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In the MATTER OF the MARRIAGE OF Fatima Mohammad ALBAR, Petitioner-Respondent, and Hazim Yousef NAJJAR, Respondent-Appellant.

Court of Appeals of Oregon2018-05-31No. A161561
424 P.3d 774292 Or. App. 146

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Opinion

majority opinion

SHORR, J.

Father appeals a judgment granting custody of children and awarding child support to mother. We address three of fathers assignments of error. In his first assignment of error, father argues that the trial court erred when it determined that he had waived his objection to the courts personal jurisdiction. We conclude that father did not waive his objection to personal jurisdiction but the court had jurisdiction over father on other grounds, and we affirm the courts jurisdictional determination on that alternative basis. In his third assignment of error, father argues that the trial court erred when it determined his child support obligation based on a calculation of mothers income that excluded monetary gifts from her family. We conclude that the court erred in that respect. In his seventh assignment of error, father argues that the court erred when it made his parenting time conditional on the childrens agreement. We conclude that the court erred in that respect as well. Accordingly, we reverse and remand for the trial court to recalculate fathers child support obligation and amend its parenting plan. As a result of that reversal, we also reverse the trial courts denial of attorney fees to father. Otherwise, we affirm.

I. FACTS AND PROCEDURAL HISTORY

The pertinent facts are undisputed. Father and mother are both citizens of Saudi Arabia. They were married there, had children there, and eventually moved with their children to Oregon under student visas to pursue post-graduate degrees. Later, father repudiated the marriage under Islamic law and obtained a divorce certificate from a local Islamic center. Eventually, fathers visa expired and he moved back to Saudi Arabia, while mother remained in Oregon with the couples minor children. Father has not returned to the United States since that time and has resided in Saudi Arabia and the United Arab Emirates.

Several years after father returned to Saudi Arabia, mother filed a petition for dissolution of marriage in Oregon in which she sought custody of the children and child support. Fathers first filed response to mothers petition was captioned Response to Petition for Dissolution of Marriage and Special Appearance. In that response, father objected that the trial court lacked personal jurisdiction over him because he had insufficient contacts with Oregon. In addition, father objected that the court lacked subject matter jurisdiction over mothers dissolution petition because the couple was already divorced. Finally, father responded to various allegations in mothers petition and requested an award of attorney fees and costs, all without waiving [fathers] affirmative defenses * * * [including] jurisdictional objections.

Father subsequently moved to dismiss mothers petition based on his contention that the trial court lacked personal jurisdiction over him. The court determined that fathers initial response constituted a general appearance that called upon the power of [the] court. As such, the court held that father had waived his opportunity to object to personal jurisdiction. The court then found that it had personal jurisdiction over father based on that waiver and went on to grant various aspects of mothers petition.

Following trial, the court granted custody to mother, allowed father to contact or visit with the children in Oregon subject to their agreement, and imposed on father a monthly child support obligation of $1,412.

II. ANALYSIS

A. Personal Jurisdiction

In his first assignment of error, father contends that the trial court erred when it concluded that he had waived his objection to personal jurisdiction. Father argues that the end result-a judgment that created a personal obligation (child support)-must be reversed. While we determine that father did not waive his objection to the courts personal jurisdiction, we nevertheless conclude that the court had personal jurisdiction over father for the purpose of entering the support order.

1. Father did not waive his objection to personal jurisdiction .

Father argues that he did not waive his objection to the trial courts personal jurisdiction over him because he responded specifically to object to jurisdiction, which was included in his first responsive pleading, and both his response to allegations in mothers petition and his request for fees and costs were made without waiving his jurisdictional defenses.

Objections based on personal jurisdiction are governed by ORCP 21. Although fathers response in this case raised additional defenses, responded to allegations, and sought fees and costs, ORCP 21 A provides that [n]o defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. Similarly, ORCP 21 G(1) provides that, when, as here, a responsive pleading is filed, a defense of lack of personal jurisdiction is not waived if it is included in the responsive pleading, without expressly limiting the other claims, defenses, or responses that may also be included in that same pleading. See Adams and Adams , 173 Or. App. 242, 251, 21 P.3d 171 (2001) (In essence, ORCP 21 G(1) operates as a raise it or waive it requirement [for defenses based on personal jurisdiction].).

Our prior opinions and ORCP 21 broadly permit parties to object to personal jurisdiction in an initial responsive pleading without first making a special appearance solely to challenge jurisdiction. See Dept. of Human Services v. M. C.-C. , 275 Or. App. 121, 124 n. 1, 365 P.3d 533 (2015), rev. den. , 358 Or. 611, 369 P.3d 386 (2016) (As a result of the adoption of the ORCPs, a party * * * need not enter a special appearance in order to raise issues regarding personal jurisdiction * * * but must still raise such issues at the earliest possible time.). Compare Pacific Protective Wear Distributing Co., Inc. v. Banks , 80 Or. App. 101, 105, 720 P.2d 1320 (1986) ([A] defendant may now attack personal jurisdiction before trial as part of a general appearance. (Citing ORCP 21 G(1).) ), with OConnor and Lerner , 70 Or. App. 658, 661-62, 690 P.2d 1095 (1984) (Before moving to dismiss wifes motion for lack of personal jurisdiction, husband moved separately to dissolve a temporary restraining order and for a writ of assistance. * * * [A]fter invoking the power of the court, * * * husband may not contend he has not submitted to the personal jurisdiction of the court.). In this case, father challenged the trial courts exercise of personal jurisdiction at the first opportunity. Father did not respond to mothers petition for dissolution of marriage or otherwise appear before the court in that matter before objecting, in his first responsive pleading, to the courts exercise of personal jurisdiction. Accordingly, father did not waive his objection to the courts jurisdiction over him by raising it along with other responses and requests, as permitted by ORCP 21 A and G, at the earliest possible time in his first responsive pleading.

2. The trial court had personal jurisdiction over father.

A valid judgment imposing a personal obligation on a defendant may be entered only by a court having personal jurisdiction over the defendant. World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed. 2d 490 (1980). Effective personal jurisdiction is subject to both statutory and constitutional requirements. First, a long-arm statute must, under the circumstances presented, confer jurisdiction; second, the courts assertion of jurisdiction must not offend the defendants due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. State ex rel. Sweere v. Crookham , 289 Or. 3, 6, 609 P.2d 361 (1980).

Although the trial court here erred by concluding that father had waived his objection to the courts personal jurisdiction over him, we nevertheless conclude on the merits that the court had personal jurisdiction over father to establish a child support order.

a. Oregons long-arm statutes confer personal jurisdiction over father.

Under ORCP 4 L, Oregons primary long-arm statute, jurisdiction exists in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States. As we will discuss, personal jurisdiction over father in this case is consistent with constitutional standards. Accordingly, ORCP 4 L provided the trial court with long-arm jurisdiction over father for the purpose of resolving his obligations arising from mothers petition for dissolution of marriage.

Because father lives outside of Oregon, his child support obligations in this case are governed by Oregons Uniform Interstate Family Support Act (UIFSA), a long-arm statute which establishes, in relevant part,

"(1) In a proceeding to establish or enforce a support order * * *, a tribunal of this state may exercise personal jurisdiction over a nonresident * * * if:

"* * * * *

"(c) The individual resided with the child in this state; [or]

"* * * * *

(e) The child resides in this state as a result of the acts or directives of the individual[.]

ORS 110.518 ; see also ORS 110.510(1) (A tribunal of this state shall apply [Oregons UIFSA] to a support proceeding involving * * * [a]n obligee, obligor, or child residing in a foreign country.); State ex rel. Simons v. Simons , 265 Or. App. 557, 559, 336 P.3d 557 (2014) (When, as here, the parties reside in different states, a proceeding for the establishment or enforcement of a child support obligation is also subject to [UIFSA].).

Here, the record demonstrates, and the parties do not dispute, that father and mother resided in Oregon with the children for several years before father returned, on his own accord, to Saudi Arabia. Further, the children resided in Oregon solely because father and mother moved here with the children-that is, the children reside here as a result of fathers and mothers acts or directives. Accordingly, the trial court in this case had statutory authority to assert jurisdiction over father for the purpose of establishing a child support order based on ORS 110.518(1)(c) -because father resided here with the children-and ORS 110.518 (1)(e) -because the children lived here due to fathers acts and directives.

b. Personal jurisdiction over father is consistent with due process.

Having determined that the trial court had authority to exercise personal jurisdiction over father under ORCP 4 L and ORS 110.518(1)(c) and (e), we turn to whether such jurisdiction comported with the guarantees of due process. A court may exercise personal jurisdiction over a nonresident consistent with constitutional due process guarantees only if the nonresident has purposefully established sufficient minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington , Office of Unemployment Compensation and Placement , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Based on federal case law construing the due process requirements for personal jurisdiction, the Oregon Supreme Court has explained that the inquiry as to whether specific jurisdiction exists has three aspects:

First, the defendant must have purposefully directed its activities at this state. Second, the litigation must arise out of or relate to at least one of those activities. That particular activity must be a but-for cause of the litigation and provide a basis for an objective determination that the litigation was reasonably foreseeable. Finally, the exercise of jurisdiction must otherwise comport with fair play and substantial justice.

Robinson v. Harley-Davidson Motor Company , 354 Or. 572, 594, 316 P.3d 287 (2013) (internal citations omitted).

Applying the foregoing analysis to this case, we conclude that the trial court had personal jurisdiction over father for the purpose of adjudicating this case because father had sufficient minimum contacts with Oregon and because jurisdiction under the facts of this case comports with traditional notions of fair play and substantial justice. Id .

A person has sufficient minimum contacts with a forum where his or her conduct and connection with the forum State are such that he [or she] should reasonably anticipate being haled into court there. World-Wide Volkswagen Corp ., 444 U.S. at 297, 100 S.Ct. 559. The inquiry into whether a forum state may assert specific jurisdiction over a nonresident defendant focuses on the relationship among the defendant, the forum, and the litigation. Walden v. Fiore , 571 U.S. 277, 281, 134 S.Ct. 1115, 188 L.Ed. 2d 12 (2014) (quoting Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed. 2d 790 (1984) ). In this case, there is a connection between father, Oregon, and this litigation, such that we can conclude that father had sufficient minimum contacts with Oregon for the purpose of this suit.

First, father purposefully and substantially directed his activities at Oregon. Father and mother chose to move to Oregon with their children and establish a life here. The couple raised their children here, and lived, studied, and worked here. Fathers life was centered in Oregon for many years before he returned to Saudi Arabia. Those are precisely the kinds of purposeful contacts that support jurisdiction over father by the Oregon courts. Compare Adams , 173 Or. App. at 247-48, 21 P.3d 171 (relevant contacts by the nonresident husband for determining personal jurisdiction included fact that the husband and the wife moved to Oregon and raised a family here, among other connections), with Kulko v. Superior Court of California , 436 U.S. 84, 97-98, 98 S.Ct. 1690, 56 L.Ed. 2d 132 (1978) (jurisdiction by California court over the father-a New York resident-for child support determination unreasonable where the father acquiesced to the mother and child moving to California and communicated with the wife and child there but otherwise had no meaningful contacts with California).

Second, this case arises directly out of fathers contacts with Oregon. Father unilaterally left Oregon, while mother and children remained in Oregon, and mother petitioned for divorce here. Mothers petition arises directly out of the couples marital and familial relationship as it existed in Oregon. Indeed, that relationship establishes a clear but-for link between fathers contacts with Oregon and the current litigation, as the litigation only arose here because the marital and familial relationship was so firmly established here. What is more, the nature and extent of fathers contacts with Oregon lead to an objective determination that father reasonably should have anticipated that any litigation arising from his marital or familial relationship would arise here.

Father relies on Horn and Horn , 97 Or. App. 177, 775 P.2d 338, rev. den. , 308 Or. 465, 781 P.2d 1214 (1989), to support his argument that he had insufficient minimum contacts with Oregon to support jurisdiction over him. In Horn , the family lived in Oregon before moving to California, after which they ceased to have any meaningful contacts with Oregon. After several years of living in California, the marriage broke up and the mother and children moved back to Oregon, while the father remained in California. The mother initiated dissolution proceedings in Oregon in which she sought determinations related to custody, child support, and division of personal property. At that time, father had communicated with the family in Oregon but otherwise had no meaningful connections with the state. We concluded that fathers contacts with Oregon were insufficient to establish jurisdiction. Id . at 180, 775 P.2d 338.

Father argues that Horn is essentially identical to this case and compels the same outcome here. But Horn is distinguishable. In that case, the family severed ties with Oregon and moved to California. At that point, there was no reason for either parent to expect that Oregon courts retained jurisdiction over potential marital disputes simply by virtue of the fact that the family had once resided there. The mothers unilateral decision to then return to Oregon after her separation from the father likely reestablished jurisdiction in Oregon over her, but her choice did not reestablish contacts with Oregon on the fathers behalf.

In the present case, by contrast, father chose to leave Oregon on his own accord while the rest of the family remained behind. We acknowledge that father has had few, if any, meaningful contacts with Oregon since that time. But that does not diminish his long history of significant and meaningful contacts with the state while he lived here with his family, which includes raising his children here immediately prior to leaving.

We have never directly addressed, in determining whether Oregon courts have jurisdiction over a nonresident parent, whether that parents unilateral decision to leave the state supports the conclusion that that parent lacks minimum contacts with Oregon going forward. But other states have addressed that issue and concluded that the contacts formed with the state while the family lived there were sufficient to satisfy due process guarantees even if the nonresident party had effectively severed all ties with the state. For example, in Panganiban and Panganiban , 54 Conn. App. 634, 736 A.2d 190, cert. den. , 251 Conn. 920, 742 A.2d 359 (1999), a Connecticut case, the appellate court found that the trial court had jurisdiction to impose support on a nonresident spouse who had unilaterally left the state. The Connecticut court determined that the

"defendants contacts with Connecticut prior to leaving were substantial and certainly give rise to specific jurisdiction. The financial orders arise out of the dissolution of a marriage that was entered into in this state, and Connecticut is the place where the defendant conducted the daily activities of his marital life[.] * * * Therefore, the trial court properly concluded that the defendant had sufficient contact with Connecticut to justify the exercise of personal jurisdiction over him.

* * * [I]t is unquestionably reasonable for this state to hale the defendant into court with respect to financial obligations related to his marriage. To hold otherwise would mean that once a married person left the state, no Connecticut court could exercise in personam jurisdiction over that person in a dissolution action brought by the spouse left behind if the departing spouse had no contact with Connecticut between the time of departure and the time that the dissolution action was brought. Such a bizarre result is not warranted under the circumstances of this case.

Id. at 640-42, 736 A.2d 190.

In a similar case out of North Dakota, Catlin and Catlin , 494 N.W.2d 581 (N.D. 1992), the state supreme court determined that the trial court had personal jurisdiction over a nonresident spouse based on sufficient minimum contacts with the state during the marriage. The court affirmed the trial courts jurisdictional determination, concluding that

"[husband] had established significant contacts with North Dakota while living here which satisfied due process requirements, and that those contacts were directly related to the action for divorce and child custody. * * * He was married here, fathered a child there, and spent the first years of his sons life here. North Dakota was the last state in which the family lived before [husbands] temporary [military] assignment in Turkey, and [wife] returned to live in North Dakota after leaving Turkey.

"* * * * *

We also see no relevance in the fact that [husband] voluntarily terminated his contacts with the state. The result of such an argument would be that defendants could render themselves immune from suit in the state by merely packing up and leaving. It is hard to imagine the chaos which would ensure in domestic relations law if one party could defeat jurisdiction merely by exiting the state before the summons is served.

Id. at 590.

We similarly conclude that father established significant, purposeful, and continuing contacts with Oregon when he lived here with mother and their children. Those contacts make it reasonable to hale father into court here to determine his financial obligations arising out of mothers petition for dissolution of marriage. Father cannot avoid the jurisdiction of our courts in this matter simply by voluntarily terminating his contacts with the state.

Third, we conclude that the exercise of personal jurisdiction over father under the facts of this case comports with traditional notions of fair play and substantial justice. That issue turns on a number of factors, including the burden on the defendant of litigating in a foreign jurisdiction; the plaintiffs interest in obtaining convenient and effective relief; the interest of the forum state in adjudicating disputes and vindicating the rights of its citizens; the interstate judicial systems interest in the efficient resolution of controversies; and the shared interest of the several states in furthering fundamental social policies. World-Wide Volkswagen Corp. , 444 U.S. at 292, 100 S.Ct. 559. The foregoing analysis is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present. Kulko , 436 U.S. at 92, 98 S.Ct. 1690 (quoting Hanson v. Denckla , 357 U.S. 235, 246, 78 S.Ct. 1228, 2 L.Ed. 2d 1283 (1958) ).

Turning to this case, we first acknowledge that litigating this action in Oregon is likely inconvenient and burdensome for father, who lives abroad. See Adams , 173 Or. App. at 249, 21 P.3d 171 (acknowledging that the nonresident husband faced burdens by litigating in Oregon, including increased costs, time, and inconvenience compared to litigating where he resided). But, not only does mother face the same burden if child support matters are litigated elsewhere, fathers burden is outweighed by the other interests at stake. Mother and the children have a compelling interest in obtaining convenient relief in Oregon where they reside. And Oregon has a strong interest in establishing and enforcing child support actions on behalf of children who reside here. See Kulko , 436 U.S. at 100, 98 S.Ct. 1690 (explaining that states have substantial interests in protecting resident children and in facilitating child-support actions on behalf of those children); Adams , 173 Or. App. at 249, 21 P.3d 171 (determining in a child support case in which the mother and children live in Oregon and the father lives in California that Oregons interest in providing a forum is substantial). Indeed, all states share a collective interest in ensuring that parents provide for and support their minor children, and that common policy concern is furthered when a courts jurisdictional reach extends to nonresident parents who unilaterally leave the state where the family resides. Accordingly, although father in this case has had limited contacts with Oregon since moving out of the state and has an interest in litigating elsewhere, other factors demonstrate the ultimate reasonableness and fairness of resolving child support issues here.

In sum, we conclude that the trial court had jurisdiction over father for the purpose of establishing a child support order. The court had statutory long-arm authority under ORCP 4 L and ORS 110.518(1)(c) and (e), and jurisdiction under these circumstances was consistent with the requirements of due process. Although the court erroneously concluded that it had jurisdiction over father based on waiver, we affirm on the foregoing alternative basis.

B. Child Support

As part of his third assignment of error, father argues that the trial court erred when it calculated his child support obligations. Specifically, father assigns error to the courts failure to consider mothers periodic gift income from her family when calculating child support.

When a trial court calculates a parents child support obligations, it must rely on a number of factors, including both parents income. ORS 25.275(1) ; Carleton and Carleton , 275 Or. App. 860, 866, 366 P.3d 365 (2015) (To calculate the child support amount, the trial court must determine each parents income as provided by OAR 137-050-0715.). Income is a defined term meaning the actual or potential gross income of a parent. OAR 137-050-0715(1).

Actual income includes, among other things, gifts. OAR 137-050-0715(4)(e).

Here, it is undisputed that mother received periodic cash gifts from her family. Mother testified that, every few month[s], she received between $10,000 and $20,000 from her family and that she had used a gift of $167,000 from her family as a partial payment for her home. It is unclear from the record the sum total of those gifts, when those gifts began, and if or when they ceased. Mother testified that she received her last gift approximately five months before the trial. When the trial court calculated mothers income for the purpose of determining fathers child support obligations, it failed to determine the total amount of mothers gift income and did not factor that income into its calculations.

The trial court did consider whether mothers gift income should apply as a rebuttal factor supporting a downward deviation in fathers support obligation but ultimately decided that those gifts should not be applied as rebuttal factors. See ORS 25.280 (stating that the presumption that a child support obligation determined by statutory formula is correct may be rebutted by a finding that the application of the formula would be unjust or inappropriate in a particular case). Although that ruling indicates that the court considered mothers gift income to some extent when setting child support, father objected specifically to the courts failure to include the gifts as an element of mothers total gross income when the court initially calculated fathers presumptive support obligation.

We conclude that the trial court should have considered mothers gift income as an element of mothers gross income when calculating fathers child support obligation. Mother periodically received large cash gifts from her family on at least a semiregular basis. Gifts of that nature are a component of mothers gross income, which bears directly on fathers child support obligation. Cf. Leif and Leif , 246 Or. App. 511, 516, 519, 266 P.3d 165 (2011) (determining that the fathers cash inheritance was a gift and the trial court properly included the inheritance when calculating fathers gross income to determine his presumptive child support obligation). Accordingly, we reverse and remand the judgment awarding child support to mother for the court to recalculate fathers child support obligation taking into account all of mothers income as defined by OAR 137-050-0715. C. Parenting Time

In his seventh assignment of error, father argues that the trial court erred when it allowed the children to decide whether father could have contact or visit with them. Father argues that the courts order makes his parenting time conditional on the childrens agreement, which is impermissible under Oregon law.

A trial courts decision on parenting time is a matter of discretion that we review accordingly. Murray and Murray , 287 Or. App. 809, 814, 403 P.3d 473 (2017). A court abuses its discretion if its ruling does not lie within the range of legally permissible outcomes. Olson and Olson , 218 Or. App. 1, 16, 178 P.3d 272 (2008). Here, the trial court allowed father parenting time, including telephone and/or Skype contact with the children and in-person visits with the children when he is in Oregon subject to the childrens agreement or as agreed by the children. That is, the court made fathers parenting time conditional on whether and when the children wanted to see or speak to him.

We have previously established that a noncustodial parents parenting time cannot be left up to the custodial parent. In Stewart and Stewart , 256 Or. App. 694, 695-96, 302 P.3d 818 (2013), we concluded that the trial court erred when it let husband make the decision regarding the wifes parenting time. We explained that it is the courts task, not husbands, to develop a parenting plan, including appropriate quality parenting time, in the best interest of the children. Id. at 696, 302 P.3d 818.

Based on Stewart , it would have been impermissible for the trial court in this case to make fathers parenting time conditional on mothers agreement. There is no substantive difference between that and what the court actually did, which was to make fathers parenting time conditional on the childrens agreement. The childrens ability to effectively deny fathers parenting time under the current order is especially problematic in this case, where mother has sole custody of the children and father lives in a different country with limited ability to communicate with the children. We conclude, therefore, that the courts order making the childrens agreement a precondition to fathers parenting time was not within the range of legally permissible outcomes. Accordingly, we reverse and remand for the trial court to develop a parenting plan that does not make fathers parenting time contingent upon the childrens agreement.

D. Attorney Fees

Finally, because we must reverse and remand the trial courts judgment as discussed above, we also reverse the trial courts supplemental judgment denying father an award of attorney fees, which was based on that judgment.

Portion of general judgment awarding child support to mother and setting parenting time reversed and remanded; otherwise affirmed. Supplemental judgment denying attorney fees to father reversed.

We reject fathers second, fourth, fifth, and sixth assignments of error without written discussion.

Under Outdoor Media Dimensions, Inc. v. State of Oregon , 331 Or. 634, 659-60, 20 P.3d 180 (2001), we may, as a matter of discretion, affirm the ruling court on an alternative basis when certain conditions are met. Here, each of the conditions is met. First, whether the trial court had jurisdiction over father is purely a question of law, and there is evidence in the record to support the alternative basis for affirmance. See Adams , 173 Or. App. at 245, 21 P.3d 171 (Jurisdiction is a question of law that we review accordingly.). Relatedly, father could not have created a different record in the trial court that could affect our analysis as we conclude that the trial court had jurisdiction on the facts father presented. Second, as we discuss at 292 Or. App. at 158-59, 424 P.3d at 781-82, the trial court did, in fact, have personal jurisdiction over father for the purpose of establishing a child support order. Third, the courts basis for asserting jurisdiction over father was both erroneous-in that it was based on a legally incorrect determination that father had waived his challenge to jurisdiction-and unnecessary in light of the alternative basis for affirmance-in that the court had personal jurisdiction over father whether or not he waived his jurisdictional challenge.

ORCP 4 K provides long-arm jurisdiction in certain marital and domestic actions. Under that subsection, jurisdiction exists

[i]n any action to enforce personal obligations arising under ORS chapter 106 or 107, if the parties to a marriage have concurrently maintained the same or separate residences or domiciles within this state for a period of six months, notwithstanding departure from this state and acquisition of a residence or domicile in another state or country before filing of such action; but if an action to enforce personal obligations arising under ORS chapter 106 or 107 is not commenced within one year following the date upon which the party who left the state acquired a residence or domicile in another state or country, no jurisdiction is conferred by this subsection in any such action.

ORCP 4 K(2). The Oregon courts would not have jurisdiction over father under that subsection because father left Oregon and established both residence and domicile in another country more than one year before mother petitioned to dissolve the marriage in Oregon.

As part of his third assignment of error, father argues that the trial court erred in denying him discovery regarding mothers gift income and in denying fathers motion for a continuance of the trial to seek such discovery. Because this case is being remanded to address the gift-income issue, we need not resolve those issues here.