March 17, 1988.
ANGELE P. WARWICK, Appellant,
ROBERT JOSEPH CARL GLUCK, Appellee.
Angele Warwick appeals from an order denying her motion to
increase child support. She filed an action under the Uniform
Child Custody Jurisdiction Act (UCCJA), K.S.A. 38-1301 et seq.,
to restrict visitation with her children by her former husband,
Robert Gluck, a nonresident of Kansas. Gluck appeared through
counsel and sought extended visitation with the children, but
objected to Warwick's several motions to increase child support
on the ground that the court lacked jurisdiction to consider
them. The issue on appeal is whether the district court had
personal jurisdiction over Gluck for the purpose of increasing
child support. The district court found that the action was
initiated by Warwick under the UCCJA which "specifically excludes
jurisdiction toward or any increase in child support."
Warwick and Gluck obtained a divorce in Philipsburg, St.
Maarten, a protectorate of the Netherlands, in February 1983. By
the terms of a separation agreement, Warwick became the guardian
of the parties' two minor children. Gluck became the children's
co-guardian. He agreed to pay $100 a month for child support.
In June 1983, Warwick and the children moved to Johnson County,
Kansas. On May 3, 1984, Warwick filed a petition pursuant to the
UCCJA in the District Court of Johnson County, requesting that
the court restrain Gluck from removing the children from its
jurisdiction, order him to undergo a psychological evaluation,
and supervise his visitation with his children. The court issued
an ex parte order granting the requested relief.
In response to the petition, Gluck filed a motion to dismiss,
contending that the court lacked jurisdiction under the UCCJA.
Alternatively, he asked that the court permit his children to
visit him in St. Maarten during the summer.
The court held a hearing on May 24, 1984. Gluck appeared
through counsel. On redirect examination, Warwick was asked by
her counsel how much Gluck paid for child support. Gluck's
attorney objected "to this in this proceeding," arguing that the
UCCJA does not provide a basis for an order increasing child
support. At the conclusion of the hearing, the court held that it
had limited jurisdiction under the UCCJA and entered orders
permitting Gluck to visit his children in Kansas City during the
[12 Kan. App. 2d 565]
first ten days of June and requiring the parties to undergo a
professional evaluation to determine the advisability of
visitation in St. Maarten.
On August 1, 1984, Gluck filed a motion requesting that the
court allow his children to visit him in St. Maarten for
approximately two weeks prior to the start of school. Two days
later Warwick moved for an increase in child support. She
acknowledged that the UCCJA "does not provide for the plaintiff's
motion herein," but asserted that the court has jurisdiction to
increase child support "under the common law concepts of parens
patriae." In his response to Warwick's motion, Gluck contended
that the court lacked personal and subject matter jurisdiction.
On November 27, 1984, the court held a hearing on pending
motions. It granted Gluck visitation with his children in Kansas
on weekends, but rejected his request to take the children to St.
Maarten. The court expressed doubts about its ability to enforce
an order increasing Gluck's child support obligations. The order,
entered on March 1, 1985, states, "Child support will not be
increased at this time."
On July 8, 1985, the court granted Gluck's request for
visitation with his children during the summer in Kansas City and
in Naples and Fort Myers, Florida, where they were to visit their
On October 17, 1985, the court addressed motions filed by the
parties. In an order filed on October 24, 1985, the court denied
Warwick's motions to increase child support and to impose
sanctions for Gluck's failure to comply with discovery requests
concerning his financial ability to make increased child support
payments. The court held that the UCCJA "does not confer on this
Court any jurisdiction to vary child support orders."
Warwick filed a timely motion to alter or amend the October 24
order, contending that the court erred by holding it did not have
jurisdiction to increase child support. In his response, Gluck
argued that the court's ruling was correct because he had "not
been personally served nor voluntarily entered his appearance in
the case." In the alternative, Gluck contended that child support
should be decreased, not increased, or that Warwick should be
ordered to share in transportation expenses incurred in
[12 Kan. App. 2d 566]
On December 4, 1986, before the court ruled on the motion to
alter or amend, Warwick filed another motion to increase child
support. She asserted that the "court has jurisdiction over the
parties and the subject matter under the common law doctrine of
parens patriae" and that Gluck had submitted to and had invoked
the court's jurisdiction by seeking affirmative relief in the
case. On May 15, 1987, the court denied the motion to increase
child support. In a journal entry filed on May 29, 1987, the
court stated, "[T]his is an action initiated by the petitioner
under the Uniform Child Custody Act and the Uniform Child Custody
Act specifically excludes jurisdiction toward or any increase in
By its terms, the UCCJA does not grant a court subject matter
jurisdiction to order a party to pay child support or any other
monetary obligation. The UCCJA grants the court jurisdiction to
make a "custody determination." K.S.A. 38-1303(a). "Custody
determination" is defined as "a court decision and court orders
and instructions providing for the custody of a child, including
visitation rights; it does not include a decision relating to
child support or any other monetary obligation of any person."
K.S.A. 38-1302(b). (Emphasis added.)
Although a court is not granted subject matter jurisdiction to
decide child support issues by the UCCJA, the jurisdiction of a
Kansas court to modify a child support order of another state is
well-established and is based on the common-law duty of a parent
to support his or her child, Keller v. Guernsey,
227 Kan. 480,608 P.2d 896 (1980); and on equity principles, Burnworth v.
Hughes, 234 Kan. 69, 670 P.2d 917 (1983).
On appeal, Gluck does not contend that the district court
lacked subject matter jurisdiction to order an increase in child
support. Rather, he contends that the court lacked personal
jurisdiction over him.
Personal jurisdiction has not been at issue in the cases that
have upheld the district court's authority to modify a child
support order on the basis of common law or equity.
In Keller v. Guernsey, the nonresident mother filed an action
in Wyandotte County, Kansas, seeking an order for future support
of the parties' minor children. Personal service was obtained
[12 Kan. App. 2d 567]
on the respondent. 227 Kan. at 481. On appeal, the Supreme Court
held that the district court had subject matter jurisdiction
based upon the parents' common-law duty of support. 227 Kan. at
In Burnworth v. Hughes, the father initiated an action under
the UCCJA to obtain custody of his minor children or, in the
alternative, visitation rights. The nonresident mother appeared
to contest both custody and visitation. The mother "never filed a
counterclaim specifically praying for an order for child
support." 234 Kan. at 71. Nevertheless, the trial court ruled
that it "had jurisdiction to consider the custody and visitation
rights raised in plaintiffs petition and also had jurisdiction to
enter a child support order since plaintiff had consented to the
jurisdiction of the court." 234 Kan. at 71. The court ordered the
father to pay support at the rate of $600 per month and continued
the custody hearing pending his compliance with the child support
order. On appeal the father did not contest the trial court's
finding that it had personal jurisdiction over the parties.
Rather, he contended that since his former wife had not requested
an increase in child support, the trial court lacked subject
matter jurisdiction to order child support increased or to make
visitation contingent upon his payment of child support
The Supreme Court, relying upon the case of Howarth v.
Northcott, 152 Conn. 460, 208 A.2d 540 (1965), 17 A.L.R.3d 758,
held that "[i]n a proceeding relating to child custody or
visitation, a court may order child support payments and
condition visitation rights upon the noncustodial parent's
payment of reasonable child support." 234 Kan. 69, Syl. ¶ 4. The
Supreme Court based this holding on the broad powers given a
court of equity to act in the best interests of the child. 234
Kan. at 73-75.
In arriving at its decision, the Burnworth court relied on
decisions defining the power and authority of a court of equity:
"In a proceeding which is equitable in character,
the court has the power and authority to make a full
and final adjudication of all matters properly
before it when necessary for a complete and final
adjudication. The court is not compelled to leave
such matters for separate and future litigation. Row
v. Artz, 168 Kan. 71, 73, 211 P.2d 66 (1949). Stated
in another way, where a court of equity has all the
parties before it, it will adjudicate upon all the
rights of the parties connected with the subject
matter of the action, so as to avoid a multiplicity
of suits. Seibert and Lykins v. Thompson, 8 Kan.
*65 (1871)." 234 Kan. at 75. (Emphasis added.)
[12 Kan. App. 2d 568]
In both Row v. Artz and Seibert and Lykins v. Thompson,
cited in Burnworth, the court had personal jurisdiction over
all the parties to the action. In Row v. Artz, 168 Kan. 71, 73,
211 P.2d 66 (1949), the Supreme Court noted as follows:
"The original action and the expanded issues were
equitable in character. The court had jurisdiction
of the subject matter and the parties. The equitable
powers of chancery courts> have been greatly expanded.
They have power and authority to make a full and
final adjudication of all matters properly before
them when necessary for a complete and final
adjudication. They are not compelled to leave such
matters for separate and future litigation."
In Burnworth the Supreme Court was not faced with a challenge
to the in personam jurisdiction of the district court, but rather
addressed the question of whether a Kansas court has the power
and authority to award child support when "the question of child
support had never been made an issue in the formal pleadings
filed by the parties." 234 Kan. at 74.
A court must have in personam jurisdiction to enter an order to
pay child support. Kulko v. California Superior Court, 436 U.S. 84,
56 L.Ed.2d 132, 98 S.Ct. 1690 (1978). The same is not true of
a custody determination made pursuant to the UCCJA. A petitioner
need not establish that the nonresident spouse has "minimum
contacts" with the forum state, Internat. Shoe Co. v.
Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154 (1945), to
bring an action under the UCCJA. "Rather, custody is in effect an
adjudication of a child's status, which falls under the status
exception of Shaffer v. Heitner, 433 U.S. 186, 53 L.Ed.2d 683,
97 S.Ct. 2569 (1977). A court may therefore adjudicate custody
under the [UCCJA] without acquiring personal jurisdiction over an
absent party given reasonable attempts to furnish notice of the
proceedings." In re Marriage of Hudson, 434 N.E.2d 107, 117
(Ind. App. 1982), cert. denied 459 U.S. 1202 (1983); see Unif.
Child Custody Jurisdiction Act § 12, Commissioners' Note, 9
U.L.A. 149 (1979).
"[J]urisdiction over the person of a defendant can be acquired
only by issuance and service of process in the method prescribed
by statute, or by voluntary appearance." Haley v. Hershberger,
207 Kan. 459, 463, 485 P.2d 1321 (1971).
Warwick does not contend that Gluck has been served with
process in the method prescribed by statute; the record indicates
[12 Kan. App. 2d 569]
that he was served notice by mail. Rather, Warwick argues that
Gluck submitted to the jurisdiction of the court by (1) seeking
extended visitation in the action she filed under the UCCJA; (2)
approving the trial court's March 1, 1985, order; and (3)
requesting a decrease in child support.
During oral argument Warwick conceded that Gluck's appearance
by counsel in response to her UCCJA petition and his request for
increased visitation did not subject him to the in personam
jurisdiction of the court. Gluck raised lack of personal
jurisdiction as a defense in his responsive pleadings and,
therefore, did not consent to the court's exercise of
jurisdiction over him. See K.S.A. 60-212(h); Haley v.
Hershberger, 207 Kan. at 465; Small v. Small, 195 Kan. 531,
536-38, 407 P.2d 491 (1965); Lillis v. Lillis,
1 Kan. App. 2d 164, 165, 563 P.2d 492 (1977).
Warwick argues that Gluck submitted to the personal
jurisdiction of the court by approving the March 1, 1985, order,
which stated, "Child support will not be increased at this time."
Apparently, Warwick contends that this order amounts to an
assumption of jurisdiction over the matter of child support and
that by approving the order Gluck consented to the jurisdiction
of the court.
Although the order indicates a hearing was held by the court on
November 7, 1984, the hearing actually was held on November 27,
1984. At this hearing the court questioned its personal
jurisdiction over Gluck and elected to leave the support issue
"There is no question in my mind but what I have got
jurisdiction of the youngsters and Mrs. Warwick. In
other words, I can make orders and I can expect them
to be enforced because they are within reaching
distance. I do have questions about my jurisdiction
over the gentleman in San Marti . . .
. . . .
"I am going to leave the support issue alone, the
The record reflects that the court refused to exercise
jurisdiction over Gluck with regard to child support matters,
electing to "leave the support issue alone." Under these
circumstances Gluck did not waive his objection to the court's
personal jurisdiction by approving the March 1, 1985, order.
Warwick also contends that Gluck submitted to the jurisdiction
of the court by requesting a decrease in child support. His
[12 Kan. App. 2d 570]
request for a decrease in child support, however, was a plea in
the alternative. Gluck's initial response negates the conclusion
that he consented to the in personam jurisdiction of the court by
his alternative pleading for a decrease in child support:
"Plaintiff's [Warwick's] reliance on Dipman v.
Dipman, 6 Kan. App. [2d 844,] is misplaced inasmuch
as the defendant has not been personally served nor
voluntarily entered his appearance in this case. His
appearance under the Uniform Child Custody
[Jurisdiction] Act was secured by mailed notice. This
court has the discretion to deny jurisdiction in
child support matters."
The district court's jurisdiction in this case was quasi in
rem, not in personam. The court did not acquire personal
jurisdiction over Gluck as a result of his participation in the
UCCJA action filed by Warwick. See Baggett v. Walsh, 510 So.2d 1099
(Fla. App. 1987); Fox v. Webb, 495 So.2d 879 (Fla. App.
1986); In re Marriage of Schuham, 120 Ill. App.3d 339,
458 N.E.2d 559 (1983).
To hold that Gluck consented to the in personam jurisdiction of
the district court by seeking visitation rights with his minor
children would be unfair. Gluck did not choose to litigate the
issue of visitation in Kansas courts>. Rather, Warwick's presence
with the children in Kansas and her decision to file an action
under the UCCJA to limit his visitation rights left him no
choice. "Principles of fairness preclude the exercise of personal
jurisdiction where connection with the state resulted from an
effort to encourage visitation with the noncustodial parent."
Kumar v. Superior Court, 32 Cal.3d 689, 703, 186 Cal.Rptr. 772,
652 P.2d 1003 (1982); see In re Marriage of Malak,
182 Cal.App.3d 1018, 227 Cal.Rptr. 841 (1986); Ferguson v.
Ferguson, 411 N.W.2d 238 (Minn. App. 1987).
[12 Kan. App. 2d 571]
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