### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE December 5, 2000 Session
JANINE S. TAYLOR HINES v. RICHA RD MICHAEL TILIMON
Appeal from the Circuit Court for Knox County No. 82554 Bill Swann, Judge
FILED JANUARY 19, 2001

No. E2000-00912-COA-R3-CV

This is an interstate custody dispute. Janine S. Taylor Hines (“Mother”) filed this action seeking a declaratory

judgment pertainin

g to the custody of th

e parties’ min

or child. She also sought to modify certain foreign orders pertaining to the visitation rights of the defendant, Richard Michael Tilimon (“Father”). The trial court (a) entered a default judgment against Father, (b) dec lared Tennessee to be the child’s home state, (c) decreed that custody would remain with Mother, and (d) limitedFather’s v

isitation to supervised visits in the state of Tennessee. The court later denied Father’s motion to set aside the default judgment. Father appeals, raising issues as to subject matter jurisdiction, in personam jurisdiction, venue, and service of process. He also arg ues that t he trial court erred (1) in denying his request for a continuance of the hearing on the plaintiff’s motion for default judgment;

(2) in not allowing him to participate by telephone in the hearing on his motion to set aside the default judgme nt; (3) in denying hi

s motion to set aside t

he default judgment; (4) in ordering supervised visitation; and (5) in awardingMother her attorney’s fees. By a separate issue, Mother seeks attorney’ s fees for this ap peal. We affir

m and remand for a

hearing to

set Mother’s fees on appeal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case

Remanded with Instr

uctions

C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. Laura Rule, Knoxville, Tennessee, for the appellant, Richard Michael Tilimon.

Jonathan A. Moffa

tt, Knoxville, Tenn

essee, for the a

ppellee, Janine S . Taylor Hines.

Paul G. Summers, Attorne y General and Re

porter, and Kim Be

als, AssistantAttorney General, for the State of Tennessee.

OPINION-2- I. Procedural History

Mother and Father lived together for a period of time in California. They never married. When Mother was seven months pregnant with Father’s child, she moved by herself to Ohio. The minor child, Steve n Michael Til imon, was born in Ohio on October 7, 1985. In January, 1986, Father filed an action in

an Ohio juvenile c

ourt, seeking to

establish patern

ity and obtain

custody of the child. Father’ s paternity was subsequently established, but the juvenile court awarded Mother custody. In later orders, the Ohio juvenile court addressed the issues of child support and visitation.

InFebruary, 1993, Mother and the child moved to Oklahoma, where she eventually married. While Mother was living in Oklahoma, Father filed a petition for changeof custody in California. Prior t o that filing, the Ohio juvenile court had ordered the parties’ case transferred to Oklahoma. The Ohio court had als

o ordered Mother

to file a motion in the appropriate Oklahoma court to
ac complish

this transfer. Mother delayed filing such a motion until May, 1995. Her filing wa s apparently

prompted by Father ’s filing in Califor nia. After the jud

ges of the California an d Oklahoma courts c

onferred, the Ca

lifornia court de

ferred to the Ok

lahoma court.

InJu ly, 1996, Mot her moved with her child and new husb

and to Tennessee . Shortly thereafter, a trial was held in Oklahoma

on Father’s petition to change custody and on the petitions for contempt filed by both parties. By later order, the Oklahoma court denied Father’s petition to modify and ordered

that custody remain with Mother. That court found Mother in contempt for willfully violating the visitation orders of the Ohio court and found Father

in contempt for wil

lfully failing to pay child support. Father was found t

o be $5,903 in

arrears. The court reserved the issue of whether Social Se

curity payments ma

de to Mother for th

e benefit of the child should

be credited against Father’s child support obligation. The parties were ordered to return for sentencing on the findings of contem

pt. When the sentencing hearing was held, Father failed to appear. In an order entered December 30, 1996, the court dismissed the contempt citation against Mother, finding that she had purged herself of contempt. The court issued a bench warrant for Fat her’s arrest and suspended his visitation privileges.

OnJanuary 21, 1999, an order was entered by the Oklahoma court, which order purported to be the result of

a hearing conduc

ted on July

24, 1998, ostensibly on a motion filed by Father to clarify the court’s January 3, 1997, o rd er. In this January 21, 1999, order, the Oklahoma court addressed the issue it had previously reserved, i.e. , whether Father was entitled to a cred it for Social Security payments made to Mother for the benef it of the child. The court found that Father was entitle d to “full credit” against his child support obligation for these payments, a finding whi c h appears to have absolved Father of any child support arrearage as of the date of tha t hearing.

InFebruary, 1999, M

other filed a motio

n in Oklahoma to vacate the January 21, 1999, order, arguing (1) that the recor ds of the Oklahoma court did not reflect that a hearing actually occurred
on July 24, 1998, and (2) that the January 21, 1999, order was entered without notice to her. In March, 1999, Father

domesticated the challenged January 21, 1999, Oklahoma order in California. In Apri l, 1999, Father file d a petition to chan

ge custody in Califo

rnia. Mother file

d a pro s e1 Specific ally, Mother sought to dome sticate (1) the orde r of the Ohio j uvenile cour t entered August 28, 1986, awarding custody of t

he child t

o Mother; (2) t

he order of t

he Ohio j uven ile court entered Sept

ember 1, 1987, se

tting Father’s child suppor

t obligat ion and awarding him visitati on; (3) the orde

r of the Okla

homa court enter

ed January 3, 1997, finding bot

h parties in contempt and s

etting Fa ther’s vi sitat ion; and (4)

the order of the Oklahoma co urt entered December 30, 1996, dismis sing the contempt charge

against Mother, iss

uing a bench warra

nt for Fat her, and sus

pending his visi tation wi th the chi

ld.

2 At the tim e of this filing, F ather’s attorn ey was u naware of the pen ding actio n in the trial co urt.
-3- response challenging California’s jurisdiction and requesting an order recognizing Tennessee as the child’s home state. While the California proceeding was pending, in May, 1999, Mother filed the subject petition in the Kn ox County Circuit Court (“the trial court”), seeking the following relief: (1) a declaratory judgment that Tennessee was the home state of the child; (2) a declaratory judgment that the Oklahoma

court’s order of

January 21, 1999,

was not entitled to

full faith and credit; (3) a declaratory

judgment thatCalifornia lacked subject matter jurisdiction to adjudicate the custody of the child; (4) domestication of foreign judgments relating to the custody, visitation, and support of the minor child 1 ; (5) modi fication of the foreign orders so as to limit Father’s visitation with the child to supervised visits in the state of Tennessee; (6) a temporar y injunction prohibiting Father fromexercising visitation with the child except with supervision and within the state of Tennessee; (7) an order requiring Father to undergo an alcohol assessment; and (8) an award of attorn

ey’s fees. Mother’s petition was sent to Father’s address in California by registered mail, return receipt requested. It was returned to Mother’s attorney, marked “refused.”

OnJune 17, 1999, the Oklahoma court vacated its earlier January 21, 1999, order. It found that Tennessee was the child’s home state and transferred all matters pertaining to custody and visit ation to the trial court. Meanwhile, in an order entered July 2, 1999, the California court
a warded joint cu stody of the child to the parties, with physical custody to Father. Mother was ordered to pay child support. There is no indica tion that the Califor

nia court was ever notified that the Oklahoma court had vacated its January 21, 1999 , o rder. The vacated order was the one that Father had sought to domesticate in California, the proceeding that led to t h e California order awarding Father physical custody.

Mother filed a motion for default judgment in the trial court on August 3, 1999. On September

8, 1999, two days before the sche duled date of the d

efault judgment hearing, Father filed inKnox County Juvenile

Court a moti on for domestication, registration, and enforcement of an order fromthe California co

urt directing the K

nox County Sheriff’ s Department to take the child and hand him over to Father. 2 The California order was domesticated by the Juvenile Court the same day. Based upon that order, officers fro m the Knox C ounty Sheriff’s D epartment and a p

rivate investigator

arrived at the child’s school. Before they could retrieve the child, however, an attorney for the school system a

dvised the Ju

ve nile Court that the subject action was pending in the trial court, and the Juvenile Court immediately set aside its domestication order. At approximately 10 p.m. on September 9, 1999, Father sent a facsimile to the trial court,3 T.C.A. § 36-6-201 et seq. (1996) (repealed 1999).
-4- requesting a continuance of the default judgment hearing in order that he might have additional time to retain an attorney. The hearing proceeded as scheduled the next day, and a default judgment against Father was enter

ed. In its order, t

he trial court: (1) found that Tennessee was the home state of the child; (2) found that the Oklahoma court’s order of June 17, 1999, vacating its January 21, 1999, order rendered moot the issue of whether the latter order was entitled to full faith

and credit; (3) found that the California

court lacked subject matter jurisdiction to adjudicate issues pertaining to t he ch ild’s custody and visitation; (4) domesticated the foreign judgments from Ohio and Oklahoma; (5) held thatcustody of the child should remain with Mother; (6) limited Father’s visitation with the child to supervised visits in the state of Tennessee; (7) ordered Father to undergo
analcohol assessment as a condition precedent to more expanded visitation; and (8) awarded Mother $7,390.58 in attorney’s fees “[a]s an incident of child support.”

Within 30 days of the entry of the default judgment, Father’s attorney filed a notice o f appearance“for the purpose of contesting jurisdiction” and a mo tion to set aside the default judgment. The motion als o sought the dismissal of Mother’s complaint. Following a hearing, at whichFather’s attorney unsuccessfully made an ora l mo tion to allow Father to participate by telephone, the trial court denied Father’s motion to set aside the default judgment. Father a

ppeals, raising nine issue

s, which we resta

te as follows:

1. Did the trial cour

t err in finding tha

t it had subje ct matte r jurisdiction of this matter under the Uniform Child Custody Jurisdiction Act? 3

2. Did the tria

l court err in finding that it had in personam jurisdiction over Father?

3. Did the trial court err in finding that Knox County, Tennessee, was the proper venue to

hear matters touching upon the care, custody, and visitation of the minor child?

4. Did the trial court err in finding that service of process had been properly effected upon Father?

5. Did the trial co u rt violate Father’s constitutionally-protected fundamental ri ght t o parent his son by proceeding with a hearing regarding that right after receiving a facsimile from Father asking for a continuance?

6. Did the trial court abuse its di scret ion in not allowing Fa ther to paraticipate at the default judgment hearing by telephone?4 The UCCJA was subsequently replaced by the Uniform Child Custody Juri sdiction and Enforcement Act

(“UCC JEA”), e ffective Jun e 14, 19 99. See 1999 Tenn. Pub. Acts ch. 389.
-5- 7. Did the trial court ab

use its discretion in denying Father’s motion to set aside the default

judgment and in denying Father’s request for 30 additional days to respond?

8. Did the trial court abuse its dis cretion in modifyin

g the Oklahoma visitat ion order by ordering that all visits between Father and the minor child be supervised?

9. Did t he trial court err in granting Mother attorney’s fees as an incident of child s

upport?

Mother seeks her attorn

ey’s fees incur

red on this appea

l. The Attorney Ge

neral has filed a

brief in defense of the constitutionality of Tenn. R. Civ. P. 4.05(5).

II. Uniform Child Custody Jurisdiction Act

Father raises several

issues – subject matter jurisd iction, in personam jurisdiction, venue, and
s erv ice of process – that i mplicate, at leas

t in part, Tennesse

e’s version of the

Uniform Child Custody Jurisdiction Act

(which version is r

eferred to herein as “the UCCJA”), T.C.A. § 36-6-201 et seq. (1996) (repealed 1999), which was in effect at the time Mother filed the subject petitio

n in the trial court. 4 We will first address the issues implicating the UCCJA. A. Subject Matter Jurisdiction
As a threshold issue, we must determine whether the trial court

had jurisdiction to a

ddress custody and visitation issues in this case. Under the UCCJA, a Tennessee court may not modify the custody decree

of another state

unless two condition

s are met: (1) It appears to the court

of this state that the court which rendered the decree does not

now have juris dicti on under jurisdictional prerequisites substant ially in accordance with this part or has declined to assume jurisdiction to modify the decree; and (2) The court of this state has jurisdiction.

T.C.A. § 36-6-215(a). It is clear that th e trial court prop

erly modified the O

klahoma decree . In its June 17, 1999, order, th

e Oklahoma court

declared Tenne

sse e to be the child’s home state and transferred

all matters pertaining to the child’s custody and visitation to the trial court. Thus, “the court which rendered the decree...declined to assume jurisdiction” over the matter. Id . Moreover,
we find that the trial court had jurisdiction. A Tennessee court has jurisdiction to make a “custody5 Subsection (a) contai ns other bases of j urisdicti on that are not rel

evant to the fact

s of this cas e. -6- determination” if Tennessee is the “home state” of the child at the time of the commencement of the proceeding. 5 T.C.A. § 36-6-203(a)(1)(A). A “custody determi

nation” is defined as “a court decision and court orders and

instructions providing for the custody of a child, including visitation rights.” T.C.A. § 36-6- 202(2). The “h ome state” of the child is defined a

s “the state in whic

h the child immediately

preceding the time involved lived with such child’s parents, a parent or a person acting
as parent, for at le

ast six (6) consec

utive months....” T .C.A. § 36-6-202(5 ). The child resid ed in Tennessee for nearly three yearsp rior to the filing of Mother’s petition i

n Tennessee. Thu

s, Tennessee had jurisdiction to make a custody determination in th

e instant case

because this state was the child’s “home state” at the relevant time, i.e. , “immediately preceding the time involved.” Id

. The “time involved” is “at the time of the commencement of the proceeding,” i.e. , when Mother filed her petition in the trial court. T.C.A. § 36-6-203(a)(1)(A).

Father argues, howeve

r, that the trial c

ourt was preclud

ed from exercis

ing its jurisdic

tio n be cause, so the argument goe s, the California c

ourt had already

properly exerc

ised jurisdic

tio n before Mother filed her petition in Tennessee. He cites T.C.A. § 36-6-207(a), which p ro vides as follows:

A court of this state shall not e

xercise its jurisd

iction under this

part if at the time o f f

iling the petition a proceeding concerning the custody of

the child was pending in a court of another state exercising juri sdiction substantially in con formity with this par

t, unless t

h e proceeding is stayed

by the court of

the other state be

cause this state is a more appropr

iate forum or for

other reasons.

We hold thatTennessee was not precluded from exercising its jurisdiction because, although there was a

proceeding pend

ing in California a

t the time Mother fil

ed her petition in

Tennessee, the California

court was not “exercising jurisdiction substantially in conformity with this part.” Under the California

vers ion of the UCCJA, a California court has jurisdiction to make a child custody determination if a

ny one of the follow

ing conditions are

met: (1) This state (A) is t he home state of the child at the time of commencement

of the proceedin

g, or (B) had

been the child’s h

ome state within six months before commencement of the proceeding and the child is absent from this sta te because

of removal or retention by
a person claiming custody of the child or for other reasons, and a parent or person acting as parent continues to live in this state. (2) It is in the best interest of the child that a court of this state
assume jurisdiction because (A) the child and the child’s parents, or the child and at least one contestant, have

a signific an t connection with this s tate, and (B) there is available in this state substantial6 The California version of the UCCJA was also replaced by a version of

the UCC JEA in 1 999. See 1999 C al. Stat. c h. 867.
-7- evidence c o ncerning the child’s present or future care, protection, training, and person

al relationships. (3) The child is physically present in this state and (A) the child has been abandoned or

(B) it is necessar

y in an emergenc

y to protect the child because the child has been subjected to or threatened wi t h mistreatment

or abuse or is otherwise neglected or dependent. For the pu rposes of this subdivision, “ subjected to or thr

eatened with mis treatment

or abuse” includes a child who has a parent who is a victim of domestic violence, as defined in Section 6211. (4) Both of the following conditions are satisfied: (A) It appears that n

o other state would

have jurisdic

tion und er prerequisites substantially in a cc ordance with paragraph (1), (2), or (3) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child. (B) It is in the best inte rest of the child th

at this court assume jurisdiction. Cal. Fam. Code § 3403(a) (1994) (repealed 1999) (emphasis added). 6

Father argues t hat California properly exercised jurisdiction on the basis of a “significant connection.” See Cal. Fam. Code § 3403(a)(2). Mother, on the other hand, argues that California case law interpr

eting this provision d

oes not support suc

h a result.

Inthe case of Newsome v. Newsome (In re Marriage of Newsome), 80 Cal. Rptr. 2d 555 (Cal. Ct. App. 1998), a case ci ted by Mother, the p

arties lived in

California with their children from 1989 to 1993, when the mother moved with the children to Texas. Id . They lived in Texas for over three years before thefather filed for divorce and sought custody of the children in California. Id. During those three years, the father never visited the childre

n in Texas, and they n

ever visited him in California. Id.

The California

Court of Appeals concluded that California’s version of the UCCJA did not permit a California cour

t to assert jurisdiction on the basis of a significant connection because Texas
was the home

state of the children. It

further found that the California version of the UCCJA “gives preference

to home state jurisdiction.” Id. at 561. The court went on to hold that even if there was
no preference under the UCCJA for home state jurisdiction, the evidence would not support a finding of a significant

connection betwe

en the children a

nd California

sufficient to establish jurisdiction:-8- Under the significant connection test, a California court may assume jurisdiction only if

it is in the best interest of the child, a conclusion whichcannot b e reache d unless it is demonstrated the child and at least one parent

have a significant connection with this state and that there is available in California substantial evidence conc erning the child’s care and relat

ionships with others . The interest of t he child is served when the forum has optimum access to relev ant evidence about the child and family. T here must be maximu

m rather th

a n minimum contact with the state.

Moreov er , the best interest language was not intended to be an invitation to address the merits of the custody dispute in the context of the jurisdictional determination. Rather, the court’s inqu iry i s limited to the determination of whether it is in a better position than another court to decide the merits of the case and thus serve the best interest of the child. Thus, the normal preference is for adjudicating custody disputes in the home state where the children live, where the most evidence of their daily living cond iti ons will be found, where the continuity and stability of their parent al r elationship and the ir daily routines will be least disrupted by the legal procedure.

Id. at 561 (citations and inte rnal quotation mar

ks omitted). The Ca

lifornia appellate court found that “[o]ther than the fact that their father still resided in Califor nia, the re was no other connection between the children and California” at the time the father commenced the divorce proceeding. Id. at 562. The court further found “the bulk of the relevant information, if not all information, relating to the children, their family relationships, their schooling, friends, and their future care, protection and training was in Texas.” Id. The court therefore concluded that because “ther

e were maximum, as opposed to minimum

, contacts with the state of Te

xas,” the Califor

nia court lacked jurisdiction over the issue of child custody. Id.

Like Newsome , the child in the ins tant case has never lived in California. He has not visited Father there since November, 1996. Indeed, the only c onnection the chil

d has with Californ

ia is that his father lives ther

e. Most, if not all, of the relev ant information re

lating to the child is

in Tennessee. We theref

ore con clude that Califor nia lacked a signi

ficant connecti

on upon which it could assert jurisdiction. Accordingly, the trial court correctly found theCalifornia court’s order of July 2, 1999, granting custody to Father w as not entitled to full faith and credit. See Atchley v. Atchley, 585 S.W.2d 614, 617 ( Tenn. Ct. App. 1978) (“Article IV, Section I [of the United States Constitution] does not require a state to give full faith and cre dit to a judgment which is void for lack of jurisdiction.”).

Even if California could properly exercise “significant connection” jurisdiction, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (1994 and Supp. 2000) (“PKPA”), mandates that-9-

Tennessee, not California, ha s jurisdiction in this

case. Section (c

) of the PKPA states , in

pertinent part, as follows:

A child custody determination made by a court of a State is consistent with the provisions of this section only if – (1) such court has jurisdiction under the law of such State; and (2) one of the fol

lowing conditions is m

et: (A) such State (i)

is the hom e State of the child on the date of the commencement

of the proceeding, or

(ii) had been the child’s h

ome State within

six months before the date of the commencement of the proceeding and the child is abs ent from such State be cause of his
remova l or ret ention by a contestant or for other reasons, and a contestant continues to live in such State; (B) (i) it appears that no

other State would hav

e jurisdic tio n under subparagraph (A), and (ii) it is in the best interest of the child that

a court of such State assume jurisdi ction because (I

) the child and his parents, or

the chil d and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning

the chi l d’s present or future care, protection, training, and personal relationships.... (Emphasis

added). Under th

e PKPA, it is appare

nt that C alif

ornia may exercise significant
co nnectionjurisdiction only if no other state has home state jurisdiction

. See 28 U.S.C. § 1738A(c)(2)(B). It is clear that, at the time of the commencement of the proceeding in California, Tennessee was the home state of the child and the

refore had “ho

me state” jurisdiction. Accordingly,
we find and hold that th

e trial court was c orrect in its dual findings, i.e. , that it had subject matter jurisdiction over Mother’s petition and that the California court did not have such jurisdiction when the latter court purported to establish a custodial arrangement regarding the child. Father’s argument to the contrary is

found to be without m

erit.

B. In Personam Jurisdiction

Fat her next argues that, as to the issues of custody and visitation, the minimum contact s necessary to establish in perso n am jurisdiction over him are not present in this case. Under the UCCJA, however, a

Tennessee court may exercise personal jurisdiction over a non-resident parent despite that parent’s lack of minimum contacts with Tennessee. Brown v. Brown , 847 S.W.2d 496, 499 n.2 (Tenn. 1993); Roderick v. Roderick , 776 S.W.2d 533, 535-36 (Tenn. Ct. App. 1989). As
we recently stated in Graham v. Copeland (In re Adoption of Copeland) , C/A No. E1999-01514- COA-R3-CV, 2000 WL 336665, at *3 (Tenn. Ct. App. E.S., filed March 30, 2000):

Generally, a state may not exe rcisepersonal jurisdiction over a nonresident party unless that party has minimumcontacts with the state.-10- International

Shoe Co. v. Washington,326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945). The Supreme Court has not mandated, however, that ev ery jurisdictional analysis include this minimum contacts requirement. In Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977), the Court stated that the rationale of International

Shoe Co. was not meant to “suggest that jurisdictional doctrines other than

those discussed in t

ext, such as the particularized
rules governing adjudic

ation of status, ar

e inconsistent with

th e standard of fairness.” Id. , 433 U.S. at 208 n. 30, 97 S. Ct. at 2582 n. 30.

We have held that “[

c]ases involving t

he custo dy o f children are precisely the type of ‘statu

s’ cases...allud

ed to in Shaffer

v. Heitner .” Fernandez

v. Fernandez, 1986 WL 7935, *2 (Tenn. Ct. App. M.S., filed July 15, 1986). See also Warwick v. Glu ck, 751 P.2 d 1042, 1 045 (Kan. Ct. App. 1988) (“custody is in effect an adjudication of
a child’s status, which fa l ls under the status exception of Shaffer v. Heitner ”). Accordingly, we are persuaded that Tennessee courts may adjudicate child custody issues under the UCCJA even if one of the parents does not have minimum contac ts with Tennessee. See Fernandez, 1986 WL 7935, at *1. (Footnote om itted). Accordingly, we hold that the trial court properly exercised personal jurisdiction over Father in the matters related to custody and visitation.

C. Venue
Next, Father argues that Knox County, Tennessee, was not the proper venue to hear matters relating to the custody and visitation of the child because

, so the argument go

es, California

was the legal domicile of the child. Furthermore, he argues that Tennessee should have declined to

exercise its jurisdiction on th

e basis that it was a

n inconvenient fo

rum.
Father’s first argument is premised upon an assertion

that the California

order granting hi

m physical custody is a valid order. Hence, so t he argument goes, the child’s domicile is that of the person w ho has custod y, i.e. , Father. Theref ore, according

to Father, the chil

d’s domicile is California. Because we have already found that the subject California order is not en titled to full faith and credit, we find that Father’s argument is without merit.

We also find no merit in Father’s argume

nt that Tennessee

is an in conveni ent forum to adjudicate

this case. T.C.A. § 36-6-208(a) provides that a court may decline to exercise jurisdiction “if it finds that it is an in

convenient foru

m t o make a custo dy determination...and that a court of another state is a more appropriate forum.” The factors a court mus t consi der in determining if it is an inconvenient forum include:-11- (1) If another state is or recently was the child’s home state; (2) If another

state has a close

r connection with

the child and fami

ly or with the child an

d one (1) or more o

f the contestants ; (3) If substan ti al evidence concerning the child’s present or future care, protecti

on, training, and p

ersonal relation

ships is more readily available in another state; (4) If the parties hav e agr eed on another f orum which is no less appropriate; and (5 ) If the exercise of

jurisdiction by a c

ourt of this state w

ould contravene any of the purposes stated in § 36-6-201. T.C.A. § 36-6-208(c).

Inrevie wing these factors, we conclude that the trial court did not err in exercising jurisdiction in this case. California has never been the child’s home state. As discussed previously, California

obviously does n ot have a closer connection with the child than does Tennessee. Moreover, because the child has resided in Tennessee since July, 1996, most, if n ot all, of the relevant information pertaining to his care, protection, training, and personal relationships is present inthe state of Tennessee. Finally, we do not find that an e xercise of jurisd

iction in this

case would contravene any of the stated purposes of the UCCJA. This issue is found adverse to Father.

D. Service of Proc

ess
Father argues that service of process was not properly effected upon him. Curiously, h e relies upon Tenn. R. Civ. P. 4.04(10), which provides fo r service by mail o

n defendants within the state

. Inparticular, he c

alls our attention to the following language of Rule 4.04(10): “[s]ervice by mail shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing personal a

cceptance by th

e defendant.... ” Be ca use he did not personally accept service, Father argues that service of process was invalid.
Mother, on the other hand, correctly points

out that service o

f process on a defendant outside of Tennessee is deemed actual and valid if “the addressee or the addressee’s agent[] re fuses to accept delivery, and it

is so stated in the return receipt of the United States PostalService,” and the written return receipt

is returned and filed in the action. See Tenn. R. Civ. P. 4.05( 5). The record r

eflects that the summons and

the complaint with

respect to Mother’s action in the trial court were mailed to Father’s ad dress and w ere returned to Mother’s attorney. The process server indicated on the
summons that the summons a nd compl aint were serve

d “registered, r

eturn receipt r

equested mail returned stamped refused

– see attached.” Accordingly, we find that service of process was valid.

Father argues that Rule 4.05(5) “is unconstitutionally violative of his rights under bot

h the Fifth and Fourteenth Amendments of the United States Constitution.” He cannot raise this argument
on appeal for two r

easons: first

, it was not raised below and, second, Father failed to advise the attorney general at the trial level that he intended to challenge the constitutionality of this particular-12-

provision. When the constitutionality of a statute or a rule is challenged, a litigant must notify the AttorneyGeneral and pro vide him the opportu

nity to be heard at the triallevel. T.C.A. § 29-14-107 (2000); Tenn. R. Civ. P. 24.04. A constitutional issue not raised below will not be considered on appeal unless the provisio n “is so obviously unc

onstitutional on its

face as to obviate the nec essity for any discussion.” Lawrence v. Stanford, 655 S.W.2d 927, 929 ( Tenn. 1983). Tenn

. R. Civ. P. 4.05(5 ) is not “so obviously unc onstitutional on its f

ace” as to warr

ant consideratio

n of this constitutional issue not raised below. The subject issue is without merit.

III. Request for Continuance

Father argues that the trial court violated his constitutional rights when it proceeded with the default judgment hearing in the face of a facsimile from him asking for a continuance. A trial court has broad discretion

in granting or denying a continuance, and we will not reverse such a decision unle ss the court abuses that discretion and causes prejudice to the party seeking the continuance. Sanjines v. Ortwein and Assocs., P.C., 984 S.W.2d 907, 909 (Tenn. 1998). In his facsimile to the trial court, Father asserted that he had not been "served for Tennessee" and that heneeded time to find anattorney. The re

cord reflects,

however, as we have already discussed, that Father had been properly served with process and had failed to respond within the required 30 days. Moreover, there is no indicationin the record as to why Father need ed additional time i

n order to find cou

nsel to represent him in this proceeding. We further note that Father’s assertion that he needed more time is certainly suspect in light of the fact that Fat h er had previously retained local counsel to file a motion to register and enforce the orders of the California court in the Knox County

Juvenile Court. Inlight of these circumstances, we find no abuse of discretion in the trial court’s dec

ision to proceed with the hearing as previously scheduled and as previously noticed to Father.

IV. Request for Telephonic Appearance

Father contends that the t

rial court a

bused its dis cretion in not allowing him to appear telephonically a

t the hearing on his

motion to set aside the defaul t judgment. Father a

sserts in his brief that he could not travel to Tennessee for medical reasons. Furthermore, he asserts that the court below “has conducted many hearings telephonically.” Neither of these asserte

d facts, however, are supported by evidence in the record. Even if the record did support Father’s assertions, however,
we would not be incline

d to say that the tria

l court abused its d

iscretion in not all

owing Father to participate

in the hearing by telephone. See State v. Cazes, 875 S.W.2d 253, 260 (Tenn. 1994) (“It is well-established that a trial judge has broad discretion in controlling the course and conduct of the trial....”). We also note that Father was represented by counsel at the hearing on his motion to set aside default jud

gment. Father’s a

rgument is found to b

e without merit.

V. Motion to Set Aside Default Judgment

Father contends that the t rial court abuse

d its discretion in de

nying his motion to set aside the default judgme

nt.-13-

When a motion to set aside a default jud gment is filed within 30 days of the entry of the judgment, the motion is deemed one for a new trial under

Tenn. R. Civ. P. 59, which affords relief because of mistake, inadve

rtence, surpris

e or excusable neglect. Henson v. Diehl Machines, Inc. , 674 S. W.2d 307, 310 (Tenn. Ct. App. 1984). Father’s motion addresses itself to the trial cour t’ s sound discretion, and

we will not

disturb a trial court’s ruling on such a motion absent an abuse of that discretion. See id

. Up on reviewing the record in this case and for the reasons we have already stat ed in thi s opinion, we cannot

saythat the trial cour

t abused its discre

tion in declining to se

t aside the defau

lt judgment. This issue is found adverse to Father.

VI. Modification of Oklahoma Visitation Order

Father argues that the trial court abused its discretion in modifying the Oklahoma

visitation order and in limiting him to supervised visitation.

We cannot say that the

trial court abuse

d its discretion in modif

ying Father’s visita

tion with the child. At

trial, Mother expressed her c oncern that Fathe

r abused alcohol . She was also concerned

that if Father

had unsupervised visitation with the child that Father would take the chi

ld and not return him to he

r. The child testif

ied that during his la

st visit with Father in

California, he
was frightened because he knew Father “had a gun, and I have seen his collection of alcohol, and he has a knife, and those are not good combinations, and I did not feel safe there.” The trial court did not abuse its discretion in modifying Father’s visitation. We affirm the trial c ourt on this

issue.

VII. Attorney’s Fees Finally, Father argues that the trial court erred in awarding Mother her attorney’s fees – in the court’s words – “as an incident of child support.”

As we have already discussed, the trial court’s basis of power in this case, i.e. , jurisdiction, to make a custody determination is grounded in the UCCJA. However, the UCCJA cannot

serve as a jurisdictional basis for an award of attorney’s fees. The UCCJA expressly states that a “‘[c]ustody determination’ does not

include a decision relating to child support or any other monetary obligation of any person.” T.C.A. § 36-6-202(2). Thus, although a court can make a “custody determination” under the UCCJA despite a defendant parent’s lack of minimum contacts wit

h the forum state, see Brown v. Brown , 847 S.W.2d 496, 499 n.2 (Tenn. 1993), a trial court must have “minimum contacts” in personam jurisdiction before it can adjudicate a claim involving a parent’s monetary obligations. See Overby v. Overby , 224 Tenn. 523, 526-27, 457 S.W.2d 851, 852 (1970) (requiring personal jurisdiction to adju dicate child suppo

rt claim); Roderick v. Roderick , 776 S.W.2d 533, 535 (Tenn. Ct. App. 1989) (sam e); see also In re Marriage of O’Connor , 690 P.2d 1095, 1097 ( Or. Ct. App. 1984) (“Without some act by the nonresident sp

ouse which confers personal jurisdiction over him, such as consent or

a general appe

arance in the action, the court may not enter an order affecting-14-

that spouse’s monetary obligations or rights.”). We must therefore determine whether the trial court properly exercised in personam jurisdiction over Father in awarding attorney’s fees to Mother.

Under the Federal Constitution, a defendant who is a non-resident may be subjected to a money judgment only if he or she has “minimum contacts with [the f orum] s uch that the maintenance of the suit does not off end traditional notions of fair play and substantial justice.” International

Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945) (internal quotation marks omit ted); Masada Inv. Corp. v. Allen , 697 S.W.2d 332, 334 (Tenn. 1985). See also T.C.A. § 20-2-214(a) (1994), the Tennessee Long A rm Statute. The “mi

nimum contacts” test is a two-step a

nalysis:
First, it requir

es t he court to identify the contacts between the nonresident and the forum. Second, it require s the co urt to determine whether exercising pers

onal j u risdiction based o

n these contacts i

s consistent with traditional notions of fair play and substantial justice. Both steps call

for a careful,

not mechanical,

analysis of the facts of each casewith particular focus on the defendant, the forum, and the nature of the litigation.

The first step of the analysis is primarily a fact-gathering exerc ise

. The seco nd step involves some subjective value judgment by the court concerning the quality and nature of the defe n dant’s contacts with the forum and the fair and orderl y adm inistration of the law. The court’ s ju dgment should be informed by considering, among other matters: the burden

on the defendant, the interests of the forum state, the plaintiff’s interest in obtaining relief, the judicial system’s interest in obtaining the most e

fficie nt re solution of controv

ersies, and the state’s shared interest in furthering fundamental, substantive social policies.

Davis Kidd Booksellers, In c. v. Day-Im pex, Ltd. , 832 S.W.2d 572, 575 (Tenn. Ct. App. 1992) (citations omitted) . As stated by the Un ited States Supreme

Court:

The application of [th

e minimum contacts]

rule will vary with the quality and the nature of the defendan t’s activity, but it is

essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conductingactivities within the forum State, thus invoking t

he benefits and p

rotections of its la

ws.
Hanson v. Denckla , 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283 (1958).

The trial court found that it had in personam jurisdiction in this case “inasmuch

as [Father] initiated an action in the Juv

enile Court for Kn

ox County, Tennesse

e on 8 September 1999, against-15-

[Mother] reg arding the sam e subject matter. ” We find and hold that the trial cour

t was correct in finding that

Father’s conduc

t created minimum c

ontacts sufficie

nt to exercise

personal jurisdiction inthis case. Father sought to register and enforce orders of the California court aw ardin g him physical custody of the child and ordering Mother to p ay child support

. By so doi ng, Father purposefully

availed himself

of the benefits and protections of Tennessee law. Those laws include T.C.A. § 36-5-103(c), which authorizes an award of fees to a custodial parent who is required to

file
ordefe nd an action pertaining to the custody or support of a minor child. When the t rial cour t decreed an award of atto

rney’s fees, it d

id so only after Fat

her established m

inimum contacts with the st ate of Tennessee. Furthermore, we do not find that an exercise of jurisdiction in t his cas e would be impermissibly bur

densome upon Father, when he has already chosen to avail himself of the Tennessee court system by seeking to enforce a custody and support order from a foreign jurisdiction. We therefore find that the trial court’s exercise of in personam jurisdiction over Father doe s not offend the “traditional notions of fair play and substantial justice” contemplated by International Shoe

. Mother also seeks her at

torney’s fees in

curred on this app

eal. We find

that she is entitled

to such an award and therefore remand this case to the trial court for a

determination of a

reasonable fee. See D v. K, 917 S.W.2d 682, 687 (Tenn. Ct. App. 1995) (on petition for rehearing).

VIII. Conclusion The judgment of the

trial court is in all

respects affirmed. Costs on appeal are taxed to the appellant. This case is remanded for a determination of an award to Mother of her attorney’s fees incurred on this appeal, for enforcement of the judgment, and for collection

of costs assessed below, all pursuant to applicable law.

___________________________________ CHARLES D. SUSANO, JR., JUDGE