No. PS 1661-97s
Under the aegis of an important and far-ranging new law, this case is before the Court presenting a significant question implicating the concept of "long-arm" jurisdiction in the field of "interstate child support." In particular, the Petitioner, on behalf of her sixteen-year-old daughter, both domiciliaries of Virginia Fontana v. Callahan Fontana v. Callahan Fontana v. Callahan Fontana v. Callahans Court over the spondent, a domiciliary of Maryland, under the liberal terms of Sed Uniform Interstate Family Support Act ("UIFSA"), as well as the general D.C. long-arm statute, on the grounds, inter alia, that he is employed full-time in the District of Columbia and that he has been properly served here.
The Petitioner asserts that the Respondent is the father of her child, a fact which has never been formally adjudicated or otherwise admitted "of record" by the Respondent, despite the child's age. Petitioner therefore seeks to have paternity adjudicated. Petitioner further asserts that Respondent therefore owes current and prospective child support, pursuant to the District of Columbia Child Support Guidelines. Finally, Petitioner seeks an award of formal custody for the child, who has lived with her since birth.
Before formally responding to the issue of either paternity or support, the Respondent makes a facial challenge to this Court's jurisdiction to determine either issue (or alternatively seeking dismissal on a theory of forum non conveniens). If he is correct on his jurisdictional argument, this Court is precluded from reaching any of the main issues herein.
After hearing argument by Counsel for both parties in open court, considering their several post-hearing written submissions, and following an independent review of statutory law, legislative history, case law, scholarly journals, and other persuasive authority, the Court determines that the Respondent is correct on the jurisdictional issue and that it does not have jurisdiction to hear the Petitioner's claims against him. In particular, this Court finds -- in what it believes is a case of first impression on this issue -- that, in an original "one-state" action (i.e., where there has been no previous judgment or order), in order to have "standing" to invoke the "family provisions" of the general District of Columbia long-arm statute, and the similar provision of the "one-state" UIFSA procedure, a petitioner must be a resident of the District of Columbia. Since the Petitioner herein does not meet this threshold requirement for invoking long-arm jurisdiction under each statute, her case fails here, and the Respondent's motion to dismiss for lack of personal jurisdiction will therefore be granted, without prejudice, on the following factual findings and legal conclusion:1
From 1979 to 1984, the Petitioner and the Respondent lived separately in the District of Columbia. (Pet. Opp. at 2). The parties have never been married to each other and the Petitioner remains unmarried. In the Fall of 1979, the parties first met each other at a legal seminar in the District. Their professional association turned into a sexual relationship which lasted into January of 1981. It is not disputed that this intercourse occurred from time to time in the District of Columbia, but the Respondent also avers that it also occurred, at times relevant to conception of the child at issue, in Virginia and Maryland.
On August 11, 1981, the Petitioner gave birth to a daughter, K.F., in the District of Columbia.2 On these facts, therefore, it is likewise not disputed that this child "may have been" conceived in the District of Columbia.3 In any event, on April 16, 1982, when K.F. was 250 days old, the Respondent and the Petitioner signed a notarized "Acknowledgement of Parentage" form provided by the D.C. Department of Human Services for the use of unwed parents, in which they "jointly and severally . . . acknowlege[d] under oath that we are the ACTUAL PARENTS of" K.F. (See Exh. G of Pet. Opp.) (capitals in original).4 K.F. has lived with her mother since her birth. For at least the last five years the Petitioner and K.F. have been residents of Arlington, Virginia and the Respondent has been a resident of Silver Spring, Maryland. (Resp. Mem. at 1-2 ¶¶1-2).
On June 26, 1997, at which time K.F. was 15 years and 319 days old, the Petitioner filed a verified "Petition for Support" in the instant case, seeking a formal declaration of paternity, together with an award of child support, and tacitly seeking a formal award of custody. See, Petition ¶7. The Respondent was personally served with process in this matter 13 days later on July 8, 1997, in the District of Columbia. (See Attachment B to Pet. Opp.)
The Respondent's first responsive filing to the "Petition for Support" herein was a "Motion to Dismiss for Lack of Jurisdiction and Forum Non Conveniens," filed through Counsel on or about July 24, 1997. In that submission, Respondent squarely sets forth "the ground of lack of subject matter jurisdiction as to Petitioner's request for an award of custody, lack of personal jurisdiction over Respondent, and in the alternative on the ground of forum non conveniens." (Resp. Mot. at 1).5
Respondent points out in his motion that the Petitioner and the child have been residents of Arlington, Virginia for the last years and that, following her birth here child has had no other connection with the District of Columbia.6 Respondent further points out that he has been a resident of Maryland for the last eight years, where he currently lives with his wife and child, and that he has not lived in the District of Columbia since 1984. (Resp. Mot. at 2 ¶2; Resp. Supp. at 2).
Moreover, on the same date on which Respondent filed the jurisdictional motion in this case, he filed his own petition in the Juvenile and Domestic Relations District Court of Arlington County, Virginia, where the Petitioner herein and her child reside, seeking a determination of paternity and, if necessary, an award of child support. (Resp. Supp. at 10-22 & Exh. B).
Petitioner responds to the Respondent's jurisdictional motion in the instant case by pointing out that the contestants' contacts with the District of Columbia are substantial, inasmuch as both are professionals who practice their crafts daily in the District. In particular, she argues that the Respondent resided here at the time of the conception and birth of the child at issue, that the child was most likely conceived here and was, in fact, born here.7 These factors, together with the conceded fact that the Respondent was personally served with process here, Petitioner contends, all bring the Respondent fully under this Court's personal jurisdiction, either under the pertinent provisions of the District's general long-arm statute or under the long-arm provision of UIFSA, or both. (Pet. Opp. at 5).
When an issue of lack of personal jurisdiction or subject matter jurisdiction is raised, the burden-of proof is on the party bringing the case and invoking such jurisdiction to support it. See Parsons v. Mains, 580 A.2d 1329, 1330 (D.C. 1990) ("Plaintiff had the burden of establishing personal jurisdiction."); Kennedy v. Educational Testing Service, Inc., 393 A.2d 523, 524 n.5 (D.C. 1978) (same). At the outset, therefore, it must be emphasized that the Petitioner's case on this issue relies entirely on a theory of in personam jurisdiction, under both the general D.C. long-arm statute and the long-arm provision of UIFSA.8
We must start in this regard with the primary proposition that "'[t]he fundamental requisite of due process of law is . . . [adequate notice and fair] opportunity to be heard.'" Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 318-19 (1949); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (due process requires that persons have "fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign").
In a short series of well-known cases, the United States Supreme Court has demarcated the "outer-limits" of general "long-arm jurisdiction" in this country. See generally International Shoe Co. v. Washington, 326 U.S. 310 (1945) (long-arm jurisdiction found on out-of-state corporation for purposes of compulsory compensation to state unemployment insurance program); McGee v. International Life Ins. Co., 355 U.S. 220 (1957) (long-arm jurisdiction found against nonresident insurance company with in-state policy holders); Hanson v. Denckla, 357 U.S. 235 (1958) (long-arm jurisdiction not found against out-of-state trustee in state where settlor died); Shaffer v. Heitner, 433 U.S. 186, 212 (1977) (non resident shareholder's derivative suit held not to allow attachment of in-state assets without further consideration of all other relevant contacts of non-resident defendant); and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (long-arm jurisdiction not found against out-of-state defendant as to accident claim also brought by out-of-state defendant in the state where the accident occurred).
In 1945, International Shoe set forth the classic principle that "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Due process requisites are satisfied, the Court held, when the non-resident's contacts with the forum state "make it reasonable, in the context of our federal system of government, to require . . . [the non-resident] to defend the particular suit which is brought there." Id. at 317. The test for such contacts, it said, is "the quality and nature of the activity in relation to the fair and orderly administration of the laws." Id. at 319.
Over a decade later, in an increasingly-complex post-war society, the Supreme Court noted in McGee that "modern transportation and communications have made it much less burdensome for a party sued to defend himself when he engages in economic activity." McGee v. International Life Ins. Co., 355 U.S. at 223. A state therefore has "a manifest interest in providing remedies for its residents," the Court found, and "it is just for purposes of due process that the suit was based on a contract [for insurance] which had substantial connection with that state" under those circumstances. Id.
Refining that concept further a year later in Hanson, the High Court ruled that "[t]he application of the rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. at 253 (emphasis added).
An additional major aspect was addressed by the Supreme Court in Shaffer, which held that "asset-based" jurisdiction could not be sustained with the seizure of property belonging to a non-resident defendant on that basis alone, but that "all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." Shaffer v. Heitnet, 433 U.S. at 212 (emphasis added).
After over 35 years of long-arm litigation on these tenets, the Supreme Court encapsulated this culminating principle by holding that for general long-arm jurisdiction to attach, it must appear "that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 at 297.
As noted above, however, these nationally-based cases only set the outer limits of long-arm jurisdiction, which was held to embrace the due process paradigm guaranteed in the Fifth and Fourteenth Amendments. States remained free to enact legislation which would either be co-extensive with, or fall variously short of, the full exercise of that authority.9 Locally, our own Court of Appeals has held that
Environmental Research International, Inc. v. Lockwood Greene Engineers, Inc. and Penn Dye and Finishing Co., Inc., 355 A.2d 808, 811 (D.C. 1976) (footnote omitted) (emphasis added). Echoing the World-Wide Volkswagen paradigm, supra, our Court of Appeals also held in this regard that a determination must be made as to "whether there exists 'a sufficient connection between the defendant and the forum State as to make it fair to require defense of the action in the forum.'" Sol Salins, Inc. v. Sure Way Refrigerated Truck Transp. Brokers, Inc., 510 A.2d 1032, 1033 (D.C. 1986) (quoting Kulko v. Superior Court, 436 U.S. 84, 91 (1978)).
Because this Court's ruling in the instant case focuses primarily on the absence of residency by the Petitioner, it is worth noting at this point that a similar underlying premise runs throughout most of our local "long-arm" cases. As noted in the Environmental Research holding, supra, implicit in the "long-arm jurisdiction" rubric is that the forum state provides this remedy so that its own residents can utilize it most conveniently in order to bring an out-of-state defendant before the local court. This "grounding" in residency of the plaintiff or moving party within the forum state is an underlying (though, to be sure, not invariable) premise of long-arm jurisdiction case law. See International Shoe v. Washington, 323 U.S. at 310 (the State itself was the plaintiff); McGee v. International Life Ins. Co., 355 U.S. at 223 (first holding that a forums state has "a manifest interest in providing remedies for its residents"); Hanson v. Denckla, 357 U.S. at 238-40 (Florida forum court held not to have in personam jurisdiction over trust company in Delaware regarding in rem subject matter via Florida settlor because the out-of-state trust company did not have sufficient contacts with Florida); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297 (holding that out-of-state plaintiff who suffered an auto accident in the forum state could not invoke its long-arm jurisdiction over out-of-state defendant because the latter's conduct regarding the proximate cause of the accident was not sufficiently connected to the cause of action so that the defendant could reasonably have anticipated being haled into court over it); and Burger Kinq Corp. v. Rudzewicz, 471 U.S. at 473 ("[a] state generally has a 'manifest interest' in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.'") (citation omitted) (emphasis added). The same is largely true for local case law.10
This Court, therefore, begins by reviewing the D.C. general long-arm statute within the context of this governing case law, as applied to the facts in the instant case.
The D.C. general long-arm statute, codified at Section 13-423, governing "[p]ersonal jurisdiction based upon conduct," provides as follows:
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;
(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia;
(5) having an interest in, using, or possessing real property in the District of Columbia;
(6) contracting to insure or act as surety for or on any person, property, or risk, contract, obligation or agreement located, executed, or to be performed within the District of Columbia at the time of contracting, unless the parties otherwise provide in writing; or
(7) marital or parent and child relationship in the District of Columbia if
(B) such person is personally served with process; and
(C) in the case of a claim arising from a marital relationship:
(ii) the cause of action to pay spousal support arose under the laws of the District of Columbia or under an agreement executed by the parties in the District of Columbia; or
(ii) the child resides in the District of Columbia as a result of the acts, directives, or approval of such person; or
(iii) such person has resided with the child in the District of Columbia.
As can be seen, this statute provides for the extraterritorial exercise of in personam jurisdiction based on two broad categories which may be deemed (a) business aspects and (b) family aspects.
a. Business Aspects: Residency Not Required
In a short departure from the overall themes of this Memorandum Opinion -- the residency requirement for a petitioner in an original "one-state" paternity and support case -- because the Petitioner herein has expressly raised it, the Court will address the "transacting business" provisions of the general long-arm statute, noting in the process that, unlike the "family provisions" of that statute, discussed more fully below, the element of residency is completely absent in this segment of the statute as a predicate to invoking it.
The two initial provisions of the long-arm statute, D.C. Code § 13-423(a)(1) & (2), address the invocability of personal jurisdiction based on a non-resident's "transacting business" within the District, so as to avail himself of the general protections of the government, and thus to give rise to his implied expectation that he could be subject to the personal jurisdiction of this Court as a result. Significantly, though no residency conditions or requirements are necessary to these subsections, they do comprehend an economic relationship significantly beyond that of a mere "employee" in the District. As Respondent points out, however, even at that, "[h]is only connection with the District of Columbia is that he has a job with an employer whose offices are located in the District of Columbia." (Resp. Mem. at 2).
The Court therefore rejects the Petitioner's attempt to reach the Respondent on these aspects of the general long-arm statute, on two bases: (1) mere employment is not a sufficient "contact" with the District and (2) even if it were, the cause of action herein did not arise from that employment.
(1) Mere Employment Insufficient
While these terms of the long-arm statute are purposely liberal, the "doing business" aspect of that statute does not provide in personam jurisdiction on the facts herein. It remains clear to this Court, as Respondent reiterates, that the sole criterion of "[e]mployment does not constitute 'maintaining his or its principal place of business'" in the District of Columbia. (Resp. Mem. at 2) (citing T.M.P.v.G.C.M., III, 124 D.W.L.R. 233 (Sept. 1, 1995) (Goodbread, C.).11 Other courts have ruled similarly on this point. See, e.g., Wiggins v. Equifax, Inc., 853 F.Supp. 500, 502-03 (D.D.C. 1994) (Lamberth, J.) (court does not have personal jurisdiction over individual officers and employees of a corporation just because the court has jurisdiction over the corporation.12
In short, mere "employment" in the District, standing alone as a nexus, is insufficient to qualify as "transacting business" under this aspect of the long-arm statute. To put it succinctly, in the instant case, the Respondent is not transacting business here -- his employer is.13 The Court therefore cannot find personal jurisdiction on these facts under this aspect of the long-arm statute.
(2) Unconnected Cause of Action
Even if the simple fact of employment in the District sufficed to attach long-arm jurisdiction, the Petitioner's assertion of personal jurisdiction under this statute would still fail because her cause of action (paternity and support) is not connected to the Respondent's putative "business" contacts in the District.
To begin with, the proof of some "contact," business or otherwise, direct or otherwise, would not necessarily result in the attachment of in personam jurisdiction. Such a determination, as pointed out in the Environmental Research case, supra, "must be resolved on a case-by-case basis, noting in each the particular activities relied upon . . . as providing the basis for jurisdiction." Id. at 811. Personal jurisdiction is, therefore, a "fact-specific" issue in each case -- in effect a "rebuttable presumption" -- and a respondent may "present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Fisher v. Bander, 519 A.2d 162, 165 (D.C. 1986).
In addition to the other issues hereinafter discussed on which this Responded has carried that "affirmative defense-type" burden, there is also the principle inherent in subsection (b) of the very long-arm statute on which the Petitioner relies. That subsection expressly provides that "[w]hen jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him." This section is taken to mean that when in personam jurisdiction is invoked under § 13-423 or some aspect thereof (and not because of any other basis for personal jurisdiction), the claim (or subject matter) of the suit must itself arise out of some action or omission explicitly comprehended by the long-arm statute, in this instance, "transacting business" in the District. "Put another way," the Court of Appeals ruled in 1991, "§ 13-423(b) bars claims 'unrelated to the acts forming the basis for personal jurisdiction.'" Trerotola v. Cotter, 601 A.2d at 63.
This prerequisite for the exercise of personal jurisdiction pursuant to subsection (b) has been repeatedly reaffirmed by judicial authority, to-wit: "the jurisdiction of the court 'is restricted to claims arising from the particular transaction of business carried out in the District.'" Beachboard v. Trustees of Columbia Univ., 475 A.2d 398, 400 (D.C. 1984) (quoting Berwyn Fuel, Inc. v. Hogan, 399 A.2d 79, 80 (D.C. 1979). As late as 1993, with respect to subsection (b), the Court of Appeals held that the statute "'must be construed more narrowly in cases where the claim for relief bears no relation to the contacts with the District which form the jurisdictional bases.'" Everett v. Nissan Motor Corp., 628 A.2d 106, 108 (D.C. 1993) (quoting Rammamurti v. Rolls-Royce, 454 F.Supp. 407, 413 (D.D.C. 1978)); see also Lex Tex Ltd. Inc. v. Skillman, 579 A.2d at 247; Fisher v. Bander, 519 A.2d at 163 ("'the litigation results from alleged injuries that "arise out of or relate to" those activities'") and Cohane v. Arpeja-California, Inc., 385 A.2d at 158 (long-arm statute permits exercise of personal jurisdiction over nonresident defendants to the extent permitted by due process clause, and the limitation that the claim for relief must arise from transaction of business is meant to prevent assertion of claims that do not bear some relationship to acts in the District).
Here, the Court finds, the fact that the parties herein first met at a "professional" or "business" function, as Petitioner argues, is purely coincidental and happenstance, as the Respondent argues. They were not employed together, nor did their subsequent relationship develop in the context of their separate, unrelated, and independent "businesses," or have anything to do with their ensuing liaisons. Consequently, Petitioner's attempted assertion of long-arm jurisdiction on this theory, must fail on this basis as well. Even if the Respondent's employment qualified as "doing business," it could not be said that, directly derivative therefrom, he committed "some affirmative act" by which he "purposely availed himself" of action through which he could be expected to have brought himself into personal jurisdiction of the Court. See Hummel v. Koehler, 458 A.2d 1187, 1190 (D.C. 1987).
Inasmuch as the Court has found that the Respondent has not "transacted business" in the District of Columbia, therefore, the only basis for a cause of action enabled by the general long-arm statute would be on what might be termed the "family aspects" of that statute -- which, the Court finds are "residency based."
b. Family Aspects: Residency Required
Beginning with subsection (a)(7), the general long-arm statute sets forth actions based on a "marital or parent and child relationship" which could arguably give rise to the exercise of in personam jurisdiction over an out-of-state parent.
After much thought and research, however, this Court concludes that there is a formal "residency requirement" as a prerequisite to a petitioner's "standing" even to invoke this subsection of the general long-arm statute for in personam jurisdiction over a non-resident respondent. Because the Petitioner herein is not a resident of the District of Columbia, she may not even ask the Court to consider the applicability of the "family provisions" of the long-arm statute as to the Respondent, and his motion to dismiss must therefore be granted.
The Court comes to this conclusion of law based upon (a) the plain language of the statute itself, (b) its legislative history, and (c) the available case law, all discussed seriatim, as follows:
(1) The Language of the Statute
The subsections of the general long-arm statute pertinent to this case, as developed on the record herein thus far, read as follows:
(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's -- * * *(7) marital or parent and child relationship in the District of Columbia if:(A) the plaintiff resides in the District of Columbia at the time the suit is filed;
(B) such person is personally served with process; and * * * 14
(D) in the case of a claim affecting the parent and child relationship:(i) the child was conceived in the District of Columbia and such person is the parent or alleged parent of the child;
(ii) the child resides in the District of Columbia as a result of the acts, directives, or approval of such person; or
(iii) such person has resided with the child in the District of Columbia.
D.C. Code § 13-423(a)(7) (emphasis added).
Significantly -- perhaps without so intending -- the language of subsection (a)(7) ("parent and child relationship in the District of Columbia") suggests at least two issues: (1) whether the proposition "in" refers to the parent-child relationship itself or to the cause of action arising from it, or (2) whether the initial subparts of subsection (a)(7) are to be read conjunctively (requiring that all be present for long-arm jurisdiction) or disjunctively (allowing any one to serve as a basis for personal jurisdiction over a non-resident).
This aspect is easily dealt with and discarded. There is no evidence in this case that the Respondent, as the putative father of the child, ever had a parental relationship with the child at issue "in" the District of Columbia (nor, for that matter, is there any such record of a mother-child relationship in the District (other than having given birth here), as far as the Petitioner is concerned). Thus, if this language presumes that it is the parental relationship which must have occurred within the District, that very threshold requirement excludes this case ab initio. It would be difficult to imagine a genuine parent-child relationship as comprehended by this subsection of the statute (and the "residency" theme of this Memorandum Opinion), in the District of Columbia, unless at least one of the parents had, at some relevant time herein (which would certainly be within the last five years), been a resident of the District of Columbia. But the record is clear that neither of the parents has been a resident of the District for at least five years (and perhaps longer), ergo there could not have been any such legally-cognizable relationship "in" the District for purposes of this provision of the long-arm statute, the Court finds.
If, however, this language more broadly refers to the cause of action, based on a parent-child relationship existing somewhere, but filed in the District of Columbia, and made actionable by one or more of ensuing subsections, (a)(7)(A), (B) and (D), then they must, in turn, be addressed.
These factors here are, respectively, (A) a petitioner's residency at the time of filing, (B) personal service on a respondent, and/or (D) the conception or residency of the child in the District.
The resolution of that issue, and the Petitioner's entire cause of action here, turns on whether these subsections are to be read conjunctively (together, as requiring all elements to be present) or disjunctively (separately, as allowing any one to serve independently), so as to serve as a basis for invoking in personam jurisdiction over a non-resident respondent. If they are to be conjunctively, that issue may, in turn, be reduced to the first, or threshold issue, viz., a requirement of the petitioner's residency, since under this "conjunctive approach," in the absence "of any one of them, the case must fail.
The Court concludes as matter of law that these factors are jointly, not severally, applicable, that they all must be present in order for a petitioner to invoke in personam jurisdiction over a non-resident respondent, and that, perforce, the first of these requirements is the petitioner's residency in the District of Columbia, without which the others would therefore be superfluous. Since the Petitioner herein was clearly not a resident of the District of Columbia at the time the suit was filed, as required by D.C. Code § 13-423(a)(7)(A), her case must be dismissed.
The conjunctivity of the provisions of D.C. Code § 13-423(a)(7)(A), (B) and (D), is clear to the Court from the plain meaning and ordinary usage of the terms, language, syntax, and punctuation used therein. The statute speaks, in pertinent part, of invoking long-arm jurisdiction based on "parent and child relationship in the District of Columbia if:"
(B) such person [the respondent] is personally served with process; and * * *
(D) in the case of a claim affecting the parent and child relationship:
(ii) the child resides in the District of Columbia as a result of the acts, directives, or approval of such person; or
(iii) such person has resided with the child in the District of Columbia.
To begin with, this is the only place in the general long-arm statute that "residency" is mentioned in terms of a plaintiff. Though unusual, it is still theoretically possible for a non-resident plaintiff to sue another non-resident as defendant under other provisions of the long-arm statute, e.g., transacting business (§ (a)(1)), contracting to supply services (§ (a)(2)), causing tortious injury (§ (a)(3) & (4)), or property interests (§ (a)(5)), etc.15 The fact alone, however, that subsection (a)(7)(A) affirmatively sets forth the factor of a petitioner's residency leads this Court to conclude that it was intended by the legislature to be not just a primary consideration, but the threshold requirement as a basis for invoking it.16
Beyond that premise, the placement and use of the conjunction "and" in the penultimate subsection before (D), particularly in comparison and contrast to the use of the conjunction "or" before ensuing subsection ((D)(iii)), further leads the Court to conclude that the former usage requires all three elements in subsections (A), (B), and (D), whereas the latter usage means that any of the elements comprising (i)-(iii) may be present.
This means that as a predicate for even attempting to invoke long-arm jurisdiction in a parent-child relationship case, the petitioner must be a resident of the District at the time of filing suit,17 and, s/he must, of course serve the respondent,18 and, at least one of the following is the case: either the child must have been conceived here,19 or the child must have lived here with the respondent, or at the behest or approval of the respondent.20 This is the only logical reading of this plain language, syntax, and punctuation. As noted above, within this context of conjunctivity, the Petitioner fails at the threshold element of her residency, to which is added an absence of the child's contacts with the District, to say nothing further of the literally "seminal issue" of conception of the child here, or the "ministerial" act of service of process as a nexus for jurisdiction.
Interpreting these three subsections as separate and independent options, on the other hand, simply does not make sense. The "mere" act of conceiving a child in the District of Columbia, absent any other meaningful connection with this community, simply seems too evanescent an event to serve as a foundation for personal jurisdiction.21 While some jurisdictions have held that a single sexual encounter resulting in pregnancy and birth is sufficient to trigger long-arm jurisdiction over the absent putative father, that rationale obtains in order to advance the public policy against impregnating women and leaving them and their children (typically born out of wedlock) to become burdens on the public resources of the jurisdiction in which they continue to reside -- thus, again, giving them standing to invoke the pertinent long-arm statute as residents of the forum state.22 See e.g., County of Humboldt v. Harris, 254 Cal.Rptr. 49, 51 (Cal.App. 1st Dist. 1988) (single sexual encounter by non-resident with state resident resulting in conception and birth, held to subject the non-resident to long-arm jurisdiction on the grounds that "it is obvious that the sexual act resulting in the birth of a child imposes a substantial burden both upon the mother and where, as here, the mother is impecunious, upon the state" in a suit to recover AFDC funds); Lake v. Butcher, 679 P.2d 409, 412 (Wash. Ct. App. 1984) (non-resident ex-husband fathering child on one-month visit to ex-wife, found liable under the Uniform Parentage Act for paternity and support, holding that "[a] society which does not protect and nurture its children is doomed . . .. [T]he legislature has lawfully placed upon persons begetting children in this state the obligation of supporting them."); Larsen v. Scholl, 296 N.W.2d 785, 790 (Iowa 1980) (paternity and support action in which non-resident had sexual relations with resident over a two-month span, resulting in pregnancy and birth, holding that "Iowa has an obvious interest in establishing the paternity of a [ ] . . . child born in Iowa to an Iowa resident . . . The parent's obligation to support the . . . child is fixed by statute . . ., as is the right of the department of social welfare . . . to seek reimbursement from the parents."); and Gentry v. Davis, 512 S.W.2d 4, 6 (Tenn. 1974) (paternity and support suit in which long-arm jurisdiction was upheld on a theory of "tortious act" of pregnancy resulting from an unknown number of incidents of sexual intercourse by non-resident with state resident, vindicating the state policy that "the father of a child born out of wedlock is liable under Tennessee law for the education, support and any funeral expenses of the child, as well as for the expenses of the mother's" pregnancy). Cf. Sherburne Co. Social Services ex rel. Pouliot v. Kennedy, 426 N.W.2d 866, 869 (Minn. 1988) (single act of sexual intercourse by non-resident with state resident on the eve of his departure from the state held insufficient to invoke long-arm jurisdiction where the couple established no continuing relationship with the state thereafter, the Court noting that a reciprocal action under the then-extant URESA procedures could accomplish the same result in the putative father's home state).
These considerations do not apply here, inasmuch as the Petitioner, a well-respected professional in her own right, has always (apparently with at least some help heretofore from the Respondent) responsibly taken care of, and provided for the needs of, her child without recourse to public social services. See Daniels v. Kanof, 116 D.W.L.R. 2053, 2056 (Oct. 4. 1988) (Greene, J.) (listing eight factors for establishing minimum contacts, including, inter alia, (3) whether the defendant's activities upon which plaintiff's lawsuit is grounded caused a consequence in the forum state, and (6) whether the defendant's contacts with the forum are related to the transaction upon which plaintiff's lawsuit is grounded).
The same is true for simple service of process here under subsection (a)(7)(B). It is, to be sure, well-settled that personal service within a jurisdiction is sufficient to invoke in personam jurisdiction (subject matter jurisdiction, of course, being a separate issue entirely). See Burnham v. Superior Court of California, 495 U.S. 604 (1990) (upholding the efficacy of the "transient jurisdiction" doctrine). But the fact that a respondent has been served, is typically presumptive (as here), a fait accompli, in cases such as these, or there would seldom be anything before the Court in terms of other aspects of jurisdiction or the actual merits of the case. The same is largely true for local case law.23
In any event, service of process alone would still not substitute for subject matter jurisdiction. Nor does it obviate the necessity, as herein set forth, that the petitioner who seeks service on such a respondent must herself have "standing" to do so.
To construe the foregoing elements as each independently giving rise to an original "one-state" cause of action from which in personam long-arm jurisdiction could spring would, in this Court's view, result in an exponential increase in the filing of cases in this Court, both worthy and unworthy. Consequently, the proverbial floodgates of additional paternity and support cases that this interpretation would open -- if not outrightly encourage -- would be prohibitory and would, ironically, also encourage the very type of "forum shopping" that UIFSA itself was expressly designed to discourage in the first place.24 This phenomenon, not too incidentally, would be further invited by the fact that the District of Columbia is the only local jurisdiction which requires child support to continue until the child is 21 years of age, D.C. Code § 16-916.1(g), not just 18 years of age, as is the case in both Virginia and Maryland, the other two jurisdictions of relevance in the instant case. See generally P. Pearlstein & B. Jaques, Child Support Guidelines in D.C., Maryland and Virginia, The Washington Lawyer 38, 39 (Nov./Dec. 1990). Neither the Superior Court in general, nor the Family Division in particular, nor the Paternity and Support Branch especially, can open itself indiscriminately to those who wish to file here based on the whimsical, capricious, opportunistic actions of any number of people in their evanescent dealings with or in the Capital of the Free World.
To put it succinctly, and in a form derivative from the statute itself, then:
The Court concludes that when a statute provides as the basis for invoking its jurisdiction --
(B) A second principle, followed by a semicolon; and
(C) A third principle (with or without sub-options under the last principle) after the "and," which had itself been preceded by a semicolon, then those three subsections are taken to be in the conjunctive.
Thus, all three principles ((A), (B), and (C)), must be present before the statute can be invoked.
The premier authority on statutory construction and interpretation appears to support the Court's reading of this statute in the foregoing manner, as discussed below in further minor detail on the two conjunctions at issue therein:
Sutherland's well-known treatise on statutory construction addresses this issue specifically as follows:
lA Sutherland Statutory Construction § 21.14 at 129 (5th ed. 1993) (footnotes omitted) (emphasis added).25 Thus, the conjunctive implies that more than one requirement must be fulfilled (although it does not necessarily impose an order or sequence). See Green Bay Broadcasting Co. v. The Redevelopment Agency of City of Green Bay, 342 N.W.2d 27, 37 (Wisc. 1983).
In comparison, it follows from this reasoning, that if "or" at the end of a list must be read ("make it necessary to read") as disjunctive, then, perforce, the appearance of the word "and" at the end of a list, requires that it be read in the conjunctive.
Likewise, then, because in the three subsets of subsection (a)(7)(D), the statute uses the disjunctive "or," the Court concludes that these are optional elements, which are independent of each other -- providing, in the process, a confirming counterpoint which strengthens the Court's previous conclusion that the "and" in the immediately preceding subsection is a joint, not a several, requirement as a predicate for long-arm jurisdiction (specifically including the residency of the petitioner).
On this point, Sutherland is equally clear. In addition to the language on the conjunction "or" quoted above, the treatise goes on to state that:
Id. (emphasis added).26 Thus, "[i]n statutory construction the word 'or' is to be given its normal disjunctive meaning unless such a construction renders the provision in question repugnant to the other provisions of the statute." In re Rice, 83 U.S.App.D.C. 26, 28 n.4, 165 F.2d 617, 619 n.4 (1947). It follows, therefore, that the legislative use of the disjunctive "or" evinces an intent to require a choice. See Boyce v. Concord General Mut. Ins. Co., 435 A.2d 510, 512 (N.H. 1981).
These well-accepted principles of statutory construction apply here to the subsections of D.C. Code § 13-423(a)(7), meaning that the first three, separated by an "and" must all be present conjunctively, to-wit: (A) the petitioner's residency in the District, and (B) personal service of process in the respondent; and (C) in a parent-child relationship case, either (1) conception of the child in the District, or (2) the child's residency in the District at the behest or approval of the respondent, or (3) the respondent's residency in the District with the child. Consequently, in the absence of even one of these requirements -- particularly, the threshold one of the petitioner's residency here, it follows that Petitioner lacks "standing" even to invoke this aspect of the general D.C. long-arm statute in seeking to obtain in personam jurisdiction over the Respondent herein, and her case cannot succeed on this jurisdictional basis.27
The Court draws further support for this conclusion from what "legislative history" there is on this statute.
In attempting to discern whether there is a "residency requirement" as a basis for "standing" to invoke in personam jurisdiction against a non-resident respondent under this subsection of the general long-arm statute, its "legislative history, is, alas, not particularly useful.
Subsection (a)(7) of the general long-arm statute was added in December 1982, as part of the District of Columbia's adoption of the "Uniform Child Custody Jurisdiction and Marital or Parent and ChildLong-Arm Jurisdiction Amendments Act of 1982." (See endnote to this code section) (emphasis added). Although this legislation was added in response to the federal requirement to adopt the general Uniform Child Custody Jurisdiction Act (the "UCCJA"), currently codified at D.C. Code § 16-4501 et seq., which deals primarily with interstate custody cases, the portion of this statutory title appearing in boldface italics above was nevertheless intentionally added to the District's general long-arm jurisdictional statute, and arguably provides an independent basis for in personam jurisdiction over non-resident respondents in paternity and support cases.28 Addressing this concept is also appropriate because one of the Petitioner's express requests in this action is, at long last, for the formal award of custody of the now sixteen-year-old child.
The Court has reviewed the legislative history -- all 121 pages of it -- of D.C. Law 4-200, but does not find it particularly illuminating on the issue of the basic requirements for long-arm jurisdiction in paternity, custody, and support cases. Almost in its entirety, it speaks only to the considerations of uniform child custody issues in interstate cases, presuming throughout, apparently, that proper personal and subject matter jurisdiction are foregone conclusions. See reference in Alberqottie v. James, 470 A.2d 266, 269 n.4 (D.C. 1983) (child custody case). In fact, despite the fact that its formal title, as noted above, expressly refers to "Parent and Child Long-Arm Jurisdiction," a close reading of the legislative history reveals that it does not contain a syllable on the issue of "long-arm jurisdiction" per se.
The legislative history, nevertheless, does render some broad hints as to "legislative intent" on this topic. The residency-based approach to the UCCJA, as the companion legislation to this section of the general long-arm statute, is embodied in the concept of limiting the jurisdiction of a court "to the state where the child has his home or where there are other strong contacts with the child and his family." (Legis. Hist. at 4).29 This principle is embodied in the enactment of a new Chapter 16, which defines "home state" as "the state in which the child immediately preceding the time involved lived with his or her parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned," counting "[p]eriods of temporary absence of any of the named persons." D.C. Code § 16-4502(6).30 Finally, on this score, the UCCJA itself expressly requires that "the child and his or her parents, or the child and at least 1 petitioner, have a significant connection with the District." D.C. Code § 16-4503(a)(2)(A). This language calls to mind the correlative language of the general long-arm statute itself, discussed supra in subsection 2.b.(1)(a) hereof, when it uses the phrase "marital or parent and child relationship in the District of Columbia." D.C. Code § 13-423(a)(7) (emphasis added).
Clearly, then, to the extent that it adverts to the concept, the legislative history of the statute to which these addenda to the general long-arm statute are firmly tied, comprehends some sort of residencybased nexus associated with the child or the petitioning parent, in order to be permitted to exercise that provision of the general long-arm statute. As this record makes clear, however, that factor is lacking with respect to both the petitioning parent and her child in the instant case.
Finally, that the petitioner's residency is a prerequisite to be able to invoke this aspect of the general long-arm statute is brought to the clearest focus in the available published case law on this aspect of the code.
Surprisingly, a diligent search (via both LEXIS and WESTLAW), not only of the entire case law of our own Court of Appeals, but also of the entire corpus of state and federal case law at all levels, reveals but one published case in which D.C. Code § 13-423(a)(7) is even mentioned, much less discussed or ruled upon. That case, L.A.W. v. M.E., 606 A.2d 160 (D.C. 1992), a paternity and support case which probably would have provided some guidance on this issue, turns out not to be useful because, ironically, it was dismissed for lack of appellate jurisdiction. This dismissal resulted not only because it was an appeal from a non-final order (which had adjudicated paternity, but not support), in contravention of D.C. Code § 11-721(a), but also because it was an impermissible direct appeal from the final judgment of a Superior Court Hearing Commissioner which had not gone through the intermediate "review" step, to a Judge of the Superior Court, as a predicate to direct appeal, in contravention of D.C. Code § 11-1732(k).31
In L.A.W., therefore, the Court of Appeals expressly eschewed ruling on the important issue of long-arm jurisdiction explicitly raised therein. Id. at 161. The case, therefore, only provides a hint of its potential on this issue when it notes that "[a]ppellant claims that the trial court did not have personal jurisdiction to hear this case since neither the father, mother, nor child reside[s] in the District of Columbia," specifically citing Section 13-423(a)7)(D), precisely the issue in the instant case. Id. at 160.32
One of the inherent advantages, however, in being at this end of the "judicial food chain," is that there is one additional level of superior judicial authority on which to rely for guidance, viz., the published opinions of Judges of the Superior Court.33 A diligent review of all published opinions by Superior Court Judges since the effective date of D.C. Code § 13-423(a)(7) et seq. (March 10, 1983), turns up at least five published Judges' opinions circulating around this subsection of the general long-arm statute. Two of these only deal with the issue indirectly, however.34 The remaining three -- all by the same Judge -- though, are extremely illuminating on this point and confirm this Court's ruling, hereinabove set forth.
Now Senior Judge Peter H. Wolf addressed this specific issue in a trio of closely-spaced cases, published separately in the Daily Washington Law Reporter in March 1990, on this aspect of the general long-arm statute. One of these only implicitly ruled on Section 13-423(a)(7), while the other two addressed it squarely and found it to contain a residency requirement for any petitioner or movant seeking to invoke personal jurisdiction over a non-resident under that statute.
The first of these opinions referencing Section 13-423(a)(7) was Oler v. Oler, 118 D.W.L.R. 541 (Mar. 14, 1990). The wife in that case, who at the time lived in Maryland, had filed a still-pending suit against her husband, then a D.C, resident, seeking divorce, property distribution, and custody of the parties' children, who lived with her in Maryland. He, in turn, immediately filed a competing suit for the same relief in the District. The wife filed a motion to dismiss based on forum non conveniens and also contested personal jurisdiction over her, specifically on the grounds of Section 13-423(a)(7), id., presumably because there was no prior D.C. court order in the matter and on the grounds that there was not then, and never had been, any "connection" of that family with the District, or any parent-child relationship "in" the District of Columbia. Before this issue was joined, however, the father amended his complaint by limiting his prayer for relief to a request for an absolute divorce only, and agreeing that the other matters (the children and the property) would be better decided by the Maryland court, which had both personal and subject matter jurisdiction over them. Id. at 541 & 545.
In Oler, then, Judge Wolf did not have to, and therefore wisely did not, rule on the long-arm personal jurisdiction issue. This was because, he held, the husband's amended complaint transformed the case from one which otherwise would have required in personam jurisdiction over the wife, to one of quasi in rem jurisdiction affecting only the "res" of the marriage itself, rendered actionable by the presence of the husband, as one of the indivisible elements of that marriage, in the District.
Because, however, it is a harbinger of how and why he later ruled as he did in the other two cases under discussion here, it is worth noting that in dictum Judge Wolf did observe in Oler -- seemingly affirming the wife's position therein -- that "[t]his court recognizes . . . that it does not have personal jurisdiction over the current defendant wife under D.C. Code § 13-423(a)(7)." Id. at 545 (emphasis added). He found that issue moot, however, because, he concluded "[t]he point is, such is not needed for a divorce alone." Id.
In the Judge Wolf's other two cases involving Section 13-423(a)(7), however, the issue of personal jurisdiction under this section of the general long-arm statute was pointedly ruled upon, if not expanded. Both these rulings were on counter-motions by the respective non-resident parties against each other, and both went off on the premise that because the movant was not a resident of the District of Columbia, neither, in effect, had standing to invoke the in personam jurisdiction of that statute against other non-resident respondents.
In Holt v. Holt, 118 D.W.L.R. 553 (Mar. 15, 1990), the Superior Court had granted an absolute divorce between the parties nearly nine years earlier, based upon the wife/mother's D.C. residence at the time, also awarding custody of the parties' child to her. Eight years later, the mother, now a resident of Virginia, sought modification of the custody decree in the Court which had originally issued it, under a theory of "continuing jurisdiction" over such matters, pursuant to the principles well-recognized by D.C. Code § § 16-914(a) & 30-504. Meanwhile, however, the father had moved to Pennsylvania.
But, Judge Wolf held, "[s]ince plaintiff-mother did not reside in the District . . . when she filed her motion, the requirement of subsection (A) is not met." Id. at 555 (emphasis added). Moreover, he referred with particularity to what he termed "the disjunctive requirements" of the subsections (i) (conception of the child in D.C.) and (iii) (residency of the child here with the parent). Id. (emphasis added). Finally, because, as in the instant case, the petition involved a request for custody, he also relied on the plain terms of the UCCJA, supra, by pointing out the "home state" requirement of Section 16-4501(a)(1). Id. By characterizing the factors in Section 16-423 (a)(7) as "requirements," specifically including residency of the petitioner, and by further contrasting them with what he termed the "disjunctive" factors in subsection (a)(7)(D)(i)-(iii), Judge Wolf's interpretation -- binding on this Court as that of a presumptively superior judicial officer -- confirms this Court's interpretation of these issues of statutory construction, supra.
Judge Wolf concluded his analysis in Holt by stating that "this court believes that at most the District [once] had a significant connection and does not presently" have such a basis to even address the best interests of the child, much less personal jurisdiction over the respondent. Id. at 556 (first emphasis in original). Here again, by couching the issue of in personam jurisdiction, based on the conception of a child in the District of Columbia, Judge Wolf implicitly ruled -- even in a case where there had been original residency of all parties, and in which a final order had already been issued by the Superior Court (in stark contrast to the total absence of these factors in the instant case) -- that there must also be some remaining "significant connection" with the District in order to invoke long-arm jurisdiction under this section of the Code.35
Judge Wolf made the same ruling in the similar case of Heim v. Taylor, 118 D.W.L.R. 577 (Mar. 19, 1990), this time when the non-resident father, as movant for a contempt citation against the mother, was found to be without standing to invoke this provision of the long-arm statute because he was not a resident of the District. Citing expressly to D.C. Code § 13-423(a)(7)(D)(i) (conception of a child in the District of Columbia) as the basis for long-arm in personam jurisdiction, Judge Wolf ruled that the Court did not have such jurisdiction to reach the non-resident mother on the father's motion because the father himself was no longer a resident of the District, either.
Specifically in Heim, the parties had been granted a divorce based on the husband's petition five years earlier, when he was a District resident and his wife lived in Connecticut. Meanwhile, the-ex-husband had moved to Maryland, where he was living when he filed his contempt motion, while the ex-wife remained in Connecticut. Here, again, unlike the instant case, there had been original "residency-based jurisdiction" in the District.
Expressly referring to his ruling in Holt, Judge Wolf enunciated the same premise in Heim, viz., that the Court lacked jurisdiction because the movant -- this time the husband -- was not a resident of the District. Noting that Section 13-423(A) of the general long-arm statute expressly refers only to the requirement that "the plaintiff resides in the District of Columbia at the time the suit was filed," Judge Wolf interpreted that language to extend also to require that any movant in a suit also must live in the District at the time his or her motion is filed. Id. at 577 & 58.36 Because the movant was not a resident, and neither was the respondent, Judge Wolf therefore concluded that in order to act on the motion, "[t]his court must . . . have personal jurisdiction over the plaintiff-mother, the non-moving party, and it does not." Id. at 58.37 Since the "petitioner" was not a resident, therefore, he concluded that there could be no invocation of personal jurisdiction over the "respondent," and he ordered that the motion be dismissed.38
Thus, both these governing opinions went off on the proposition that under the general long-arm statute, in the absence of a petitioner/movant's residency in the District of Columbia, the Court has no personal jurisdiction over the intended respondent.39 Put another way, Holt and Heim (and implicitly Oler) stand for the proposition that to be able to invoke in personam jurisdiction under the general long-arm statute, a petitioner must be a District resident at the time of fling the request for the relief sought, in order even to have standing to attempt to fulfill the ensuing requirements of that section of the long-arm statute. In these cases one "leg" of the prospective standing had been an already extant court order or judgment. But the other "leg," a petitioner's residency, was missing, thus negating a firm enough jurisdictional "foothold."40
The lesson for the instant case -- and all others which may be similarly situated -- is that in an original "one-state" action, without any prior order, if the petitioner is not a District resident at the time of filing, the Court need not reach any other issues in the case, because it simply cannot obtain personal jurisdiction over the respondent in order to require him constitutionally to respond.
In conclusion, the Court holds that Petitioner's attempt to reach the Respondent in this original action under the pertinent provisions of the District's general long-arm statute are unavailing because she was not a resident of the District of Columbia at the time she filed it, thus failing to meet the threshold requirement of that provision of that statute.41
The Court now turns to address the Petitioner's second approach, the long-arm provision of UIFSA.42 The application of UIFSA, however, to the Petitioner's case also suffers a fatal blow due to the lack of residency by either the Petitioner or the child at issue.
As set forth in subsection 3, infra, the Uniform Interstate Family Support Act (UIFSA) contains its own -- and particularly liberal -- long-arm provision. It arises out of the following legislative history:
This new uniform act emanated from the United States Commission on Interstate Child Support, established by Congress in the Family Support Act of 1988, charged with making recommendations for improvements in the establishment of interstate support obligations. See U.S. Commission on Interstate Child Support, Report to Congress, Supporting Our Children: Blueprint for Reform (GPO 1992) (hereinafter "Report to Congress"). The statute was prompted by the apparent general agreement that the existing structure under the Uniform Reciprocal Enforcement of Support Act ("URESA") was insufficient to meet the needs of our modern "interstate society." See generally, J. Sampson and P. Kurtz, UIFSA: An Interstate Support Act for the 21st Century, 27 Fam. L.Q. 85, 86 (Spring 1993) (hereinafter "Sampson and Kurtz") ("It is true that URESA no longer serves the needs of modern society and should be replaced by a better, more progressive, more forward-looking, less complex act."); J. Calhoun, Interstate Child Support Enforcement System: Juggernaut of Bureaucracy, 46 Mercer L.Rev. 921, 940 (Winter 1995) (hereinafter "Calhoun") ("The current system for collection of delinquent child support has failed dismally.").43
In turn, this suggestion was taken up by the National Conference of Commissioners on Uniform State Laws, which recommended UIFSA in August 1992. On February 9, 1996, the District of Columbia effectuated UIFSA with only minor modifications. See D.C. Code § § 30-432.1 through 349.44
The "subject matter" of child support jurisdiction
remains an amorphous, elusive concept. By analogy, in traditional
divorce litigation, a "legal fiction" was fashioned which
created a "marital res" that followed each spouse (who had
"become one") to his or her (new) State of domicile.
See C. Bruch, Statutory Reform of
Constitutional Doctrine: Fitting International Shoe to Family Law,
Unlike the "in rem" subject matter jurisdictional concept inherent in the granting of a divorce, however, no such manufactured nucleus is necessary in order to adjudicate paternity or to grant child support. See M. Allen, Child-State Jurisdiction: A Due Process Invitation to Reconsider Some Basic Family Law Assumptions, 26 Fam. L.Q. 293, 301 (1992) ("The Supreme Court can probably only uphold child-state jurisdiction by overruling, either explicitly or implicitly, Kulko v. Superior Court.").
Traditionally in child support cases, therefore, the forum state was also the situs of the residency, custody, day care, schooling, personal, spiritual, psychological, medical, or other care of the child. As a political and social jurisdiction with a pre-existing community duty of parens patriae, it would serve as wellspring of salient information about the child.46 Consequently the Consequently, the forum state would be the entity that would provide the figurative "base" for subject matter jurisdiction, acting as the fulcrum by which to lever, by means of a long-arm statute, and lift the nonresident, noncustodial (putative) parent into the forum state. But someone must be in place -- "in residence" -- at the initial end of the fulcrum in, order to push it down -- someone who has a right to be there.47 Presumably this would primarily be the custodial parent, whose presence with the child would provide subject matter jurisdiction and would only secondarily involve "minimum contacts" of the noncustodial, nonresident parent in terms of personal jurisdiction over him or her. In the case sub judice, however the Court does not have access to such information on this record because -- other than the "accident of birth" -- the child does not any "record" in the District of Columbia, at least not on the record adduced thus far.
More fundamentally, however, where the instant case (and any similarly situated) is concerned, the intrinsic problem in connection with the UIFSA long-arm provision is stated by the Respondent when he points out that "UIFSA does not address whether or not the petitioner or the minor child must have a connection to the District." (Resp. Mem. at 3). In that regard, in what one scholarly observer termed a "jurisdictional free-for-all in [child] custody litigation," authorities concluded that the best possible place to litigate [was] a place with the most information about the child and possible custodial arrangements. Sometimes this forum conveniens would be a place that would have personal jurisdiction under traditional tests, but often it would not." In so doing, "[t]hey might have asserted, for example, that the child's home constituted some kind of 'custodial res,' analogizing to the 'marital res' doctrine. But they did not. Instead they simply wrote a law . . . that narrows the jurisdictional options to a place with appropriate information, then maintains exclusive jurisdiction in that place until it makes sense to change." Bruch at 1051 (emphasis added). In the instant case, the Court finds, that "place" is the child's home State -- Virginia.
This principle was set forth in UIFSA and is impliedly comprehended in its liberal long-arm provision.
Deemed one of the most sweeping and important subsections of UIFSA, codified locally at D.C. Code § 30-342.1, that long-arm statute for this purpose provides as follows:
In a proceeding to establish 48, enforce, or modify a support order or to determine parentage, the Family Division [of this Court] may 49 exercise personal jurisdiction over a nonresident . . . if:
(2) The individual submits to the jurisdiction of the District by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; 51
(3) The individual resided with the child in the District;
(4) The individual resided in the District and provided prenatal expenses or support for the child;
(5) The child resides in the District as a result of the acts or directives of the individual; 52
(6) The individual engaged in sexual intercourse in the District and the child may have been conceived by that act of intercourse; 53 of 54
(7) There is any other basis consistent with the laws of the District and the Constitution or the United States for the exercise of personal jurisdiction.55
D.C. Code § 30-342.1 (emphasis added).
In the instant case, the Respondent himself admits that two of these subsections apply to him, to-wit: (1) that he was personally served in this matter in the District and (6) the child at issue herein "may have" been conceived in the District. (Resp. Supp. Br. at 5).
The question again arises, however, as to whether the Petitioner has "standing" to invoke these or any of the other disjunctive provisions of the UIFSA long-arm provision. The Court concludes, again, that she does not because she is not a resident of the District of Columbia as the forum state.
The fact cannot be ignored that the UIFSA long-arm provision -- unlike that in the general long-arm statute, supra -- does not expressly contain any "residency requirement" for a petitioner, such as the one in this case, who seeks, in the pertinent words of this statute, "to establish . . . a support order or to determine parentage." Yet, the Respondent herein frames this issue with admirable clarity, when he submits that
(Resp. Supp. Mem. at 7-8) (emphasis added).
The Court agrees. Where, as here, a petitioner seeks to establish paternity and obtain support (and custody) by means of an original filing, she proceeds along the lines of what has come to be known as a "one-state" case. That is, she files her action in a single state (presumably her own) and seeks to bring the respondent in via this long-arm provision, rather than pursing the "two-state" remedy by filing in her own state and having the case "certified" or "registered" against the respondent in his own home state. When the one-state procedure is attempted, therefore, despite the absence of any such language in the statute to this effect, this Court concludes that that "one state" must be the child's "home state" and, presumably, the residence of the custodial parent as petitioner. This conclusion of law is based on the following well-known legal premises inherent in UIFSA:
The entire philosophy underlying the UIFSA long-arm provision is that, in order to cut through the heretofore complicated Gordian knot of interstate child support orders, and to limit the case to a single original order, if possible, a petitioner may avoid "two-state litigation" by filing a one-state petition in the jurisdiction where s/he lives, utilizing the UIFSA long-arm provision as a means by which to reach out and draw the respondent into her local jurisdiction, due to the respondent's prior or current and relevant contacts therein, including those listed above. Such a one-state action would, of course, be faster and less expensive than multi-state litigation or most of the procedures under URESA, the previous interstate scheme. See Fielding at 455 ("The long-arm provision is broad and gives agencies which exist in the home state of the obligee the maximum ability to obtain personal jurisdiction over an absent obligor. Therefore, a suit which requires the use of a two-state lawsuit under URESA or RURESA can now be pursued through a proceeding in only one state, the home state of the obligee.") (footnotes omitted) (emphasis added). Indeed, in this context, the Commentators to UIFSA expressly advanced along this premise, stating that "[a]ssertion of long-arm jurisdiction over a non-resident essentially results in a one-state proceeding, notwithstanding the fact that the parties reside in different states." Comment to Section 202 (emphasis added).
Alternatively, in a "two-state action," the petitioner may file an action for child support, still in her home state, and ask that it be forwarded to the respondent's home state. Finally, she may file against the respondent in his own home state, an action which would not implicate UIFSA at all. See Fielding at 456 ("Upon enactment of a long-arm statute, a potential obligee can either (1) utilize that statute to 'reach out' to the obligor and obtain personal jurisdiction over him or (2) initiate a two-state UIFSA action to initiate a support order in the foreign jurisdiction. UIFSA advocates the existence of only one support order at any time. A broad long-arm statute furthers UIFSA's goal of encouraging one support order for any two parties.") (footnote omitted).56 "Thus, once a court . . . enters a support decree with jurisdiction, it is the only body entitled to modify it so long as it retains continuing, exclusive jurisdiction under the Act. Another state, while required by UIFSA to enforce the existing decree, has no power under that Act to modify the original decree or enter a support order at a different level." Sampson and Kurtz at 88 (emphasis added).
Such a one-state process also contemplates a concept associated with UIFSA, known as "continuing exclusive jurisdiction" ("CEJ"), which its drafters termed "the most crucial provision in UIFSA." Comment to Section 201.
This concept, codified in D.C. Code § 30-342.5, has been called "'the most significant improvement offered by UIFSA'" over previous interstate statutes, Commonwealth v. Kenitzer, 475 S.E.2d 817, 819 (Va. App. 1996) (quoting Kurtz at 86), in that, assuming proper jurisdictional authority to do so, it allows for the issuance and maintenance of one initial order which, as noted above, would remain in effect so long as the issuing court could maintain CEJ over at least one of the contestants. Such a process also "eliminates an obligor's 'forum shopping' efforts to find a state whose support theory would tend to reduce his support order," as well as avoiding multiple orders in various jurisdictions. Fielding at 459.
In this Court's view, though, the phrase "continuing exclusive jurisdiction" is simply alternative nomenclature for "subject matter jurisdiction." Another vital question in this particular case, therefore, is not whether the Court has CEJ, but whether it has any subject matter jurisdiction by which it could even initiate CEJ (and then if so, whether it could then keep it, in view of the fact that all the parties have since left the District). See Hatamyar at 4-5 (UIFSA "is premised upon the laudably straightforward 'one-order-at-a time' system; only one state's order should govern, at any given time, an obligor's support obligation to any particular obligee or child; only one state should have continuing jurisdiction to modify that order; and all other states should give that one order full faith and credit and refrain from modifying it unless the first state no longer has jurisdiction.") (footnotes omitted) (emphasis added).
That issue, the Court concludes, turns on the premise that the needful party is to benefit under UIFSA in his or her own "home state," by enabling that party to file for the "one order" there.
UIFSA defines the term "home state" as
D.C. Code § 30-341.1(6) (emphasis added).
In comprehending the original issuance of any child support order by this Court, the "CEJ" aspect of UIFSA expressly presumes that before such an order could issue, the District of Columbia must be the residence of at least one of the persons most directly affected, providing in pertinent part as follows:
D.C. Code § 30-342.5(a)(1) (emphasis added); see also id. § § 30-341.1(15) & (16) (defining "obligor" and "obligee," respectively).
Thus, the pertinent UIFSA section, by utilizing the present participle ("issuing") comprehends that in a case such as this one, wherein an original order is sought, the Court may not issue such an order, thus triggering the Court's "continuing exclusive jurisdiction," if neither the child nor the custodial parent is a District resident.57
This is inexorable logic, because for the District to be able, in the actual words of the statute, to "remain" the residence of at least one of the parties, it must already have been such a residence at some relevant point. The facts here belie that premise. Neither of the parties has been a resident of the District for an extended period of time -- at least five years, if not longer, on this record. Indeed, there is nothing on this record to show that the District has ever been the "home state" of the child in this case, as comprehended by UIFSA, supra.
This principle is also reflected in a direct reference to the long-arm provision by the UIFSA commentators, who noted that it
UIFSA References and Annotations, Prefatory Notes (emphasis added); see also Hatamyar at 16 ("[T]he policy behind section 201 is 'to give the tribunals of the home state of the supported family the maximum possible opportunity to secure personal jurisdiction over an absent respondent,'" under the long-arm provision.) (emphasis added).
In the instant case, however, if the District of Columbia ever had CEJ, it appears to have lost it ab initio, when both contestants (and the child) removed to other states, at least five years ago.58 In fact, the Commission on Interstate Child Support used precisely this "fact pattern" in one of the postulations contained in its 1992 Report to Congress, noting that:
[But] [i]f all the parties leave the state that issued the order, or the parties consent to another state exercising control over the order's terms, then the state that originally issued the order should lose the right to prospectively modify the order.60 That state, has lost its real interest in the case. If no one lives in the state where the original order or last modified order was issued, then another state with closer, newer ties to one or both of the parties and child should control the case for modification purposes.
Report to Congress, supra, at 89 (emphasis added); see also id. at 87-88 ("it is highly unlikely that a state other than that where the child or noncustodial parent resides would attempt to assert jurisdiction"). Likewise, the UIFSA commentators observed that
Comment to Section 205 (D.C. Code § 30-342.5) (emphasis added).61 This is simply another way of saying that the issuing State loses subject matter jurisdiction.62
Also directly on point with the circumstances of the instant case, another leading scholar points out how that subject matter jurisdiction may be maintained and how it may be lost:
Fielding at 460-61 (footnotes omitted) (emphasis added).
Both the family provisions of the general long-arm statute and UIFSA long-arm provision, therefore, are undercut by the fact that a prerequisite to either is the residency of the movant as part and parcel of figurative and literal "standing" to invoke such statutory jurisdiction. The most basic foundational element of "long-arm" jurisdiction is that someone must be on this end of the legal "arm" with "standing" to "shoulder" the burden of proof. No one in this case meets that essential requirement.
Because of its relative newness, there is comparatively little case law on UIFSA in general, much less its long-arm provision in particular.63 A tailoring of research in this lean corpus of case law to the issue of UIFSA's "long arm" jurisdiction, confirms this Court's conclusion that there must first be a grounding of some cognizable type (typically the residency of one of the contestants) in the forum state.
The Court has found no case which has permitted the invoking of the UIFSA long-arm provision in a one-state action by a non-resident petitioner seeking an original order.
In 1995, for example, the South Carolina Court of Appeals specifically addressed the issue of subject matter jurisdiction under UIFSA in the case of Deltoro v. McMullen, 1995 S.C. App. LEXIS 156 (Nov. 27, 1995) (unpublished opinion).64 There a South Carolina mother sought to invoke the local court's jurisdiction to modify and enforce a local child support order against a father who was then a resident of Virginia. The South Carolina intermediate appellate court, however, reversed the trial court's ruling and rejected the mother's assertion that the trial court had personal jurisdiction pursuant to either UIFSA's long-arm provision or that State's general long-arm statute.
The South Carolina appellate court clearly distinguished between the personal jurisdiction, which is endemic to the petitioner's residency and concomitant right, therefore, to seek long-arm jurisdiction over a non-resident, on the one hand, and subject matter jurisdiction, on the other, ruling as follows:
Deltoro v. McMullen, 1995 S.C. App. LEXIS 157 at *7 (citation omitted) (emphasis added).65 By this reasoning, therefore, in order to have subject matter jurisdiction as the platform from which to reach out for long-arm personal jurisdiction over a non-resident, the custodial parent and/or the child must be a resident of the forum state.
A case illustrating this principle indirectly is Virginia ex rel. Kenitzer v. Richter, 475 S.E.2d 817 (Va. App. 1996), in which the Virginia intermediate court of appeals held that a petitioner from California could invoke the jurisdiction of a Virginia court to enforce a South Carolina order against a respondent then living in South Carolina. There, however, the parties had lived in Virginia and had obtained a Virginia divorce and custody and support order several years earlier.66 Subsequently, however, the mother moved to California and the father to South Carolina. Yet due to their previous residency in Virginia, a "residency-based" jurisdiction left the Virginia court with the power to enforce its own decree, but without the power to modify it. Id. at 820. Thus, unlike the instant case, this was not one in which a person who had never been a resident of the state in which relief was being sought was seeking to invoke that state's long-arm jurisdiction against another non-resident.67
In conclusion, the extant case law clearly shows that the instant case is dispositive under the overarching philosophy of UIFSA: "[O]nce 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['s] " being permitted to do so. Child Support Enforcement Div. of Alaska v. Brenckle, 675 N.E.2d at 392 (emphasis added); see also Welcher v. Rager, 491 S.E.2d 661 (N.C. App. 1997) (under the philosophy and purpose of UIFSA "[m]odification of a valid order is only allowed if: (1) all parties have consented to the jurisdiction of the forum state to modify the order; or (2) neither the child nor any of the parties remains in the issuing state and the forum state has personal jurisdiction over the parties").
No such relevant residency ever having been present for continuing jurisdiction in the instant case, it follows that no such basis exists for initiating jurisdiction.
From a practicable standpoint, then, the Petitioner's lack of residency in the District means that she lacks "standing" -- a legally-cognizable base -- from which to invoke long-arm jurisdiction under UIFSA or any other long-arm provision. Not only is this implicit in the District's general long-arm statute, and a plain requirement of the UIFSA long-arm provision, but it is also arguably endemic to the long-arm concept in general.68
Simply put, the Court concludes as a matter of law that under UIFSA's long-arm provision, there must be a corresponding grounding of residency of the movant in the District of Columbia before subject matter jurisdiction can attach and make the case actionable. Respondent is therefore correct when he asserts that this section of the long-arm statute "permits the exercise of personal jurisdiction over a nonresident . . . only when the plaintiff resides in the District." The Court further adopts his legal premise
Thus, when no party remains grounded in the issuing jurisdiction, it loses its continuing exclusive jurisdiction. If this is true for a court which has already entered an order, it is all the more applicable to a court which has not yet done so. If this Court would lose its jurisdiction to modify its own order, once all the parties moved out of the District of Columbia, the reverse must also be true: If none of the parties live here when an action is first filed, this Court has no subject matter jurisdiction to issue an order in the first place and, consequently, there would be no basis for the attachment of personal jurisdiction over a non-resident respondent.
This Court so holds.69 For the reasons hereinabove set forth, therefore, the Respondent's motion to dismiss for lack of personal jurisdiction will be granted and the Petitioner's case will be dismissed without prejudice.70
The other two issues raised by the Respondent may be more briefly dealt with.
The Court's ruling on the lack of personal jurisdiction, under both long-arm provisions at issue herein, effectively ends the matter before this Court. Because, however, the Court knows that its ruling will have collateral consequences in the action which the Respondent has filed in the Juvenile and Domestic Relations District Court of Arlington County, Virginia, it will briefly address that issue.
As an adjunct to his forum non conveniens argument, infra, the Respondent makes a collateral argument that since he timely filed a petition to make the same findings in another state (Virginia, which is the Petitioner's and the child's "home state," albeit not his own), this Court, in which the Petitioner filed the instant action, lacks jurisdiction to make any determination for the discrete issue of child support, per se. (Resp. Supp. Br. at 10-13 and attached exhibits of Virginia pleadings.71
In view of all of the foregoing, however, the Court finds it unnecessary to limit its finding of lack of subject matter jurisdiction to the sole issue of child support. Although this is pure dictum, it is amply clear to this Court that it lacks subject matter jurisdiction over any aspect of this case, whether paternity, support, or any collateral issue because none of the parties any longer has any demonstrable, actionable, or even relevantly material minimum contacts with the District of Columbia for any purpose comprehended by UIFSA or any other version of "long-arm jurisdiction."
As noted above, those matters may -- and will, in fact, be -- dealt with by the Virginia Court, or any other court with proper personal jurisdiction over the parties.
Likewise, the Respondent spends much time bifurcating his argument along the lines that even if the Court finds both personal and subject matter jurisdiction for Petitioner's case against him, it should nevertheless decline to hear it on a theory of forum non conveniens. (Resp. Mem. at 3-9).
The issue of forum non conveniens is, predictably, one which has been frequently litigated in this local "tri-state" area.72 But that issue would only become ripe if the Court had jurisdiction in the first instance. Having ruled that it does not, therefore, the Court will make no findings on this portion of the Respondent's motion.
Consistent with the teachings of our Court of Appeals, this Court's final duty is to inform the parties of their rights to review and appeal. See Speight v. United States, 558 A.2d 357, 358 n.2 (D.C. 1989) ("In the interest of justice and to assure orderly procedure, the hearing commissioner should inform the parties of their right to review and the time limitations thereon."); see also L.A.W. v. M.E., 606 A.2d 160, 161 (D.C. 1992) (to same effect).
The rulings of D.C. Superior Court Hearing Commissioners are "final judgments" of this Court. See D.C. Code § 11-721(a) (1); Civil Rule 73(a) ("make findings and enter final judgments and orders in a civil case"); Speight v. United States, 558 A.2d at 358-59 ("final judgments"); Fitzgerald v. Fitzgerald, 566 A.2d 719, 722-23 (D.C. 1989) (same); Artl v. United States, 562 A.2d 633, 634 (D.C. 1989) (same). The decision of a Hearing Commissioner is a judgment of the Court subject to review by superior judicial officers. See D.C. Code § 11-1732(a) & (j)(5); Canada v. Management Partnership, Inc., 618 A.2d 715, 717-18 & n.4 (D.C. 1993) (jurisdiction of Hearing Commissioners in Small Claims Court rooted in an express statutory grant implemented by court rule). Any party aggrieved by the entry of this Judgment Order has the right to seek review before a Judge of the Superior Court and following that procedure to appeal the Judge's decision to the District of Columbia Court of Appeals.
Right to Review. The decision of a Hearing Commissioner is subject to review by a Judge of the Superior Court on filing the appropriate notice and motion in writing within ten days of the entry of this Order. See D.C. Code § 11-1732(k); Civil Rule 73(b) & (c)(1). The Rule expressly requires that "[t]he motion for review shall designate the order, judgment, or part thereof for which review is sought, shall specify the grounds for objection to the hearing commissioner's order, judgment, or part thereof, and shall include a written summary of any evidence presented before the hearing commissioner relating to the grounds for objection." Civil Rule 73(c)(1).
The standard for a Superior Court Judge's review of a Hearing Commissioner's order or judgment is the same as that of the Court of Appeals in reviewing a Superior Court Judge's ruling. See Weiner v, Weiner, 605 A.2d 18, 20 (D.C. 1992) ("'The standard of review of a hearing commissioner's decision . . . is the same as applied by the Court of Appeals on appeal of a judgment or order of the Superior Court . . . [and] may not be set aside except for errors of law unless it appears that the judgment or order is plainly wrong, without evidence to support it, or an abuse of discretion.'"); Civil Rule 73(b) (same language); cf. D.C. Code § 17-305(a) (Court of Appeals may not set aside the judgment in a non-jury case "unless it appears that the judgment [of the trial court] was plainly wrong or without evidence to support it"); see also Simms v. District of Columbia, 612 A.2d 215, 220 (D.C. 1992) (applying a "harmless error" standard to the ruling of a Hearing Commissioner).
Both review and appeal are limited, however, to the record as adduced at trial before the Hearing Commissioner; nothing new can be introduced by way of evidence or testimony. Thus, "'[t]he standard of review of a hearing commissioner's judgment by a Superior Court Judge is the same as that applied by the Court of Appeals . . . of a judgment of the Superior Court; namely, a judgment may not be set aside except for errors of law unless it is 'plainly wrong and without evidence to support it.'" Zvirblis v. Butler, S.C. No. 1221-96 (Feb. 9, 1998) (per Weisberg, J.) (citing Super. Ct.R.Civ.P. 73(b)). Only after a complete review by a Superior Court Judge may a case be taken to the Court of Appeals.
Right to Appeal. Consequently, no appeal can be made directly from the ruling of a Hearing Commissioner to the District of Columbia Court of Appeals. A prerequisite to the right of appeal is that the litigant must first have gone through the "review process" before a Superior Court Judge. See Civil Rule 73(b); D.C Code § 11-1732(k) (An "appeal to the District of Columbia Court of Appeals may be made only after a judge of the Superior Court has reviewed the order or judgment."); Bratcher v. United States, 604 A.2d 858, 859 (D.C. 1992) (noting five previous opinions to this effect); Artl v. United States, 562 A.2d at 635-36 ; Dorm v. United States, 559 A.2d 1317, 1318 (D.C. 1989); Speight v. United States, 558 A.2d at 360.
Therefore, failure to timely file a petition for review, failure to state the grounds with sufficient specificity, or failure to comply with any other pertinent rule, may result in the waiver of the right to review by a Superior Court Judge and, with it, a forfeiture of any right to appeal to the Court of highest jurisdiction in the District of Columbia. See Civil Rule 73(c)(7); Domestic Relations Rule D(b).
Based on the foregoing findings of fact and conclusions of law, it is therefore by the Court this 3rd day of March 1998, ORDERED that:
1. Respondent's motion to dismiss for lack of personal jurisdiction over him be, and the same hereby is, GRANTED; and that:
2. The petition herein be, and same therefore is, DISMISSED WITHOUT PREJUDICE.
James G. Gore, Jr., Esq.
THE GORE LAW FIRM, P.L.C.
8000 Towers Drive
Vienna, Virginia 22182
Linda J. Radvin, Esq.
RADVIN & WOFFORD, P.C.
1725 K Street, N.W.
Washington, D.C. 20006
1 The Court proceeds on this basis because this case broaches an important concept, which has vast implications for other cases similarly situated, viz., "residency-based" jurisdiction. The Court proceeds in "recognition of the essential tenet that a court has jurisdiction to determine its own jurisdiction." Hinton v. Hinton, 395 A.2d 7, 10 (D.C. 1978); see also Eastern Stares Petroleum Corp. v. Rogers, 105 U.S.App.D.C. 219, 223, 265 F.2d 593, 597 (1959) ("Somebody along the line has to determine whether there is jurisdiction in the first sense.") and West Coast Exploration Co. v. McKay, 93 U.S.App.D.C. 307, 338, 213 F.2d 582, 613 (1954) ("[A] court has jurisdiction to determine its jurisdiction . . . and therefore to decide the questions necessarily incident to that determination.").
For more convenient reference, as an "overview," a "Table of Contents" to this Memorandum Opinion appears attached hereto as an APPENDIX.
2 This would make the date of conception on or about Tuesday, November 4, 1980. See W.M. v. D.S.C., 591 A.2d 837, 840 (D.C. 1991) (court may take judicial notice that the human gestation period "is about 280 days").
3 See Pet. Opp. to Mot. to Dismiss at 2 and Pet.'s supporting affidavit; see also Resp. Supp. Br. at 1 ("The parties are in agreement that the child was born in the District of Columbia and that she may have been conceived in the District of Columbia.") (footnote omitted).
4 While this 1972-vintage "Form DHR-575" was not of the nature and detail of that comprehended by legislation on that subject subsequently passed in 1996, this document serves to establish at least some "social nexus" between the Respondent and the child at issue herein, providing as it does, a place for the Respondent to sign as "the father" of the child. Cf. current D.C. Code § § 16-909(b-1)(2), 16-909.1(a)(1), & 23-342.1 (signing of more recently-issued and detailed form waiving all rights deemed to establish paternity as a "conclusive presumption"); see also T.B. v. J.R.W., 124 D.W.L.R. 417, 421 (Mar. 6, 1996) (Goodbread, C.) (respondent who voluntarily signed a form containing identical language in acknowledging paternity within 60 days of child's birth may not subsequently demand genetic testing to prove paternity vel non).
5 Respondent's esoteric motion asserts the absence of subject matter jurisdiction only as to the issue of child support. This argument, however, is unnecessarily circumscribed, inasmuch as the Court finds, infra, that it lacks jurisdiction for any purpose related to this interstate paternity and support case.
6 See D.C. Code § 30-341.6(6) and Va. Code § 20-88.32 (respective UIFSA provisions defining the "home state" of a child).
7 Indeed, the sine qua non of Petitioner's argument is that but for the parties' extremely "personal" contacts within the District of Columbia, neither the child nor the case would be present before this particular Court. (Pet. Opp. at 5) ("In other words, the Respondent would not have met the Petitioner, begun a relationship with her, nor conceived K[.] F[.], but for their business meeting which occurred in the District.").
8 This principle bears emphasis at this early point because a case grounded on the long-arm is one which depends on the principle of personal jurisdiction only, the very title of the D.C. general long-arm statute governing only "personal jurisdiction based upon conduct." D.C. Code § 13-423. While the Respondent squarely raises the companion issue of "subject matter jurisdiction," the Petitioner does not address that issue at all. The Court, of course, must have both before a case can proceed to the merits.
9 As pointed out below, our long-arm statute, as does most, takes advantage of the full ambit of permissiveness in this regard, stating that "the court may exercise personal jurisdiction if there is any basis consistent with the United States Constitution for the exercise of personal jurisdiction." D.C. Code § 13-423(7)(E)(i). UIFSA contains a similar provision. Id. § 342.1(7); see also Drafter's Comment to Section 201 ("The intent is to insure that every enacting state has a long-arm statute as broad as constitutionally permitted."). Since the general long-arm statute is co-extensive with the constitutional provision, it becomes unnecessary to differentiate between any statutory or constitutional exercise of this power. See Mouzavires v. Baxter, 434 A.2d 988, 992 (D.C. 1981) (describing a "two-step process" of determining whether contacts were sufficient and then determining whether due process, including adequate notice and sufficient opportunity to be heard, were afforded the defendant) followed by Smith v. Jenkins, 452 A.2d 333, 336 (D.C. 1982) (which "merged the [two] steps into a single due process analysis") and reaffirmed in Trerotola v. Cotter, 601 A.2d 60, 67 (D.C. 1991).
10 A review of the entire corpus of case law by our Gourt of Appeals since the Superior Court came into existence under the Court Reorganization Act of 1970 (including the effective date of the current long-arm statute, July 29, 1970), reveals 33 cases in which that statute has been the central issue. (No effort has been made to "track" the D.C. long-arm statute throughout rulings of either of the local Article III courts.)
Of those cases, only five have involved non-resident plaintiffs suing non-resident defendants under the D.C. long-arm. Notably, in four out of those five cases, the non-resident plaintiff was not successful in invoking long-arm jurisdiction. See, e.g., Lex Tex Ltd., Inc. v. Skillman, 579 A.2d 244 (D.C. 1990) (Fla. corporation brought suit in U.S. District Court here against a Penn. attorney, alleging malpractice before the U.S. Patent Office, but the court declined to approve long-arm jurisdiction because of insufficient contacts, though it did not find exclusion to be based on the "government contacts" theory); Cresta v. Neuroloqy Center, P.A., 557 A.2d 156 (D.C. 1989) (Mass. estate administrator of former D.C. resident who died in Mass. sought to bring in Md.-based health care facility where he had received treatment, but the defendant was found not to have had sufficient contacts with the District even though it had been incorporated here); Sartori v. Society of American Military Engineers, 499 A.2d 883 (D.C 1985) (suit for employment discrimination under D.C. Human Rights Act filed by Va. resident employed by a professional society incorporated in D.C., but based in Va., remanded for further development of record); and Cockrell v. Cumberland Corp., 458 A.2d 716 (D.C. 1983) (Va. plaintiff's suit for breach of contract against Va. corporation for construction in Va. could not be sustained here under D.C. long-arm, where the only consequence in D.C. was "injury" to plaintiff's bank account, held not to constitute "transacting business" here).
In only one local appellate case, then, under our current long-arm statute, has a non-resident plaintiff been successful in invoking in personam jurisdiction over a non-resident defendant. See Cohane v. Arpeja-California, Inc., 385 A.2d 153 (D.C. 1978) (Del. salesman could sue employer, a Cal. corporation, in D.C. under long-arm statute for commissions on sales consummated on behalf of employer here). Put another way, our highest local judicial authority has only sustained a long-arm suit filed by a non-resident once in the history of the statute, and has not done so at all in the last 20 years.
Anyone interested in reading what amounts to the local legal version of Newton's Principia Mathematica (1687) on the issue of the non-applicability of the long-arm statute to non-resident plaintiffs, should read Judge Noel A. Kramer's opinion in Etchebarne-Bourdin v. Radice, 124 D.W.L.R. 2253 (Nov. 18, 1996) and 124 D.W.L.R. 2261 (Nov. 19, 1996) (D.C. lacks adequate basis to assert jurisdiction over action by Va. residents complaining of medical malpractice by Va. physicians occurring in Va.).
11 Though, admittedly, the Respondent slightly misstates this principle (in that "transacting business" and "maintaining his principal place of business," while related concepts, are not the same), the point is nevertheless well taken. This Court's ruling in T.M.P., another paternity and child support case, may be slightly distinguished on the grounds that, unlike here, neither parent therein ever lived in the District, the child was neither conceived nor born here, and there was no other contact with the District of Columbia, except for the putative father's employment as a waiter here. 124 D.W.L.R. at 236.
12 Two other cases merit passing attention on this point, both by our local appellate courts, neither of which has ever been expressly overruled, but both antedating the current long-arm statute altogether. In Davis v. District of Columbia, 102 A.2d 842 (D.C.Mun.App. 1954) the Court did permit a non-resident mother to file a paternity and support action. But in so doing it expressly noted (for that time, which was also pre-URESA), that it was countenancing "the filing of a complaint by the mother of an illegitimate child regardless of her legal residence, the place of birth of [the] child, or her marital status, so long as the child and the putative father are in the District of Columbia," id. at 843 (emphasis added) (father domiciled in D.C. while stationed in the Navy), again underscoring the need for a "substantial contact" between the respondent and/or the child and the District. Likewise, in McGhee v. Maxfield, 256 A.2d 576, 578 (D.C. 1969), the appellate court permitted an action by an out-of-state mother in a post-divorce child support adjustment action, but, again, the decision reflects the facts that, in addition to the father's continuing employment in the District, the child at issue had a close community connection with the District in that she attended boarding school at St. Albans here. Moreover, because it was adivorce-support action, the Court at one time already had jurisdiction in the case.
Each of these cases, therefore, is distinguishable from the one sub judice (even without taking into consideration the dramatic changes in the pertinent laws, from the long-arm to URESA, to the UCCJA to UIFSA, which have occurred since these cases came down). Neither case, in principle therefore, would change the outcome of the Court's decision herein.
13 The Petitioner also asserts that "[t]he Respondent was transacting business in the District by working full-time there as an attorney, where he utilized the District's legal system every day." (Pet. Opp. at 5). It is an inviting prospect for this Court to determine (for the first time, insofar as its research can discover) whether membership in a jurisdiction's 'unified (compulsory) bar establishes sufficient "minimum contacts? with the very legal system, the jurisdiction of which over his person is at issue. This is unnecessary in the instant case with respect to this Respondent, however, inasmuch as, while he is a member of the Massachusetts and New Jersey Bars (both by examination), he is not a member of the District of Columbia Bar. Even if he were a member of the D.C. Bar, though, it is unlikely that said membership alone would be constitutionally sufficient to engage in personam jurisdiction, interestingly enough. See Crea v. Busby, 55 Cal. Rptr.2d 513, 515 (Ct. App., 1st Dist., Div. 4 1996) (expressly holding that a court "does not have personal jurisdiction over an individual whose only contact with the state is maintaining a . . . law license" there and "the fact that defendant had such a license is not determinative but only one factor to consider in evaluating -his relationship to this state"); cf. Ghanem v. Kay, 624 F.Supp. 23, 24-25 (D.D.C. 1984) (Gasch, J.) (the fact that a physician was licensed to practice in D.C., but did not do so, even though listed in the D.C. yellow pages, did not bring him within the long-arm for malpractice action); but see Meyers v. Smith, 460 F.Supp. 621, 623 (D.D.C. 1978) (Richey, J.) (attorney's membership in D.C. Bar and as member of D.C. law firmdeemed suff (cient for assertion of long-arm jurisdiction).
In any event, it appears that Respondent's employer, a nationally-based accounting firm, employs him in a capacity other than as a lawyer. (See Resp. Mot. at 2 ¶ 3 and Exhibit D thereto) (deposition of Respondent reciting that he is a "manager" for the tax service department). This brings the issue back to one of whether mere employment in the District of Columbia would implicate its long-arm statute.
14 Because the parties in this matter were never married to each other, subsection (C) (discussing jurisdiction based on marital relationship) is not being addressed herein. Thus, the potential invocation of jurisdiction on the record developed herein is limited to that stemming from a "parent-child relationship in" the District of Columbia under subsection (a)(7)(D).
15 See discussion -- however forlorn the hope -- of non-residents as plaintiffs under these aspects of the general long-arm statute, in n. 10, supra.
16 The probability is that the drafters intended that such a plaintiff would have some "significant connection with the District," to use the terminology in the UCCJA, which was the companion legislation to these addenda to the general long-arm statute. See D.C. Code § 16-4503(a)(2)(A), discussed more fully infra.
17 As seen below, she may subsequently move away from the District, but it must be within six months.
18 See n.50, infra. Note that, unlike the comparable UIFSA provision, discussed below, the language of subsection (a)(7)(B) does not necessarily require that service of process occur in the District, thus leaving open the possibly of service -- under the general long-arm -- by some other means, e.g., under D.C. Code § 13-424.
19 This seems an odd choice of predicates for the drafters to have made. As noted above, it is, even for the mother, sometimes a matter of guesswork as to where a child was conceived. How that is to be proven is, at best, problematical. A better approach would have been to have used the phrase "conceived or born in the District of Columbia." The situs of birth, as in the instant case, is easily shown as a matter of public record. As the statute currently reads, however, a child conceived outside the District, but whose mother chose to come into the District in order to give birth, say, at Columbia Hospital for Women here, would not necessarily have a basis for invoking long-arm jurisdiction over the putative father, despite the clearly provable "contact" of official birth in this jurisdiction.
While on this point, even though the Petitioner's case ends (at least in the District of Columbia) with the Court's ruling that she must be turned away at the threshold because she does not satisfy the conjunctive residency requirement of subsection (a)(7)(A), it bears noting that, in any event, the Court would not necessarily be satisfied with her evidence on the putative situs of the conception of the child, a vital element to her case, had she been "admitted to jurisdiction," pursuant to subsection (a)(7)(D)(i), and on which she also has the burden of proof by a preponderance of the evidence. See Murphy v. McCloud, 650 A.2d 202, 211 (D.C. 1994) ("the claimant must establish the respondent's paternity by a preponderance of the evidence") (citing In re Estate of Glover, 470 A.2d 743, 748 (D.C. 1983) ("A child's relationship to its father is established by proving by a preponderance of evidence that he is the father. . . .'")) (both inheritance cases); see also District of Columbia v. Turner, 154 A.2d 925, 927 (D.C.Mun.App. 1959) (rejecting the "clear and convincing" standard of proof from the days when a "bastardy" proceeding was quasi-criminal in nature); Bragg v. District of Columbia, 98 A.2d 784, 785 (D.C.Mun.App. 1953) ("quasi-criminal in nature"). This Court interprets these cases as requiring proof of "conception" under the general long-arm statute by the same standard in order to invoke jurisdiction under this code section.
To begin with, attention must be called to the differing standards between the ostensibly similar provisions of the general long-arm statute and the UIFSA long-arm provision, on the issue of "conception." The general long-arm's language requires proof that the child "was conceived in the District," D.C. Code § 13-423(a(7)(D)(i) (emphasis added), while the UIFSA provision merely requires a showing that the child "may have been conceived" in the District. Id. at § 30-342.1(6) (emphasis added). Cf. n.55, infra.
Confining attention for the moment to the general long-arm provision currently under discussion, then, with all due respect to the mother's "biological clock" mechanisms, given the Respondent's good-faith averments that the parties' sexual activities were not confined to the District of Columbia during the period relevant to conception herein, even were the Court called upon to determine jurisdiction on this basis alone, it would not be likely, on this record, that it could find, even by a preponderance of the evidence, that actual conception had definitely taken place in the District of Columbia for the purposes of Section (a)(7)(D)(i). Therefore, independent from the much more liberal standard set forth in the similar UIFSA provision, it is unlikely that the Respondent could prevail on this issue, anyway, at least on the record set forth thus far.
20 Although, again, notably, no time limit appears to attach to how long ago this parent-child residency must have occurred or may have ended. No guidance is given, for example, as to whether a child born 15 years ago in the District, and who lived here with his parents for one month before the family moved away and subsequently broke up, could then serve as the nexus for invoking long-arm jurisdiction 14 years and 11 months later. But for the companion provision of the UCCJA, setting a six-month period as the predicate for establishing the "home state" of a child, discussed infra, there would be no apparent limit on such causes of action. Cf. D.C. Code § 16-4502(6).
21 For example, if Ms. A from California and Mr. B from New York happen to meet in a luxury hotel during one of the many national professional association conventions that meet annually in the Nation's Capital, and have a "one-night" liaison, thus conceiving a child, who is born and lives in another state, and whose father lives in yet a third state, there simply is no substantive subject matter jurisdiction to concern, the District of Columbia. The child does not have, and never has had (and probably never will have), any connection to this community, so that it or its courts should be obligated to look after its interests. Add to that -- as in the instant case -- the passage of over a decade's time, and what "connection" ever there was dissipates into the mists of time. True enough, both the general long-arm statute and the UIFSA long-arm provision, discussed more fully below, do provide for potential in personam jurisdiction based on the conception of a child in the District of Columbia (however that might be expected to be proven, which is a separate issue altogether), but the constructive condition precedent to that provision -- this Court believes -- is that the conception of the child must also be accompanied by some other type of "substantial 'connection, or, at least, "temporal relevancy," to the conception -- to-wit: residency of one or both parents, or some legally-cognizable contact by the child here.
22 The following cases cited in this paragraph were gleaned from the research done by Judge Arthur L. Burnett, Jr. in the Cole case, discussed in n.34, infra.
23 It is, after all, not the validity of service which is being challenged here -- it is the ability of service by a petitioner with no standing to "issue" it in the first place. To interpret this subsection as standing alone would be even more illogical. Under that rationale, the child would not even have to be conceived here. Thus, to alter the example set forth in n.21, supra, if Ms. A and Mr. B conceive their child at a professional convention in Chicago one year, and at the association's next annual meeting taking place in the District, Ms. B appears with a baby and a summons, effecting service on Mr. B at the convention hotel here, under that theory, the District of Columbia would be required to attend to the paternity and support case, when neither the mother, the father, nor the child ever had any prior connection with or in the District of Columbia.
24 Cf. n.28, infra. Even as it is, the most recent statistics show that in 1996, this Court processed 19,840 cases through its Paternity and Support Branch (processing out 10,449), which was a 190.3% increase of those processed the previous year. Joint Committee on Judicial Administration, District of Columbia Courts 1996 Annual Report at 76.
25 The treatise does add, it must be noted, that "[t]here has been, however, so great laxity in the use of these terms that courts have generally said that the words are interchangeable and that one may be substituted for the other, if consistent with the legislative intent." Id. (emphasis added). Because, in light of the case law and other authority discussed below, this Court has concluded that it was not the intent of the legislature to make these elements disjunctive, but was, in fact, its intent to make them conjunctive, the Court has not harkened to this caveat.
26 Again, though, the treatise expresses a caveat, adding that "the word can be interpreted in the conjunctive in a given context. However, it is important not to read the word 'or' too strictly, where to do so would render the language of the statute dubious." Id. (footnotes omitted). In this regard, for example, it notes case law which points out that "'[o] r may sometimes be used to mean 'that is to say,' 'to wit,' etc, introducing new and independent material., Id. at 136 n.6 and cases cited. Again, however, this Court does not find that to be the case in the instant statute; nor does it find that its interpretation along these lines "render[s] the language of the statute dubious." Id.
27 The Court discusses whether she can succeed on the independent jurisdictional basis of the UIFSA long-arm provision below in subsection B., but comes to the same conclusion wherein it finds the prerequisite of a petitioner's residency in the forum jurisdiction is even plainer.
28 The Superior Court, of course, already has "exclusive jurisdiction of . . . actions seeking custody of minor children." D.C. Code § 11-1101(4). As a supplement to that plenary jurisdiction, the overall purpose of the UCCJA was "to establish uniformity among states and the District of Columbia in matters related to child custody proceedings, and to establish orderly procedures," particularly to discourage "forum shopping," for resolution of any ensuing disputes between interstate parents. This was particularly important because at that time the District was one of only three jurisdictions in the nation which had not adopted the UCCJA and it was becoming a "haven" for those seeking to avoid its strict provisions. See (Memorandum dated October 4, 1982, from Lawrence H. Mirel, General Counsel to the D.C. City Council, to Chairman David A. Clarke of the City Council, at 2 and Memorandum from then-D.C. Corporation Counsel Judith W. Rogers, dated October 2, 1982, to Chairman Clarke at 1, both contained in the Legislative History of that Act) (hereinafter "Legis. Hist.").
29 As seen below in subsection B.4.c., this "home state" concept is mirrored in UIFSA's philosophy of encouraging respect for the orders issued by the child's "home state."
30 This provides the opportunity to file in the "home state" if the child or the parent has since moved from the original jurisdiction.
31 See discussion on review and appeal rights from the ruling of a D.C. Superior Court Hearing Commissioner, infra in Section III.
32 Although, to be sure, unlike the present case, the jurisdictional contention in L.A.W. was coupled with the assertion that "the child was not conceived here." This, by the same inference, to be fair, might have provided some basis for the kind of jurisdiction that the Petitioner asserts here. That, however, would be pure guesswork. Moreover, additional judicial authority superior to that at work here, discussed below in this subsection, leads this Court to conclude that that would not be the case, after all.
following are the only opinions which the undersigned's research
could find at the Superior Court level (as noted above, an
"electronic search" shows none at any appellate level). This
was a problematic effort, however, because the indices to the
34 So that diligent researchers of this issue will not be even temporarily misled, Judge Frank W. Schwelb of the Superior Court (now of the D.C. Court of Appeals) published an opinion in September 1982 in which he found that there was no jurisdiction pursuant to then-extant long-arm-statute, also codified as Section 13-423. Brown v. Brown, 110 D.W.L.R. 2177 (Sept. 29, 1982). There, Judge Schwelb held that the Court had jurisdiction to determine the rights to property in the District where, apparently, the wife remained after having obtained a divorce in Virginia, where the husband had since moved. In so doing, the Court ruled, however, that in personam jurisdiction was not necessary, anyway, in what was then effectively an in rem action and, in any event, personal jurisdiction could not have been effected by service outside the District, because there was nothing in the then-extant long-arm statute to support personal jurisdiction over the respondent. Id. at 2181-182. That ruling, however, issued on August 25, 1982, about seven months before the effective date of the addenda to the long-arm statute at issue in the instant case and consequently has no relevance to interpreting the present statute.
The other case which mentions the subsequently-enacted Section 13-423(a)(7) at issue herein, is one by Judge Arthur A. Burnett, Jr., Cole v. Kinley, 118 D.W.L.R. 1001 (May 8, 1990) That case, however, only dealt with that statute on reflection, within the context of a ruling on a Rule 11 issue, after the case on its merits, including the jurisdictional issue, had already been decided by another judge (but without a published opinion). In finding that sanctions should not lie, however, Judge Burnett did remark that the litigation over the long-arm addenda in Section 13-423(a)(7), was a "substantial jurisdictional issue," which, despite his brother's ruling on it, he seemed to say, was one which nevertheless "is not free of doubt." Id. at 1007. He also pointed out, as this Court noted in n.10, supra, that "[n]o appellate decision . . . has been located in our extensive research focusing directly on the issue of how much contact a respondent must have with this jurisdiction where he once resided and [putatively] fathered a child here . . .." Id. (emphasis added).
35 Judge Wolf further concluded that the petitioner's reliance on the "continuing jurisdiction" statute for divorce/custody decrees was "misplaced" because, while that subject matter jurisdiction, he said, may go on "ad infinitum," he would "not read these statutes to permit this court to hear cases over which it has no personal jurisdiction." Id. at 556 (emphasis added). Moreover, he added, because of the lack of any/remaining or continuing "significant connection with the District" by the child, as required by the UCCJA, D.C. Code § 16-4503(a)(2)(A), he had "absolutely no way of determining the best interests" of that child. Id. As an afterthought, he said, even if the Court had all forms of pertinent jurisdiction in the matter, he would still decline to rule on it, on a theory of forum non conveniens. Id. Finally, he pointed out, that the dismissal of the case was of no particular prejudice to the petitioner-mother, because she was free to file her claim in the father's current home state or in her own home state, pursuant to the then-operative URESA procedure. Id. at 555. This entire rationale applies to the instant case.
36 There is a rare printer's error in this issue of the Daily Washington Law Reporter at this point, misplacing the beginning of the paragraph in which this ruling is made in the middle of the right-hand column on page 577 and picking it up at the top of the left-hand column on page 581. The continuity between the two, however, is obvious from a careful reading.
37 Note that, in fact, in both these cases, Holt and Heim, Judge Wolf's ruling was against the respective parties as movants, even though in each a cause of action had already arisen, been filed, and a judgment issued thereon. He expressly expanded the "residency requirement" to apply not only to new suits, such as the one currently before this Court, but also to previously-filed and ruled-upon suits. No doubt this was a sound approach to "judicial economy" in all respects.
38 Notably, this ruling was based on a Section 13-423(A)(7)(A) issue which Judge Wolf had raised sua sponte. Id. at 581. Once again, however, as he had done in Holt, supra at n.35, Judge Wolf pointed out that the movant was free to pursue his remedies in the mother's home state. Id. The same is true in the instant case.
39 It should be re-emphasized that because both Holt and Helm were cases in which a D.C. Superior Court final judgment had already issued, they are in graphic contrast to the instant case, which is an original action. Moreover, because of these already-extant orders, both cases would come out differently on the jurisdictional issue under UIFSA, which had not yet been enacted when they were decided.
An excellent illustration is a recent unpublished opinion by Judge Geoffrey M. Alprin, notable for its clarion language on this issue under UIFSA. See Lackman v. Rosenstock, No. DR-2481-85 (Feb. 5, 1998). There the parties had been granted a divorce in 1986, in the District of Columbia, where they then resided, with concomitant child custody and support ordered. In the meantime, the mother had moved to Pennsylvania with the child and the father had relocated to Maryland. In September 1997, the mother filed a motion for contempt and for modification of the support order. Id. at 1 n.1.
Although, like Holt and Heim, supra, both parties in Lackman were non-residents and although there was a pre-existing order, the difference was that Lackman fell under the jurisdiction of UIFSA. That difference was D.C. Code § 30-342.5(a) (1) (the "continuing exclusive jurisdiction" provision of UIFSA, expressly operable only "'[a]s long as the District remains the residence of the obligor, the individual obligee, or the child'") (see discussion below in subsection B.4.b.). Pursuant to that provision, Judge Alprin held that "the Superior Court no longer has authority to modify the existing child support order because neither parent nor the child currently resides in the District of Columbia." Id. at 2, 4 n.2. As Judge Wolf had done in both Holt and Helm, however, Judge Alprin took the time to point out to the plaintiff that this ruling did not leave her without avenues of relief, such as filing in her own home state (where, as in the instant case, the defendant had already stated he would voluntarily subject himself to jurisdiction). Id. at 7 & 10 n.5.
Significantly, Judge Alprin came to this conclusion even though he specifically noted that the defendant was employed in the District of Columbia. Id. at 2. At the same time, however, he pointed out that this provision simply left the Superior Court bereft of jurisdiction to "modify" its own order; it retained, he pointed out, the authority to enforce its own order. Id. at 2, 4-5 & nn.2-3. To that end, therefore, he ruled that the defendant had already subjected himself to the personal jurisdiction of the Court for contempt-enforcement purposes, under the original order. Judge Alprin therefore retained jurisdiction over the contempt portion of the plaintiff's request, and granted it. Id. at 6-10.
Finally, a similar result obtained in an even more recent unpublished opinion by Commissioner John W. King. See H[.] E[.] v. T[.] f[.], No. PS-1488-92p (Feb. 20, 1998) (respondent's motion to dismiss following a 1993 order, denied because of lack of "continuing exclusive jurisdiction" under UIFSA, due to the fact that neither the petitioner, respondent, nor the child any longer resided in the District of Columbia).
40 Finally in this regard (mentioned last only because it is not "governing" judicial authority), the Court feels impelled to note the scholarly opinion of Commissioner Jerry S. Byrd in the case of L.T. v. J.C., 125 D.W.L.R. 129 (July 7, 1997). Though it mainly deals with the proper methodology of service of process in paternity and support cases, Commissioner Byrd had the occasion to remark, along the lines of this Court's reasoning hereinabove set forth, that
Id. at 1315 (emphasis added) (finding both the petitioner's non-residence and improper service under subsections (A)& (B)).
Though not governing on this Court, Commissioner Byrd's opinion is nevertheless compelling in its clarity on a related issue, the efficacy of proper service of process in paternity and support cases. In addition to an extremely enlightening insight as to what constitutes "residence," id. at 1314, for those petitioners who do have actual personal and subject matter jurisdiction, this Court highly commends this opinion to them in order to avoid similar pitfalls in effecting valid service of process (particularly at a respondent's workplace), as occurred therein.
41 The Petitioner in this case does not make any claim under the "tortious injury" provision of the long-arm statute, § 13-423(a)(3)-(4), and any claim under the "real property" concept, § 13-423(a)(5), or the contract and suretyship provision, § 13-423(a)(6) would be inapt. Finally, even though she has the burden of proof on the jurisdictional issue, supra, the petitioner has not sought to implicate the "plenary provision" of the long-arm statute, section 13-423(A(7) (E), providing, in effect, that when all of the other provisions of the statute are found wanting "the court may exercise personal jurisdiction if there is any basis consistent with the United States Constitution for the exercise of personal jurisdiction." (Emphasis added). The Court merely notes that the statute's use of the subjunctive (and permissive) mood appears to leave any such argument, had it been made, to the sound discretion of the Court. But the fact remains that this provision has not been invoked. None of these provisions, therefore, will be addressed further herein.
42 UIFSA specifically provides that it functions as a supplement to, not in derogation or substitution of, any other remedies available under a State's substantive law. See D.C. Code § 30-341.3 ("Remedies provided by this chapter are cumulative and do not affect the availability of remedies under other law.").
43 The same general shortcomings characterized the more recent Revised Uniform Reciprocal Enforcement of Support Act ("RURESA") (1987). See T. Fielding, The Uniform Interstate Family Support Act: The New URESA, 20 Dayton L.Rev. 425, 436-46 (Fall 1994) (hereinafter "Fielding"); Calhounat 940-41. For an excellent general history of federally-generated uniform child support laws, see Calhoun at 924-32.
44 As our learned colleague, Commissioner Hugh O Stevenson (one of the nation's leading authorities on interstate child support procedures), has pointed out, however, although this Court's Family Division was granted exclusive subject matter jurisdiction by UIFSA over cases previously filed under URESA, when the new code sections repealed URESA, the Court's general jurisdictional statute in the area of paternity and support cases, D.C. Code § 11-1101(10) (1995), was not similarly amended to reflect the replacement of URESA by UIFSA. See North Carolina ex rel. C.D.B. v. J.S., No. PS-3902-92 at 8 n.1 (Mem. Order, Oct. 29, 1997) (Stevenson, C.) .
45 See Hanson v. Denckla, 357 U.S. at 246 n.12 for a discussion of the difference between in personam, in rem, and quasi in rem jurisdiction.
46 This "parens patriae" concept, after all, lies at the base of the jurisdiction of every "family court" with regard to child welfare issues. Defining this term more formally, our Court of Appeals implicitly recognized that a court must have -- ironically -- personal jurisdiction over a child, viz., that the child be a resident of the state, before a court could act toward her in this role. See In re J.J.Z., 630 A.2d at 193 n.12 ("'The words "parens patriae," meaning "father of the country," refer to the State's sovereign power of guardianship over minors and other persons under disability [implicitly residing therein].' ") (citation omitted); see also In re Kossow, 393 A.2d 97, 105 n.12 (D.C. . . 1978) ("[T]he 'patens patriae' function [is] . . . a power which the members of the community have granted the state for the protection of their future well-being.'"); Stevens v. Brown, 194 A.2d 126, 131 (D.C. 1963) (noting that a court "exercised its jurisdiction as patens patriae to protect an infant physically present within the state").
47 This is
why, as noted above, both the UCCJA and UIFSA have a six-month threshold
for establishing a child's home state. See,
e.g., Ratner, Child Custody in a Federal System,
48 Clearly, therefore, this provision speaks to "original actions" for paternity and support.
49 Though clearly counter-intuitive, there is a school of thought circulating in national "UIFSA circles" (professional meetings and the like) which holds that when the drafters of UIFSA Utilized the term"may" in this context, it actually means "shall." Despite a diligent search, however, the undersigned has found no case law, scholarly, or professional authority to support this proposition. Traditionally, of course, the use of the word "may" implies the exercise of discretion, permission, or option, whereas the term "shall" denotes requirement, mandate, or compulsory action. See Brown v. Hecht Co., 78 U.S.App.D.C. 98, 105, 137 F.2d 689, 696 (1943) (noting that "the use by [the legislature] of . . . the term 'shall' . . . taken literally indicate[s] a compulsory purpose and as excluding the idea of discretion it the court"); Joerns v. Irvin, 72 U.S.App.D.C. 170, 171, 114 F.2d 458, 459 (1940) ("The word 'may,' rather than 'shall,' also clearly shows that the rule contemplated the exercise of discretion by the court."). But see Ballou v. Kemp, 68 App.D.C. 7, 10, 92 F.2d 556, 559 (1937) ("Whether the language of a statute is imperative or merely permissive depends on the intention as disclosed in the nature of the act and in the context . . . The word 'shall' in a statute may be construed as 'may' where the connection in which it issued or the relation into which it is put with other parts of the same statute indicates that the legislature intended that it should receive such a construction; but if any right [due] to any one depends on giving the word an imperative construction, the presumption is that the word was used in reference to such right or benefit. 'Shall' ought undoubtedly to be construed as meaning 'must' for the purpose of sustaining or enforcing an existing right, or when a public body is directed to do certain acts.'") and Whalen Paper & Pulp Mills v. Davis, 53 App.D.C. 84, 86, 288 Fed. 438 440 (1923) ("It must be admitted that ordinarily the word 'may' imports permission only, but that at times it is employed in legislation as equivalent to the word 'shall.'").
50 Subsection (1) codifies and conforms to the Supreme Court's holding in Burnham v. Superior Court, 495 U.S. 604 (1990), reaffirming that personal service within a state is sufficient for a court to obtain personal jurisdiction. Note that, unlike the similar provision in the general long-arm statute, D.C. Code § 13-423(a)(7)(B), supra n.18, the UIFSA provision expressly requires that service only be of "notice," not necessarily of "process," and that it must actually occur "in the District."
51 The provision that the parties may actually "consent" to, and thus, apparently to create, subject matter jurisdiction under UIFSA is, the Court observes, a troubling proposition. It is a shibboleth that "[i]f a court were to render judgment without subject matter jurisdiction . . ., that judgment would be void and of no effect." Hinton v. Hinton, 395 A.2d at 10. Yet it is equally well-settled that a "court by its own words cannot create or extinguish its own subject matter jurisdiction." Appeal of A.H., 590 A.2d 123, 129 (D.D.C. 1991). If the Court cannot do so, one wonders how litigants may do so. This matter, while interesting, however, is not before the Court in this case.
52 Subsections (2)-(5) reflect similar provisions in the general long-arm statute, regarding the residency of the child and/or non-custodial parent. See D.C. Code § 13-423(a)(7)(D)(ii)-(iii) ("was conceived"), supra.
53 As pointed out above, n.19, this provision appears to liberalize a similar provision in the long-arm, requiring only the "possibility, that the child "may have" been conceived in the District, whereas the general long-arm appears to require more definiteness on this point. D.C. Code § 13-423(a)(7)(D)(i).
54 Given this conjunction and syntax, it is clear, based on the Court's rationale in subsection A.2.c.(2), supra, that the provisions of this subsection of the Code are to be read in the disjunctive, meaning that any one of them may provide the basis for long-arm jurisdiction.
55 Subsection (7) is similar to the District's general long-arm jurisdictional statute, and that of many other jurisdictions, that contain broad-based, plenary authority on which to predicate personal jurisdiction. Cf. D.C. § 13-423(a)(7)(E), supra. n.41.
56 The Petitioner's home state, Virginia, has adopted UIFSA, Va. Code § § 20-88.32 through -88.82 (1994), as has the Respondent's home state, Maryland, Md. Fam. L. § § 10-301 through 10-359 (1997), both statutes having been in effect at all times relevant herein. Indeed, in this regard, the Respondent represents that "Petitioner could have elected to file a one-state action in Arlington County, the child's [own] home state, because Respondent communicated . . . Respondent's consent to the jurisdiction" of pertinent Arlington County court, even though the Respondent is a resident of Maryland. (Resp. Supp. Mot. at 8). He further argues that "[h]ad Petitioner filed a petition in Arlington County promptly . . ., her petition would have been adjudicated by now." (Resp. Mot. at 2 ¶ 5).
57 Of course, as the immediately ensuing subsection also allows, the Court can also exercise CEJ if "each individual party has filed written consent with the tribunal of the District for a tribunal of another state to modify the order and assuming continuing, exclusive jurisdiction." D.C. Code § 30-342.5(a)(2). Cf. n.51, supra. That certainly has not occurred here.
58 Thus, it appears true, as the Respondent points out, that the irony of the Petitioner's jurisdictional contention on this matter is that "[i]f this court enters a child support order, it will immediately lose whatever authority it had to enter such an order and will therefore not be able to enter any further orders in modification of the original order in the event of changed circumstances." (Resp. Supp. Mem. at 8-9).
Moreover, it is arguable that even were this Court to retain jurisdiction to adjudicate child support, it would be required to apply the child support guidelines of the child's home state (Virginia), under the holding in Mims v. Mims, 635 A.2d 320, 323-24 (D.C. 1983). Thus, if the Mims principle should be applied (an issue on which this Court makes no ruling), even were the Petitioner's case to go forward here, rather than in her own home State of Virginia, then this Court would apply Virginia law as to child support, anyway -- thus doing indirectly (and probably with a good deal less skill and insight in that realm) what the Virginia Court would have done directly.
59 This premise, of course, is that at least one of the parties was ever a resident of "the state where the order was originally entered."
60 This can only mean the loss of "subject matter" jurisdiction for purposes of modifying its own order, based on what are typically newly-developed "changed circumstances" which, presumably, would occur after the parties left the jurisdiction. As noted above, however, this does not deprive the Court entirely of subject matter jurisdiction, inasmuch as it still has that power to enforce (but not to modify) its own order. See D.C. Code § 30-342.5(a)(2) & n.39, supra.
61 Significantly, however, this section immediately adds: "Note, however, that the one-state order of the issuing tribunal remains valid and enforceable." Id.
Similar statues operate on the implicit premise that subject matter jurisdiction, predicated upon the residence of at least one of the principals therein, is necessary in order to invoke the authority of the local court under the rubric of the pertinent statute. Thus, the Parental Kidnapping Prevention Act prevents the states from modifying another state's child custody order unless the state in which the modification is sought has appropriate jurisdiction and the original state does not, further providing that the original state's jurisdiction continues so long as it "remains the residence of the child or of any contestant." 28 U.S.C. § 1738A(d). Similar findings have been made by various courts under the Uniform Child Custody Jurisdiction Act, holding that a court continues to have jurisdiction to modify custody orders so long as at least one of the contestants remains in the state. See generally Hatamyar at 7 n.24.
62 Note that in interpreting the Full Faith and Credit Clause, Art. IV, § 1; see also 28 U.S.C. § 1738A, as it applies to judgments of state courts, the United States Supreme Court has long held that its requisites are applicable only to non-modifiable and final orders, see Sistare v. Sistare, 218 U.S. 1, 16-17 (1909) and Barber v. Barber, 323 U.S. 77, 86 (1944), two characteristics which are often absent from typical ongoing child support orders, which are, by practicable necessity, subject to constant revision on "financial review." Nor has the Supreme Court construed Article IV to require extraterritorial recognition of custody decrees, on the theory that they are also, by their very nature, subject to continuous modification based on "changed circumstances," and are therefore not "final judgments" entitled to "full faith and credit." See May v. Anderson, 345 U.S. 528 (1953).
Nevertheless, applying the concept of res judicata, District of Columbia courts have effectively accomplished that same end, where appropriate, applying the facts and circumstances extant at the time of the issuance of the original judgment to any cases brought anew locally. Likewise, however, if there are changed circumstances, the court would not be bound by the earlier judgment, although frequently, as a matter of "comity," local Judges do so. See, e.g., Wilburn v. Wilburn, 210 A.2d 832, 834 (D.C. 1965); Webb v. Daiger, 173 A.2d 920, 921-22 (D.CC.Mun.App. 1961). As a matter of practicability, pragmatism, and policy, the basic reason why such "modifiable" orders are effectively given full faith and credit, despite no clear constitutional requirement to do so, is because Congress has required the States to recognize arrearages on child support installments as "final judgments," as a condition to receiving social security funds pursuant to 42 U.S.C. § 666(a)(9)(A). See Hatamyar at 5 n.10. Finally, in this regard, there is also the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B, which is strikingly relevant to the theme of this Memorandum Opinion, in that it conditions continuing jurisdiction over child support orders on the residence in the jurisdiction of the obligor, obligee, or child. Id. 1738B(b)(B) (defining "child's State" and "child's home State", (c) (1) (A) & (B) (defining personal and subject matter jurisdiction), (d) (conditioning "continuing exclusive jurisdiction" on the forum State's being "the child State or the residency of any individual contestant" for issuing original orders), and (3) (setting forth conditions for modifying orders).
63 As of February 28, 1998, a LEXIS search (under the term "UIFSA,), for example, turned up only 39 cases. To date, our own Court of Appeals has not had occasion to rule on any aspect of UIFSA (and this Court knows of no opinions by its immediate supervisory authority, the Judges of the Superior Court) addressing any such issue. Hence the care taken by this Court with the instant Memorandum Opinion.
64 It must be noted that the original Deltoro opinion, from which the subsequently-quoted language was extracted, was later withdrawn by the South Carolina intermediate court, and a new opinion issued, which is published at 471 S.E.2d 742 (S.C. App. 1996). The more recent opinion, however, was occasioned by the Court's addressing the issue -- unrelated to the instant case of its non-retrospective application. The rationale set forth on the issue of subject matter jurisdiction hereinafter set forth, however, remains sound.
65 The South Carolina appellate court's formal holding was as follows: "[W]e hold that pursuant to UIFSA, where a plaintiff seeks a modification of a support order of another state, the family courts of this State may hear the claim only if subject matter jurisdiction is properly exercisable under the provisions of" that statute. Id. at *12-*13. The corresponding UIFSA sections of the D.C. Code on which this decision went off are D.C. Code § 30-342.1(1) & (2).
66 These are facts which would have provided subject matter jurisdiction under UIFSA, analogous D.C. Code § 30-342.1(3) (respondent residing here with the child), (4) (respondent residing here and providing prenatal expenses or support for the child), (5) (child residing here at directives of the respondent), and/or (7) (any other legal basis consistent with D.C. law).
67 Similar results obtained in Child Support Enforcement Division of Alaska v. Brenckle, 675 N.E.2d 390, 394 (Mass. 1997) (recognizing validity of Alaska order enforceable (but not modifiable) under UIFSA in Massachusetts because the father and child lived in Alaska when that order issued) and P.A.N. v. R.N., 1996 Del. Fam. Ct. LEXIS 139 *3 (Nov. 8, 1996) (New York order non-modifiable in Delaware under UIFSA because wife and child continued to reside in New York, which retained continuing exclusive jurisdiction over the case and the respondent).
68 See Dufficy v. P.D.K. Labs, Inc., 1994 Conn. Super. LEXIS 1342 *2 (Sept. 16, 1994) (local university "day student," who also had a part-time job in Conn., but who lived in N.J., found not to have standing under Conn. long-arm statute to sue non-resident diet pill manufacturer, because of a residency requirement in that statute, the court rejecting her argument that her status as full-time student and part-time employee locally made her eligible) (trial court opinion) and The Vitale Fireworks Display Co., Inc., v. S. Mantusa & Co., Ltd., 1994 Conn. Super. LEXIS 2743 (Oct. 31, 1994) (non-resident Pa. corp. found not to have standing to invoke same Conn. statute, the court rejecting the plaintiff's argument that it had operated locally out of the home of its co-plaintiff (who was found to have standing)) (trial court opinion).
69 Because the Court has now found that, due to her non-residency, the Petitioner has no standing to raise the issue of personal jurisdiction against the Respondent, based on either the general long-arm or UIFSA provisions rendering that concept, it is unnecessary, however inviting, for it to make any further ruling on any aspect of "subject matter" jurisdiction, and it will refrain from doing so. Cf. In re Adoption of a Minor, 94 U.S.App.D.C. 131, 133, 214 F.2d 844, 846 (1954) ("Litigation [and memorandum opinions] must have an end: parties must make full use of their day in court, and . . . [may] seek to overturn an adverse judgment by raising . . . issues on appeal.").
70 As noted above, this ruling is in no way to be interpreted as touching the merits of Petitioner's case, and she is free to pursue her remedies in an appropriate forum (see next section). See Super. Ct.R.Civ.P. 41(b) (dismissal typically "operates as an adjudication on the merits unless the dismissal occurs for lack of jurisdiction"); Tyler Gas Service Co. v. Federal Power Comm'n, 101 U.S.App.D.C. 184, 188, 247 F.2d 590, 594 (1957) ("A decision dismissing a complaint for lack of jurisdiction cannot be res judicata as to the substantive merits of the complaint."); see also RDP Development Corp. v. District of Columbia, 645 A.2d 1078, 1079 (D.C. 1994) (dismissed without prejudice for lack of jurisdiction); Bishop v. Rearden, 178 A.2d 426, 427 (D.C.Mun.App. 1962) (case dismissed "'without prejudice for want of jurisdiction'").
71 Petitioner cites the provisions of the D.C. version of UIFSA, which provide as follows:
A tribunal of the District may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state if:
(2) The contesting party timely challenges the exercise of jurisdiction in the District; and
(3) If relevant, the other state is the home state of the child.
D.C. Code § 30-324.4(b); cf. section 6 of the Uniform Child Custody Jurisdiction Act and the Uniform Parental Kidnapping Act, 28 U.S.C. § 1738A(g) (both to the same effect). Respondent relies heavily for this argument on the fact that, technically and chronologically, he filed his jurisdictional challenge in the instant case on or about July 24, 1997, which was 28 days after Petitioner's filing of the original petition herein. On the same date, he also filed his petition to determine paternity and support in the Arlington Court, which is, in fact, located within the child's "home state." He is therefore in timely compliance with the terms of D.C. Code § 30-324.4(b) (1)-(3), supra. (Petitioner herein has filed an opposition to that petition in Virginia, relying on the prior filing of this action and her in personam jurisdictional arguments herein, seeking to have Respondent's action either dismissed or stayed pending the outcome of the instant case.) (See copy of motion attached to Resp. Supp. Br.). In any event, however, Respondent is on record, both here and in Virginia, as consenting to both personal and subject matter jurisdiction in the child's own home state, and his jurisdictional argument being facially valid, must be vindicated. See n.56, supra.
72 This concept is cognizable in the general civil statute, D.C. Code 1, a UIFSA provision, id. §30-343.6, and a provision under the UCCJA. Id. at § 16-4507. In addition to the most recent case from our Court of Appeals on this topic, Al Malik v. District of Columbia, 703 A.2d 1250 (D.C. 1998), it is one which has been frequently litigated, and has generated a substantial body of case law, from the Superior Court Bench itself, just in the last few years. See, e.g., Oler v. Oler, 118 D.W.L.R. 541 (Mar. 14, 1990) (Wolf, J.); District of Columbia v. Blackwell, 119 D.W.L.R. 609 (Mar. 25, 1991) (Byrd, C.); Jackson v. Woodward & Lothtop, 119 D.W.L.R. 348 (Sept. 24, 1991 ((von Kann, J.); Henderson et ux. v. WMATA, 120 D.W.L.R. 713 (Apr. 8 1992) (Burnett, J.); Clay v. Kaiser Foundation Health Plan of Mid-Atlantic States, 120 D.W.L.R. 1661 (Aug. 6, 1992) (Hutn [N. Shuker], J.); Knight v. Glassum, 121 D.W.L.R. 137 (Jan. 26, 1993) (Burnett, J.); Colcloch v. Kaiser Foundation Health Plan of Mid-Atlantic States, 121 D.W.L.R. 189 (Feb.2, 1993) (Burnett, J.); Bailey v. President and Directors of Georgetown Univ., 121 D.W.L.R. 861 (April 30, 1993) (Burnett, J.); Hissong v. Exclusive Health Care, Inc., 121 D.W.L.R. 877 (May 3, 1993) (Kessler, J.); Delauder v. Keystone Ins. Co., 122 D.W.L.R. 493 (Mar. 16, 1994) (Salzman, J.); and Robinson v. Roberts, 122 D.W.L.R. 521 (Mar. 21, 1994) (Byrd, C.).