The Lawletter Vol 40 No 7
In a recent decision of the Court of Special Appeals of Maryland, Maryland's intermediate appellate court addressed the question of whether a New York resident could be subject to personal jurisdiction in a Maryland paternity and support action based on his filing of an answer to the original complaint for custody, his request for genetic testing, and his request for discovery. Friedetzky v. Hsia, No. 1187 Sept. Term 2014, 2015 WL 4081290 (Md. Ct. Spec. App. July 6, 2015).
The court of special appeals held that "by affirmatively requesting genetic testing in his answer" to the mother's custody petition and "by initiating discovery relating to matters of paternity and child support," the alleged father "triggered the UIFSA [Uniform Interstate Family Support Act] long-arm statute and waived the limited immunity otherwise afforded in a custody proceeding under the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act]." Id. at *1.
In response to the additional claim by the alleged father, Hsia, that Maryland's exercise of personal jurisdiction over him violated his constitutional due process rights, the court held that the actions taken by Hsia to establish paternity constituted sufficient minimum contacts with the State of Maryland to permit the court to constitutionally exercise personal jurisdiction over him.
The case began when the parties had a brief affair in September 2005 in New York City, where they both lived. The child was born in June 2006. The child's mother, Friedetzky, moved with the child to Maryland in 2011. Two years later, in July 2013, Friedetzky filed a single-count custody petition against Hsia, requesting "immediate and permanent sole physical and legal custody" of the child. Id. at *2.
After being served, Hsia
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, [Hsia] requested that the petition be dismissed with prejudice or denied, and that the court order genetic testing to determine the paternity of [the child]. . . . Along with his answer, on January 13 [Hsia] served [Friedetzky] with 40 requests for documents and 15 interrogatories—including exhaustive requests for information about [Friedetzky's] sexual partners.
Friedetzky subsequently filed an amended petition for the establishment of paternity, sole physical and legal custody, and child support. Hsia responded with a motion to dismiss for lack of personal jurisdiction. Following briefing and a hearing, the trial court entered a consent order that had been prepared by the parties, awarding sole legal and physical custody of the child to Friedetzky, and the court granted Hsia's motion to dismiss the remaining claims without prejudice. Friedetzky filed an appeal.
On appeal, Friedetzky argued that the Maryland court had jurisdiction to hear the paternity and support claims under the UIFSA long-arm statute, Md. Code Ann., Fam. Law ("FL") § 10-304. She contended that Hsia had requested paternity testing in the answer he had filed to Friedetzky's custody complaint and he had litigated that issue through discovery, thereby submitting to the exercise by Maryland of personal jurisdiction over him. Section 10-304 states, in relevant part:
(a) In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this State may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:
. . . ;
(2) the individual submits to the jurisdiction of this State by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction[.]
FL § 10-304(a)(2) (emphasis added).
In response, Hsia cited FL § 9.5-108, which is part of the UCCJEA, and which states, in relevant part:
(a) 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.
FL § 9.5-108(a) (emphasis added).
Hsia argued that because of the immunity provided by § 9.5-108, he had not submitted to the personal jurisdiction of the court by participating in the child custody action. As stated by the court, "[t]hese arguments lead us to the intersection of the jurisdiction provisions contained in the UCCJEA and UIFSA." 2015 WL 4081290, at *5.
Following discussion of the history and purposes of those Acts, the appellate court concluded that Hsia had "waived any contest to the court's jurisdiction by affirmatively requesting the court to order genetic testing to establish paternity in his answer to the custody petition, and by vigorously litigating the issues of child support and paternity." Id. at *10.