Puhlman v. Turner

MATTHEWS, Justice,

dissenting.

I. FACTS

The facts necessary for an understanding of the issues on this petition follow. Terrence Puhlman and Carol Turner were divorced in Texas on September 15, 1988. They were both residents of Texas. Carol was awarded custody of their two children. Terrence was awarded visitation rights which included summer vacation visits at his residence. Terrence was ordered to pay child support.

On or about April 15, 1989, Carol and the children moved from Texas. They have lived in Alaska since July 21, 1989.

On July 27, 1990, the Texas District Court modified the divorce decree concerning visitation and support. In particular, Terrence was required to pay the sum of $296 per month for the support of both children except during the summer months “when he has possession of the children,” and Carol was required to pay the costs for the children to travel to Terrence’s home at the beginning of each vacation.1

In 1992 Terrence was stationed in Germany, although Texas was still his legal residence. The present case was initiated by Terrence on July 2, 1992, when he moved in the superior court for a writ of assistance requiring Carol to turn over the children to him for summer visitation pursuant to the terms of the Texas decree. On July 6th Carol filed a pleading entitled “Opposition to Emergency Motion for Writ of Assistance and Cross Motion to Modify Visitation and for Other Relief.” The cross motion asked for the following modifications of the visitation aspects of the Texas decree:

1. That Terrence be required to post bond ensuring the return of the children to Alaska prior to the exercise of any visitation in view of his alleged “wilful and unjustified failures to return the children for the past two years....”
2. That Terrence be required to pay round trip tickets for the children’s visi*296tation “[i]n view of [Carol’s] nominal income.”

Carol also asked that child support be increased pursuant to Alaska Civil Rule 90.-3(a)(2)(B) to twenty-seven percent of Terrence’s net income and that support abate to fifty percent of the normal monthly amount during summer visitation periods pursuant to Civil Rule 90.3(a)(3).

A hearing was held on July 6, 1992. At the hearing the trial court granted the writ of assistance and the children were delivered to Terrence for visitation. After inquiring as to whether Terrence had continuing contacts with the state of Texas and learning that Terrence was still a resident there, the court ruled that Texas had continuing jurisdiction to modify visitation and that Alaska lacked modification jurisdiction. The court deferred ruling on the subject of jurisdiction to modify the Texas decree concerning child support until the parties were able to brief that question. After considering the parties’ briefs the court ruled that Alaska had jurisdiction to modify the Texas decree concerning child support. Subsequently Terrence filed a child support guidelines affidavit, indicating that the amount of child support he should pay under Civil Rule 90.3(a)(2)(B) was $456 per month.

II. DISCUSSION

This ease got off to a bad start when the court ruled that it lacked jurisdiction to modify the visitation and custody aspects of the Texas decree. Had the original decree come from almost any other state, this ruling would have been accurate.

Most states exercise “significant connection” jurisdiction under their equivalent to section 3(a)(2) of the Uniform Child Custody Jurisdiction Act (UCCJA).2 This means that the state that issues the original decree has exclusive jurisdiction to modify the decree as to custody,3 even though the custodial parent and the children have established a “home state” residence in another state, so long as the non-custodial parent still has a significant connection with the original state and substantial evidence concerning the children is available there. These are vague standards. The federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (1980) (PKPA), has added a measure of certainty by providing that significant connection jurisdiction for modification purposes exists where the original state “remains the residence of ... any contestant” and “such court has jurisdiction under the law of such state.” 28 U.S.C. § 1738A(d) and (c)(1).

Texas law is unusual because it conditions the exercise of significant connection jurisdiction on a showing that no other state has “home state” jurisdiction. Tex.Fam.Code. Ann. § 11.53(a)(2) (West 1994). Since Alaska became the home state of the children six months after they moved to Alaska in July of 1989, Texas no longer had significant connection jurisdiction as of the commencement of the attempted modification proceedings in Alaska in July 1992.4 The trial court therefore should have ruled that Alaska does have modification jurisdiction concerning custody *297and visitation.5

If the trial court had correctly ruled that Alaska has modification jurisdiction concerning custody, the case for personal jurisdiction over Terrence regarding child support would stand before us in a different light. The question would be whether a state having and exercising jurisdiction under the UCCJA and PKPA system to modify a decree from another state concerning custody may also entertain a motion to modify the child support aspects of the same decree. As the majority opinion notes, the parties have not raised this issue and the majority opinion expresses no view concerning it. However, since hanging in the balance are prospective payments of child support which will extend well into the next century, I would order supplemental briefs on this issue.6 See Vest v. First National Bank of Fairbanks, 659 P.2d 1233, 1234 n. 2, reh’g granted, 670 P.2d 707 (Alaska 1983) ("Where ... an issue that has not been raised involves a question of law that is critical to a proper and just decision, we will not hesitate to consider it, particularly after calling the matter to the attention of the parties and affording them the opportunity to brief the issue.”).

Although a final decision must be withheld, I suggest that a substantial case can be made that the same contacts and interests, and the absence of contacts and interests elsewhere, which have given Alaska exclusive jurisdiction over custody, suffice to justify the assertion of personal jurisdiction over the noncustodial parent on child support issues. In support of this view the following points can be developed:

(1)Alaska, as the home state of the children, has a vital interest in ensuring that the children residing in Alaska are adequately supported. Kulko v. California Superior Court, 436 U.S. 84, 98, 98 S.Ct. 1690, 1699, 56 L.Ed.2d 132 (1978); Perry v. Newkirk, 871 P.2d 1150 (Alaska, 1994); Commentary to Civil Rule 90.3, § IB.

(2) Custody, visitation and child support are inseparably related. In general, the more visitation a non-custodial parent is awarded, the less child support the non-custodial parent has to pay. Civil Rule 90.-3(a)(3), (b). The converse is also true. A modification in visitation, or in shared custody, will therefore often necessarily require a modification in child support. Requiring the party who receives the benefit of a visitation or custodial change in a forum having jurisdiction under the UCCJA/PKPA system to file a separate action in another forum for the child support changes made necessary by the visitation or custodial changes has a number of undesirable consequences. It is economically wasteful. The integration of custody and visitation issues with child support guidelines has not been achieved without complexity. Out-of-state courts may have difficulty in applying another state’s guidelines or they may be reluctant to do so.7

(3) Kulko can be distinguished. The Court did not address the question whether the forum state had jurisdiction under the UCCJA. This is not surprising, as the underlying action in Kulko was begun in 1976 and most jurisdictions had not adopted the UCCJA before 1977. Congress added force to the jurisdictional system of the UCCJA by enacting the PKPA in 1981. The broad acceptance of the UCCJA/PKPA system is, in part, an indication that its jurisdictional rules are fair and do not offend “traditional notions of fair play and substantial justice.” This general consensus may carry over to child support questions because of the inter-relatedness of custody and child support. Anoth-*298ér legal development that has taken place . subsequent to Kulko is the enactment in all jurisdictions of child support guidelines pursuant to the Child Support Enforcement Amendments of 1984 (Pub.L. No. 98-378, 98 Stat. 1305 (codified as amended in scattered sections of 26 U.S.C. & 42 U.S.C.)) and the Family Support Act of 1988. (Pub.L. No. 100-485, 102 Stat. 2343 (codified as amended in scattered sections of 26 U.S.C. & 42 U.S.C.).) Under these guidelines, discretion concerning the amount of child support to be awarded is greatly reduced and, child support decrees are subject to frequent formulaic modifications as the income of the parents changes.

In summary, rather than reverse, I would order the parties to brief the question of whether the due process clause of the Fourteenth Amendment allows the assertion of personal jurisdiction over a non-resident parent for the purpose of adjusting an out-of-state decree of child support in cases where Alaska has and is exercising jurisdiction under the UCCJA/PKPA to modify the same decree insofar as it relates to custody and visitation.

. The record does not indicate when the motion resulting in the modification order of July 27, 1990, was filed. Neither party contends that the Texas court lacked jurisdiction to make the order.

.Sections 3(a)(1) and (2) of the UCCJA provide:

A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships[.]

. "Custody” includes determinations of visitation rights. UCCJA § 2(2), 9 U.L.A. 133 (1988); AS 25.30.900(2); 28 U.S.C. § 1738A(b)(3).

. Alaska also does not exercise significant connection jurisdiction where children have a new home state, as Alaska has not enacted a subsection equivalent to section 3(a)(2) of the UCCJA. Bock v. Bock, 824 P.2d 723, 724 (Alaska 1992); Baumgartner v. Baumgartner, 788 P.2d 38, 40 (Alaska 1990).

. That the court did not so rule is understandable since neither counsel pointed out the fact that Texas law relinquishes modification jurisdiction in favor of the new home state.

. The issue is also not unique to the parties, or to Texas decrees. It will arise most commonly when Alaska is the home state of the children and one of the parties and the non-custodial parent is not an Alaska resident and no longer is a resident of the state in which the original decree was entered.

.Choice of law would seem clearly to indicate that the law to be applied is the law of the home state of the children. See Kulko, 436 U.S. at 98, 98 S.Ct. at 1700 (noting that the presence of the children and one parent in a • particular state favors the application of that state’s law to determine child support awards); Restatement (Second) of Conflict of Laws § 6 (1971) (listing factors relevant to choice of law determination).