This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Aaron Johnson,





Kimberly Letrice Murray,

a/k/a Kimberly Letrice Smith,



Filed August 7, 2000

Reversed and remanded

Willis, Judge


Benton County District Court

File No. F4991090


Aaron Johnson, 10734 W. Lake Rd., Rice, MN  56367 (pro se appellant)


Kimberly Letrice Murray, c/o Austin Diversified Products, 16615 So. Halstad Street, Harvey, IL  60426 (pro se respondent)


            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            The district court dismissed appellant’s petition for custody on the ground that it lacked personal jurisdiction over respondent.  Appellant challenges the district court’s ruling, arguing that the court has personal jurisdiction over mother and that the court erred by failing to exercise jurisdiction under the Uniform Child Custody Jurisdiction Act.  We reverse and remand.    


The record in this case is not well developed, but the facts appear to be as follows:  Appellant Aaron Johnson and respondent Kimberly Letrice Murray had an intimate relationship for approximately eight years, beginning sometime in 1988.  The parties met while employed by Austin Diversified Products, as door-to-door, traveling salespeople. The parties’ lifestyle involved interstate travel, living in hotel rooms, and drug usage.  On June 27, 1991, respondent gave birth to A.J.  It appears that the parties lived in hotel rooms as a family and that appellant held the child out as his own.

            In 1995, appellant and respondent were assigned to different cities, and respondent allowed A.J. to live with appellant from September to December 1995.  In December 1995, appellant terminated his employment with Austin Diversified and returned A.J. to respondent.  Appellant then moved to the St. Cloud area and has remained in Minnesota. 

In July 1999, respondent’s mother contacted appellant about A.J., who was staying with her in Michigan. Appellant claims that respondent’s mother told him to pick up his son, put the child in school, and obtain custody.  Appellant drove to Michigan and returned to Minnesota with the child.  A.J. lived with appellant from July through September 1999 and attended a Minnesota school during the month of September.

During the summer and fall of 1999, respondent was working for Austin Diversified in Minnesota and was living with the rest of the sales crew in a hotel in Brooklyn Park.  On August 27, 1999, Hennepin County sheriff’s deputies served respondent with appellant’s summons and petition for custody, interrogatories, and requests for admissions. 

On September 28, 1999, appellant moved the district court for a default judgment because respondent failed to answer the complaint.  And on September 29, 1999, appellant applied for an ex parte temporary restraining order against respondent because she threatened to take A.J. from appellant and told him that he “will never see his son again.”   The district court denied the application.

 On September 30, 1999, respondent and her attorney arrived at appellant’s residence and regained custody of A.J. with the assistance of the Benton County Sheriff’s Department.  While at appellant’s residence, appellant’s step-daughter served respondent with a motion for default judgment.  The following morning, appellant obtained an ex parte order for temporary custody.  But respondent could not be found for the order to be served on her.  Appellant claims that Austin Diversified was hiding respondent and that it moved its sales force out of Minnesota within days after he obtained the order. 

 On October 6, 1999, appellant filed a motion for the adjudication of parenthood of A.J.  Also on October 6, respondent, through counsel, served a motion on appellant to dismiss the custody case on several grounds, including lack of personal jurisdiction.  On October 13, 1999, the district court heard arguments on the parties’ motions.  At oral argument, appellant moved the court to deem admitted the requests for admissions that he had served on respondent because she had not answered.  Respondent did not appear but was represented by counsel.  The district court granted respondent’s motion to dismiss for lack of personal jurisdiction.  This appeal follows.


I.            Personal Jurisdiction


            Appellant argues that the district court erred by dismissing the case for lack of personal jurisdiction over respondent. The existence of personal jurisdiction is a question of law and is reviewed de novo.  Stanek v. A.P.I., Inc., 474 N.W.2d 829, 832 (Minn. App. 1991), review denied (Minn. Oct. 31, 1991), cert. denied, 503 U.S. 977, 112 S. Ct. 1603 (1992). 

Two criteria must be met before Minnesota courts can exercise personal jurisdiction over a nonresident.  First, the requirements of Minnesota’s long-arm statute must be satisfied.  See generally Minn. Stat. § 543.19 (1998).  Second, “minimum contacts” must exist between the defendant and this state in order to satisfy due process.  Rostad v. On-Deck, Inc.,372 N.W.2d 717, 719 (Minn. 1985).  

A.            Long-Arm Statute

Minnesota’s long-arm statute allows a Minnesota court to exercise personal jurisdiction over a nonresident defendant “if that defendant commits an act outside of Minnesota causing injury in Minnesota.”  Trident Enters. Int’l, Inc. v. Kemp & George, Inc., 502 N.W.2d 411, 414 (Minn. App. 1993); see Minn. Stat. § 543.19, subd. 1 (1998).   For an action to be brought based on this provision of the statute, “it must be shown that the action is based upon a tort committed ‘in Minnesota.’”  Hughs ex rel. Praul v. Cole, 572 N.W.2d 747, 750 (Minn. App. 1997) (holding that the long-arm statute reached nonresident father based solely on child in Minnesota suffering the effects of physical and emotional abuse inflicted in Pennsylvania) (citing Howells v. McKibben, 281 N.W.2d 154, 156 (Minn. 1979)).  For purposes of the long-arm statute, whether a tort is committed in Minnesota depends on whether damage from the allegedly tortious conduct results in Minnesota.  Id.  Minnesota courts have interpreted “tort” broadly to include not only common-law torts but also “[t]he doing of an act prohibited by law or the neglect to perform a duty imposed by law, resulting in damages to another [and creating] a legal liability.”  Howells, 281 N.W.2d at 156 (quoting State ex rel. Nelson v. Nelson, 298 Minn. 438, 441, 216 N.W.2d 140, 143 (1974) (citation omitted)).  Here, appellant has alleged that respondent neglects and emotionally abuses A.J., who was residing in Minnesota when the petition for custody was filed.  Therefore, the requirements of the long-arm statute are satisfied.

B.            Due Process

To exercise jurisdiction over a nonresident, the due-process requirements of the United States Constitution must also be satisfied.  International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945).   Whether due-process requirements are satisfied is often analyzed in terms of whether a defendant has “minimum contacts” with a forum state such that maintaining jurisdiction in that state would not offend “traditional notions of fair play and substantial justice.”  Id. (quotation omitted).  Here, the district court concluded that respondent did not have sufficient minimum contacts with Minnesota to satisfy due process.   But “jurisdiction based on physical presence alone constitutes due process.”  Burnham v. Superior Court of California, 495 U.S. 604, 619, 110 S. Ct. 2105, 2115 (1990); id. at 610, 110 S. Ct. at 2110 (stating that “[a]mong the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State”); see Rykoff-Sexton, Inc. v. American Appraisal Assocs., Inc., 469 N.W.2d 88, 90-1 (Minn. 1991).  In Burnham, the Supreme Court held that the Due Process Clause does not prohibit a state court from exercising personal jurisdiction over a nonresident who is temporarily in that state and is served personally with process even though the suit is unrelated to her activities in the state.  495 U.S. at 609-620, 110 S. Ct. at 2110-2115; id. at 628-29, 110 S. Ct. at 2120 (stating that state court may exercise jurisdiction over party “served with process while voluntarily present in forum [s]tate”).  That is precisely the situation here.  The record shows that, while respondent was temporarily in the state selling cleaning products, a Hennepin County Sheriff’s Deputy served her personally with a summons and petition for custody. Because we conclude that the district court had personal jurisdiction over respondent based on personal service of process in this state, we reverse and remand.

C.            UCCJA

Appellant also argues that the district court erred in declining to exercise jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA).  See generally Minn. Stat. § 518A.03, subd. 1 (1998).  The UCCJA allows district courts to assert subject-matter jurisdiction over interstate child-custody matters.  See Biscoe v. Biscoe, 443 N.W.2d 221, 224 (Minn. App. 1989); Barnett v. Klein, 765 P.2d 777, 780 (Okla. 1988) (stating that Act does not apply to intrastate custody disputes); Amos v. Amos, 669 S.W.2d 200, 201 (Ark. 1984) (stating that Act is solely for custody disputes between residents of different states).[1]  

Although we hold that the district court has personal jurisdiction over respondent, we note that under the Act, personal jurisdiction over a contestant[2] outside the state may not be required for a court to determine the custody status of a child.  See, e.g., In re Marriage of Bueche, 550 N.E.2d 48, 51 (Ill. App. 1990) (stating that personal jurisdiction over either parent is unnecessary for district court to issue custody order under UCCJA as long as jurisdictional requirements of Act are met); In re Marriage of Hudson, 434 N.E.2d 107, 118 (Ind. App. 1982) (stating that “in personam jurisdiction is not required under the Uniform Act”) (citations omitted).  Because a custody determination is, in effect, an adjudication of the child’s status, courts have adjudicated custody under the Act without acquiring personal jurisdiction over absent contestants.  In re Marriage of Hudson, 434 N.E.2d at 117.  The Act requires, however, that contestants outside this state be given reasonable notice and an opportunity to be heard in the custody proceeding.  Minn. Stat. § 518A.04 (1998); Minn. Stat. § 518A.05, subd. 1 (1998).

One of the purposes of the Act is to ensure that “a custody decree is rendered in the state which can best decide the case in the best interest of the child.”  Minn. Stat. § 518A.01, subd. 1(a) (1998).  Because the district court here did not address whether it or any other state had jurisdiction under the UCCJA, this court is not compelled to address the question.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating, generally, appellate courts address only issues presented to and considered by the district court).  Nevertheless, in the interest of justice, this court may review an issue that is otherwise properly before us.  Minn. R. Civ. App. P. 103.04; see Korf v. Korf, 553 N.W.2d 706, 709 n.2 (Minn. App. 1996). 

We believe that the facts of this case are compelling.  If appellant’s allegations are true, the child (1) has no permanent home but rather moves from state to state, (2) has never lived in a state for more than four months; (3) has attended five or more schools in one year; (4) cannot remember the names of any of his teachers or of any of the schools he has attended; (5) performs at a first-grade level but is in the third grade; and (6) has been exposed to drug use and domestic abuse.  In the best interests of this child, some state must assert jurisdiction to determine his custody status. 

Given the interstate nature of this custody dispute, the fact that the alleged father lives in Minnesota, and the fact that the child lived here and attended school here, the district court may be able to assert jurisdiction under the UCCJA.  But the record lacks the factual findings required to support the exercise of UCCJA jurisdiction, and this court may not determine fact issues on appeal.  Kucera v. Kucera, 275 Minn. 252, 254-55, 146 N.W.2d 181, 183 (1966).  Therefore, we remand for findings concerning whether the district court may assert jurisdiction under the UCCJA.

II.            Findings of Fact


            Appellant argues that the record does not support the district court’s findings of fact.  This court will not set aside a district court’s findings of fact unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  If there is reasonable evidence to support the district court’s factual findings, this court will not disturb those findings.  See Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999). 

First, appellant contends that the district court erred in its finding that A.J. was born in Illinois.  The record contains a copy of the child’s birth certificate which indicates that the child was born in Sacred Heart General Hospital in Eugene, Oregon.  The record contains no contradictory evidence, nor does either party argue that the child was born in Illinois.  The district court did not state why it disregarded the child’s birth certificate.  Therefore, the finding that the child was born in Illinois is clearly erroneous, and we remand for a finding that is supported by the record.  

Second, appellant argues that the district court erred in finding that the relationship between him and respondent and the conception of the child occurred in Illinois.  Because the record is devoid of evidence about where the parties’ relationship or the conception of the child took place, this finding is clearly erroneous.

Third, appellant argues that the district court erred in finding that respondent’s domicile is Illinois.  In the memorandum in support of her motion to dismiss, respondent argued that her domicile is Harvey, Illinois, and her attorney represented at the hearing that respondent’s domicile is Harvey, Illinois.  But respondent submitted no sworn testimony to the district court.  Her sole evidence in this matter is in the form of representations made by her attorney in his memorandum and at oral argument.  These representations must be treated as hearsay and without evidentiary value.  See State ex rel. Sime v. Pennebaker, 215 Minn. 75, 77-78, 9 N.W.2d 257, 259 (1943) (holding that attorney’s affidavit attesting to facts known by client was hearsay and without evidentiary value absent client’s affidavit).

The only record evidence that gives an address for respondent is A.J.’s birth certificate.  But the address on the birth certificate is 16615 South Halsted Street, Harvey, Illinois 60426, which is the address of respondent’s employer.  In his petition and affidavits, appellant alleges that respondent is a transient who has no permanent address or residence.  In an affidavit, appellant alleged that Austin Diversified’s salespeople stay only two to four months in a state before relocating.  Appellant also alleged that in the six months before respondent brought the child to her mother’s house in Michigan, the child had lived in Utah, Colorado, and California. “Claims founded upon mere hearsay and assertions without proof cannot be accepted in lieu of competent evidence.”  Id.  In view of the record evidence, the district court’s finding that respondent is domiciled in Harvey, Illinois, is clearly erroneous.  Because the record lacks any competent evidence from respondent regarding where the parties’ relationship and the conception of the child took place or where respondent is domiciled, the district court may, in its discretion, re-open the record on remand.   

III.            Requests for Admissions

Appellant argues that the district court erred by not deeming admitted the requests for admissions that he served on respondent.  Minnesota Rule of Civil Procedure 36.01 provides that “[t]he matter is admitted unless within 30 days after service of the request * * * the party to whom the request is directed serves upon the party requesting the admission a written answer.”   The deadline is 45 days if the request for admissions is served with the summons and complaint.  Minn. R. Civ. P. 36.01.

 The record shows that appellant’s requests for admissions were served with the summons and complaint on August 27, 1999.  Respondent did not respond to the requests, and at the October 13, 1999, hearing appellant argued that the requests should be deemed admitted.  By operation of rule, the district court could have deemed the requests admitted because respondent did not answer or object within 45 days of service of the summons and complaint.  But the district court has discretion to waive the rule’s provision deeming the requests automatically admitted.  1A David F. Herr & Roger S. Haydock, Minnesota Practice § 36.4 (1998); see Pleasant Hill Bank v. United States, 60 F.R.D. 1 (W.D. Mo. 1973).   Understandably, the district court did not deem the requests admitted, at least in part, because it dismissed the case.  On remand, the district court must reconsider appellant’s motion to deem the requests admitted.    

IV.            Default Judgment

Appellant argues that the district court erred by not entering a default judgment in his favor.  Minnesota Rule of Civil Procedure 55.01 allows the district court to enter a default judgment against a party who fails to serve an answer within 20 days after service of the summons and complaint.  Minn. R. Civ. P. 55.01; Minn. R. Civ. P. 12.01; see Doe v. Legacy Broad., Inc., 504 N.W.2d 527, 528 (Minn. App. 1993). 

Here, respondent was served with a summons and petition for custody on August 27, 1999, but she did not serve an answer.  And appellant followed the procedure to obtain a default judgment.  See Minn. R. Civ. P. 55.01 (stating that party requesting a default judgment must file an affidavit with the district court).  Therefore, by operation of the rule, the district court could have entered a default judgment.  But courts have discretion to relieve a party from a final judgment for “[m]istake, inadvertence, surprise or excusable neglect” as well as “[a]ny other reason justifying relief from the operation of the judgment.” Minn. R. Civ. P. 60.02(a), (f); see also Gelco Corp. v. Crystal Leasing, Inc. 396 N.W.2d 672, 674 (Minn. App. 1986).  The district court did not reach the default judgment issue because it dismissed the case for lack of jurisdiction.  On remand, the district court must reconsider appellant’s motion for a default judgment.

Reversed and remanded.


[1] Under Minn. Stat. § 645.22 (1998), uniform laws are interpreted to effect their general purpose and to make uniform the laws of those states that enact them.  Therefore, we may properly rely on other state’s interpretations of the UCCJA.  


[2]  Under the Act, a contestant is “a person, including a parent, who claims a right to custody or visitation rights with respect to a child.”  Minn. Stat. § 518A.02 (a) (1998).