* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-20628

Summary Calendar

_______________

STEPHEN FROLICH,

Plaintiff-Appellant,

VERSUS

ORANGE COUNTY SUPPORT COLLECTION UNIT

and

KATHLEEN COMFORT,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-98-CV-1285)

_________________________

March 11, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Stephen Frolich sought a declaratory judgment that the

garnishment order obtained by Kathleen Comfort against his wages is

null by virtue of having been obtained from a court lacking in

personam jurisdiction over him. As did the district court, we find

Frolich’s claim foreclosed by res judicata, so we affirm.
2

I.

A.

Frolich was born in New York but moved to Kansas at the age of

six months. He returned to New York to attend college and married

Comfort in 1974. Although Frolich and Comfort spent their wedding

night in New York, they never resided there while married.

Furthermore, their two children were not born in New York.

Regrettably, the marriage did not last, and the two entered

into a signed agreement regarding custody, support, and property in

1979. Frolich executed the agreement in Georgia and Comfort in New

York. The agreement was incorporated into a judgment of divorce

issued by a New York court in 1979. This divorce was granted by

default; Frolich did not appear and agreed not to contest the

divorce so long as the separation agreement was incorporated into

the divorce decree.

Since the divorce, Frolich has lived in Georgia and Texas,

while his ex-wife Comfort and his children have lived in New York.

Except for his child support payments, Frolich has not had any

arguable contacts with New York since the divorce.

In 1985, a Texas Attorney General's action was instituted (by

Comfort and a New York family court) against Frolich to enforce

child support payments and arrearage. Frolich complied with the

Attorney General’s order.

B.

In 1996, Comfort initiated a proceeding in New York to
3

increase Frolich’s child support obligations to his now-emancipated

children. Frolich responded by contesting New York’s right to

assert in personam jurisdiction.

A New York family court judge agreed with Frolich, noting that

the requirements of New York’s long arm statute had not been met,

but was reversed by an appellate court that held that jurisdiction

under New York’s Family Court Act § 154(b)(4), under which Comfort

had sued, is not limited by the New York long arm statute. Under

the Family Court Act, a family court may exercise personal

jurisdiction over a non-custodial, non-resident parent solely on

the basis that he has furnished support for children residing in

New York. 

On remand, the family court judge exercised jurisdiction over

Frolich and made new findings, enabling the Orange County Support

Collection Unit (“OCSU”) to issue a garnishment order. Frolich

filed the instant petition for declaratory judgment, asserting that

New York violated his due process rights by issuing a garnishment

order against him in the absence of in personam jurisdiction

pursuant to an unconstitutional statute (Family Court Act

§ 154(b)(4)). The federal district court dismissed his petition,

holding that res judicata barred him from proceeding with his

claim, and, in any event, that New York had properly exercised

personal jurisdiction.

II.

On appeal, Frolich reiterates his arguments that the Family
4

Court Act § 154(b)(4) is unconstitutional and that New York lacked

jurisdiction over him. We review both of these legal issues

de novo. See Byram v. United States, 705 F.2d 1418, 1421 (5th Cir.

1983). Finding each of these arguments precluded by res judicata,

we affirm.

A.

As the district court correctly explained, res judicata

prevents a plaintiff from relitigating an already-decided claim.

See Kaspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d

530, 535 (5th Cir. 1978). For res judicata to apply, the following

elements must be satisfied: (1) The parties to the previous suit

and the instant suit must be identical; (2) the prior judgment must

have been rendered by a court of competent jurisdiction; (3) the

prior judgment must have been final and on the merits; and (4) the

instant suit must involve the same cause of action. Nilsen v. City

of Moss Point, 701 F.2d 556, 559 (5th Cir. 1983) (en banc).

That the parties are identical, and that the prior judgment

regarding New York’s jurisdiction was final and on the merits, are

not in dispute. Rather, the parties disagree over whether the

prior judgment was rendered by a court of competent jurisdiction

and whether the instant suit involves the same cause of action.

B.

Frolich entered a limited appearance in the New York court to

contest its jurisdiction over him. In so doing, he voluntarily
5

acquiesced to that court’s jurisdiction over him for the limited

purpose of determining this question of jurisdiction. See Deckert

v. Wachovia Student Fin. Servs., Inc., 963 F.2d 816, 818-19 (5th

Cir. 1992); see also 18 MOORE’S FEDERAL PRACTICE § 131.30[1][e]

(Matthew Bender 3d ed. 1998). As a result, that court’s holding on

the issue of in personam jurisdiction is binding on Frolich. See

Deckert, 963 F.2d at 819; 18 MOORE’S FEDERAL PRACTICE § 131.30[1][e]

(Matthew Bender 3d ed. 1998).

C.

Frolich’s challenge to the constitutionality of New York’s

long arm statute is likewise barred by res judicata, for this claim

constitutes a challenge to New York’s jurisdiction over him. Res

judicata bars the making of arguments forsaken as well as those

previously made when their target is an identical cause of action.

Travelers Ins. Co. v. St. Jude Hosp., 37 F.3d 193, 195 (5th Cir.

1994). More specifically, “the critical issue is not . . . the

theory asserted but whether [the] plaintiff bases the two actions

on the same nucleus of operative facts.” Id. (citations omitted).

The challenge to the constitutionality of the long arm statute is

simply another argument as to why New York lacks in personam

jurisdictionSSa claim arising from the “same nucleus of operative

facts” as the previously litigated 1996 claim and therefore

precluded by res judicata.

Frolich attempts to evade res judicata by trying to squeeze

his argument into one of the narrow exceptions to the doctrine:
6

that of a change in law affecting one’s constitutional rights. See

Jackson v. DeSoto Parish Sch. Bd., 585 F.2d 726, 729 (5th Cir.

1978). Under this exception, courts have allowed a claimant to

relitigate an otherwise precluded constitutional claim if a

significant intervening change in the law has occurred. See id.;

Parnell v. Rapides Parish Sch. Bd., 563 F.2d 180, 185 (5th Cir.

1977). While there is some authority to the contrary, this court

has limited this exception to issues concerning constitutional

rights. See, e.g., Erspan v. Badgett, 659 F.2d 26, 27-28 (5th Cir.

Unit A Oct. 1981) (per curiam); see also 18 MOORE’S FEDERAL PRACTICE

§ 131.21[2] (Matthew Bender 3d ed. 1998).

Frolich’s claim does not qualify for this exception, because

it does not implicate an alteration in the law affecting his

constitutional rights. Although Frolich alleges the infringement

of his due process right to be free from the jurisdictional reach

of a state lacking “minimum contacts” with him, see Kulko v.

Superior Ct., 436 U.S. 84, 92 (1978), the change in law at issue

here is not one of constitutional consequence. The change in law

upon which Frolich seeks an exception to res judicata concerns New

York’s statutory basis for exercising jurisdiction, not its

constitutional basis. The repeal of the statute does nothing to

alter New York’s right to exercise jurisdiction over Frolich as a

constitutional matter and therefore does not amount to a change in

law capable of supporting the res judicata exception that Frolich
 

1 Frolich insinuates that the statute was repealed because it was believed

to be unconstitutional. Finding no support for this inference, we do not address

what effect such evidence would have on our analysis.

7

seeks.1

AFFIRMED.