KAFKER, J.
At issue in this case are numerous questions regarding personal jurisdiction over the defendant (father). The plaintiff (mother) moved with her child from Florida to Massachusetts allegedly due to domestic violence by the father, a Florida resident and the putative father of the child. In the Probate and
The father appeals, contending that the Probate Court lacked personal jurisdiction over him at the time the paternity judgment entered and that he never waived this defense. The mother argues that either the Probate Court had personal jurisdiction over the father because his domestic violence forced her to flee to Massachusetts, or the father subsequently waived any objection to jurisdiction. We conclude that the father has not waived his personal jurisdiction defense by either failing to appear prior to the paternity judgment or filing a pro se modification request that included an objection to jurisdiction. Based on the judge's exclusive reliance on waiver, the absence of fact finding on jurisdiction, and the current incomplete record, we are unable to determine whether a basis existed for the Probate Court to exercise personal jurisdiction over the father in 2007. We therefore reverse the order denying the rule 60(b)(4) motion and remand for further proceedings consistent with this opinion.
Background. The father and mother, who were never married to each other, lived together in Florida for a period of time ending in August, 2006. In July, 2006, the mother gave birth to a child, whose birth certificate does not list a father. No paternity testing has been performed relating to the child. The paternity judgment and orders for support and medical expenses at issue here relate to this child.
On October 12, 2007, the mother filed a complaint in the Probate Court seeking a judgment of paternity, custody of the child, and support, as well as other relief.
At the pretrial conference, the mother appeared pro se, and the father did not appear. The mother testified that the defendant is the father of the child, and that nobody else could be the father. The judge noted that only the mother's name, and not the father's, was on the child's birth certificate. The judge also asked the mother if the father "was notified and has chosen not to appear at this moment, although he lives in Florida," and the mother responded, "Um-hmm." The judge further asked, "[H]as he contacted you in any way or said anything to you about being here or support?" and the mother responded, "Yes, I contacted him with regard to my ... son [who] might have hydrocephal[u]s... and [the father] just started screaming at me."
Neither the mother nor the judge addressed below the basis for personal jurisdiction over the father. There were two references to domestic abuse at the pretrial conference. First, in response to a question about visitation, the mother stated that she wanted only supervised visitation because "[t]here was
On May 30, 2008, the mother filed a complaint for an abuse prevention order against the father pursuant to G. L. c. 209A.
On October 7, 2009, the father filed a complaint for modification, requesting a reduction in child support. In the complaint, he again contested service of the original complaint, provided income figures far lower than what the mother had stated, and added: "[The defendant] faxed 7/15/08 request for phone presence at second hearing[, which was] ignored. All matters in this case were to be heard in Orange County [Florida] Court 1/11/07,
Shortly before this scheduled trial date, the father, represented for the first time by counsel, moved for relief from the paternity judgment on the basis that the Probate Court lacked personal jurisdiction over him, and therefore the paternity judgment was void except as to custody of the child.
Discussion. 1. Void judgments. A motion for relief from judgment pursuant to Mass.R.Dom.Rel.P. 60(b)(4), which is identical to Mass.R.Civ.P. 60(b)(4), 365 Mass. 828 (1974), seeks to set aside a final judgment on the basis that it is void. "A judgment is void if the court from which it issues lacked jurisdiction over the parties, lacked jurisdiction over the subject matter, or failed to provide due process of law." Harris v. Sannella, 400 Mass. 392, 395 (1987). See Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass.App.Ct. 527, 533 (1997) (Colley). "A court must vacate a void judgment. It may not vacate a valid one. No discretion is granted by the rule." Field v. Massachusetts Gen. Hosp., 393 Mass. 117, 118 (1984). See Colley, supra at 533. "Notwithstanding the powerful interest in finality of judgments, a motion for relief from a judgment which was
2. Permissible status orders absent personal jurisdiction over defendant. In determining what, if any, part of this judgment is void for lack of personal jurisdiction, it is important to recognize that "a court may adjudicate matters involving the status of the relationship between multiple parties even where personal jurisdiction over all of the parties is not established." Caplan v. Donovan, 450 Mass. 463, 468, cert. denied, 553 U.S. 1018 (2008) (Caplan). For example, "a Massachusetts court can award temporary emergency custody of a child to a parent fleeing to Massachusetts from an allegedly abusive situation in another State ... without personal jurisdiction over the out-of-State parent." Id. at 469, quoting from Lamarche v. Lussier, 65 Mass.App.Ct. 887, 894 n.13 (2006) (Lamarche). The court may also issue an order prohibiting a defendant from abusing a plaintiff or child that has fled to Massachusetts. "This authority stems from a State's `rightful and legitimate concern' in the status of `persons domiciled within its borders,' a concern that is no less legitimate because that status might also affect a person outside of the State." Caplan, supra at 468, quoting from Williams v. North Carolina, 317 U.S. 287, 298-299 (1942). Although having an effect on the defendant, these orders are not deemed to impose an "affirmative obligation" on the defendant. Id. at 472 (holding that order prohibiting defendant from "abusing, contacting, or approaching the plaintiff or their child" could validly enter despite lack of personal jurisdiction over defendant because it "contains no affirmative obligation, and therefore it does not require personal jurisdiction"). So long as these orders are "limited to a determination of [an individual's]... status within the State," they comport with due process. Id. at 469.
In contrast, the paternity judgment and associated child support order in this case go beyond a status determination of the mother and the child and impose an affirmative personal obligation on the defendant. "[A] valid judgment imposing a personal obligation or duty [on a defendant] in favor of the plaintiff may be entered only by a court having jurisdiction over the person
3. Waiver. In denying the rule 60(b)(4) motion in the instant case, the judge relied exclusively on the father's waiver of personal jurisdiction, particularly his failure to appear and file a responsive pleading prior to judgment and his subsequent modification request. See Colley, 42 Mass. App. Ct. at 533 ("where it is shown that the judgment was entered by a court against a person over whom the court lacked personal jurisdiction[,].... the defense of lack of personal jurisdiction can be waived through nonassertion"); Lamarche, 65 Mass. App. Ct. at 889 ("The relevant inquiry thus has two parts: whether there was a waiver and, if there was not, whether there is personal jurisdiction over the defendant").
The father's failure to appear prior to the entry of the paternity judgment is not, however, sufficient to waive the defense of lack of personal jurisdiction. See "R" Best Produce, Inc. v. DiSapio, 540 F.3d 115, 122-123 (2d Cir. 2008) (properly served defendant who chooses not to appear may bring rule 60[b][4] motion to vacate default judgment); Jackson v. FIE Corp., 302 F.3d 515, 522-523 (5th Cir. 2002), quoting from Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982) ("[Rule 60(b)(4)] embodies the
The father, however, did more than fail to appear prior to filing the rule 60(b)(4) motion.
In his facsimile transmission, in his complaint for modification, and again at the hearing, the father stated his belief that his rights would or should have been determined by the Florida courts. As the father was acting pro se at each of these points, we "liberally construe[]" his submissions, see Lamoureux v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 409, 410 n.4 (1983). While judges must apply the law without regard to a litigant's status as a self-represented party, see Mmoe
4. Existence of personal jurisdiction. In order for a court to exercise personal jurisdiction over a defendant, the assertion of jurisdiction must be both authorized by statute and consistent with due process. Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6 (1979). Cepeda v. Kass, 62 Mass.App.Ct. 732, 736 (2004). Lamarche, 65 Mass. App. Ct. at 892. As explained by the United States Supreme Court: "[A] state court
The mother has not identified in the record before us any applicable basis for personal jurisdiction in the traditional long-arm statute, G. L. c. 223A, § 3. She has not suggested, for example, that the father, a nonresident, has ever been domiciled in, transacted business in, engaged in a persistent course of conduct in, or held property in the Commonwealth. See G. L. c. 223A, § 3(a), (d), (e), (g). The mother argues, however, that G. L. c. 209D, § 2-201(5), part of the Uniform Interstate Family Support Act (UIFSA), authorizes personal jurisdiction over the father.
We had occasion to consider a similar claim of flight from abuse in Windsor v. Windsor, 45 Mass.App.Ct. 650 (1998) (Windsor). In that case, the parties were married in Massachusetts but left in 1966, eventually living together in Florida by 1975. Id. at 653. Allegedly due to unspecified "cruel and abusive treatment," the wife, who was pregnant, left the husband in 1977 and returned to Massachusetts, filing an action for divorce and child support eighteen years later. Id. at 653, 655. We noted
As UIFSA is a uniform statute, we have also looked at cases from other jurisdictions for guidance on the application of this provision. For instance, in Windsor, we distinguished Franklin v. Virginia, 27 Va.App. 136 (1998), a case in which personal jurisdiction was found over the husband who, "after physically assaulting the wife, ... ordered her and their children out of their home in Africa, causing the wife to have to return to their prior home in Virginia." Windsor, 45 Mass. App. Ct. at 655. Courts have also found the uniform statute applicable to situations where there is a pattern of abuse and harassment, particularly if the plaintiff's family or other source of support was in the forum State and the defendant knew or should have known the plaintiff would return there. See Marriage of Malwitz, 99 P.3d 56, 58-59, 61 (Colo. 2004) (finding jurisdiction in Colorado over nonresident father who continued to harass and terrorize mother in Texas despite multiple moves in Texas and reports to police); Sneed v. Sneed, 164 Ohio App.3d 496, 498-500, 503 (2005) (upholding jurisdiction in Ohio over nonresident father when mother immediately relocated to where her family lived in Ohio after discovering physical abuse of children). On the other hand, one court has held that jurisdiction was not appropriate where there was evidence of one incident of physical abuse occurring a year before the plaintiff decided to leave the State. See McNabb v. McNabb, 31 Kan.App.2d 398, 401, 409 (2003).
The record the parties presented to this court is sparse about what abuse occurred in Florida and why a Massachusetts court would have jurisdiction over the defendant based on his conduct in Florida. The references to domestic abuse at the December, 2007, hearing are few and brief, and contain inaudible words at key passages. Also unclear in our record is the timing of, and reasons for, the mother's departure from Florida, and specifically why she moved to Massachusetts rather than attending the proceeding in Florida scheduled to address the abuse. In these circumstances, we cannot determine whether the requirements
We therefore remand the matter to the Probate Court so that the judge may determine whether the court had statutory authority to exercise personal jurisdiction over the father, and whether the exercise of jurisdiction would comport with due process. See Cepeda v. Kass, 62 Mass. App. Ct. at 736; Lamarche, 65 Mass. App. Ct. at 892. The judge should make detailed findings of fact on jurisdiction, including credibility determinations. An evidentiary hearing is required.
Conclusion. The order denying the father's motion for relief from judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.