Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. DN148041, Eugenia Eyherabide, Judge.
O'ROURKE, J.
B.J., a Maryland resident, appeals from a judgment, inter alia, ordering him to pay child support to S.B. He seeks reversal of the child support order on grounds the family court erroneously exercised personal jurisdiction over him; specifically that the court (1) conflated the principles of subject matter jurisdiction and personal jurisdiction and (2) found it could exercise personal jurisdiction based on insufficient "minimum contacts" he has with the state of California. We find merit to these contentions and thus reverse the judgment with directions to enter a new judgment set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
The pertinent procedural and background facts are taken from the limited appellate record before us, which consists of the reporter's transcript of the oral hearings on the matter and items that the superior court clerk is required to include in the clerk's transcript, i.e., the judgment with attached disputed parentage study, the notice of entry of judgment, the notice of appeal and the notice designating the record on appeal.
S.B. has not filed a respondent's brief in this appeal. We nevertheless may decide the case based on B.J.'s opening brief and the record. (Cal. Rules of Court, rule 8.220(a)(2).) The reporter's transcript contains trial court findings indicating that S.B. filed a petition to establish paternity and an order to show cause regarding child support and child custody. B.J. apparently responded with a motion to quash the order to show cause with supporting points and authorities, but those items are not in the appellate record. We obtained the superior court file and on our own motion take judicial notice of the parties' filings in this matter. (Evid. Code, §§ 452, subd. (d), 459, subds. (a), (c), (d).)
As determined by a disputed parentage study, S.B. is the mother and B.J. the father of a child who was born in June 2007. In September 2007, concurrently with her petition to establish a parental relationship, S.B. filed an order to show cause (OSC) regarding child support and custody. B.J. responded to the petition and OSC by specially appearing and filing his own OSC with a motion to quash S.B.'s OSC so as to contest personal jurisdiction.
In March 2008, the family court heard S.B.'s petition and OSC and B.J.'s motion to quash. B.J.'s counsel argued that S.B.'s petition to establish paternity should be dismissed and refiled in Maryland, where the child was conceived. S.B.'s counsel stated that B.J.'s voluntary submission to paternity testing in California constituted an "availment of all legal rights and responsibilities and benefits of this state while he was here, however short that may have been." S.B.'s counsel further stated that B.J. was present in California shortly after the child's birth, came to the hospital, bought diapers, had contact with the child, helped S.B., and met the child's grandmother. Over B.J.'s counsel's objection, he made an offer of proof that the day before the hearing, B.J. had had telephone contact with S.B.
B.J.'s counsel responded that Family Code section 3409, subdivision (a) permitted a parent to address issues under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA or the Uniform Act; Fam. Code, § 3400 et seq.) without submitting to the jurisdiction of the court, and that the minimum contacts required for the court's exercise of personal jurisdiction was a distinct issue. He maintained B.J.'s visit to California was not a sufficient minimum contact.
Pointing out there had been no child support case filed in Maryland, the family court found the child had lived in California for six months, permitting it to exercise jurisdiction over child support under the "home state" test of the Uniform Act. The family court also ruled that B.J. had sufficient minimum contacts to allow California to exercise jurisdiction over the case: "[T]he Court did find minimum contact[s] doesn't require much. Mr. [J.] was to be here for the birth of the child. He might have missed the birth. Based on Ms. [B.'s] declaration, he had planned to come out for the birth. It's just the child was born a bit early, but, nonetheless, he spent six days here. He had been here prior, what I presume was the year prior. [¶] When the couple resided in Maryland, they came out to California for what I presume was a visitation between the relatives due to the Christmas holidays. But he, as I say, was here for a period of six days to see her, take care of his child. [¶] So the Court finds that not only is the home state of this child the state of California, but there is a sufficient showing of minimum contacts that would allow California to also have jurisdiction of this case."
On May 28, 2008, the parties attended a further hearing on child support and custody, attorney fees, and parentage. B.J. specially appeared through his counsel, asserting the family court's lack of jurisdiction to make financial orders including setting child support and ordering attorney fees. Rejecting that argument, the court issued an order that B.J. pay $860 per month in guideline child support subject to a pending OSC. It then took S.B.'s sworn testimony pertaining to parentage and made a finding that she met her burden to prove B.J. was the child's father. The court entered judgment determining B.J. and S.B. to be the child's parents and ordering child support "subject to [a] pending Order to Show Cause," as well as reasonable expenses of pregnancy and birth. This appeal followed.
DISCUSSION
I. Standard of Review
This case presents questions of both subject matter jurisdiction and personal jurisdiction on a set of undisputed facts. " 'When the jurisdictional facts are not in dispute, the question of whether a person is subject to personal jurisdiction is purely a legal question that we review de novo.' " (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568; see Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449; HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1168.) Likewise, where the relevant jurisdictional facts relating to subject matter jurisdiction are undisputed, we are not bound by the superior court's findings but rather independently weigh the jurisdictional facts and consider the question de novo. (In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 376; In re Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 701.)
Here, the family court's determination of jurisdiction over B.J. in this case was in part based on the Uniform Act. To the extent B.J.'s appellate contentions require construction or interpretation of that statute, we undertake such analysis independently as a pure question of law. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
II. Subject Matter Jurisdiction and Personal Jurisdiction
" 'In general, "jurisdiction" to adjudicate matters in a marital case involves three requirements: 1) that the court have authority to adjudicate the specific matter raised by the pleadings (subject matter jurisdiction) [citation]; 2) that the court have "in rem" jurisdiction over the marital "res" to terminate marital status ("in rem" jurisdiction) [citation]; and 3) that the court have jurisdiction over the parties to adjudicate personal rights and obligations (personal jurisdiction).' " (In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 592, quoting Muckle v. Superior Court (2002) 102 Cal.App.4th 218, 225.)
Though both involve a court's "fundamental" power to act (e.g, Armstrong v. Armstrong (1976) 15 Cal.3d 942, 951 [referring to jurisdiction of person and subject matter as fundamental jurisdiction]; People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6), subject matter jurisdiction and personal jurisdiction are distinct concepts. (See generally Abelleria v. District Court of Appeal (1941) 17 Cal.2d 280, 291; Greener v. Workers' Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1035; Kumar v. Superior Court of Santa Clara County (1982) 32 Cal.3d 689, 695, 703 [separately analyzing issues of subject matter jurisdiction under the former version of the Uniform Act and in personam jurisdiction under due process "minimum contacts" analysis].) "Subject matter jurisdiction is conferred by constitutional or statutory law. [Citations.] [Our State] Supreme Court has held, 'Subject matter jurisdiction... is the power of the court over a cause of action or to act in a particular way.' " (In re Guardianship of Ariana K., supra, 120 Cal.App.4th at p. 701; see Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 42.)
In contrast, personal jurisdiction "is not determined by the nature of the action, but by the legal existence of the party and either its presence in the state or other conduct permitting the court to exercise jurisdiction over the party." (Greener v. Workers' Comp. Appeals Bd., supra, 6 Cal.4th at pp. 1034-1035.) The exercise of personal jurisdiction must satisfy due process under the California and United States Constitutions. (Code Civ. Proc., § 410.10; see Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268; Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 444; In re Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419, 1425; Muckle v. Superior Court, supra, 102 Cal.App.4th at p. 226.) While personal jurisdiction may be conferred by consent or waiver, that is not the case with subject matter jurisdiction, which cannot be conferred by consent, waiver or estoppel. (Sampsell v. Superior Court (1948) 32 Cal.2d 763, 773, overruled on other grounds in Robinson v. Superior Court (1950) 35 Cal.2d 379, 385; Summer v. Superior Court of Santa Clara County (1959) 53 Cal.2d 295, 298; 1 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 13, pp. 585-586.)
A California court may have subject matter jurisdiction to adjudicate issues in a family case without at the same time validly possessing personal jurisdiction over a party for financial issues. (E.g., Muckle v. Superior Court, supra, 102 Cal.App.4th at p. 226 [holding California trial court lacked jurisdiction to adjudicate husband's rights to real property located in Georgia and spousal support though parties stipulated the court had subject matter jurisdiction and in rem jurisdiction to adjudicate the status of their marriage]; In re Marriage of Malak (1986) 182 Cal.App.3d 1018, 1021 [affirming California trial court's order that it did not have in personam jurisdiction over Lebanese husband for purposes of support, attorney fees and costs and division of marital property but concluding trial court did have subject matter jurisdiction over the issue of child custody and reversing trial court's order on that issue].)
III. The Uniform Act's Home State Requirement Determines Subject Matter Jurisdiction
In California, the Uniform Act is the exclusive method of determining the court's subject matter jurisdiction in custody disputes involving different states or countries. (In re Stephanie M. (1994) 7 Cal.4th 295, 310 [holding under the former Uniform Child Custody Jurisdiction Act or UCCJA]; In re Marriage of Sareen, supra, 153 Cal.App.4th at p. 376;see Sarah B. v. Floyd B. (2008) 159 Cal.App.4th 938, 944-945.) Under the Uniform Act, a "child custody determination" is a "judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child" including a permanent, temporary, initial, and modification order. (Fam. Code, § 3402, subd. (c).) A proceeding to establish paternity is considered a "child custody proceeding" for purposes of the Uniform Act. (See Fam. Code, § 3402, subd. (d); Sarah B. v. Floyd B., at p. 928, fn. 7.)
However, a child custody determination under the Uniform Act "does not include an order relating to child support or other monetary obligation of an individual." (Fam. Code, § 3402, subd. (c), italics added.) This statutory language is clear and unambiguous: it expressly excludes such financial support issues from the purview of the Uniform Act. (Accord, In re Marriage of Fitzgerald & King, supra, 39 Cal.App.4th at p. 1429 [deciding whether mother's stay away agreement was related to child custody or visitation, which is properly considered under the Uniform Act, or "more like a financial support issue, which would bring the case outside the [Uniform Act]"].)
Because it would thwart the statute's purpose of providing a forum to resolve custody issues, jurisdiction under the Uniform Act does not require personal jurisdiction over a nonresident parent. (In re Marriage of Fitzgerald & King, supra, 39 Cal.App.4th at p. 1428; see also In re Marriage of Newsome (1998) 68 Cal.App.4th 949, 954, fn. 2.) Indeed, the Uniform Act "presupposes that a parent may participate in proceedings leading to custody or visitation determination without exposing himself or herself to the personal jurisdiction of the forum state court." (In re Marriage of Fitzgerald & King, at p. 1428; see e.g., In re Marriage of Malak, supra, 182 Cal.App.3d at p. 1023.) Family Code section 3409 codifies this principle: "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 a 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." (Fam. Code, § 3409, subd. (a).)
The distinction between jurisdiction conferred by the Uniform Act and personal jurisdiction is reflected in In re Marriage of Malak, in which the husband and wife were citizens of Lebanon and lived in the United Arab Emirates (UAE) until the wife took their two children to California without husband's consent. (In re Marriage of Malak, supra, 182 Cal.App.3d at p. 1021.) Wife filed original and amended petitions for legal separation and dissolution in California asking for custody of the children, child and spousal support and attorney fees and costs. (Id. at pp. 1021-1022.) Husband was initially personally served in California while attempting to find his children, but specially appeared to contest jurisdiction and later under the former Uniform Act (UCCJA) filed motions in California seeking to enforce child custody judgments he had obtained in the UAE and Lebanon. (In re Marriage of Malak, at pp. 1021-1022.) The trial court quashed service on the husband, whose participation in the case involved exclusively the issue of child custody through his efforts to gain recognition and enforcement of his foreign custody decrees under the UCCJA. (Id. at p. 1023.) The trial court declined to exercise subject matter jurisdiction over the issue of child custody. (Id. at p. 1024.)
The Court of Appeal affirmed the trial court's order quashing service of process: "Husband in the instant case... appeared 'specially' and moved to quash service of summons. The fact that husband also moved thrice to enforce the UAE and the Lebanese decrees, and even subsequently for an order allowing him to visit his children did not subject him to the court's jurisdiction in the dissolution action for in personam awards of support, attorney's fees and costs and division of marital property." (In re Marriage of Malak, supra, 182 Cal.App.3d at p. 1024.) It reversed the trial court's order declining to enforce the Lebanese decree, however, concluding the Lebanese decree met the notice and jurisdictional requirements of the UCCJA. (Id. at pp. 1025, 1027-1029.)
In this case, the family court misplaced reliance on the Uniform Act's "home state" test to justify its exercise of personal jurisdiction over B.J. to issue a child support order. In part, the court reasoned: "I think the real issue here is the issue of child support, because of Mr. [J.'s] residency in the state of Maryland. And I looked because under the [Uniform Act]..., the child's home state, hence, the state in which child support and or child custody lies, is when the child has lived in the same state for six months. [¶] So from June 30th, that would have been as of December 30th of '07. She's lived here in the state of California for that six-month time period, which at that time, under [the Uniform Act], that becomes the home state.
" '[A] court of this state has jurisdiction to make an initial child custody determination' if California 'is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.' " (Sarah B. v. Floyd B., supra, 159 Cal.App.4th at pp. 944-945, quoting Fam. Code, § 3421, subd. (a)(1).) The Uniform Act defines "home state" as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." (Fam. Code, § 3402, subd. (g).)
While the Uniform Act's home state test was properly applied to determine whether the court had subject matter jurisdiction to issue a child custody order, that test did not bear on the separate matter of the assertion of personal jurisdiction over B.J., a nonresident. The family court erred by failing to distinguish between the subject matter jurisdiction over custody proceedings conferred by the Uniform Act, and the issue of personal jurisdiction over a nonresident for purposes of support orders or other financial issues, matters outside of the Uniform Act's scope. B.J. preserved his challenge to the court's exercise of personal jurisdiction by specially appearing and moving to quash S.B.'s OSC. We turn then, to the court's alternative ground for exercising personal jurisdiction over B.J., namely, its determination that B.J. had sufficient minimum contacts with the state of California.
IV. B.J. Does Not Have Sufficient Contacts with California to Justify In Personam Jurisdiction
As stated, the trial court alternatively found it could exercise jurisdiction over B.J. by virtue of his contacts with the state of California consisting of B.J.'s (1) plan to attend the birth of his and S.B.'s child in California; (2) six day stay in California to see and take care of the child; and (3) visit to California during the prior year to see relatives for Christmas holidays during the time he and S.B. resided in Maryland. B.J. contends the family court erred in finding these and other purported activities (including a telephone call by him to inquire about the child's status) constituted sufficient minimum contacts to permit a California court to exercise personal jurisdiction. The contention has merit.
The "constitutional standard for determining whether the [s]tate may enter a binding judgment against [a party] is that set forth in... International Shoe Co. v. Washington [(1945) 326 U.S. 310 (International Shoe)]: 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 justice." ' [Citation.] While the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff's forum of choice are... to be considered, [citation], 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." (Kulko v. California Superior Court (1978) 436 U.S. 84, 92 (Kulko). The minimum contacts test "is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite 'affiliating circumstances' are present." (Ibid.)
In Kumar v. Superior Court, supra, 32 Cal.3d 689, the California Supreme Court explained that with respect to a child support and an attorney fees order, "California may not exercise personal jurisdiction over an out-of-state parent to modify an agreement for support of a child living in California unless jurisdiction is established through sufficient minimum contacts within the state." (Kumar v. Superior Court, at p. 703, citing Kulko, supra, 436 U.S. 84.) The court followed Kulko, in which the United States Supreme Court held that a single act of a father agreeing to return his child to her mother in California was an insufficient basis under the International Shoe minimum contacts analysis to justify the exercise of in personam jurisdiction: "A father who agrees, in the interests of family harmony and his children's preferences, to allow them to spend more time in California than was required under a separation agreement can hardly be said to have 'purposefully availed himself' of the 'benefits and protections' of California's laws." (Kulko, 436 U.S. at p. 94; see also In re Marriage of Nosbisch (1992) 5 Cal.App.4th 629, 634 [rejecting Texas court's exercise of personal jurisdiction where father agreed wife could move with their children to Texas].) Though Kulko recognized California's "substantial interests in protecting resident children and in facilitating child-support actions on behalf of those children," under those circumstances, it held those interests "simply do not make California a 'fair forum' [citation], in which to require appellant, who derives no personal or commercial benefit from his child's presence in California and who lacks any other relevant contact with the State, either to defend a child-support suit or to suffer liability by default." (Kulko, 436 U.S. at pp. 100-101.)
Kumar did not reach alternative bases for assertion of personal jurisdiction such as domicile in the forum state, personal service in the forum state, or consent (Muckle v. Superior Court, supra, 102 Cal.App.4th at p. 226; In re Marriage of Fitzgerald & King, supra, 39 Cal.App.4th at pp. 1425-1426), because those facts were apparently not at issue in the case. The father in Kumar asserted in supporting declarations that he was personally served in New York, did not consent to the exercise of personal jurisdiction in California, and had no contact with California other than initiating habeas corpus proceedings and registering a New York decree. (Kumar v. Superior Court, supra, 32 Cal.3d at p. 692.)
Kulko rejected the rationale that the daughter's presence in California gave the father the "benefit of California's 'police and fire protection, its school system, its hospital services, its recreational facilities, its libraries and museums.... ' " (Kulko, supra, 436 U.S. at p. 94, fn. 7.) According to the court, those state services were "essentially benefits to the child, not the father, and in any event were not benefits that appellant purposefully sought for himself." (Ibid.)
Kumar involved a nonresident father who had hired California counsel to register a New York custody decree and procure a writ of habeas corpus directing his former wife to produce their son in court after she took the son to California without the father's consent. (Kumar, supra, 32 Cal.3d at p. 692.) In rejecting the California court's assertion of personal jurisdiction, the Kumar court held it would be grossly unfair to find sufficient minimum contacts where the father was "virtually forced" into court because he was denied his visitation rights. (Id. at pp. 703-704.) The court reasoned that "[p]rinciples of fairness preclude the exercise of personal jurisdiction where connection with the state resulted from an effort to encourage visitation with the noncustodial parent." (Id. at p. 703.)
As support for this reasoning, the California Supreme Court adopted the policy expressed in Titus v. Superior Court (1972) 23 Cal.App.3d 792 (Titus), in which the Court of Appeal rejected California's assertion of personal jurisdiction over a nonresident husband who had sent his children to California to visit their mother: " '[I]t would be unfair and unreasonable to hold that a nonresident parent has submitted himself to the jurisdiction of another state merely by the act of sending his children to that state temporarily for the purpose of visiting the other parent. It is a strong policy of the law to encourage the visitation of children with their parents. Such a policy should be fostered rather than thwarted.' " (Kumar, supra,32 Cal.3d at p. 703, fn. 19, quoting Titus, at pp. 802-803.)
The policy of encouraging visitation of children with their parents has compelled courts to directly or indirectly follow Kulko, Titus and Kumar to reject the exercise of in personam jurisdiction in proceedings to determine support and other financial matters where the evidence shows such limited (though important) contacts. (McArthur v. Superior Court (1991) 235 Cal.App.3d 1287; In re Marriage of Malak, supra, 182 Cal.App.3d at p. 1024; Bartlett v. Superior Court(1978) 86 Cal.App.3d 72; Judd v. Superior Court (1976) 60 Cal.App.3d 38.) In Judd v. Superior Court, the Fourth District, Division Two Court of Appeal held there was no constitutional basis for a trial court's assertion of personal jurisdiction over a petitioner husband who had never resided in California, where his former wife had moved after their divorce. (Judd, 60 Cal.App.3d at p. 41.) The petitioner admitted he had sent his former wife spousal and child support payments under their separation agreement and in the last 10 years had visited his children in California three times for two or three days at a time. (Id. at p. 42.) Pointing out the parties' original domicile was in New York and the petitioner was not responsible for his former wife's move to California, the Court of Appeal found it "neither... fair to petitioner nor reasonable to hold that this state acquired jurisdiction over him merely because he sent support payments here and communicated with his children and their mother by telephone or mail." (Id. at p. 45.) It reasoned: "It should be a matter of strong public policy to encourage the payment of support and communication between a natural father and his children, not to discourage the same by subjecting the father to the expense and inconvenience of relitigating this matter of support in our state." (Ibid.) As for the father's visits, the court rejected the notion that the petitioner had done acts in California by visiting his children here, "agree[ing] heartily" with the policy expressed in Titus, supra, 23 Cal.App.3d at p. 803 that the visitation of children with their parents should be encouraged and fostered. (Judd v. Superior Court, 60 Cal.App.3d at p. 45.)
In Bartlett v. Superior Court, the Second District, Division Four Court of Appeal relied upon Judd to hold that a petitioner (a civilian employee of the United States Navy stationed in Florida who denied paternity) was not subject to a California court's in personam jurisdiction for purposes of child support. (Bartlett, supra,86 Cal.App.3d at pp. 76-78.) There, the petitioner's contacts consisted of: (1) causing a California resident (the alleged mother) to become pregnant; (2) traveling to California and visiting the alleged mother during courtship and pregnancy; (3) sending the alleged mother home to California when she was pregnant and paying for her airfare; and (4) paying a doctor's bill in Santa Barbara in connection with the pregnancy. (Id. at p. 76.) In part, the court reasoned that "[s]uch personal visits within the state are not the kind of contact which can subject the traveller to the jurisdiction of the California courts." (Ibid.) The Court of Appeal ordered that a writ of mandate should issue requiring the trial court to quash service of process of petitioner. (Id. at p. 78.)
In Marriage of Hattis (1987) 196 Cal.App.3d 1162, this court disagreed with Bartlett v. Superior Court to the extent it completely rejected the "effects test" — i.e., consideration of whether a party over whom jurisdiction is asserted commits an act or omission causing an effect in California — in family law cases. (Hattis, 196 Cal.App.3d at pp. 1172, 1175, fn. 9; see also Khan v. Superior Court (1989) 204 Cal.App.3d 1168, 1176, fn. 5 [recognizing disagreement].) Because we do not rely upon any "effects" in California caused by B.J., we need not express an opinion on the matter. (Khan, at p. 1176, fn. 5.)
In Muckle v. Superior Court, supra, 102 Cal.App.4th 218, this court decided California could not, consistent with the due process clause of the United States Constitution, exercise personal jurisdiction for purposes of spousal support and property division over a husband who had been domiciled in Georgia since December 1998, even though during their 11-year marriage the parties had lived at various times in California. (Id. at pp. 222, 226.) After the wife served dissolution papers on husband in Georgia in August 2001, the husband specially appeared to contest jurisdiction on grounds he had lived in Georgia continuously since December 1998, had worked and paid taxes in Georgia, had a Georgia driver's license, was registered to vote in Georgia, had no real or personal property in California, and could not afford to travel to California to "fight" the litigation. (Id. at p. 223.) The wife countered that husband had been a resident of California from January 1998 to December 1998, and also argued he had purposefully availed himself of privileges by working in California, filing and receiving money from a worker's compensation claim against his Escondido employer, using those funds for downpayment of a property purchased in Georgia, and traveling from Georgia to California on numerous occasions. (Id. at p. 224.) The trial court denied husband's motion to quash service of summons in wife's action. (Id. at p. 222.)
This court granted husband's petition for writ of mandate seeking to vacate the trial court's order denying his motion to quash service of summons. We summarized the factual "minimum contacts" analysis, observing that though the existence of sufficient minimum contacts depends on the facts of each case, "the ultimate determination generally rests on some conduct by which the nonresident has purposefully availed himself of the privilege of conducting activities within the forum state to invoke its benefits and protections, and a sufficient relationship or nexus between the nonresident and the forum state such that it is reasonable and fair to require the nonresident to appear locally to conduct a defense. [Citations.] This latter 'fairness' finding requires a balancing of the burden or inconvenience to the nonresident against the resident plaintiff's or petitioner's interest in obtaining effective relief, and the state's interest in adjudicating the particular dispute, which ultimately turns on the nature and quality of the nonresident's forum-related activity." (Muckle v. Superior Court, supra, 102 Cal.App.4th at p. 227.) We emphasized that in an initial family law proceeding, we are to look "at the contacts at the time of the proceeding and not on whether the past minimum contacts might suffice." (Ibid., italics added.)
Undertaking this analysis and noting the only contacts between husband and California were past contacts (Muckle v. Superior Court, supra, 102 Cal.App.4th at p. 228), we concluded that the wife had not met her burden to show the husband had sufficient minimum contacts at the time she filed her dissolution action: "[Husband's] contacts with California since 1998 have not been 'substantial, continuous and systematic,' and there is no evidence he purposefully directed any activities since that time in or toward California other than to provide some shelter [a trailer] for Cassandra." (Id. at p. 230.) Further, we held that even if the wife had met her burden, the exercise of personal jurisdiction over husband to litigate issues of spousal support and property rights would be unreasonable on that record. (Ibid.)
In McArthur v. Superior Court, the Sixth District Court of Appeal found insufficient minimum contacts where the Ohio resident father's five-day stay in California was solely in order to visit his children. That outcome was not impacted by the fact that during his visit, he borrowed his wife's credit card for emergency cash needs. (McArthur v. Superior Court, supra, 235 Cal.App.3d at pp. 1291, 1293-1294.)
Our review of the foregoing authorities compels us to reverse the trial court's child support order. B.J. submitted a declaration in connection with his motion to quash stating he was presently a Maryland resident; he had never lived or worked in California, was licensed to drive and registered to vote in Maryland, had met S.B. in Maryland, and believed their child was conceived in Maryland. Disregarding B.J.'s contacts in 2006 that occurred prior to S.B.'s filing of her petition and order to show cause (Muckle v. Superior Court, supra, 102 Cal.App.4th at p. 227; see also Hoerler v. Superior Court (1978) 85 Cal.App.3d 533, 534-535), the record reveals that B.J.'s sole contacts with the state of California were his six-day stay in California following his child's birth to see and care for his child (during which he took S.B. and his child to visit his godparents and aunt), telephone calls to California to speak with S.B. about their child, and requests for pictures of his child.
These important but limited contacts are precisely the sort that we should foster, in furtherance of the "strong policy of the law to encourage the visitation of children with their parents." (Kumar, supra,32 Cal.3d at p. 703, fn. 19; Titus, 23 Cal.App.3d at pp. 802-803; Judd v. Superior Court, supra, 60 Cal.App.3d at p. 45; Bartlett v. Superior Court, supra, 86 Cal.App.3d at p. 76.) We conclude S.B. has not met her burden to show B.J. has engaged in substantial, continuous and systematic contacts with the state of California.
B.J.'s appeal is limited to that portion of the judgment ordering him to pay child support; he does not challenge the judgment to the extent it determined paternity and awarded S.B. reasonable expenses of pregnancy and birth. Accordingly, though we reverse the judgment, we direct the trial court to enter a new judgment omitting the order for child support.
DISPOSITION
The judgment is reversed. The matter is remanded with directions that the trial court enter a new judgment determining paternity and awarding reasonable expenses of pregnancy and birth. The parties are to bear their own costs on appeal.
WE CONCUR: HALLER, Acting P. J. McDONALD, J.