Summary
affirming a court of appeal's decision allowing the issuance of a writ of prohibition because the trial court lacked personal jurisdiction over a non-resident father in paternity action
Summary of this case from Banes v. Superior Court of GuamOpinion
No. 84-79
Decided November 21, 1984.
Prohibition — Paternity — Jurisdiction of juvenile court — Alleged tortious failure to support illegitimate child insufficient to support long-arm jurisdiction, when — R.C. 2307.382, construed — Writ allowed, when.
APPEAL from the Court of Appeals for Cuyahoga County.
This is an appeal as of right from the allowance of a writ of prohibition by the court of appeals.
The record before this court indicates that relator-appellee herein, Terone Stone, while a resident of Texas and in the military service stationed at Dyess Air Force Base, was served by certified mail in a paternity action filed against him in the Court of Common Pleas of Cuyahoga County, Juvenile Division. Appellee alleges in his complaint in prohibition that the subject child was conceived and born in the state of Alabama in 1969, and that the child's mother who brought such paternity action had moved to the state of Ohio in 1971. Appellee filed a motion to dismiss the paternity action. In support thereof, he submitted the mother's admission of the child's Alabama conception and birth which was contained in her deposition in such paternity action. Further, the prohibition complaint alleges that appellee's motion to dismiss, based on want of personal jurisdiction and insufficient Ohio contacts, was overruled by Judge Burke E. Smith of the court of common pleas.
Appellee appealed the overruling of his motion to dismiss and thereafter filed the instant prohibition complaint to restrain appellants, Judge Burke and the court of common pleas, from proceeding in the paternity action. An alternative writ was allowed on October 20, 1983, and a show cause hearing was ordered for October 26, 1983. The writ was allowed on November 7, 1983.
Prior to merit determination it is necessary to deal with two procedural issues raised by appellants in this prohibition action. First, it is contended that inasmuch as the record is bereft of answer, stipulation, transcript, or the record of juvenile court proceedings, issuance of the writ is not supported by the evidence. We note, however, that appellee submitted a supplemental record of the proceedings in the Cuyahoga County Juvenile Court, which included the transcript of the deposition of the paternity action complainant, the child's mother. Such record was before the court of appeals below in connection with the appeal from the overruling of appellee's motion to dismiss and may be submitted here under authority of Section 3, Rule IV of the Supreme Court Rules of Practice.
The second procedural deficiency urged is that appellants were given no meaningful opportunity to be heard prior to allowance of the writ of prohibition. Here, appellants contend that (1) no guidelines hearing was afforded after issuance of the alternative writ as is required by the appellate court's own Local Rule 8(B)(2), and (2) the record fails to reflect that a show cause hearing was afforded. Appellants fail to recite any request for, or objection to the want of, such guidelines hearing, or to support any prejudice arising from its absence. While appellants urge that the record before the court of appeals fails to reflect that a show cause hearing was had prior to issuance of the writ herein, it is significant that it is not urged that such a hearing failed to take place; nor is it shown that there was any resulting prejudice to appellants.
Mr. Russell S. Bensing, Messrs. Koblentz Koblentz and Mr. Richard S. Koblentz, for appellee.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Richard A. Wise, for appellants.
Appellants' assertion of personal jurisdiction over the appellee is based on their application of the Ohio long-arm statute, R.C. 2307.382. Subdivision (A)(6) thereof permits a court to exercise personal jurisdiction over a person as to a cause of action arising from that person's "[c]ausing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state." Alternatively, appellants contend that any alleged lack of personal jurisdiction was not patent and unambiguous so as to support issuance of a writ of prohibition.
Appellants' application of R.C. 2307.382(A)(6) is founded on the alleged tortious failure of appellee to support his illegitimate child. Appellants seek to have this court adopt the reasoning in Poindexter v. Willis (1967), 87 Ill. App.2d 213, 231 N.E.2d 1, which judgment was given full faith and credit in Poindexter v. Willis (1970), 23 Ohio Misc. 199 [51 O.O.2d 157]. Appellants note that other jurisdictions have reached comparable holdings which in essence state that failure to support an illegitimate child constitutes a tortious act, and under statutes similar to Ohio's, have extended personal jurisdiction to nonresident defendants if the Due Process Clause has been otherwise satisfied. See Bell v. Tuffnell (Fla.App. 1982), 418 So.2d 422; Black v. Rasile (1980), 113 Mich. App. 601, 318 N.W.2d 475; and State, ex rel. Nelson, v. Nelson (1974), 298 Minn. 438, 216 N.W.2d 140.
We reject the reasoning and holding of the Illinois court in Poindexter, supra. The underlying action herein seeks a determination of paternity, and, without a determination favorable to the child's mother who, as an Ohio and Cuyahoga County resident, brought such action, there can be no support order against the alleged father and hence no "* * * tortious injury in this state to any person by an act outside this state * * *," as required by R.C. 2307.382(B). Thus tortious injury, i.e., failure to support, is ancillary to the determination of a duty of support by reason of paternity. See Lightell v. Lightell (Ala.Civ.App. 1981), 394 So.2d 41; State, ex rel. Larimore, v. Snyder (1980), 206 Neb. 64, 291 N.W.2d 241; Beaudoin v. Anderson (1981), 109 Misc.2d 753, 441 N.Y.S.2d 37. Our determination herein also negates appellants' contention that want of personal jurisdiction is not patent and unambiguous.
In addition to our unwillingness to apply "tortious injury" under R.C. 2307.382(A)(6) to a non-resident putative father for the purpose of extending long-arm personal jurisdiction, we find that the requirements of due process are pertinent and significant herein. In Poindexter, it was alleged, and the facts revealed, that conception of the subject child took place in Illinois (the state in which jurisdiction was sought). Here, appellee's allegation of birth and conception of the subject child in a state other than Ohio is conceded by the child's mother who brought the paternity action. Under R.C. 3111.06(B), sexual intercourse in this state expressly constitutes a submission to jurisdiction. That fact, as an activity attuned to satisfy due process requirements, is not present here.
In Kulko v. Superior Court of California (1978), 436 U.S. 84, 92, the United States Supreme Court stated that "an essential criterion in all cases is whether the `quality and nature' of the defendant's activity is such that it is `reasonable' and `fair' to require him to conduct his defense in that State." We hold that it is not reasonable and fair for appellee to conduct his defense in this state under the circumstances herein.
For reason of the foregoing the judgment of the court of appeals allowing the writ of prohibition is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.