Basics of Pennsylvania Divorce: Kulko

January 31, 2009 | Court Decisions, Divorce, Legal Perspective

Icon for author Brian Vertz Brian Vertz

 Pennsylvania has jurisdiction over its own citizens as well as those who have signficant contacts with our state. The law that extends Pennsylvania’s jurisdiction over non-citizens who have significant contacts is known as the “long-arm” statute (as in “long arm of the law”).

Long-arm jurisdiction over non-residents in divorce actions is limited, as in all actions, by the due process requirements of the Fourteenth Amendment of the U.S. Constitution, which requires that the forum state have personal jurisdiction over the defendant. The residence of a plaintiff in this state is not, by itself, sufficient to constitute “significant contacts” to a defendant who has never resided here under the standards enunciated by the U.S. Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310 (1945). See Kulko v. Superior Court, 436 U.S. 84 (1978).

In Kulko, the husband and wife resided throughout their marriage in New York, although they were married in California during a brief stopover while the husband was en route to overseas military duty. The parties’ children were born in New York, and husband returned to New York after his tour of duty. Upon separation, the wife moved to California, where the parties’ two children eventually joined her. The wife obtained a divorce decree in Haiti and then filed an action in California to register and modify the Haitian divorce decree. Husband contested the California action for lack of personal jurisdiction. The California Supreme Court held that there were sufficient contacts, under the standards enunciated in International Shoe Co. v. Washington, 326 U.S. 310 (1945), to confer personal jurisdiction over the defendant. Specifically, the California Supreme Court looked to the parties’ marriage in California and the husband’s consent to sending the children to live with their mother in California.

On appeal, the U.S. Supreme Court reversed, finding there was no personal jurisdiction over the defendant in California. The Supreme Court held:

            The Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants. See Shaffer v. Heitner, 433 U.S. 186, 198-200, 97 S.Ct. 2569, 2577, 53 L.Ed.2d 683 (1977). It has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant. Pennoyer v. Neff, 95 U.S. 714, 732-733, 24 L.Ed. 565, 572 (1878); International Shoe Co. v. Washington, 326 U.S., at 316, 66 S.Ct., at 158. The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-314, 70 S.Ct. 652, 656-657, 94 L.Ed. 865 (1950), and a sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum. Milliken v. Meyer, 311 U.S. 457, 463-464, 61 S.Ct. 339, 342-343, 85 L.Ed. 278 (1940). . .

            The parties are in agreement that the constitutional standard for determining whether the State may enter a binding judgment against appellant here is that set forth in this Court’s opinion in International Shoe Co. v. Washington, supra: that a defendant “have certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial **1697 justice.’ ” 326 U.S., at 316, 66 S.Ct., at 158, quoting Milliken v. Meyer, supra, 311 U.S., at 463, 61 S.Ct., at 342. While the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff’s forum of choice are, of course, to be considered, see McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957), an essential criterion in all cases is whether the “quality and nature” of the defendant’s activity is such that it is “reasonable” and “fair” to require him to conduct his defense in that State. International Shoe Co. v. Washington, supra, 326 U.S., at 316-317, 319, 66 S.Ct., at 158, 159. Accord, Shaffer v. Heitner, supra, 433 U.S., at 207-212, 97 S.Ct., at 2581-2584; Perkins v. Benguet Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 418, 96 L.Ed. 485 (1952).

            Like any standard that requires a determination of “reasonableness,” the “minimum contacts” test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite “affiliating circumstances” are present. Hanson v. Denckla, 357 U.S. 235, 246, 78 S.Ct. 1228, 1235, 2 L.Ed.2d 1283 (1958). We recognize that this determination is one in which few answers will be written “in black and white. The greys are dominant and even among them the shades are innumerable.” Estin v. Estin, 334 U.S. 541, 545, 68 S.Ct. 1213, 1216, 92 L.Ed. 1561 (1948). But we believe that the California Supreme Court’s application of the minimum-contacts test in this case represents an unwarranted extension of International Shoe and would, if sustained, sanction a result that is neither fair, just, nor reasonable.

            In reaching its result, the California Supreme Court did not rely on appellant’s glancing presence in the State some 13 *93 years before the events that led to this controversy, nor could it have. Appellant has been in California on only two occasions, once in 1959 for a three-day military stopover on his way to Korea, see supra, at 1694, and again in 1960 for a 24-hour stopover on his return from Korean service. To hold such temporary visits to a State a basis for the assertion of in personam jurisdiction over unrelated actions arising in the future would make a mockery of the limitations on state jurisdiction imposed by the Fourteenth Amendment. Nor did the California court rely on the fact that appellant was actually married in California on one of his two brief visits. We agree that where two New York domiciliaries, for reasons of convenience, marry in the State of California and thereafter spend their entire married life in New York, the fact of their California marriage by itself cannot support a California court’s exercise of jurisdiction over a spouse who remains a New York resident in an action relating to child support.

            Finally, in holding that personal jurisdiction existed, the court below carefully disclaimed reliance on the fact that appellant had agreed at the time of separation to allow his children to live with their mother three months a year and that he had sent them to California each year pursuant to this agreement. As was noted below, 19 Cal.3d, at 523-524, 138 Cal.Rptr., at 590, 564 P.2d, at 357, to find personal jurisdiction in a State on this basis, merely because the mother was residing there, would discourage parents from entering into reasonable visitation agreements. Moreover, it could arbitrarily subject one parent to suit in any State of the Union where the other parent chose to spend time while having custody of their offspring pursuant to a separation agreement.

Kulko, at 92-93.


The Kulko decision has been adopted and applied by our courts in Pennsylvania. See, e.g., Wagner v. Wagner, 564 Pa. 448, 768 A.2d 1112 (2001); Scoggins v. Scoggins, 555 A.2d 1314 (Pa.Super. 1989). Pennsylvania’s jurisdiction is limited by the same principles and considerations as described in Kulko.

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