Nelson & Booth is a Kansas law firm engaged in a Civil Trial and Appellate practice, emphasizing the handling of complex domestic relations matters (including divorce, legal separation and annulment, determination of parentage, child custody and parenting time, marital and non-marital property division, and determination and modification of child support and spousal support, as well as the representation of parents in cases of international child abduction and issues of interstate jurisdictional disputes). The firm was established in 1994.

The attorneys at NELSON & BOOTH are licensed to practice only in the
states of Kansas or Missouri.

E-mail: Ronald W. Nelson or Joseph W. Booth

Jurisdiction – Personal and Subject Matter Jurisdiction in Domestic Relations Cases *

I. Jurisdiction—Personal and Subject Matter

There are two kinds of jurisdiction a court must possess in order to properly adjudicate any domestic matter: (1) jurisdiction over the subject matter of the case (“subject matter jursidiction”) and (2) jurisdiction over the persons before it (in personam jurisdiction).[1]

A. Subject Matter Jurisdiction

Subject matter jurisdiction relates to the power of the court itself to hear the “subject” of a case, regardless whether the parties appearing before it desire that court to decide the case.[2] If a court does not have “subject matter jurisdiction” it cannot make an enforceable decision in the case no matter the desires of the parties — even if all parties to the matter request the court assume jurisdiction to hear and decide the issues presented.[3]

Subject matter jurisdiction cannot be waived by the parties, and the lack of such jurisdiction can be raised at any point in the proceedings — even on appeal, though the issue may not have been raised to or addressed by the trial court level.[4] The court itself has a duty to determine that it has jurisdiction over the subject matter of every case that comes before it whether or not the issue is raised by the parties. If it does not have subject matter jurisdiction, the court must dismiss any case which fails the requirements of subject matter jursidiction.[5] Subject matter jurisdiction, therefore, constitutes a determination of whether the particular court in which a matter is filed has the power to hear and decide the matter, rather than a measurement of the extent to which the court can exercise the power available to it.[6]

B. Personal (In Personam) Jurisdiction

Personal jurisdiction, as opposed to subject matter jurisdiction, is a determination of whether the court can exercise the power it has over the parties appearing before it. Personal jurisdiction determines whether a court can exercise its power in such a way as to bind or obligate a party before it to the orders made by the court.[7] Issues of personal jurisdiction do not address the type of action the court can hear but, instead, deal with the nature of the interest a particular court has in determining the issues between the parties appearing before it. Personal jurisdiction may be obtained either by service of the lawsuit within the boundaries of the state in which the suit has been filed[8] or service of the lawsuit in accordance with the “long-arm statute” of the state in which the action is filed.[9]

II. Jurisdiction of the Marriage Relationship Itself (the Res)

Kansas district courts have jurisdiction to a grant divorce or annulment to any married person who lives in the state, regardless where the other party lives.[10] Only one party need be a resident of the state for the time required by the statutes for the court to be allowed to dissolve the marriage[11] — the power of the court need only attach to the status of the marriage.[12] A marriage exists or has its situs wherever either party to the marriage resides.[13] One spouse may have a residence separate and apart from the other spouse, and the marriage exists in the state in which each party resides.[14] Although Kansas law does not specify any residency requirements for actions either requesting separate maintenance or annulment,[15] it is clear there must be some reasonable basis upon which jurisdiction may be based other that the simple filing of an action in the state by a non-domiciliary.[16]

Absent personal jurisdiction over a respondent, however, a court is limited to the rendition of a judgment affecting the status of the parties within the court’s jurisdiction even if personal service of the action has been made on the defending party[17] (unless that service was had within the state’s boundaries). In such a case, only an action which affects the marital status — an action of divorce or annulment — can be granted, as the court only has the power to dissolve the parties’ marriage, not to make any financial orders, nor make any orders which require personal jurisdiction.

III. Jurisdiction to Divide Property and Debt

In addition to the power to dissolve a marriage by way of divorce or annulment, where only one party is subject to the jurisdictional power of the state, the courts have the power to divide whatever property is physically within that state’s jurisdictional boundaries.[18] Accordingly, although there may be no personal jurisdiction over the party against whom an action is filed, if all the property of the parties is located within the state at the time of the action, a Kansas court can determine the way in which that property should be divided — even if it is to give all the property to the party who resides in the state to the exclusion of the other.[19]

IV. Jurisdiction to Divide and Order Financial/Personal Obligations

Although Kansas courts can dissolve a marriage and can determine all rights and claim to property which is within the state’s territorial boundaries, if the state does not have personal jurisdiction over both parties, a Kansas court does not have jurisdiction to divide any property which lies outside the boundaries of the state or to impose any
personal financial obligation on a nonresident.[20] Personal financial obligations do not constitute a “res” as does tangible personal or real property. In order to have power to issue binding decisions imposing personal financial obligations on a party or to divide the entirety of the parties’ property and financial obligations, the court must have full in personam jurisdiction over both parties.[21]

V. Child Custody Jurisdiction

Child custody jurisdiction is subject matter jurisdiction.[22] If a state in which child custody litigation is instituted does not have separately justifiable jurisdiction over the child, as provided by applicable laws, any determination of that court regarding the custody of the child is invalid and unenforceable.[23]

Prior to 1980, each state had its own rules for determining when and under what conditions that state could exercise jurisdiction over child custody matters and the circumstances under which it would recognize child custody determinations made in a sister state in the same matter. Although prior custody determinations by another state were generally recognized as valid under the doctrine of judicial comity,[24] no federal law existed governing the circumstances under which full faith and credit[25] was to be granted to such deteminations.[26]

Historically, post-separation disputes between parents regarding custody or visitation matters were handled by petitions for habeas corpus.[27] Jurisdiction over child custody matters was accepted on one of three bases, depending on the state: 1) physical presence of the subject child in the state; 2) domicile of the child in the state; or 3) in personam jurisdiction over the parties to the child custody or visitation dispute.[28] Kansas courts based findings of jurisdiction over child custody issues on whether the child was, in fact, domiciled in the state at the time of the commencement of the action.[29] Because states determined their own power over child custody matters, two or more states often would claim jurisdiction regarding a child and would make conflicting rulings with the parties having to then battle further to determine precedence of decisions.[30]

In 1966 the Commission on Uniform Laws recommended passage of the Uniform Child Custody Jurisdiction Act to “bring some semblance of order into the existing chaos.”[31] Kansas enacted the Uniform Child Custody Jurisdiction Act into law in 1978.[32] In 1980, the Federal Parental Kidnapping Prevention Act (PKPA)[33] was enacted to provide the circumstances under which full faith and credit should be granted to a child custody determination by a court of a state or territory of the United States.[34]

A. Uniform Child Custody Jurisdiction Act[35]

The Uniform Child Custody Jurisdiction Act[36] was first recommended for passage in 1968 by the commission on uniform laws.[37] The Commission recommended passage of the UCCJA in order to “avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being,”[38] “to discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child,”[39] and to “make uniform the law of those states which enact it.”[40]

Kansas enacted the UCCJA in 1978 with some modifications.[41] The UCCJA has been now been enacted, in some form, in all 50 states, the District of Columbia, and the Virgin Islands.[42] Physical presence of the child is no longer necessary.[43]

The UCCJA provides a hierarchy under which jurisdiction is determined in any case involving a child. The UCCJA is a determination of subject matter jurisdiction. If the court does not have jurisdiction under the provisions of the UCCJA, it does not have power to act with regard to the subject child.[44] Any action regarding child custody must satisfy the requirements of the Uniform Child Custody Jurisdiction Act. If the action does not satisfy those requirements, the court does not have proper jurisdiction and those allegations cannot be considered. After a court properly undertakes jurisdiction for a child, that jurisdiction continues until neither the child nor either parent of the child resides in the state and the court releases its jurisdiction to be assumed by another state according to the UCCJA.[45]

B. Uniform Child Custody Jurisdiction and Enforcement Act

At its annual meeting in 1997, the National Conference of Commissioners on Uniform State Laws (NCCSL) approved a major revision of the Uniform Child Custody Jurisdiction Act. The revision, titled the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) modifies and supplements the existing UCCJA in a few different ways:

First, it revises the law on child custody jurisdiction in light of federal enactments and thirty years of contradictory case law. Article 2 of the Act provides for a clearer determination of which State can exercise original jurisdiction over a child-custody determination. It also, for the first time, enunciates a standard of continuing jurisdiction and clarifies modification jurisdiction. Other aspects of the Article harmonize the law on simultaneous proceedings, clean hands and forum non conveniens. . . .

Second, this Act provides in Article 3 for an expedited process to enforce interstate child custody and visitation determinations.[46]

The UCCJEA is, above all, a revision of the UCCJA performed in consideration of the significant statutory enactments[47] and other developments which have occurred[48] since recommendation of the original UCCJA. Although there are few substantive changes in the actual jurisdictional provisions of the new act, there are modifications and revisions to the text to make clear the original intentions of the Uniform Laws Commission and clarifications necessitated by over thirty years of sometimes inconsistent interpretation by the States’ courts.

C. Federal Parental Kidnapping Prevention Act

The Federal Parental Kidnapping Prevention Act[49] was enacted in 1980. The purpose of the Act was to establish national standards under which jurisdiction of child custody determinations are to be accepted.[50] It was a method by which Congress determined appropriate to make child custody jurisdiction uniform. The Act does not, however, provide any federal court jurisdiction for child custody matters[51] — unless there is another statute providing federal court jurisdiction in that particular case, all such issues must be raised within the state courts. The PKPA provides full faith and credit only for those child custody determinations made by a “home state” when there is a home state.[52] Thus, any acceptance of child custody matters by a state’s courts on grounds other than that state being the “home state” of the child may not be accorded full faith and credit by other state’s courts, even though that jurisdiction is assumed under one of the other four bases allowed by the UCCJA if there is a home state.[53] A custody determination based on “significant connection” jurisdiction when another state has home state jurisdiction is not entitled to full faith and credit under the PKPA.[54]

VI. Jurisdiction to Determine Matters of Child Visitation

Kansas law provides that the state’s courts have continuing jurisdiction over child custody and visitation issues once they are established by a Kansas court.[55] However, in order to establish an initial child visitation order, the court must have full power under the Uniform Child Custody Jurisdiction Act to determine both custody and visitation. A court cannot determine an initial visitation order if it does not have jurisdiction under the Uniform Child Custody Jurisdiction Act, since that would be a modification of custody.

VII. Jurisdiction for Establishment of Child Support Obligations

Personal jurisdiction over the person sought to be obligated to pay child support must be present in order to establish or modify a child support obligation.[56] In order for there to be sufficient personal jurisdiction to establish or modify child support, one of the following jurisdictional grounds must be present:

1. The obligor or person against whom the action is filed must be a resident of the state;[57] or

2. the person against whom the action is filed must have consented to jurisdiction of the state;[58] or

3. the alleged obligor must have been served with process in the state;[59] or

4. there must be sufficient “long-arm” jurisdiction over the alleged obligor, as determined by the fact that the alleged obligor had some connection with the state, as regards the child, sufficient to satisfy “minimum contacts” criteria.[60]

It is not sufficient jurisdictional basis that only the child and/or the parent seeking establishment or modification of child support resides in the state if the obligor-parent does not have any contact with the state and service is not made within the state.[61] The Uniform Child Custody Jurisdiction Act cannot be used to obtain jurisdiction to obtain or modify child support.[62] If, however, a party not subject to personal jurisdiction in the state requests affirmative relief of the court, the objection to jurisdiction is waived, personal jurisdiction over all matters is established, and Kansas courts may enter any and all orders necessary.[63] However, the mere request for enforcement of the child support order of another state does not constitute a request for affirmative relief such as to grant a court of the registering state personal jurisdiction over the registrant.[64]

In 1994, Kansas originally enacted the Uniform Interstate Family Support Act (UIFSA) to codify the circumstances and criteria under which Kansas court could properly exercise jurisdiction for the establishment and modification of child support orders.[65] UIFSA was amended in 1996 to better preserve the rights of jurisdiction and assure uniformity among the states. UIFSA essentially codifies the jurisdictional requirements which were already accepted and used by courts in Kansas. Jurisdiction is established if the person against whom a child support order is sought to be established or modified:

1. is personally served with process within the state;[66]

2. submits to the jurisdiction of the state’s courts;[67]

3. resided with the subject child within the state;[68]

4. resided in the state and provided prenatal expenses or support to the child;[69]

5. has caused the child to reside in this state by the alleged obligor’s acts and directives;[70]

6. engaged in sexual intercourse in the state and the child may have been conceived as a result of that act of sexual intercourse;[71]

7. asserted parentage in the putative father registry maintained by the state SRS;[72] or

8. is subject to personal jurisdiction on any other constitutionally sound basis.[73]

Where two states have or claim to have concurrent jurisdiction for the establishment or modification of child support, UIFSA establishes a hierarchy for determination of which state has a superior right to make the initial determination of child support.[74]

END

Nelson & Booth
Suite 160; 10990 Quivira Road
Overland Park, Kansas 66210-1281
(Kansas City Metropolitan Area)
Telephone: (913) 469-5300
Telecopier: (913) 469-5310
E-fax (801) 697-8455
E-mail: Ronald W. Nelson or Joseph W. Booth

Last updated 11/06/2003

[1] State ex rel. SRS v. Stephens, 13 Kan. App. 2d 715, 716, 782 P.2d 68 (1989) (both subject matter and personal jurisdiction required for court to have the power to act).

[2] State v. Matzke, 236 Kan. 833, 835, 696 P.2d 396 (1985); Carrington v. Unseld,
22 Kan. App. 2d 815, 817 (1996).

[3] Perrenoud v. Perrenoud, 206 Kan. 559, 480 P.2d 749 (1971).

[4] In re Marriage of Mosier, 251 Kan. 490, 493, 836 P.2d 1158 (1992). See also State v. Nelson, 263 Kan. 115, 116, 946 P.2d 1355 (1997); Rivera v. Ortega, – Kan –, – P.2d – (#81,691 and 81,692 slip op. 07/30/99)

[5] In re M.K.D., 21 Kan. App.2d 541, Syl. 3, 901 P.2d 536 (1995).

[6] Behee v. Beem, 156 Kan. 115, 117‑118, 131 P.2d 675 (1942); Carrington v. Unseld,
22 Kan. App. 2d 815, 817, 923 P.2d 1052 (1995).

[7] R.Casad, Jurisdiction in Civil Actions, §1.01[2] (2d ed. 1991).

[8] K.S.A. 60‑303 (1994).

[9] K.S.A. 60‑308(b) (1994).

[10] Lillis v. Lillis, 1 Kan. App. 2d 164, 165, 563 P.2d 492 (1977).

[11] Williams v. North Carolina, 317 U.S. 287, 298‑299, 87 L.Ed. 281, 286 (1947)(Williams I)(Each state, having power over its own domiciliaries, has the power to determine matters affecting the marital status of those persons; the full faith and credit clause of the United States Constitution requires other states recognize that determination).

[12] See K.S.A. 60‑1603(a) (1994).

[13] McCormick v. McCormick, 82 Kan. 31, 107 P.2d 546 (1910).

[14] K.S.A. 60‑1603(c) (1994).

[15] See § 2.30, infra, for discussion of separate maintenance, and § 2.38, infra, for discussion of annulment.

[16] Williams v. North Carolina, 325 U.S. 226, 65 S. Ct. 1092, 89 L.Ed.2d 1577 (1945)(Williams II) (domicile is additional requirement for adequate jurisdiction of domestic actions); Restatement (Second) of Conflicts §75 (1971).

[17] K.S.A. 60‑307(b) (1994).

[18] Cadwallader v. Lehman, 202 Kan. 738, Syl. 1, 451 P.2d 163 (1969).

[19] Fall v. Eastin, 215 U.S. 1, 54 L.Ed. 65 (1909).

[20] Lillis v. Lillis, 1 Kan. App. 2d 164, 563 P.2d 492 (1977); McCormick v. McCormick, 82 Kan. 31, 107 P.2d 546 (1910). See also Hodge v. Hodge, 178 Conn. 308, 422 A.2d 280 (1979); Morrill v. Tong, 390 Mass. 120, 453 N.E. 2d 1221 (1983) (jurisdiction over marriage does not give court jurisdiction over parties’ property).

[21] Perry v. Perry, 5 Kan. App. 2d 636, 638‑639, 623 P.2d 513 (1981).

[22] In re Marriage of Mosier, 251 Kan. 490, 836 P.2d 1158 (1992).

[23] In re Marriage of Harris, 20 Kan. App. 2d 50, 883 P.2d 785, rev. denied 256 Kan. 995 (1994).
See also 28 U.S.C. §1738A (1996)(federal Parental Kidnapping Protection Act).

[24] Boyce by Boyce v. Boyce, 13 Kan. App.2d 585, Syl. 1, 776 P.2d 1204 (1989)(“Judicial comity is a principle by which the courts of one state give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect.”)

[25] Full faith and credit is based on provisions of the United States Constitution whereas comit is based on policy considerations based on the desire of sovereign states to have reciprocal consideration given to those states own laws and rules in another state. Boyce by Boyce v. Boyce, 13 Kan. App.2d 585, 588, 776 P.2d 1204 (1989).

[26] White v. White, 160 Kan. 32, 42, 159 P.2d 461 (1945)(The full faith and credit clause of the United States Constitution does not prevent a state from reviewing a custody determination of another state).

[27] See e.g. Tompkins v. Garlock, 189 Kan. 425, 370 P.2d 131 (1962); Kruse v. Kruse, 150 Kan. 946, 96 P.2d 849 (1939).

[28] 1 McCaney, Child Custody & Visitation Law and Practice §3.01 [1] (Matthew Bender 1997).

[29] Wear v. Wear, 130 Kan. 205, 285 P. 606 (1930); Tompkins v. Garlock, 189 Kan. 423,
370 P.2d 131 (1962).

[30] See Comment, Jurisdictional Guidelines in Matters of Child Custody: Kansas Adopts the Uniform Child Custody Jurisdiction Act, 27 Kan.L.Rev. 469 (1979); Commissioner’s Prefatory Note, Uniform Child Custody Jurisdiction Act, 9 U.L.A. 116‑118 (Part I, 1988).

[31] Commissioners Prefatory Note, Uniforrn Child Custody Jurisdiction Act, 9 U.L.A. 118 (Part I, 1988).

[32] 1978 Kan.Sess.Laws, Ch. 231.

[33] 28 U.S.C. §1738A (1996).

[34] 94 Stat. 3568, Pub.L. 96-611, §7 (1980).

[35] For a more detailed discussion of the provisions and requirements of the Uniform Child Custody Jurisdiction Act, see Chapter 6.

[36] A revision of the Uniforrn Child Custody Jurisdiction Act was approved from submission to the States by the National Conference of Commissioners on Uniforrn State Laws at its Annual Meeting in 1997 to modify the UCCJA (see <http://www.law.upenn.edu/library/ulc/uccjea/chldcust.htm>).

[37] See Historical Note, 9 Unif. Child Custody Jurisdiction Act, 9 U.L.A. 116 (Part I, 1988).

[38] Unif. Child Custody Jurisdiction Act, §1(a)( l ), 9 U.L.A. 124 (Part I, 1988); K.S.A. 38‑1301(a)(1) (1995)(same).

[39] Id., at §1(a)(2), 9 U.L.A. 124 (Part I, 1988); K.S.A. 38‑1301(a)(2) (1995)(same).

[40] Id., at §1(a)(9), 9 U.L.A. 124 (Part I, 1988); K.S.A. 38‑1301(a)(9) (1995)(same).

[41] 1978 Kan.Sess.Laws Ch. 231; In re Marriage of Mosier, 251 Kan. 490, 836 P.2d 1158 (1992).

[42] See Table, Unif, Child Custody Jurisdiction Act, 9 U.L.A. 115‑116 (Part I, 1988).

[43] See K.S.A. 38‑1303(c) (1993).

[44] Warwick v. Gluck, 12 Kan. App. 2d 794, 795, 658 P.2d 240 (1988).