Case of the Day: In re Marriage of Lohman
Posted on September 29, 2015
The case of the day is In re Marriage of Lohman (Colo. Ct. App. 2015). The wife was an Englishwoman. She and the husband married in Colorado in 1997, and they had a child the next year. In 2008, after the couple separated, the wife moved to England with the child, while the husband stayed in Colorado.
The wife filed a divorce petition in an English court and served her husband with process in Colorado. The husband did not participate in the English proceedings. In 2010, the English court entered a judgment against the husband for £638,000, which included £120,000 as a lump sum for maintenance, £80,000 for the child’s post-secondary education, £423,000 for the purchase of a home, and £15,000 for attorney’s fees.
The wife then sought to register the English support order in the Grand County (Colorado) District Court under the Uniform Family Support Act. The husband opposed her attempt. The district court ruled in favor of the wife and the husband appealed, arguing that the English court had lacked personal jurisdiction. (There was procedural wrangling about whether the defense had been waived, etc., that I won’t cover here).
It’s clear under Kulko v. Superior Court, 436 U.S. 84 (1978), that where one spouse obtains a divorce and a support order in a foreign country and then seeks to enforce the award against the other spouse, who resides in the United States, the action can only be brought in a US state with which the US spouse has the requisite minimum contacts to satisfy the Due Process Clause. The court dwelt on this in some detail for reasons that aren’t really clear to me. Here, the husband (it appears) lived in Colorado, so of course the Colorado court had personal jurisdiction over him.
The real question was the next question the court considered: was it enough that the English court had jurisdiction over the husband under English law (as everyone conceded)? Or did the English court’s exercise of jurisdiction also have to satisfy the Due Process Clause? Both the 2015 version of the UFSA (which was not in force in Colorado at the relevant time, but which the court considered persuasive) and the Restatement require both that the foreign court have jurisdiction under its own law and that the exercise of jurisdiction must, in essence, meet a test of reasonableness very like or even identical to the familiar minimum contacts test. The Restatement, for example, suggests that the exercise of jurisdiction will generally be reasonable if at the time jurisdiction is asserted the person is present in the foreign state (other than transitorily), the person is domiciled or resident there, or is a national of the foreign state, or has consented to jurisdiction, or carries on business there regularly, or has carried on activities there related to the case, or had carried on activities outside the foreign state that had a substantial, direct, and foreseeable effect with in the foreign state.
Thus the case had to be remanded for a consideration of whether the English court’s exercise of jurisdiction met this test.