Lohman v. Lohman

361 P.3d 1110

2015 COA 134

IN RE the MARRIAGE OF Fiona Mary LOHMAN, Appellee, Michael Joseph Lohman, Appellant.

Court of Appeals No. 14CA0606

Colorado Court of Appeals, Div. VII.

Announced September 24, 2015

Anthony J. Dicola, Hot Sulphur Springs, Colorado, for Appellee.

Stevens Littman Biddison Tharp & Weinberg LLC, Andrew C. Littman, Craig A. Weinberg, Boulder, Colorado, for Appellant.

Opinion

Opinion by JUDGE BERGER

¶ 1 Michael Joseph Lohman (husband) appeals the district court's ruling that a support order entered in favor of Fiona Mary Lohman (wife) by an English court is enforceable in Colorado. Husband's primary argument on appeal is that even if the issuing court in England had personal jurisdiction over him under English law, the Due Process Clause prohibits enforcement of the order by a Colorado court.

¶ 2 We must decide whether a Colorado court, when requested to register or enforce a foreign judgment, should determine only whether the foreign court¹properly exercised personal jurisdiction under its laws, or whether the Colorado court also must determine whether the foreign court's exercise of personal jurisdiction is consistent with the Constitution and laws of the United States.

¶ 3 The district court determined that the English court had personal jurisdiction over husband under England's personal jurisdiction laws. But the district court did not determine whether the jurisdictional requirements of United States law were met before ordering registration and enforcement of the foreign judgment in favor of wife.

¶ 4 We hold that before a foreign judgment may be enforced by a Colorado court, it must comport with the personal jurisdiction requirements of United States law.²Accordingly, we reverse the court's orders that recognized the foreign judgment and denied husband's C.R.C.P. 59motion challenging the recognition order. We remand for a determination whether the exercise of jurisdiction over husband by the English court was consistent with the Constitution and laws of the United States. We affirm the district court's orders on all other issues.

I. Facts and Procedural History

¶ 5 Husband and wife (a native of England) married in Colorado in 1997. Their child was born the following year. Wife moved back to England with the child in 2008 after the parties' separation. Husband remained in Colorado.

¶ 6 Wife petitioned for divorce in England and served husband in Colorado. Despite multiple opportunities to do so, husband did not respond to wife's divorce petition, file any document, or otherwise enter an appearance in the English court.

¶ 7 On October 8, 2010, the English court entered judgment against husband for £638,000, which, based on the exchange rate at that time, equated to approximately $1,010,911. The English court apportioned the judgment as follows: £120,000 (roughly $190,140) for lump sum maintenance, £ 80,000 (roughly $126,760) for the child's post-secondary education expenses, £>423,000 (roughly $670,243) for the purchase of a home, and £15,000 (roughly $23,767) for incurred and future attorney fees.

¶ 8 Wife then filed a notice of registration of foreign support order in Grand County District Court, citing section 14–5–605, C.R.S.2015, of the Uniform Interstate Family Support Act (UIFSA), codified in Colorado as sections 14–5–101to 14–5–903, C.R.S. 2015.³Husband contested registration under sections 606 and 607 of UIFSA. §§ 14–5–606, 14–5–607, C.R.S.2015. Husband also cited section 14–11–101, C.R.S.2015, as a basis for vacating the notice of registration. After an evidentiary hearing, the district court sustained the notice of registration and ordered enforcement of the English judgment.⁴

¶ 9 Husband moved to alter, amend, or reconsider the order under C.R.C.P. 59, or in the alternative, to “amend, set aside and make new Orders under § 14–11–101, C.R.S.” The court denied the motion.

¶ 10 The court held that husband “failed in his burden to challenge the registration of the English court's order pursuant to C.R.S. 14–5–606and ... failed to convince [the] court that it should grant his request to modify, alter, or amend the judgment of the English court.” The court stated that all of the arguments husband made in the Rule 59motion had been raised, argued, addressed, and rejected in the registration proceeding. The court also found no new basis requiring the English judgment to be modified. The court concluded, “The bottom line is this: [husband] made a decision not to participate in the proceedings in England knowing that the court in England would enter enforceable orders concerning certain financial matters. When he made that decision he elected to be governed by that court.” The court thus found that husband did not show that the English proceeding was unfair, inequitable, or illegal.

II. Personal Jurisdiction

¶ 11 Husband first contends that for purposes of enforcement by a Colorado court, the English court lacked personal jurisdiction over him and that, therefore, the English judgment cannot constitutionally be recognized. Specifically, he argues that because he had insufficient minimum contacts with England, the maintenance of the action offends traditional due process notions of fair play and substantial justice.

A. Waiver of the Personal Jurisdiction Defense

¶ 12 Wife argues that husband waived the defense of lack of personal jurisdiction because he did not make a minimum contacts argument in the district court. Although it is a close question, we conclude that husband did not waive this defense.

¶ 13 The defense of personal jurisdiction, unlike the defense of subject matter jurisdiction, must be timely asserted by a defendant. C.R.C.P. 12(b); Brown v. Silvern,141 P.3d 871, 873 (Colo.App.2005). If not, it is waived. Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee,456 U.S. 694, 702–03, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982); Currier v. Sutherland,218 P.3d 709, 714–15 (Colo.2009); see alsoC.R.C.P. 12(h). Thus, if a defendant defaults in the forum court and collaterally challenges the judgment in the enforcement court, the defendant nevertheless waives the defense of personal jurisdiction if the defendant does not timely assert it in the recognition or enforcement proceedings. SeeIns. Corp. of Ir.,456 U.S. at 703, 102 S.Ct. 2099; Currier,218 P.3d at 714; see alsoSwafford v. Elkins,327 Ga.App. 802, 761 S.E.2d 359, 360–61 (2014).

¶ 14 After wife filed her verified petition to register a foreign support order under UIFSA in the Colorado district court, husband timely filed his “Response to Notice of Registration of Foreign Support Order and Verified Petition to Register Foreign Support Order.” Paragraph 4 of the response reads: “Respondent objects to registration of order for enforcement because the issuing tribunal lacked personal jurisdiction over the Respondent pursuant to C.R.S. section 14–5–607(a)(1).” As discussed below, this provision of UIFSA expressly provides that lack of personal jurisdiction over the party contesting registration is a valid defense to registration. § 14–5–607(a)(1).

¶ 15 However, in addition to pleadingthe defense of lack of personal jurisdiction, a party asserting the defense must timely request the court to adjudicate the defense to preserve the issue for appellate review. SeeMinto v. Lambert,870 P.2d 572, 575 (Colo.App.1993).

¶ 16 At the hearing on registration of the English support order, husband's then-counsel stated: “But the jurisdiction of the English court is nevertheless flawed by the lack of minimal [sic] that [husband] had, that allowed the English court to make anything that effectively would be real estate in the [sic] Colorado.”

¶ 17 While that statement was hardly an articulate statement that there were insufficient contacts between husband and England to render permissible (under United States law) the English court's exercise of personal jurisdiction over him, it did at least minimally apprise the district court of the possibility that the order could not be enforced in the United States because of insufficient contacts. SeeBorquez v. Robert C. Ozer, P.C.,923 P.2d 166, 171 (Colo.App.1995)(“To preserve an issue for appeal, a party must make a timely objection which is specific enough to provide the trial court with a meaningful opportunity to correct the error.”), rev'd in part on other grounds,940 P.2d 371 (Colo.1997).

¶ 18 However, we need not decide whether this reference alone was sufficient to preserve the personal jurisdiction defense because other, later occurring events also provide support for our conclusion that husband did not waive the defense.

¶ 19 After the district court entered its order registering the English judgment, husband changed counsel. As discussed above, husband's new counsel filed a motion to alter or amend the judgment under C.R.C.P. 59. The Rule 59motion explicitly challenged the recognition of the English judgment on the ground that husband allegedly did not have sufficient minimum contacts with England to render constitutional the English court's exercise of jurisdiction over him.

¶ 20 In her response to the Rule 59motion, wife stated: “The personal jurisdiction and due process argument[s] submitted by [husband] have been determined by the court.” In denying the motion, the district court made a similar statement: “The court finds that Husband's arguments contained in the present motion have been raised, argued and addressed prior to the order confirming registration. The only ‘new’ issue now raised by Husband for the first time is an allegation that service was defective pursuant to the Hague Convention.”

¶ 21 But none of the court's prior orders addressed whether husband had sufficient minimum contacts with England to render constitutional, for purposes of enforcement of the order by a Colorado court, the English court's exercise of personal jurisdiction over him. Instead, the court had focused on the important (but not determinative) fact that husband was served in Colorado with the English court process and had...