April 27, 1977

Mr. Charles P. Schroyer 
Hughes County State's Attorney 
Pierre, South Dakota 57501

Official Opinion No. 77-38

Obtaining jurisdiction of defendant under Uniform Reciprocal Enforcement of Support Act

Dear Mr. Schroyer:

You have requested an interpretation of SDCL 25-9-13 which provides: 
    
When the court of this state, acting as a responding state, receives from the court of an initiating state the aforesaid copies, it shall: 
     
(1)  Docket the cause; 
     (2)  Notify the state's attorney; 
     (3)  Set a time and place for a hearing; and 
     (4)  Take such action as is necessary in accordance
with the laws of this state to obtain jurisdiction.

The specific questions you have asked are:

QUESTIONS: 

1.  In an action commenced pursuant to SDCL 25-9, where there is a foreign divorce decree, may the State's Attorney commence the action by filing an Order to Show Cause similar to commencing such an action on an in- state divorce decree? 
    
2.  May the State's Attorney commence an action pursuant to 25-9 by an Order to Show Cause where the child support obligation is not claimed pursuant to a divorce decree?

IN RE QUESTION NO. 1:

In a reciprocal enforcement of support action in which South Dakota is the responding state, the courts of this state are enforcing an obligation incurred in another jurisdiction, and a prerequisite to enforcement is obtaining personal jurisdiction of the defendant in this state.  This requires compliance with the procedural guidelines established by law.  Pousson v. Superior Court in and for San Diego County, 332 P.2d 766.

Subdivision (4) of SDCL 25-9-13 provides that a court in this state, upon receiving the required documents from an initiating state shall “take such action as is necessary in accordance with the laws of this state to obtain jurisdiction” over the named defendant in a reciprocal support action.  The laws of this state regarding jurisdiction in civil matters are SDCL 15-6-3, 15-2-30 and 15-2-31, and provide that a civil action is commenced when a defendant is served with a summons.  Absent a specific statutory exception, the summons is a jurisdictional requirement and a court can only acquire jurisdiction upon its issuance and service.  Black v. Circuit Court of 8th Judicial Circuit, 78 S.D. 302, 101 N.W.2d 520; Ayers, Weatherwax and Reid Co. v. Sundback, 3 S.D. 31, 58 N.W. 4.
     
In my opinion, the filling of an order to show cause does not meet the statutory procedural requirements for obtaining jurisdiction over a defendant.  (See 1957-58 AGR 72.)  The law does not presently provide for this method of acquiring jurisdiction. The show cause procedure is only available when the court has, for example, previously acquired jurisdiction over the parties by virtue of a divorce decree or other order for support.  The answer to your first question is no.

IN RE QUESTION NO. 2:

The answer to your second question is also no.  By definition, the duty to support includes any duty imposed by law whether or not pursuant to a court order (SDCL 25-9-1(6)).  Therefore, an enforcement action based on a duty other than court imposed also requires compliance with the procedures outlined in SDCL 25-9. Jurisdiction over a defendant can only be obtained as explained in my answer to your first question.

Respectfully submitted,

William J. Janklow
Attorney General

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