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In re Marriage of Albar

Court of Appeals of Oregon

May 31, 2018

In the Matter of the Marriage of Fatima Mohammad ALBAR, Petitioner-Respondent, and Hazim Yousef NAJJAR, Respondent-Appellant.

          Argued and submitted June 16, 2017

          Washington County Circuit Court C132542DRA Kirsten E. Thompson, Judge.

          George W. Kelly argued the cause and fled the brief for appellant.

          No appearance for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Portion of general judgment awarding child support to mother and setting parenting time reversed and remanded; otherwise affirmed. Supplemental judgment denying attorney fees to father reversed.

         Case Summary: Father appeals a judgment granting custody of children to mother and awarding child support to her. Father and mother, both citizens of Saudi Arabia, lived in Oregon with their minor children for several years before father moved back to Saudi Arabia. Mother petitioned for divorce in Oregon, where she remained with the children. In his first assignment of error, father argues that the trial court erred when it determined that he had waived his objection to the court's exercise of personal jurisdiction over him. Next, father argues that the trial court erred when it determined his child support obligation based on a calculation of mother's income that excluded monetary gifts from mother's family. Finally, father argues that the trial court erred when it made his parenting time conditional on the children's agreement. Held: First, the trial court erred when it determined that father had waived his objection to personal jurisdiction, because father objected to jurisdiction in his first responsive pleading. But the court had the authority to exercise personal jurisdiction over father under ORCP 4 L-which establishes long-arm jurisdiction over nonresidents-and ORS 110.518(1)(c) and (e)-jurisdictional provisions of Oregon's Uniform Interstate

         [292 Or. 147] Family Support Act. In addition, the court's exercise of personal jurisdiction over father was consistent with due process. Therefore, the court had personal jurisdiction over father whether or not father waived his jurisdictional objections. Second, the trial court erred when it failed to include mother's gift income when calculating her total gross income for the purpose of determining father's child support obligation. Third, the trial court erred when it made father's parenting time conditional on the agreement of the children.

         Portion of general judgment awarding child support to mother and setting parenting time reversed and remanded; otherwise affirmed. Supplemental judgment denying attorney fees to father reversed.

         [292 Or. 148] SHORR, J.

         Father appeals a judgment granting custody of children and awarding child support to mother. We address three of father's assignments of error.[1] In his first assignment of error, father argues that the trial court erred when it determined that he had waived his objection to the court's personal jurisdiction. We conclude that father did not waive his objection to personal jurisdiction but the court had jurisdiction over father on other grounds, and we affirm the court's jurisdictional determination on that alternative basis. In his third assignment of error, father argues that the trial court erred when it determined his child support obligation based on a calculation of mother's income that excluded monetary gifts from her family. We conclude that the court erred in that respect. In his seventh assignment of error, father argues that the court erred when it made his parenting time conditional on the children's agreement. We conclude that the court erred in that respect as well. Accordingly, we reverse and remand for the trial court to recalculate father's child support obligation and amend its parenting plan. As a result of that reversal, we also reverse the trial court's denial of attorney fees to father. Otherwise, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         The pertinent facts are undisputed. Father and mother are both citizens of Saudi Arabia. They were married there, had children there, and eventually moved with their children to Oregon under student visas to pursue post-graduate degrees. Later, father repudiated the marriage under Islamic law and obtained a divorce certificate from a local Islamic center. Eventually, father's visa expired and he moved back to Saudi Arabia, while mother remained in Oregon with the couple's minor children. Father has not returned to the United States since that time and has resided in Saudi Arabia and the United Arab Emirates.

         Several years after father returned to Saudi Arabia, mother filed a petition for dissolution of marriage in Oregon [292 Or. 149] in which she sought custody of the children and child support. Father's first filed response to mother's petition was captioned "Response to Petition for Dissolution of Marriage" and "Special Appearance." In that response, father objected that the trial court lacked personal jurisdiction over him because he had insufficient contacts with Oregon. In addition, father objected that the court lacked subject matter jurisdiction over mother's dissolution petition because the couple was already divorced. Finally, father responded to various allegations in mother's petition and requested an award of attorney fees and costs, all "without waiving [father's] affirmative defenses * * * [including] jurisdictional objections."

         Father subsequently moved to dismiss mother's petition based on his contention that the trial court lacked personal jurisdiction over him. The court determined that father's initial response constituted a "general appearance" that "called upon the power of [the] court." As such, the court held that father had "waived his opportunity to object to personal jurisdiction." The court then found that it had personal jurisdiction over father based on that waiver and went on to grant various aspects of mother's petition.

         Following trial, the court granted custody to mother, allowed father to contact or visit with the children in Oregon subject to their agreement, and imposed on father a monthly child support obligation of $1, 412.

         II. ANALYSIS

         A. Personal Jurisdiction

         In his first assignment of error, father contends that the trial court erred when it concluded that he had waived his objection to personal jurisdiction. Father argues that "the end result-a judgment that created a personal obligation (child support)-must be reversed." While we determine that father did not waive his objection to the court's personal jurisdiction, we nevertheless conclude that the court had personal jurisdiction over father for the purpose of entering the support order.

         [292 Or. 150] 1. Father did not waive his objection to personal jurisdiction.

         Father argues that he did not waive his objection to the trial court's personal jurisdiction over him because he responded "specifically to object to jurisdiction, " which was included in his first responsive pleading, and both his response to allegations in mother's petition and his request for fees and costs were made "without waiving his jurisdictional defenses."

         Objections based on personal jurisdiction are governed by ORCP 21. Although father's response in this case raised additional defenses, responded to allegations, and sought fees and costs, ORCP 21 A provides that "[n]o defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion." Similarly, ORCP 21 G(1) provides that, when, as here, a responsive pleading is filed, a defense of lack of personal jurisdiction is not waived if it is "included" in the responsive pleading, without expressly limiting the other claims, defenses, or responses that may also be included in that same pleading. See Adams and Adams, 173 Or.App. 242, 251, 21 P.3d 171 (2001) ("In essence, ORCP 21 G(1) operates as a 'raise it or waive it' requirement [for defenses based on personal jurisdiction].").

         Our prior opinions and ORCP 21 broadly permit parties to object to personal jurisdiction in an initial responsive pleading without first making a special appearance solely to challenge jurisdiction. See Dept. of Human Services v. M. C.-C, 275 Or.App. 121, 124 n 1, 365 P.3d 533 (2015), rev den, 358 Or. 611 (2016) ("As a result of the adoption of the ORCPs, a party * * * need not enter a special appearance in order to raise issues regarding personal jurisdiction * * * but must still raise such issues at the earliest possible time."). Compare Pacific Protective Wear Distributing Co., Inc. v. Banks, 80 Or.App. 101, 105, 720 P.2d 1320 (1986) ("[A] defendant may now attack personal jurisdiction before trial as part of a general appearance." (Citing ORCP 21 G(1).)), with O'Connor and Lerner, 70 Or.App. 658, 661-62, 690 P.2d 1095 (1984) ("Before moving to dismiss wife's motion for lack of personal jurisdiction, husband moved separately to dissolve [292 Or. 151] a temporary restraining order and for a writ of assistance. * * * [A] fter invoking the power of the court, * * * husband may not contend he has not submitted to the personal jurisdiction of the court."). In this case, father challenged the trial court's exercise of personal jurisdiction at the first opportunity. Father did not respond to mother's petition for dissolution of marriage or otherwise appear before the court in that matter before objecting, in his first responsive pleading, to the court's exercise of personal jurisdiction. Accordingly, father did not waive his objection to the court's jurisdiction over him by raising it along with other responses and requests, as permitted by ORCP 21 A and G, at the "earliest possible time" in his first responsive pleading.

         2. The trial court had personal jurisdiction over father.

         A valid judgment imposing a personal obligation on a defendant may be entered only by a court having personal jurisdiction over the defendant. World-Wide Volkswagen Corp. v. Woodson,444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Effective personal jurisdiction is subject to both statutory and constitutional requirements. First, a long-arm statute must, under the circumstances presented, confer jurisdiction; second, the court's assertion of jurisdiction must not offend the defendant's due process rights guaranteed ...


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