Friedetzky v. Hsia

LEAHY, J. Appellant Claudia Friedetzky filed a petition for custody of her child, M.J., 1 in the Circuit Court for Prince George’s County, Maryland. Appellee Roger Hsia (defendant below), a ⁷²⁶ resident of New York, filed an answer requesting that the court order paternity testing of M.J., and then initiated discovery to acquire information relevant to matters of paternity and child support. Appellant then filed an amended complaint including claims for paternity, child support, and counsel fees, which was countered by Appellee’s motion to dismiss for lack of personal jurisdiction. The jurisdictional questions engendered by these actions concenter at the intersection of the Maryland Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), Maryland Code (1984, 2012 Repl.

Vol.) Family Law Article (“F.L.”) §§ 9.5-101 to 9.5-318, and the Maryland Uniform Interstate Family Support Act (“UIFSA”), F.L. §§ 10-301 to 10-359. 2 The UCCJEA, governing custody and visitation, and the UIFSA, governing paternity and child support, were established to provide systematic and harmonized approaches to urgent family issues in a world in which parents and guardians, who choose to live apart, increasingly live in differ ⁷²⁷ ent states and nations. As separate legal schemes, the UC-CJEA and UIFSA contain distinct jurisdictional provisions. The central issue before us is whether a nonresident putative father’s request for paternity testing in his answer to a resident mother’s custody petition, coupled with his extensive discovery requests relating to paternity and child support were: (a) actions protected under the limited immunity provision of the UCCJEA, which permits a nonresident to appear in court regarding an issue of interstate custody without submitting to the jurisdiction of the court in other matters; or (b) affirmative requests for relief that satisfied the requisites for personal jurisdiction under Section 10—304(a)(2) of the UIFSA long-arm statute. We hold that by affirmatively requesting genetic testing in his answer to Appellant’s custody petition, and by initiating discovery relating to matters of paternity and child support, Appellee triggered the UIFSA long-arm statute and waived the limited immunity otherwise afforded in a custody proceeding under the UCCJEA.

We further conclude, in response to Appellee’s alternative argument, that Appellee had sufficient minimum contacts with the State of Maryland by virtue of his actions to establish paternity that constitutionally permit the court’s exercise of personal jurisdiction over him. Accordingly, we reverse the judgment of the Circuit Court for Prince George’s County granting Appellee’s motion to dismiss the amended petition, and remand for further proceedings. BACKGROUND The parties engaged in an ephemeral affair in September 2005 in New York City, where they both lived at the time. Following their single act of intercourse, Appellant gave birth to M.J. in New York City on June 8, 2006.

Throughout this timespan, Appellant was married to another man, whom she later divorced in 2010. 3 ⁷²⁸ In 2011, Appellant and M.J. relocated to Maryland where Appellant was offered a job. Appellee, who never communicated with or provided support for M.J., remains a resident of New York. Two years after moving to Maryland, on July 31, 2013, Appellant filed a single-count custody petition against Appel-lee in the Circuit Court for Prince George’s County requesting “immediate and permanent sole physical and legal custody” of M.J. After he was successfully served on November 14, 2013 in New York, Appellee, through counsel, filed a general line of appearance in the circuit court on January 13, 2014 as well as an answer to the custody petition. In his prayer for relief, Appellee requested that the petition be dismissed with prejudice or denied, and that the court order genetic testing to determine the paternity of M.J. He also requested reasonable attorney’s fees and “such other and further relief’ that the court deem appropriate.

Along with his answer, on January 13 Appellee served Appellant with 40 requests for documents and 15 interrogatories—including exhaustive requests for information about Appellant’s sexual partners. 4 The requests sought, among other things, M.J.’s birth certificate, Appellant’s marriage certificate, the judgment of divorce, communications from her former husband, and copies of Appellant’s federal and state income tax returns for the years 2005, 2006, and 2007. Two weeks later, Appellee filed an amended answer, removing only the request for attorney’s fees, as well as a request for admission of facts. Appellee subsequently deposed Appellant on May 28, 2014 and questioned her about the existence of agreements for counsel fees and child support. 5 ⁷²⁹ Meanwhile, on March 25, 2014, Appellant filed an amended petition for the establishment of paternity, sole physical and legal custody, and child support (and counsel fees). Appellant did not oppose Appellee’s request for DNA testing, stating in the petition that “[b]oth Plaintiff and Defendant are in agreement that it is appropriate for the Defendant and the Minor Child to undergo such testing in order to establish his biological relationship to the Minor Child.” In response, on March 26, Appellee filed a motion to dismiss for lack of personal jurisdiction.

In this motion, Appellee argued that the court could not exercise personal jurisdiction over him, a non-resident of Maryland, in proceedings for paternity, child support, or attorney’s fees because the requirements of the long-arm statutes pertaining to child support and paternity contained in the Courts and Judicial Proceedings Article and the UIFSA were not satisfied. Appellee also withdrew his request for genetic testing, citing as grounds his discovery that Appellant had been married at the time M.J. was conceived and born. In her opposition filed on April 15, Appellant countered that Appellee did not raise the issue of jurisdiction in his answer and that by requesting genetic testing, he purposefully availed himself of the benefits of the State of Maryland. Appellant further noted that Appellee appeared in the circuit court and engaged in discovery, specifically as to the paternity issue.

Following Appellee’s timely reply, the circuit court denied the motion to dismiss in an order dated May 1, 2014 (entered on May 16, 2014). Appellee filed a motion for reconsideration, presenting more extensive arguments why the long-arm statutes applicable to the issues of paternity, child support, and counsel fees were not satisfied. The court held a hearing on the motion on June ⁷³⁰ 30, 2014. The court explained that had the case been filed as a child support and paternity case at the outset, jurisdiction would have been proper in New York, not Maryland.

Having read the parties’ written arguments, the court asked the parties to address (1) whether the establishment of personal jurisdiction in the custody matter can extend to the other issues raised in the amended complaint; and (2) whether Glading v. Furman, 282 Md. 200 , 383 A.2d 398 (1978) was applicable to the case under consideration. Regarding the first issue raised by the court, Appellee argued that Appellant initially brought a proper issue (sole legal and physical custody) within the court’s jurisdiction and then attempted to “bootstrap in these other issues that [the court] wouldn’t have jurisdiction over” by adding them in the amended complaint. Appellee maintained that under the UC-CJEA, he properly filed an answer on the limited issue of child custody, but there was no jurisdiction to address the request for child support and paternity contained in the amended complaint. Appellant responded that it was Appel-lee who requested paternity testing in the first place, thereby availing himself to the jurisdiction of the Maryland court under UIFSA on the issue of paternity and child support.

The court observed that custody was obviously not in dispute; instead, the court commented, “[everybody knows that ... you are fighting to keep your client from having to pay child support; alternatively, that you have put it off as long as possible. And they are fighting to get child support as soon as possible.” The court expressed the central issue as whether it had jurisdiction to move forward or whether the child support and paternity claims needed to be litigated in New York. The court reserved this determination. Accordingly, the court signed a consent order prepared by the parties on June 26, 2014 (entered on July 8, 2014), awarding sole legal and physical custody of M.J. to Appellant, but stating that “the court reserves on the remaining outstanding issues.” After the hearing, the parties filed memoranda addressing the Glading case, which held that once a court obtains juris ⁷³¹ diction over a party to an action, the court retains jurisdiction over the parties for all proceedings arising out of the original cause of action under the “continuing jurisdiction” doctrine.

Appellee asserted that Glading was factually distinguishable because that case involved a former Maryland-resident defendant who was served in Maryland, whereas Appellee, a New York resident, was served in New York. He further argued that the case preceded the enactments of the UCCJEA and the UIFSA and that jurisdiction is not proper under those acts. Appellant rejoined, arguing, inter alia, that under Glad-ing, the court had continuing jurisdiction over the child support and paternity claims because those claims arose out of the custody action; that Appellee had reasonable notice and opportunity to be heard on the added claims; that Glading is consistent with, not replaced by, the UCCJEA and UIFSA; and that personal jurisdiction was proper under the UIFSA long-arm statute. On July 8, 2014, the court entered a summary order providing that “pursuant to MD Code Ann., Fam.

Law § 9.5-108,[ 6 ] the Motion for Reconsideration is GRANTED”; that “the Consent Order dated June 27, 2014 shall remain in full force and effect”; and that “all remaining claims are DISMISSED without prejudice.” The court then closed the case. Appellant noted a timely appeal on August 7, 2014. Appellant presents six questions for our review: I. “Whether a court may exercise personal jurisdiction over a nonresident for paternity and child support claims in connection with a custody claim where an independent ground for UIFSA jurisdiction is met;” II. “Whether a nonresident who affirmatively prays for relief in the form of a paternity test waives contest to ⁷³² the exercise of UIFSA jurisdiction under § 10— 304(a)(2);” III. “Whether a nonresident who avails himself of the jurisdiction [of the court] by engaging in discovery practice on UIFSA claims consents to the exercise of UIFSA jurisdiction [protections] under § 10-304(a)(2);” IV. “Whether a court may exercise continuing jurisdiction over paternity and child support claims arising from a custody claim under the principles of Glading v. Fur-man even if UCCJEA itself does not expressly grant jurisdiction over those claims;” V. “Whether a nonresident who prays for relief in an answer and engages in discovery practice satisfies the minimum constitutional due process requirements for exercise of jurisdiction in an equitable action for child support;” VI. “Whether, even absent prayer for relief and/or discovery practice, a nonresident who is personally served with process and voluntarily enters a general appearance in a custody action satisfies minimum constitutional requirements for exercise of jurisdiction in an equitable action for child support.” DISCUSSION Appellant argues that the circuit court erred in granting Appellee’s motion to dismiss the remaining claims for child support, counsel fees, and paternity for lack of personal jurisdiction. To determine whether a Maryland court may exercise personal jurisdiction over a non-resident defendant, a court must consider two factors: (1) whether a long-arm statute has been satisfied; and (2) whether the exercise of jurisdiction comports with due process.

Bond v. Messerman, 391 Md. 706, 721 , 895 A.2d 990 (2006) (citing Mackey v. Compass Marketing, Inc., 391 Md. 117, 129-30 , 892 A.2d 479 (2006)). “The applicable standard of appellate review of the grant of a motion to dismiss for lack of personal jurisdiction is whether the trial court was legally correct[.]” Id. at 718, 895 ⁷³³ A.2d 990; accord Kortobi v. Kass, 410 Md. 168, 175 , 978 A.2d 247 (2009). I. UCCJEA and the UIFSA Long-Arm Statute Appellant argues that Appellee submitted to the circuit court’s jurisdiction for the paternity, child support, and counsel fees claims under the UIFSA long-arm statute, F.L. § 10-304(a)(2), by requesting paternity testing in the answer he filed to Appellant’s custody petition and by substantially litigating that issue through discovery. 7 Appellee counters that he did not submit to the personal jurisdiction of the court by participating in the child custody action because another statute, UCCJEA F.L. § 9.5-108(a), provides immunity from personal jurisdiction for participating in a custody proceeding, and that no applicable long-arm statute would permit the court’s exercise of jurisdiction over him. These arguments lead us to the intersection of the jurisdictional provisions contained in the UCCJEA and UIFSA. To better navigate the crossroads of these two statutes, we begin with a brief comparison.

Our starting point, as recounted above, is Appellant’s initial petition raising the single issue of custody. A custody case that involves parties located in different states or countries implicates the UCCJEA. In 1968, the National Conference of Commissioners on Uniform State Laws promulgated the predecessor statute to the UCCJEA, namely, the Uniform Child Custody Jurisdiction Act (“UCCJA”) to address, among other things, “the problem of conflicting custody decrees among states and foreign countries.” 8 Toland v. Futagi, 425 Md. 365, 371 , 40 A.3d 1051 ⁷³⁴ (2012) (quoting Unif. Child Custody Jurisdiction Act, Prefatory Note, 9 U.L.A. Part 1A, at 262 (1999)).

Thereafter, in 1997, the National Conference promulgated the UCCJEA to revise the UCCJA in order to coincide with federal enactments and to resolve the consequent thirty years of conflicting case law caused by states’ various enactments of the UCCJA. Unif. Child Custody Jurisdiction and Enforcement Act, Prefatory Note, 9 U.L.A. Part 1A, at 650 (1997). Maryland adopted the UCCJEA, without any variations relevant to the instant case, in 2004, 9 as successor to the Maryland Uniform Child Custody Jurisdiction Act, which was first enacted in 1975. 10 Maryland’s enactment of the UCCJEA (and its predecessor statute) sought to establish the general procedures for child custody proceedings and to specify the basis for jurisdiction over custody matters.

Toland, 425 Md. at 374 , 40 A.3d 1051 . Importantly, the Act governs actions involving legal custody, physical custody, and visitation with a child; it does not govern actions for child support or other monetary obligations of an individual. F.L. § 9.5—101(d); see F.L. § 9.5-101(e)(2). ⁷³⁵ The UIFSA, on the other hand, governs claims for child support and paternity testing and does not address custody. See F.L. §§ 10-301 to -359.

The National Conference of Commissioners on Uniform State Law first promulgated the UIFSA in 1992, which has been amended since then in 1996 and 2001. 11 Unif. Interstate Family Support Act, Prefatory Note, 9 U.L.A. Part IB, at 281-82 (2001). The Act seeks to address the problems stemming from multiple child support orders issued by different states relating to one child and does so by implementing a “one-order system” whereby only one state’s order governs the support obligation at any given time. Superior Court v. Ricketts, 153 Md.App. 281, 318-19 , 836 A.2d 707 (2003) (citations omitted); Holbrook v. Cummings, 132 Md.App. 60, 65-66 , 750 A.2d 724 , cert. granted, 360 Md. 273 , 757 A.2d 809 (2000).

To facilitate this result, the Act establishes “procedural and jurisdictional rules for interstate child support proceedings, including the enforcement of foreign child support orders.” Ricketts , 153 Md App. at 319, 836 A.2d 707 . Maryland adopted this Act, without any variations relevant to the instant case, in 1997 to conform to federal requirements. 1997 Laws of Maryland, ch. 609 (S.B.636). 12 Although each act is distinct, both seek to streamline and synchronize certain family law issues for the benefit of children whose parents and guardians live in different states or countries. They contain special jurisdictional provisions that delimit when a party may participate in an action in a foreign ⁷³⁶ state to resolve custody and visitation under UCCJEA, or paternity and child support under UIFSA, without thereby submitting to the jurisdiction of the foreign state in other matters. The case before us, however, presents interlocking issues: whether Appellee’s actions in response to the UC-CJEA custody petition effectively resulted in submission to the court’s exercise of personal jurisdiction over the subsequently added claims for child support and paternity testing under the UIFSA.

In other words, metaphorically speaking, where these statutes intersect on matters relating to paternity, custody and child support, did Appellee’s affirmative acts cause him to veer off one highway and onto another? As Appellee correctly states, the UCCJEA provides limited immunity to nonresidents participating in a child custody proceeding in this State, such that the nonresident does not submit to personal jurisdiction for other matters solely by participating in the custody action. Therefore, before turning to Appellant’s argument that Appellee’s actions satisfied the UIFSA long-arm statute, we first must consider whether the UCCJEA provided limited immunity to Appellee. A. The Limited Immunity Provided by the UCCJEA 1.

The Limited Immunity Provision To make an initial child custody determination under the UCCJEA, 13 a court of this State has jurisdiction over a custody action if Maryland is the minor child’s home state at the time the proceeding commenced. 14 F.L. § 9.5—201(a)(1). ⁷³⁷ Thus, a respondent to a custody petition generally may not have any choice but to litigate a custody issue in Maryland if Maryland was the minor child’s home state at the time the custody action was filed, absent, for example, a court’s decision to decline jurisdiction because of inconvenience or unjustifiable conduct under F.L. §§ 9.5-207, -208. Accordingly, the UC-CJEA provides limited immunity to a nonresident party who chooses to participate in a child custody proceeding in Maryland: A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this State for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding. F.L. § 9.5-108(a). 15 In other words, the UCCJEA permits the nonresident party to participate in actions involving custody and visitation without exposing himself or herself to personal jurisdiction in Maryland in another proceeding. Thus, a non ⁷³⁸ resident party may seek custody of the minor child without being deemed to have affirmatively sought relief resulting in submission to a court’s personal jurisdiction in other matters.

Unif. Child Custody Jurisdiction and Enforcement Act, § 109 cmt., 9 U.L.A. Part 1A, at 665. However, as discussed infra, a nonresident party may waive limited immunity under the UCCJEA if they seek affirmative relief relating to matters outside the scope of custody and visitation. 2. The Definition of “Child Custody Proceeding ” The limited immunity provision applies to a party in a “child custody proceeding.” Under the UCCJEA, a “child custody proceeding,” is defined as follows: (1) “Child custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue.

(2) “Child custody proceeding” includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. (3) “Child custody proceeding” does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under Subtitle 3 of this title. F.L. § 9.5-101(e) (emphasis added). Because the definition of a “child custody proceeding” under the UCCJEA includes a paternity proceeding in which the issue of custody arises, we must consider, before turning to jurisdiction under the UIFSA long-arm statute, whether Ap-pellee’s request for genetic testing to prove paternity is part of a custody proceeding, and accordingly, whether Appellee remains protected under the immunity provision of F.L. § 9.5-108(a) from submitting to the personal jurisdiction of the court. 16 After reviewing the plain meaning and the corn- ⁷³⁹ mentary to the definition in subsection (e)(2) of F.L. § 9.5-101 and the limited immunity provision of F.L. § 9.5-108(a), we conclude that Appellee’s affirmative request for paternity (an action for which personal jurisdiction is required) was not encompassed as part of a “child custody proceeding” for purposes of applying the UCCJEA limited immunity provision.

In other words, the statute does not extend the limited immunity provisions of the UCCJEA to cover affirmative relief relating to paternity issues, or, for that matter, for the total spectrum of affirmative relief that may be obtain in a proceeding for “divorce, separation, neglect, abuse, dependency, guardianship, ... termination of parental rights, or protection from domestic violence[.]” Such a reading of the statute would render unlimited the limited immunity provisions of the statute. The commentary to the Uniform Custody Act explains that the intention of listing example proceedings in subsection (e)(2) of F.L. § 9.5-101 was to “remove[] any controversy about the types of proceedings where a custody determination can occur.” Unif. Child Custody Jurisdiction and Enforcement Act, § 102 cmt., 9 U.L.A. Part 1A, at 659. A “custody determination” is defined as an order “providing for the legal custody, physical custody, or visitation with respect to a child.” F.L. § 9.5-101(d)(l).

The prefatory note describes the definition of “child custody proceeding” as “sweeping,” because “with the exception of adoption, [it] includes virtually all cases that can involve custody or visitation with a child as a ‘custody determination.’ ” Unif. Child Custody Jurisdiction and Enforcement Act, Prefatory Note, 9 U.L.A. Part 1A, at 651-52. The commentary further provides that although “a determination of paternity is covered by ... [UIFSA], the custody and visitation aspects of paternity cases are custody proceedings.” Unif. Child Custody Jurisdiction and Enforcement Act, § 102 cmt., 9 U.L.A. Part 1A, at 659 (emphasis added). ⁷⁴⁰ This commentary reflects that the definition in subsection (e)(2) was intended to resolve confusion regarding the kinds of proceedings in which custody determinations may be made.

This Court and other jurisdictions have relied on this definition to resolve whether an order relating to custody that occurred in one of the listed proceedings constituted a “custody determination” requiring application of or adherence to the UCCJEA. Some of these cases have held that if a custody or visitation issue arises in one of those listed proceedings, then a court must determine whether it has subject matter jurisdiction to reach a determination regarding that issue under the UCCJEA. See In re John F., 169 Md.App. 171, 180, 183 , 899 A.2d 976 (2006) (stating that the definition of “child custody proceeding” includes CINA proceedings and, therefore, “[t]he court was ... required to have jurisdiction over the subject matter under the UCCJEA[.]”); see also, e.g., M.E.V. v. R.D.V., 57 A.3d 126, 130-31 (Pa.Super.2012) (holding that a complaint for divorce that included averments regarding custody commenced a child custody proceeding under the UCCJEA definition as to require the circuit court to determine whether it could exercise subject matter jurisdiction over the custody issue); Berwick v. Wagner, 336 S.W.3d 805, 811-14 (Tex.App.2011) (holding that a paternity action in which custody issues were raised constituted a “child custody proceeding” and that the order entered pursuant to that action, even though not specifically addressing custody, was required to be recognized and registered pursuant to the UCCJEA); Santiago v. Riley, 79 A.D.3d 1045, 1045-46 , 915 N.Y.S.2d 99 (2010) (holding that a petition for family offense gave rise to a child custody proceeding under the UCCJEA definition as to require the court to determine whether it should exercise temporary emergency jurisdiction over the custody issue); In re B. P., 343 Mont. 345, 350 , 184 P.3d 334 (2008) (concluding that based on the definition of “child custody proceeding,” “the UCCJEA drafters and the states which adopted it clearly intended to expand the reach of the statute to include child abuse and neglect proceedings” and, therefore, the lower court’s order addressing custody in the context of a youth-in- ⁷⁴¹ need-of-care proceeding implicated the UCCJEA’s jurisdictional provisions, especially that of exclusive, continuing jurisdiction); B.T.W. ex rel. T.L. v. P.J.L., 956 A.2d 1014, 1016 (Pa.Super.Ct.2008) (concluding that a petition for child abuse gave rise to child custody proceeding under the UCCJEA definition as to permit the court, which had jurisdiction under the UCCJEA, to modify a custody issue included on the order entered pursuant to the abuse action).

Here, the instant action began as one solely for custody. Because Maryland was M.J.’s home state for at least six months prior to commencement of the action, it was undisputed that the circuit court had subject matter jurisdiction over the custody action under the UCCJEA. In other words, this is not a case in which the parties began a paternity litigation (which would have required Appellee to submit to the jurisdiction of the court in any event), and subsequently the issue of custody arose, prompting the court to make a determination regarding the custody issue. It is this latter scenario that subsection (e)(2) was intended to address, namely, to establish that a custody determination made in the paternity proceeding, if any, would be subject to the UCCJEA.

Moreover, in addition to the stated purpose of subsection (e)(2), the Uniform