In a previous post, I wrote about a case involving the need to serve Respondent in an unknown location overseas. I was baffled at why my practice guide was stating that a signed Notice and Acknowledgment of Receipt (FL-117) did not amount to consent in order for a court to exercise personal jurisdiction over a nonresident. I looked up the case, Marriage of Meredith, (1982) 129 Cal. App. 3d 356, 361-362, and finally found an answer:
Initially, we observe that at least since Pennoyer v. Neff (1878) 95 U.S. 714 [24 L.Ed. 565], the concepts of service of summons and jurisdiction of the person are not coextensive. (Cf. Code Civ. Proc., §§ 410.10 and 410.50 and Judicial Council comments thereto.) Further, service of summons on a nonresident defendant may be sufficient to empower the issuing court to adjudicate the marriage relationship (Williams v. North Carolina (1942) 317 U.S. 287 [87 L.Ed. 279, 63 S.Ct. 207, 143 A.L.R. 1273]) but not to make in personam orders concerning support or child custody. (Kulko v. California Superior Court (1978) 436 U.S. 84 [56 L.Ed.2d 132, 98 S.Ct. 1690];May v. Anderson (1953) 345 U.S. 528 [97 L.Ed. 1221, 73 S.Ct. 840]; Estin v. Estin (1948) 334 U.S. 541 [92 L.Ed. 1561, 68 S.Ct. 1213, 1 A.L.R.2d 1412].) In order to issue an enforceable order for child support, a court must first obtain jurisdiction over the person sought to be ordered. (Kulko v. California Superior Court, supra, 436 U.S. 84.)
Personal jurisdiction may be obtained by consent. (National Rental v. Szukhent (1964) 375 U.S. 311 [11 L.Ed.2d 354, 84 S.Ct. 411]; Harrington v. Superior Court (1924) 194 Cal. 185 [228 P. 15].)
However, we do not think that James gave his consent for the reasons which follow.
Consent implies a concurrence of wills. Callahan v. Municipal Court (1971) 17 Cal.App.3d 1011 [95 Cal.Rptr. 423].) It also implies knowledge of the consequences of the consent. (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564 [146 Cal.Rptr. 653].) The form which James signed did not tell him that his signing and returning it would subject him to the power of a California court to order him to pay money to Jo Anne on pain of fine or jail. Nor did it tell him he would not subject himself to that power if he did not sign and return it. It did tell him that if he did not sign and return it, that he might have to pay “any expenses incurred in serving you ….”
Further, James merely acknowledged receipt of the mailed documents. He acknowledged nothing whatsoever concerning their legal effect.
Under these circumstances, it is clear to us that from James’ signing the acknowledgment of receipt form, we cannot reasonably infer that he consented to the court’s jurisdiction over his person.
I don’t agree with the court’s reasoning. Using the court’s barometer for adequate consent, what is the appropriate amount of consent? If the court’s reasoning were to be extended, any signed statement of consent could be limited for the same reasons. Or, alternatively, why doesn’t the judicial council form just add the consequences of signing the form? Such a weak consent form seems to be rather ineffective.
