children reside here, the Missoula court's
exercise of personal jurisdiction over Howard in 1991 was not
constitutionally warranted. Therefore, the default judgment
entered against Howard with respect to child support is void.
Before concluding, we will respond to an argument raised by
the District Court in its opposition to the petition for writ of
certiorari. The court correctly points out that an indispensable
requirement for granting a writ is that the order or judgment
complained of is not appealable. State ex reL Gates v. District Court (1923),
69 Mont. 322, 221 P. 543. Because an order modifying child custody
and support is "a special order made after final judgment" from
which appeal can be taken, the court contends that Howard should
have appealed from that judgment in a timely manner, and should not
now be allowed to seek relief through a writ proceeding.
We would simply note that since the court had no
constitutional basis to exercise jurisdiction over Howard, it
cannot compel him to challenge jurisdiction in accordance with
Montana's rules of civil or appellate procedure. There is no need
to appeal from a judgment that is void. Therefore, certiorari is
not prohibited in this instance because Howard does not have an
adequate remedy of appeal.
For the reasons stated, the writ of certiorari is GRANTED.
IT IS HEREBY ORDERED that the provisions of the 1991 default
judgment ordering Howard R. Heinle to pay $602 per month in child
support, and the subsequent judgment reducing the arrearages to an
amount, are vacated.
DATED this day of October, 1993.
/
We concur:
A
October 5, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Paul Neal Cooley, Esq,
Skelton & Cooley
101 E. Main
Missoula, MT 59802
Randy Harrison
Harrison Law Office
210 No. Higgings Ave,
Missoula. MT 59802
Hon. Douglas G. Harkin
District Judge
Missoula County Courthouse
Missoula, MT 59802
Nancy E. Gunderson
Attorney at Law
200 W. Broadway, Department 4
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE Oy MONTANA
BY:
Depu