KULKO v. CALIFORNIA SUPERIOR COURT

Print this transcript Transcript: 

Argument of Lawrence H. Stotter

Chief Justice Warren E. Burger: We will hear arguments next in Kulko against the Superior Court of California.

Mr. Stotter, you may proceed whenever you are ready.

Mr. Lawrence H. Stotter: Mr. Chief Justice and May it please the Court.

This case arises in an action for child support in the State of California as a consequence of the departure of two children from the custody of their father in the home that they had enjoyed all of their lives in the State of New York.

The matter comes before you as a final judgment of the Supreme Court of California under California rules which permit us to bifurcate issues of jurisdiction and challenge those up through the courts, which is done by a writ of mandate and was done in this case.

We submit that this Court has jurisdiction by virtue of the nature of the California statute which is involved in this particular case.

In particular this particular statute states a court of this state may exercise jurisdiction on any basis not inconsistent with the constitution of this state and/or of the United States.

In the legislative judicial council comments, the legislature adapted the statement that the sufficiency of such context is a matter of constitutional law on which the Supreme Court of the United States has the final voice.

So as a consequence in this particular action before you, there is almost a co-existence between the construction of the statute and its application.

I might submit to the Court that I think there is a question with respect to the omnibus type of statute in terms of it being an improper delegation of the legislative duty to the courts or possibly even vagueness, but that has not been the approach raised by the appellant in this case.

The approach in this particular case is how the statute is applied as being unconstitutional under the Fourteenth Amendment.

We also submit that the issue of mootness raised by the appellee is not appropriate in this case because in fact, in each case at each level this was raised solely on special appearance to challenge the jurisdiction of the court.

The Trial Court so found at each level that this was an issue of special appearance even after the proceedings.

The Trial Court found that we had appeared only by special appearance and I might add that in the Titus case cited by us, the specific Act of advising the court after it had already denied a motion to quash that the matter was going up on appeal and did not have jurisdiction was found by the Appellate Court to not constitute an appearance at that time.

Lastly, Your Honors, we submit that the issue of mootness is inappropriate in a situation or in a society in which there has generally been an attitude of expanding jurisdiction.

Justice Harry A. Blackmun: Mr. Stotter, could I interrupt you here at this point?

Mr. Lawrence H. Stotter: Certainly, Justice Blackmun.

Justice Harry A. Blackmun: Anywhere or at anytime, was ever any attack made on the Haitian Decree of Divorce in this case?

Mr. Lawrence H. Stotter: No, sir and that was the decree in which the appellee moved to be established in California in the initial action filed in California.

Justice Harry A. Blackmun: Do you think it is invulnerable to attack at this late date?

Mr. Lawrence H. Stotter: I do, sir.

Justice Harry A. Blackmun: You do?

Mr. Lawrence H. Stotter: Yes, sir.

Justice Harry A. Blackmun: It recites on its face that both parties are domiciled and resident other than in Haiti.

Mr. Lawrence H. Stotter: I think, Justice Blackmun, that there is enough authority both in New York and in California that these parties would be estopped to take a position inconsistent with their joint Acts in going to Haiti.

Therefore, I certainly would not have advised that by my client and I would imagine the other side would take the same position.

Justice Harry A. Blackmun: Have both parties remarried?

Mr. Lawrence H. Stotter: Yes, sir.

Justice Harry A. Blackmun: The doctor too?

Mr. Lawrence H. Stotter: Yes, sir.

Lastly, as I was saying, it would seem to me that many of the commentators seem to suggest that the test issues of jurisdiction we should not be engaged in a type of wager at law in which we act at our payroll in trying to test out jurisdiction.

Certainly, the attempt here and in no case was there ever an attempt by the appellant to deal with the merits.

Justice Harry A. Blackmun: Well anyway I thought your argument basically is that California law allows special appearances without waiver?

Mr. Lawrence H. Stotter: Yes, sir.

Justice Harry A. Blackmun: And that was what the procedure you followed?

Mr. Lawrence H. Stotter: Precisely.

Justice Harry A. Blackmun: Was that not the complete answer?

Mr. Lawrence H. Stotter: I think so.

Now, in this particular case, the Appellant, Ezra Kulko differs materially from the type of parties which have generally been before this Court, in state court jurisdiction cases relating the non-residents.

We have here an average citizen family man engaged in common family interactions.

He is not a corporation.

He is not involved in doing business or acts for economic benefits such as generally all of the cases that in the past have been involved.

This is the type of individual that strikes all across the breadth of this country’s activities, from the penthouse to the ghetto there are people engaging in the split of their family and entering into marital settlement agreements of the type engaged in this particular case.

I submit that the activities of this particular party or both of these parties are acts that are going on by thousands of citizens across the country monthly, if not weekly.

Second, Dr. Kolko in this case is both a resident and a domiciliary of the State of New York.

He was born, educated, married, established his home there and for all intents and purposes with a few exceptions, has never left the state.

He is not the typical father who has departed from the domicile state in order to escape his obligations.

He has remained in the state of the marital domicile.

In this particular case, on the contrary, it is the appellee, the wife who has departed from the domicile state and who has obtained an essence to use what some of the commentators talk about as the migratory or suitcase divorce with the consent of the husband.

In addition, it should be borne in mind that each of the two children at 2-year-intervals also departed from the State of New York and from the residence of the father by their own choice.

Now in addition, we have here a recognition that at the time of the filing of Mrs. Horn’s complaint the father was the legal custodian of both of these two children by virtue of a marital settlement agreement which if Your Honors please was negotiated, prepared, executed and carried out in the State of New York by Mrs. Horn’s attorney, Dr. Horn not being represented by choice and which Mrs. Horn flew from California to New York in order to execute and complete the negotiations at that particular time.

Chief Justice Warren E. Burger: You are getting me a little bit confused.

Where was the decree entered?

Mr. Lawrence H. Stotter: The decree was entered in Haiti, Your Honor.

Chief Justice Warren E. Burger: Not in New York?

Mr. Lawrence H. Stotter: If I said decree, then I stand corrected.

That is correct, Mr. Chief Justice.

Chief Justice Warren E. Burger: I just want to be clear.

You seem to be now arguing New York domicile when both parties consented to the divorce in another place.

Mr. Lawrence H. Stotter: I think the facts, Mr. Chief Justice, of New York domicile is important in this case, but not for the traditional reasons that there was a decree entered in New York, but simply because the facts and circumstances relating to the parties and their agreement as negotiated in New York gives a great deal of importance to the ties that New York would give to its contracts and certainly to its negotiated marital settlement agreements.

It is significant, I submit, that it was Mrs. Kulko who departed from New York to obtain the decree and subsequently was married in the State of California.

Under circumstances, which based upon her residence in California, she could have at the time obtained the typical type of no fault divorce or dissolution allowed by California, but she chose instead to come east and go through the arrangements at that particular time.

So she had the option at that time of getting jurisdiction in the State of California.

Justice Thurgood Marshall: She preferred to have this marriage settlement, did she not?

Mr. Lawrence H. Stotter: I am sorry, Justice Marshall?

Justice Thurgood Marshall: She preferred to have the marriage settlement, cash.

Mr. Lawrence H. Stotter: That is correct.

She preferred to have the arrangements that could be made at that time in New York.

Justice Potter Stewart: At that time, at what time are we talking about, Mr. Stotter?

Mr. Lawrence H. Stotter: We are talking about at the time of the marital settlement agreement and the Haitian Decree which took place only in a matter of days separating each other.

Justice Potter Stewart: They were living in New York as domiciliary of New York as husband and wife?

Mr. Lawrence H. Stotter: That is correct, at all times.

Justice Potter Stewart: Up to the time of the Haitian Decree, at least.

Mr. Lawrence H. Stotter: Up to the time of their separation.

Justice Potter Stewart: Until they went to Haiti or somebody went to Haiti and got a divorce and I suppose the jurisdictional support for that divorce was somebody’s domicile in Haiti, but in any event, they had been living in New York.

Then after the divorce in Haiti, the husband, your client returned to New York where he has lived ever since.

Mr. Lawrence H. Stotter: Yes, Mr. Justice Stewart.

Justice Potter Stewart: It is a military duty.

Mr. Lawrence H. Stotter: It ran this way.

The parties and the family always lived in New York.

Justice Potter Stewart: Right.

Mr. Lawrence H. Stotter: The wife departed from the family leaving the father and the children in the State of New York.

Justice Potter Stewart: Before or after the divorce?

Mr. Lawrence H. Stotter: Before.

Justice Potter Stewart: Before the divorce.

Mr. Lawrence H. Stotter: She went to California.

They then entered into a marital settlement agreement, all of which took place in New York, all aspects of it.

Justice Potter Stewart: She personally or did her lawyer?

Mr. Lawrence H. Stotter: First, her lawyer negotiated and then she personally came from California to New York to execute the agreement and then left from New York, she did, to go to Haiti with consent of the doctor.

Justice Potter Stewart: And then she obtained the decree in Haiti.

Mr. Lawrence H. Stotter: She obtained the Decree of Haiti and then she returned to California and the father returned to the family home where the children were which he had never departed.

Justice Potter Stewart: He returned from where?

Mr. Lawrence H. Stotter: I am sorry, the father never left.

Justice Potter Stewart: He continued to reside in New York.

Mr. Lawrence H. Stotter: That is correct.

Justice Potter Stewart: At that time, also were the children?

Mr. Lawrence H. Stotter: That is correct.

Justice William J. Brennan: Mr. Stotter, is not the issue we have to decide whether Dr. Kulko did anything in California that subjected him to in personam jurisdiction in United States, is that it?

Mr. Lawrence H. Stotter: Yes, sir.

Justice William J. Brennan: When are you going to get to that?

Mr. Lawrence H. Stotter: I will in a moment, sir.

Justice William J. Brennan: Your time is running out.

Mr. Lawrence H. Stotter: I think that the Court should recognize that one of the major issues involved here is whether the context required to establish personal jurisdiction under International Shoe should be of more substantial type or nature in domestic or family law proceedings than those existing in other cases.

I submit to Your Honors that this is made particularly clear by the restatement of Section 37.

In the restatement, Your Honors, Section 37 which deals with the question of doing an act having an effect elsewhere, they talk about three things: intent, foreseeability and no intent.

When one reads, all of the statements made by the commissioners in intent we are talking about the shooting of a missile or a bullet, in foreseeability we are talking about allowing your car to be driven by somebody else across state lines or putting explosives that might have an effect.

None of this type of circumstances were clearly contemplated by the commissioners when they adapted this particular type of criteria.

Significantly, in the caveat to this restatement, they talk about defamation possibly being an exception that should be handled differently with more substantial types of matters raising in essence question of free speech.

I submit to Your Honors that in this particular case the question of invasion of privacy, the decision of the rights of a family to decide where their children should live is significantly appropriate.

Chief Justice Warren E. Burger: You are here attacking the judgment of California and I think it would be very helpful to us, it certainly would be to me, if you would tell me what it is that is wrong about California’s assertion of jurisdiction based upon their contact with the children and the wife?

Mr. Lawrence H. Stotter: Well, if Your Honor please, California had two lower court cases, both of which rejected the concept that these type of acts were essentially the type of acts that were contemplated by this type of a criteria.

It is our contention that Dr. Kulko really passively went along with the daughter who decided that she wanted to come to California.

We submit, if Your Honors look, that in the pleadings here, paragraph 10 of the original complaint filed in here makes a specific allegation that the father threatens to remove the children from the State of California and asks for a restraining order.

At that particular time, when the original pleading was filed, the Trial Court issued a restraining order against the removal of both of those children so that we submit that suggestions made by the California Supreme Court that this was a voluntary act or a consent by the father to send his children into the State of California is untrue.

What we are involved with is a situation where --

Justice Thurgood Marshall: But did the father not pay for the airfare?

Mr. Lawrence H. Stotter: Yes, sir.

Justice Thurgood Marshall: Is that not a consent?

Mr. Lawrence H. Stotter: Not in the traditional situation, Your Honors.

Let me put it this way.

We have here a considerate concerned father who was attempting to workout in the family interaction, what would be the best solution for the children.

On the other side, if we would place a father who was abstinent, who would not pay anything, who would not cooperate, I think this Court would therefore say that the non-cooperative litigant type father have done no acts, and therefore, not be subject to jurisdiction, but the father who was facing reality and who says when the daughters“I want to live with my mother,” “okay, if that is your choice.

I think you are wrong, but I will buy you a ticket and wish you well.”

The court in California was saying that is a type of act conferring jurisdiction.

Justice William H. Rehnquist: The mother in this case sought in personam money judgment against your client, did she not?

Mr. Lawrence H. Stotter: There were no proceedings relative to any action filed by the mother at any time in the State of New York or anywhere else claiming that the father was indebted to her for some act or acts.

Justice William H. Rehnquist: What did the mother seek in her action in the Superior Court of California?

Mr. Lawrence H. Stotter: The mother sought only to establish the Haitian Decree and to establish child support perspectively.

This was not an action to --

Justice Thurgood Marshall: Did she not ask for an increase?

Mr. Lawrence H. Stotter: That is correct.

Justice Thurgood Marshall: It is a little different from what you just said.

Justice William H. Rehnquist: Well, that is an in personam money judgment.

Mr. Lawrence H. Stotter: That is correct.

She is asking for an in personam money judgment in the future.

Justice William J. Brennan: And also custody of the children.

Mr. Lawrence H. Stotter: And also custody which we did not contest.

So the issue comes before the Court solely on her right to seek through California courts a larger sum of money.

Justice Potter Stewart: Well, the real question is did the California court have personal jurisdiction over your client in this case?

That is the issue?

Mr. Lawrence H. Stotter: That is the very bottom issue.

Justice William H. Rehnquist: The answer to that question may turn on whether simply on the adjustment of custody was sought or whether an in personam money judgment was sought, may or not, it may differ?

Mr. Lawrence H. Stotter: It does differ.

Traditionally, the courts have viewed questions of custody as relating solely to issues of status.

They have viewed questions of money judgment as being a type of in personam jurisdiction of type which in Vanderbilt this Court ruled would not apply as far as alimony is concerned.

Justice Potter Stewart: Page 7 of the Appendix which contains the complaint, paragraph 4 of the complaint clearly asks for the court to award money to the plaintiff against the defendant, does it not?

Mr. Lawrence H. Stotter: Yes, sir.

Justice Potter Stewart: The question is did the court have jurisdiction?

That is the question we have.

As a matter of constitutional law, could the court assert jurisdiction over your client?

Mr. Lawrence H. Stotter: The position of the appellant is no, because the appellant has absolutely no contact with the State of California, in any respect, has never entered the California, in any circumstance was not doing business, did not do an intentional act of the type which this Court has found applies in the economic sphere in other types of cases.

We are involved in this particular case with the interaction between families and which we submit, would have a very counter-effect when families are left with the decision that by being cooperative they would, thereby be conferring jurisdiction.

We just do not feel that that measures up to the standards which this Court has submitted in the past.

I might add that another aspect of this relates to the question of the foreseeability type of circumstances in which Justice Stevens mentioned in the Shaffer case in which he equates fair notice to include fair warning.

I submit that as a general rule, parents deciding that allowing their children who have asked to go with another parent do not, thereby, have knowledge or aware of the fact that they are conferring jurisdiction in a court 3,000 miles away to decide how much money they may have to pay in the future.

I also submit to the Court the question that ordinarily one thinks in terms of the state’s right to protect the children that are within its domicile.

In this particular case, there is no determination that the amount of money awarded in New York might not already have been sufficient and that it really would be a question of just how well the children should live.

Under those particular circumstances, it is not a decision that these children were somehow going to be thrown into poverty.

We have the Uniform Reciprocal Support Act and the right of the mother, as she did at the time of the marital settlement agreement, to come back to New York and in the first instance have New York settle her particular money problems.

In this particular case, she judiciously chose to avoid New York presumably because she felt that she would not be treated well in New York because essentially she had abandoned New York.

Justice William J. Brennan: Mr. Stotter, I suggest that what she did or did not do is not relevant to the question we have to decide.

We have to decide whether what he did, as the California Supreme Court held, suffice to subject him in personam jurisdiction in California and you quarrel with the test that the California Supreme Court laid down?

Did he purposely availed himself of the benefits and protections of California laws or anticipate that he would derive an economic benefit result of his act outside of California?

Do you quarrel with that test?

Mr. Lawrence H. Stotter: Yes, sir.

I do not quarrel with the test.

I quarrel with the fact he purposely --

Justice William J. Brennan: With its application?

Mr. Lawrence H. Stotter: That is correct.

Justice William J. Brennan: As I understand it, the way they applied it was said that probably no parental act more fully invokes the benefits and protections of California law than that by which a parent permits his minor child to live in California.

We start with a premise of a non-resident parent who allows his minor child or children to reside in California.

As by that act he purposely availed himself with the benefits and protections of the laws in California.

Do you quarrel with that?

Mr. Lawrence H. Stotter: Not as a fact.

It seems to me a court does have a concern relative to the choice of law, question of protecting children --

Justice William J. Brennan: I understand it.

What the court did was, then go on to say is what he did in letting his daughter come and buying her the airline ticket and those other facts, they established that he had committed an act in New York which had the effect of allowing his minor child or children to reside in California and, thus he had purposely availed himself with the benefits and the protections of the laws of California, and therefore, under the test that you say you do not quarrel with, that established the basis for in personam jurisdiction.

Mr. Lawrence H. Stotter: Justice Brennan, the question of the purposeful nature, I guess, is the factual question which, under this particular statute, is submitted to this particular Court.

Chief Justice Warren E. Burger: You want us to decide the factual question?

Mr. Lawrence H. Stotter: No, sir.

It seems to me that it is inappropriate to do so and as a consequence, it seems that to place the father in a position where he must act at his peril in making the kite type of act which one would presume that any concerned father would make when confronted with the decision by a young child that says “I want to go with my mother.”

Now, having this be the state of the marital domicile, under all circumstances, this particular father had two choices.

Either he was to litigate, deny the request of the child and enter into litigation in New York or force litigation in New York or cooperate in terms of allowing the child to go live with the mother and I submit that that is not the type of purposeful activity for obtaining the privileges and benefits in the State of California which this Court has generally treated in the past.

Justice William J. Brennan: Of course, your Supreme Court distinguished between the daughter and son saying that the father had done nothing in New York which had the effect of committing the son to California in the same way that he had done with the daughter.

Mr. Lawrence H. Stotter: That is correct, Justice Brennan.

Justice William J. Brennan: Therefore, they refuse to accept jurisdiction.

There was no jurisdiction as to the increased support for the son, but only as to the daughter, is it not?

Mr. Lawrence H. Stotter: No, Justice Brennan.

They made the decision to the effect that while they recognize there was no contact since they already had contact with the daughter and since they felt the jurisdiction of the father was established by virtue of his single act of buying that ticket they, therefore, said “we therefore will also apply it to the son as well.”

Justice William J. Brennan: Well, they finally wind up with “we deem it fair and reasonable to subject to him the personal jurisdiction for this court for both children” where his committed acts with respect to one child confers personal jurisdiction and as consented to the permanent residence of the opposition.

You are right.

The judgment finally entered was increased support for both.

Mr. Lawrence H. Stotter: They basically say that he consented to the son because he did not commence an immediate action even though at the time he was under a restraining order from the State of California against removing those children.

Justice Thurgood Marshall: Mr. Stotter, the airplane ticket, was it round trip?

Mr. Lawrence H. Stotter: No, sir.

It was a one-way ticket.

Justice Thurgood Marshall: It was one-way.

Mr. Lawrence H. Stotter: That is correct.

Justice Thurgood Marshall: How do you expect the child to get back?

Mr. Lawrence H. Stotter: He had hoped that the child would recognize that life with the mother would not be as ideal as she thought it would be and that by giving her an opportunity for her day in California, so to speak, she would see that life in California was not as good as life in New York.

Justice Thurgood Marshall: The answer to my question is how would the child get back, walk?

Mr. Lawrence H. Stotter: I think the child would simply have called the father and said much the same way “I would like to come back to New York,” and a ticket instantly would have been available.

Justice Potter Stewart: Mr. Stotter, earlier you mentioned there might be a difference between jurisdiction to award a money judgment and jurisdiction to determine custody.

Paragraph 3 of the complaint asked just for the modification of the decree to award permanent custody to the wife.

Paragraph 4 is the one that asks for money.

Do you concede that there is jurisdiction to grant the relief provided in paragraph 3?

Mr. Lawrence H. Stotter: Yes.

We had conceded that for purposes of the proceedings that we brought and we at the Trial Court level raised questions that the Uniform Child Custody Jurisdiction Act certainly as to Darwin would not apply.

On the other hand, it was the advice of counsel, myself, in this case that the decision of a child of this age would certainly be very persuasive on a court.

Therefore, the issue of jurisdiction should not be challenged on that issue.

The question of custody was not raised and I think that there is not issue here relative to the custody question.

Justice William J. Brennan: That did not involve a matter of personal jurisdiction.

Mr. Lawrence H. Stotter: That is correct.

I think custody is a type of status which can be handled totally different.

Justice Potter Stewart: But the relief prayed for on the paragraph would result in a modification of the decree of the settlement agreement between the parties, would it not?

Mr. Lawrence H. Stotter: That is correct and relief in terms of custody might well be granted without getting into money judgments at all.

Justice Potter Stewart: It almost would follow inevitably under this settlement as I understand it that there would be some increase in the support money because the support under the agreement was calculated on the basis of temporary time with the wife.

Was that not correct?

Mr. Lawrence H. Stotter: I think there is no question about the fact that both California and New York, as a choice of law issue, would have recognized that these children were entitled to support.

The issue is, can California make these determinations as to what the father should pay as distinguished from her going back to New York and the marital domicile which is generally been very highly respected in family law proceedings, in which great importance has always been stressed in order to determine what the amount of child support should be.

Justice Potter Stewart: Can a California Court constitutionally order your client to pay money?

That is the point, based upon his relationships with the states such as they are.

There is no conflict to the facts, as I understand.

Mr. Lawrence H. Stotter: Justice Stewart, I think that is correct.

The answer that we contend on the basis of a single act is of a type of act done in this particular case and not of the type of acts done in the typical economic type of cases.

Thank you.

Chief Justice Warren E. Burger: Mrs. Thorn?

Argument of Suzie S. Thorn

Ms Suzie S. Thorn: Mr. Chief Justice and May it please the Court.

I would like to begin by making three corrections which I believe are relevant to the facts.

Dr. Kulko was served in person and not by mail as suggested in some of the briefs.

Chief Justice Warren E. Burger: What difference does it make?

No one is challenging the decree now, are they?

Ms Suzie S. Thorn: That is correct.

Secondly a relevant fact --

Justice Potter Stewart: He was served in this litigation?

Ms Suzie S. Thorn: Yes, he was served personally.

Justice Potter Stewart: In New York?

Ms Suzie S. Thorn: In New York, yes.

Secondly, the daughter, Elsa was 11.5 years old at the time that she asked to live with her mother and her father participated with her in that change of custody.

Therefore, to suggest that it was a unilateral act does not seem appropriate.

Further, Dr. Kulko was represented by an attorney at the time of the New York settlement agreement.

I would like to address myself first to the question of jurisdiction of this Court with regard to this matter.

Throughout the entire proceedings through the California Supreme Court, there was no attack made on the California statute either on its face or as applied.

We, therefore, submit that appeal is not applicable here.

Justice William J. Brennan: We can still treat it as certiorari, could we not?

Ms Suzie S. Thorn: That is correct, Your Honor.

The defendant moved to quash the summons on the ground that the court lacked personal jurisdiction because he was a non-resident without sufficient contacts with California to satisfy due process requirements.

Furthermore, the circumstances of this case are most unusual as are outlined in the brief for the appellee.

They are unlikely to occur again and do not raise issues of national importance.

I would like to address myself secondly to the issue of mootness.

Justice Byron R. White: You do not suggest there is not a federal question then.

It is just one on which it is not a proper appeal and we should deny certiorari?

Ms Suzie S. Thorn: Yes, Your Honor.

Justice Byron R. White: Is that what you are suggesting?

Ms Suzie S. Thorn: I am suggesting --

Justice William H. Rehnquist: Or are you also saying it is not a substantial federal question?

Ms Suzie S. Thorn: I am suggesting that it is not a substantial federal question, Your Honor, because of the unique happen stands of facts in the situation.

Justice William H. Rehnquist: I would think of Justice White’s question and the Chief Justice’s question posed two quite different inquiries.

One is whether it is the kind of case that would occur frequently that this Court would want to exercise discretionary jurisdiction over, and the other is whether there is any substantial federal claim here at all even though the case is a real sport.

Is your answer to both of those questions no or both yes?

Ms Suzie S. Thorn: I think my answer to one would be no.

Would you repeat the second one, Justice Rehnquist?

Justice William H. Rehnquist: I can conceive of a case where there might be a very substantial constitutional claim in the sense that a party litigant has had a constitutional right violated and yet nonetheless one would say it is a set of facts that is never going to recur and this Court only takes 150 cases a year and we simply would not grant certiorari in a case like that, but if it were an appeal as of right, we would probably not feel free to say there was no substantial federal question.

Ms Suzie S. Thorn: I would answer yes to the second question.

Justice William H. Rehnquist: You say that there really is not any really doubtful federal question in the case even though it was to recur time and again.

It should be resolved in favor of state jurisdiction.

Ms Suzie S. Thorn: I am saying, Your Honor, that this is a unique set of facts that does not justify the Court in assuming jurisdiction.

Justice John Paul Stevens: Let me ask you about that.

Suppose that the settlement agreement here had given the custody to the parents and, at the time, the lady was residing in California, which she was.

Ms Suzie S. Thorn: Yes, she was.

Justice John Paul Stevens: So there was a consensual agreement that would be embodied in the decree that the wife would have custody.

Ms Suzie S. Thorn: Correct.

Justice John Paul Stevens: So by consent, under this agreement, the children would be residing with the ex-wife in California and there is an agreed upon amount for support and then the wife sues in California to increase support and serves the husband in New York jurisdiction?

Ms Suzie S. Thorn: I think that raises a different case.

Justice John Paul Stevens: Why would it be different?

The husband has in advance agreed to take advantage of California law.

Well, all I am bringing it up for is, I would think it would recur time and time again, this question.

Ms Suzie S. Thorn: I would answer that by saying, in this case, we had a substantial change in the status of the children after the making of the agreement.

Justice John Paul Stevens: Well, that may be so, but what does that got to do with jurisdiction?

Ms Suzie S. Thorn: I think it has to do with the reasonableness of the contacts which led the California Supreme Court to feel that the exercise of jurisdiction was reasonable in this case.

Justice Potter Stewart: Do you think the California Supreme Court either in retired Justice Sullivan’s opinion for the court or in Justice Richardson’s dissenting opinion that the members of the court thought they were dealing with a federal constitutional issue?

Ms Suzie S. Thorn: I think they felt they were dealing with the application of Code of Civil Procedure.

Justice Potter Stewart: Justice Richardson, in his dissenting opinion, begins by saying “in my view, it is unreasonable to subject petitioner to the jurisdiction of the California courts under the circumstances in this case” and then he goes on with the facts and so on.

He never is explicit in saying that in his view it is unconstitutional.

Ms Suzie S. Thorn: That is correct, Justice Stewart.

Justice Potter Stewart: Nor indeed does Justice Sullivan’s opinion deal with the question as though it is a constitutional question.

Ms Suzie S. Thorn: That is correct.

Justice Potter Stewart: Was it presented to that court as a constitutional question?

Ms Suzie S. Thorn: No, it was not, Justice Stewart.

Justice Potter Stewart: It was not?

Ms Suzie S. Thorn: It was not presented as a constitutional question.

It was presented as to whether or not this particular case fell into the statute, California Code of Civil Procedure 1410.10.

Justice Potter Stewart: It is presented to us in the jurisdictional statement as a constitutional question, whether California’s construction of your Civil Practice Act extending in personam jurisdiction over the non-resident appellant violates the due process clause of the Fourteenth Amendment, that was never presented to the California Supreme Court?

Ms Suzie S. Thorn: That is our position, Justice Stewart.

Justice Potter Stewart: Well, that is a matter of fact, not a matter of somebody’s position.

Ms Suzie S. Thorn: That is a matter of fact, Justice Stewart.

It was not presented that way to the California Supreme Court.

Justice Byron R. White: Mrs. Thorn, does the California Supreme Court not expressly say that the limits of the statute are defined by the constitution?

In page V of the Jurisdictional Statement, it points out that the court of the state may exercise jurisdiction on any basis not in consistent with the constitution of this State or the United States and later, that the case of the statute as construed manifest an intent that the courts of California utilize all such basis limited only by constitutional consideration?

Ms Suzie S. Thorn: That is correct.

Justice Byron R. White: Did the court not necessarily decide the constitutional question when it decided there was jurisdiction?

Ms Suzie S. Thorn: I think it was inferring that decision was limited by constitutional perimeters, but that it was not really construing it as the constitution in this particular situation.

Justice Thurgood Marshall: The holding of courts, talking about the lower court’s holding, accords with established due process principles.

I am quoting from page 8 of your motion to affirm.

You recognized it, did you not?

Did you recognize due process?

Ms Suzie S. Thorn: I think it would be fair to say that, Justice Marshall.

Justice John Paul Stevens: In fact, the analysis of the California court was whether International Shoe or Hanson v. Denckla required a different result.

Those are federal cases.

Ms Suzie S. Thorn: That is correct, Justice Stevens.

I would like to move to the issue of mootness, if I may.

Justice John Paul Stevens: Before you go to that, since we have got you interrupted anyway, let me be sure I understand your position.

Suppose we have two different cases.

One, the case we actually have and a second case in which the settlement agreement itself that said the children shall be in the custody of the mother who shall reside in California.

That is all it said and it had agreed upon an amount and then thereafter the mother brought suit to increase the support allowance.

Would that be a stronger or a weaker case for jurisdiction in California under your view?

Ms Suzie S. Thorn: Well, it would be weaker in the sense that there would have been less acts by the father causing an effect.

Justice John Paul Stevens: But there would have been a clear consent to the children being there unambiguous and all that and he paid the tickets in my case.

Ms Suzie S. Thorn: It would be a strong in the sense that the contract was to be performed there in many instances.

Justice William J. Brennan: Actually, the children’s presence would certainly be the effect of his having made and signed that agreement in New York, would it not?

Ms Suzie S. Thorn: That is correct.

Justice William J. Brennan: So how would the issue be any different than the one we have now?

Ms Suzie S. Thorn: Well, only that the contract that we have in the instant case was to be performed partly in California because he was to pay support there when children were in her custody.

Justice William J. Brennan: Partly or not, if your Supreme Court’s test whether or not he committed the children to the benefits of California law, under the agreement he did, did he not, even though only parts of it?

Ms Suzie S. Thorn: That is correct.

Justice William J. Brennan: Well, is the constitutional issue any different?

Ms Suzie S. Thorn: No, the constitutional issue would not be different.

Justice Byron R. White: You would not claim though that California would have jurisdiction or would you, if custody was litigated in the Divorce Court and custody was awarded to the mother?

Ms Suzie S. Thorn: I think that would depend as to whether it was understood in that custody litigation that the mother lived in California.

Justice Byron R. White: Well, if everybody knew she lived in California and the father was ordered to pay and mail to California $300 a month for child support.

Ms Suzie S. Thorn: I think there is some distinction, Justice White.

Justice William J. Brennan: Do you suppose California court would think that set of facts will satisfy the California test of something done outside by the defendant, if he resisted the custody decree?

Ms Suzie S. Thorn: I think that would be different, Justice Brennan.

I think of an agreement entered into --

Justice William J. Brennan: Well, it is an agreement that may --

Justice Byron R. White: Let me give you another one.

Ms Suzie S. Thorn: It is a contract.

Justice Byron R. White: The mother now moves to Oregon and wants more money, files a suit in Oregon and the father has never said a thing about Oregon.

Is there jurisdiction in the Oregon court?

Ms Suzie S. Thorn: I think that it begins at that point, Justice White, to get weaker because there are not the contacts with Oregon that we have with California.

Chief Justice Warren E. Burger: Did the California Supreme Court not place the rather long-arm jurisdiction here on the proposition that he in effect sent the children and submitted them to the custody of the State of California and all its protections?

Ms Suzie S. Thorn: That is correct, Mr. Chief Justice.

Chief Justice Warren E. Burger: So that would not apply as he has never done that with respect to Oregon.

Ms Suzie S. Thorn: That is right, so Oregon would be distinct.

Chief Justice Warren E. Burger: Oregon could not have any jurisdiction over him.

Ms Suzie S. Thorn: I do not believe that jurisdiction would be the same, but this was not a unilateral act.

Sending a child of 11.5 to California with a one-way ticket plus all of her clothing is not a unilateral act on behalf of the trial.

It is a deliberate act in which the father participated and helped.

Justice Byron R. White: Mrs. Thorn, I am still not sure you answered my question.

I do not know if you did or not.

Would the alternative case words in the settlement agreement itself be stronger or weaker in your view where there is as settlement agreement between the husband and the wife provide that the children shall reside in California with the mother?

Ms Suzie S. Thorn: And that he will pay support?

Justice Byron R. White: And he will pay support.

Ms Suzie S. Thorn: To them in California?

Justice Byron R. White: Yes.

Ms Suzie S. Thorn: I think it would be stronger.

Justice Byron R. White: Stronger for jurisdiction in California?

Ms Suzie S. Thorn: For jurisdiction.

Justice Byron R. White: I see.

Ms Suzie S. Thorn: But I think we have the intervening force here of active acts on the part of the father which resulted in these children being residents of the state and needing to be supported in California.

Justice Lewis F. Powell: Mrs. Thorn, may I ask you a question about the active acts.

Let us assume, for example, that the husband had not paid the airfare of the daughter to California.

what acts would you then rely upon?

Ms Suzie S. Thorn: Had not paid her airfare, had not sent her with her clothing?

Justice Lewis F. Powell: The facts are clear, I take it that the daughter asked to go to her mother in California.

Ms Suzie S. Thorn: Yes.

The other acts would be, with respect to the boy, the father called the Social Service Agency in San Francisco and that is in the record and requested that the Social Service Agency investigate.

Justice Thurgood Marshall: Because he had run away, had he not? Had he run away from the father?

Ms Suzie S. Thorn: No, he had left, but he had told the father that he was going.

Justice Byron R. White: Your Supreme Court said that as to the boy, but what the father did would not subject the father to in personam jurisdiction.

Did it not so hold that they finally brought him on the increase support order, but had there only been the boy, apparently there would not have been an in personam jurisdiction sustained?

Ms Suzie S. Thorn: That is correct under the opinion.

However, I was pointing out some acts that he did take with regard to the boy.

He had the Social Service Agency investigate the home and make a report to him.

He then wrote a letter to the mother which is part of the record, saying “we must renegotiate our bargain because it is no longer applicable to the circumstances as they have developed.”

Justice Potter Stewart: He was in New York when he wrote the letter?

Ms Suzie S. Thorn: Yes.

Justice Potter Stewart: And you say writing a letter to somebody in California is activity in California of a kind that would submit you to the jurisdiction of a California court and to order you to pay money?

Ms Suzie S. Thorn: Certainly not standing alone, but I believe it was a recognition by him that he had by his activity done acts in California and that he realized he had to change their agreement.

Chief Justice Warren E. Burger: We will resume there at 1:00.

You may continue.

Ms Suzie S. Thorn: Thank you.

I would like to raise next the case of McGee v. International Life and point out that in that case, the Court found that one contact with the State of California was sufficient in the case of an insured under a life insurance contract.

Justice Potter Stewart: Mrs. Thorn, I think you were before lunch going to start to address when we interrupted you, your point as to the fact that your claim at least that the husband in this case waived his claim by making a general appearance.

Were you going to do that?

Ms Suzie S. Thorn: Yes, I was going to address the mootness.

Justice Potter Stewart: You can do it whenever you wish in the course of your argument, but I would be interested in what you have to say on that issue.

Ms Suzie S. Thorn: With regard to the issue of mootness, the California Supreme Court opinion was filed on May 26, 1977 and became final on June 25.

Appellant did not move for stay of the filing of the Supreme Court of California opinion and thus allowed the Superior Court for the City and County of San Francisco to reacquire jurisdiction.

We followed with a motion for various matters including support and for determination of the very substantial rearage that Dr. Kulko was in, in terms of support payments even under the agreement.

Appellant here filed a written response labeled a special appearance and I believe all of the documents relevant to this have been lodged with the Court.

In this response, he requested pending appeal that Mrs. Horn’s motion be “denied without prejudice, continued or stayed.”

Appellant’s attorney also spoke to the judge by telephone and wrote a letter to the judge on September 8, 1977 which letter is shown in our brief at page 10.

We contend that appellant’s activities before the Superior Court for the City and County of San Francisco and State of California constituted more than a special appearance and constituted a general appearance waiving his rights to pursue jurisdiction further.

Justice William H. Rehnquist: Mrs. Thorn, I think it was some-40 or 50 years ago that this Court decided a case in which it said that one could pay a judgment rendered against him by the highest court of a state and not supersede it or nonetheless pursue an appeal here without the case becoming moot.

Do you see much difference between that situation and the situation you have just described?

Ms Suzie S. Thorn: Well, here they are raising jurisdictional issue and making a special appearance only.

There was a request for a continuance which has been held many times to constitute a general appearance.

I do not know that payment of a judgment constitutes a general appearance in the same sense as a request for continuance.

Justice Byron R. White: Did you urge this ground in the state court?

Ms Suzie S. Thorn: This happened after the state court opinion became final, Justice White.

Justice Thurgood Marshall: Did you urge it in your motion to dismiss in this Court?

Ms Suzie S. Thorn: I do not have a copy of the motion to refer to.

Justice Thurgood Marshall: Do you want to borrow my copy?

Ms Suzie S. Thorn: I do not believe it was urged, Justice Marshall.

Justice Thurgood Marshall: Another thing is what law determines, California law or Federal law?

Ms Suzie S. Thorn: As to whether or not the issue is moot?

Justice Thurgood Marshall: Yes.

Ms Suzie S. Thorn: I am not sure I know the answer to that question, Justice Marshall.

Justice Thurgood Marshall: You were the one who was raising it?

Ms Suzie S. Thorn: It would be our opinion.

Chief Justice Warren E. Burger: But if it is moot in California and it is moot here, is it not?

Ms Suzie S. Thorn: I would think so, Mr. Chief Justice.

Under California law, it is clearly ,oot under the cases which say that a request for continuance is a general appearance.

Justice William H. Rehnquist: Would there not be a federal element in this Court’s decision as to whether the petitioner or appellant is free to pursue his remedy by way of appeal here and nonetheless protect what he conceives to be his pending interest in the State Trial Court while we have the appeal before us?

Ms Suzie S. Thorn: I think that he had the right to protect, as you honor suggests.

He could have done that however by moving to stay the filing of the Supreme Court of California opinion so that it did not become final, thereby putting jurisdiction back in the Superior Court.

He did not do that.

Justice William J. Brennan: Let me start it out.

Are you really asking us to determine what constitutes a general appearance or more accurately whether the things that you are talking about constituted general appearance under California law?

How are we competent to do that?

Ms Suzie S. Thorn: I am asking that you recognize that in asking for a form of affirmative relief from the California Superior Court that appellant made the general appearance causing the matter to become moot at this level.

I would like to make a few more points on the merits.

In that connection, I would like to return to the McGee case where the Court found that one contact with a California insured was sufficient because California had shown a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims.

The case also mentioned that there would be some inconvenience to the Texas insurer from having to defend in California, but that this does not constitute a denial of due process.

I would suggest to the Court that the state has a manifest interest in protecting the welfare of the children who reside there.

Justice William J. Brennan: Excuse me.

May I get back to this general appearance business? I gather you concede that everything that happened before in coming down of the California Supreme Court opinion save the failure to move to stay the coming down of that opinion.

Now everything that he did before that, no wise prejudice, the special appearance is even making through the Superior Court, is that right?

Ms Suzie S. Thorn: Prior to the rendering of the California Supreme Court opinion.

Justice William J. Brennan: So your reliance in the argument that what he did constituted general appearance, everything occurred after the coming down of that opinion, right?

Ms Suzie S. Thorn: That is correct.

Justice William J. Brennan: And apparently, in order to preserve his opportunity to come to this court, is that it?

Ms Suzie S. Thorn: That is correct.

Justice Thurgood Marshall: That is what is before us?

Ms Suzie S. Thorn: Excuse me?

Justice Thurgood Marshall: That is what is before us.

It is the Supreme Court’s judgment and opinion.

Ms Suzie S. Thorn: Yes, but I believe that the documents with regard to the proceedings in the San Francisco Superior Court subsequent to the rendering of the Supreme Court opinion of the State of California have been lodged with the court in our brief.

Justice Thurgood Marshall: He sought a nunc pro tunc, makes it moot before?

Ms Suzie S. Thorn: No, that happened after, Justice Marshall.

The proceedings in the Superior Court of San Francisco took place in August of 1977, some-four months after the Supreme Court of the State of California rendered its opinion and it had become final.

Justice Byron R. White: Mrs. Thorn, in your footnote on page 11 of your brief, you end up by saying “there is no personal appearance as long as the court is not asked to exercise jurisdiction on the merits.

Did your opponent ask the court to exercise jurisdiction on the merits?

He asked them not to do that, did he not?

Ms Suzie S. Thorn: In the San Francisco Superior Court, he asked them for a continuance.

Justice Byron R. White: He asked them not to decide the merits.

Ms Suzie S. Thorn: He asked them not to decide the merits, but he asked them for a continuance or a denial of the motion without prejudice.

That is a request for affirmative relief.

Justice Byron R. White: That is not a request for decision on the merits.

Justice Harry A. Blackmun: It was just the opposite.

Justice Byron R. White: It was just the opposite.

Is your a California case squarely supporting you on this? Your authority seems, to me, to be against you.

Ms Suzie S. Thorn: I believe we had cited in the brief the applicable cases I am looking for them.

Justice Byron R. White: Footnote 3, page 11, they seem to all be against you.

Ms Suzie S. Thorn: Those are different kinds of requests.

It is clear under California law that a request for a continuance is a general appearance.

Justice Byron R. White: What case?

Chief Justice Warren E. Burger: This is on the fall back position anyway?

Justice John Paul Stevens: Zobel v. Zobel, that is it, I guess.

Ms Suzie S. Thorn: Yes, it is Zobel v. Zobel at page 13, Justice Stevens.

Justice John Paul Stevens: For request for a continuance to plead to the merits, but they did not ask for a continuance to plead to the merits.

Ms Suzie S. Thorn: They asked for a denial of the motion without prejudice.

Justice John Paul Stevens: That is not continuance to plead to the merits.

He did not ask for more time to answer, in other words.

He maintained his position all along that there was no jurisdiction to decide the merits, whereas, the case you cite is the one that ask for a continuance so he can file an answer directed at the merits which is quite different.

Ms Suzie S. Thorn: The second case down, Knoff v. City and County where there was a written motion to continue hearing which we have here.

Justice Thurgood Marshall: A party comes in and says, “I want a continuance in order to file a special appearance.”

Would that be a general appearance?

Ms Suzie S. Thorn: A continuance in order to file a special appearance would not be a general appearance under the expressed terms of California Code of Civil Procedure 418.10.

Justice Thurgood Marshall: Where will I find that?

Ms Suzie S. Thorn: That is at the Appendix to our brief where California Code of Civil Procedure 418.10 is set out in its entirety, 418.10.

But a motion to continue a hearing is a general appearance and what appellant made here when he came into the San Francisco Superior Court after the rendition of the California Supreme Court opinion was a motion to continue the hearing to deny it without prejudice or to stay it.

It was not his request for a continuance to file a special appearance that I am referring to.

Justice Thurgood Marshall: But he did not appeal on that and you are not either?

Ms Suzie S. Thorn: We are suggesting that by that activity at that time.

Justice Thurgood Marshall: So far as I am concerned, how does that get into record?

It is after judgment. Is it not after judgment?

Ms Suzie S. Thorn: That is correct, but appellant requested a stay from Justice Rehnquist of this Court and he attached portions of the record of the San Francisco Superior Court to his request for stay and it is, therefore, part of the record and before the Court.

I would like to point out one further thing and that is that appellant could have moved for dismissal of this case on the ground of inconvenient forum, which Code of Civil Procedure 418.10 clearly provides for without waiving any special appearance rights.

He did not choose to do that.

Justice Thurgood Marshall: May I ask you a question?

If your client had moved to Hawaii, would you make the same argument?

Ms Suzie S. Thorn: The argument about the jurisdiction of the court?

Justice Thurgood Marshall: Yes.

I just want to move it a little further.

Ms Suzie S. Thorn: I do not think so.

Justice Thurgood Marshall: This is all the way across the country.

Ms Suzie S. Thorn: If she had moved to Hawaii prior to the trial?

Justice Thurgood Marshall: Just exactly instead of California and she kept on going.

Ms Suzie S. Thorn: And the agreement?

Justice Thurgood Marshall: Yes, everything else is the same.

Ms Suzie S. Thorn: The agreement provided for performance partly in California and not Hawaii?

Justice Byron R. White: Everything in Hawaii.

Justice Thurgood Marshall: I said everything was in Hawaii.

She went to Hawaii.

The children went to Hawaii.

You filed your lawsuit in Hawaii.

Ms Suzie S. Thorn: Then I would say that the situation would be the same, Justice Marshall.

Chief Justice Warren E. Burger: It would be the same in New Jersey, too, would it not?

Ms Suzie S. Thorn: Yes, Mr. Chief Justice, it would.

I wanted to point out that California has a special interest in the welfare of children residing there more than it has in insurance claimants.

They have an interest in the subject matter of the suit.

Chief Justice Warren E. Burger: I believe your time has expired, Mrs. Thorn.

You have one minute remaining, Mr. Stotter.

Rebuttal of Lawrence H. Stotter

Mr. Lawrence H. Stotter: Briefly, the California Supreme Court specifically found that there was no knowledge by the father of Darwin’s departure.

Number two, I submit to the Court that in the Appendix to the brief, the Court specifically finds that only a special appearance was made.

Number three, on page 38.

Justice Potter Stewart: Is that the Appendix of the Green brief?

Mr. Lawrence H. Stotter: The Green brief, the Court specifically finds only a special appearance.

In the Appendix in my motion to writ of mandate rather at page 38 is specifically set forth the challenges to the constitution of the particular code section in question and I sight Pennoyer v. Neff, International Shoe, the Titus, etcetera in response to earlier questions.

In conclusion, let me submit that in the search for fair play and substantial justice in all the cases that cite when we go back to McDonald v. Maybe (Ph), Justice Holmes indicated “in states bound together by a constitution and subject to the Fourteenth Amendment, great caution should be used not to let fiction deny the fair play that can be secured only by pretty close adhesion to the fact.”

Under circumstances where this Court has already found mechanical and quantitative evaluations, it should not be a determination to say that buying one airplane ticket is sufficient to make this type of connection.

It seems to me as going the other way from what this Court has previously said.

Thank you, sirs.

Chief Justice Warren E. Burger: Thank you, counsel.

The case is submitted.