Powers v. DISTRICT COURT OF TULSA COUNTY

T1 These two proceedings involve challenges to in personam jurisdiction made by a husband to the matrimonial-based claims of his wife. We adjudicate both proceedings by a single opinion without consolidation. We hold in No. 105,611 that the record presented in the extraordinary writ proceeding is insufficient to challenge the district court's order. We hold in No. 106,482 that the district court's order sustaining in personam jurisdiction over the husband is in error because (1) Husband's motion challenged the facial sufficiency of Wife's petition, as amended, and not the factual basis of in personam jurisdiction over Husband, and (2) the trial court's reliance upon facts appearing beyond the face of the pleadings is an application of an incorrect standard for testing the facial sufficiency of those pleadings.1 We deny prohibition in No. 105,611. In No. 106,482 we deny prohibition in part, and grant prohibition in part to prevent enforcement of the District Court's order and direct the trial court to provide a full and fair opportunity for the parties to present any evidence on the issue of in personam jurisdiction. We assume original jurisdiction pursuant to Okla. Const. Art. 7 § 4 to explain procedure when challenging the sufficiency of in personam jurisdiction allegations involving 48 0.8.Supp. 2004 § 601-201 of Oklahoma's version of the Uniform Interstate Family Support Act.

I. No. 105,611

{ 2 Husband and Wife resided in the State of Missouri. Wife moved to Oklahoma and a few days later filed an action seeking legal separation, alimony, child support, child custody and attorney's fees.2 Two days later Husband filed an action for divorcee in Missouri. Husband was served with process in the Oklahoma proceeding but did not answer or otherwise plead within the time allowed by 12 O.S8.Supp. 2004 § 2012, and 12 0.8.2001 §§ 2026, 2027, and District Court Rule 28 *1066Wife, with notice to Husband, filed a motion for default judgment.3

T3 After the time to answer or otherwise plead, Husband filed a special appearance with a motion to dismiss challenging in per-sonam jurisdiction. The trial court held one hearing, without adjudicating the motion to dismiss, and allowed Wife time to amend her petition. The trial court then held a hearing, determined Husband was in default, declined to consider the motion to dismiss, took evi-denee on the issue of temporary support, and issued an order for temporary support. Husband then filed a motion to vacate the temporary support order and requested that the trial court consider his motion to dismiss.

T4 During a trial court hearing, discussion was had whether Husband's motion to dismiss could be considered when the trial court had not granted Husband leave to file out of time, and whether a request for such leave would waive in personam jurisdiction. Prior to expiration of the time to answer or otherwise plead, a party may request additional time pursuant to 12 O.S. 2001 § 2006(B)(1) to file a special appearance and motion to dismiss for lack of in personam jurisdiction without waiving the defense of lack of in personam jurisdiction.4 A request for extension of time pursuant to § 2006(B)(2) may be granted to file a special appearance and motion to dismiss without waiving in personam jurisdiction if the failure to act timely was the result of excusable neglect. Thus, a trial court's denial of either a § 2006(B)(1) or § 2006(B)(2) motion combined with a special appearance does not act to waive a defendant's defense of a lack of in personam jurisdiction.

15 Husband's special appearance and motion to dismiss filed after his time to answer or otherwise plead without leave of court, or having been treated by the court as timely, is a nullity and of no effect.5 Husband's untimely motion to dismiss and special appearance filed without leave of court was not an appearance, but the filing did not waive in personam jurisdiction. Husband's failure to answer or otherwise plead within the time allowed by the Pleading Code resulted in a default "judgment" for temporary child support, but did not waive his in per-sonam jurisdiction defense.6

16 Federal court opinions discussing challenges to in personam jurisdiction, both pre- and post-adoption of the Oklahoma Pleading Code, state that when a motion to dismiss for lack of in personam jurisdiction is filed "the district court must accept as true the allegations set forth in the complaint to the extent they are uncontroverted by defendant's affidavits." Ten Mile Industrial Park v. Western Plains Service Corp., 810 F.2d 1518, 1524 (10th Cir.1987).7 Prior to trial, *1067when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing.8 In federal courts "If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party."9 When an evidentiary hearing is held to resolve factual disputes relating to in person-am jurisdiction, the party asserting jurisdiction "has the burden to prove facts supporting jurisdiction by a preponderance of the evidence." Federal Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir.1992). When facts outside of the pleadings are submitted on the issue of in personam jurisdiction, a motion to dismiss is not converted to a motion for summary judgment unless resolution of the jurisdictional question is intertwined with the merits of the cause of action.10 The attacks upon jurisdiction are thus classified as motions attacking the sufficiency of the complaint, motions which raise extra-pleading facts, and motions that contest jurisdictional facts that are intertwined with the merits of the action.11

T7 In courts of this state, a special appearance with a motion to dismiss is a proper method to challenge in personam jurisdiction.12 While every provision of District Court Rule 4 does not govern each and every motion filed in a District Court,13 Rule 4 does govern motions to dismiss for a lack of in personam jurisdiction.14 Authors have explained that a defendant challenging in per-sonam jurisdiction has an initial procedural burden to raise the facts challenging in per-sonam jurisdiction.

*1068The defendant initially has the burden of challenging the propriety of a summons, jurisdiction, or venue, but once this is done, the burden of proof shifts to the plaintiff. To satisfy the initial burden, a defendant will ordinarily need to accompany a motion to dismiss with an affidavit from either a person with knowledge of the facts, if possible, or otherwise by an attorney who states what the proof would show at a hearing.

David S. Clark & Charles W. Adams, Oklahoma Civil Pretrial Procedure Jurisdiction, Service of Process, Venue, Motions to Dismiss Under Section 2012, § 10.1, 258, 257 (1995).

Normally, motions seeking a dismissal for lack of personal jurisdiction are accompanied by detailed affidavits setting forth the absence of contacts with Oklahoma. Conversely, responses to the motion are also accompanied by affidavits attempting to establish the sufficiency of the contacts to warrant the assertion of personal jurisdiction.

1-A Charles W. Adams & Daniel J. Bou-dreau, Vernon's Oklahoma Forms 2d: Civil Procedure, Motion to Dismiss-Lack of Jurisdiction Over the Person, § 4.4, 195, 196 (1999).

This Court has often explained that when in personam jurisdiction is challenged the jurisdiction over a non-resident defendant cannot be inferred, but must affirmatively appear from the trial court record, and the burden of proof in the trial court is upon the party asserting that jurisdiction exists.15 However, in personam jurisdiction may be waived by a defendant by a mere failure to object in a timely manner,16 and so a defendant has a procedural burden to place the challenge before the trial court at the proper time and in the proper form.

18 Approximately twenty years ago this Court stated that a motion may raise an issue of fact pursuant to Rule 4(c) of the Rules for District Courts. In Mott v. Carlson, 1990 OK 10, 786 P.2d 1247, we observed that "Motions raising fact issues shall be verified by a person having knowledge of the facts, if possible; otherwise, a verified statement of counsel of what the proof will show will suffice until a hearing or stipulation can be provided." Id. at 1251. We explained more recently that "The scope of Rule 4 includes motions not involving the merits of the action; and facts material to such motions, when contested, must be tried by the appropriate trier of fact." Crest Infiniti, II, LP v. Swinton, 2007 OK 77, ¶ 10, 174 P.3d 996, 1002. The procedure for raising facts in support of a pre-trial motion has been well-settled. Husband's motion to dismiss was not accompanied by affidavit of Husband or by counsel showing what proof would show at an evidentiary hearing to adjudicate contested facts. The motion was not accompanied by an evidentiary substitute.17 Husband's § 2012(B)(2) motion to dismiss challenging in personam jurisdiction thus challenges the facial sufficiency of Wife's petition, and our usual analysis would now discuss the facial sufficiency of Wife's petition for showing facts for long-arm jurisdiction based upon a standard of notice pleading. But additional analysis of the parties' respective burdens in the trial court is not necessary due to the *1069state of the record in this writ proceeding.18

T9 Husband filed a motion to vacate the default "judgment" with a request for the trial court to hear his previously filed motion to dismiss. Husband's Summary of Record in his brief states that the trial court's hearing decided both the motion to dismiss and motion to vacate, and that the trial court concluded that in personam jurisdiction was present under the Uniform Interstate Family Support Act, and that the trial court did not rely on a theory of default by Husband used by the trial court at a previous hearing. Brief at page 5.19 Husband cites to "Appendix, Exhibit A, page 6" in support of his statement. Exhibit A is the docket sheet that shows a minute entry stating that the motion to dismiss is denied and the motion to vacate is overruled. No reason is given in the minute entry for denying the motion to dismiss and overruling the motion to vacate. However, the actual Journal Entry signed by the judge, "Exhibit T" in Petitioner's Appendix, states that the matter before the court is a motion to vacate, has no statement concerning why the motion to vacate is overruled, and contains no reference or citation to either the U.LF.S.A. or the motion to dismiss. Wife does not state in her Response/Brief in this Court what happened at the hearing on the motion to vacate, and thus there is no admission by her brief on this issue.20 She does make a general unspecified objection to statements of fact in Husband's filings that are unsupported by ree-ord, affidavit, or verification in the trial court and "in this Original Action." Response, at 4. Generally, a journal entry controls over an inconsistent minute entry.21 We would ordinarily examine the rest of the trial court record before us to determine if the record is sufficient to inform the Court what actually happened in the trial court, and if a true inconsistency exists between the minute and journal entry or whether they may be harmonized.

T10 This proceeding is not an appeal, but a challenge to a District Court's order in an action independent of the one before the trial court, and we examine the arguments presented to the trial court that appear in the record prepared for us by the parties Christian v. Gray, 2008 OK 10, ¶ 15, 65 P.3d 591, 600. In an appeal the procedural burden to produce a record sufficient to review assigned error is on the party *1070assigning the error,22 and in a supervisory writ proceeding the procedural burden to produce a record sufficient to review the trial court's alleged error is on the party alleging the error.23 This means that Husband must prove a negative in the writ proceeding, i.e., that Wife failed to meet her burden in the trial court, either a notice-pleading burden when the face of the petition is challenged or factual burden when facts are contested by a procedurally proper method.24 He may meet this burden by making a record in the writ proceeding that includes the submissions involving jurisdiction that were filed by the Wife in the trial court and making a record in the writ proceeding of the trial court's adjudication of those submissions.

{11 Husband's record in this Court includes the trial court docket which shows that Wife filed a response to the motion to vacate. But Husband does not include in this writ proceeding a copy of Wife's response to the motion to vacate that was filed in the trial court.25 Wife states in her brief in this writ proceeding that "Mr. Powers never denied Mrs. Powers' affidavits," but the brief does not identify the location in the trial court record or record of this writ proceeding where these affidavits occur. Brief at 11. Husband does not refer to Wife's affidavits. Husband did not file in this Court a narrative statement, signed by the trial judge, of the hearing on the motion to vacate, or a transcript of the hearing on the motion to vacate, or an affidavit by counsel stating the claims by the parties made on the motion to vacate and response, or an affidavit stating the nature of the adjudication by the trial court on the motion to vacate. The trial court's journal entry indicates that a motion to vacate was adjudicated, but the record in this writ proceeding does not show what claims were actually adjudicated.

112 In sum, due to the state of the record presented to this Court, no conclusion may be reached whether (1) the trial court considered the temporary support order as an intermediate order 26 not subject *1071to review by a premature § 1031.1 request 27 and denied the motion on a procedural ground,28 or (2) if the trial court disregarded Husband's invocation of § 1081.1 and ruled on the merits of husband's jurisdictional defense based upon Wife's affidavits not before us in this writ proceeding, or upon some other basis.29 The record before us in No. 105,611 is insufficient to show that the District Court is proceeding without in personam jurisdiction of the husband and Husband's burden for showing the requisite elements for prohibition has not been satisfied. We thus decline to issue prohibition in No. 105,611.

II. No. 106,482

A. Husband's Challenge to the Allegations in the Petition

113 Wife filed a petition for divorce in a second proceeding in Tulsa County. Husband filed a special appearance and motion to dismiss for lack of in personam jurisdiction. The trial court granted the motion to dismiss. Wife sought reconsideration, and after a response by Husband and reply by Wife, the trial court granted the motion and vacated its earlier order. The trial court's ruling stated that Oklahoma was the "home state" of the child and that a Missouri court had agreed that the divorce as well as eusto-dy and support issues should be decided in Oklahoma.30 The trial court also ruled that Taylor v. Taylor, 1985 OK CIV APP 26, 709 P.2d 707 (released for publication by order of the Court of Civil Appeals), gave it jurisdiction to determine the request for divorce and child custody, and indicated that the Missouri court's orders directing Husband to litigate the divorcee, custody, and support issues in Oklahoma provided a separate jurisdictional basis. |

T14 Husband filed a special appearance and motion to dismiss in the District Court. The motion states that a divorcee proceeding is pending in Missouri between the parties, but the motion has no affidavit or evidentiary substitute bringing that fact before the trial court.31 Husband filed no affi*1072davits or evidentiary substitutes challenging the alleged facts in Wife's petition, and so we construe his jurisdictional challenge as one attacking the facial sufficiency of Wife's petition.32 The motion to dismiss was granted and Wife requested reconsideration by a motion with attached photocopies of legal authority. Husband's Response to Motion for Reconsideration was not accompanied by affidavit, did not contest any issue of fact, and thus contained only legal argument. We accordingly construe his response to the motion for reconsideration as a continuation of his challenge to the facial sufficiency of the petition.

115 Wife's verified petition states that "Respondent [Husband] agreed with Petitioner that she could go to Oklahoma with their child, ... [and] remove her own separate furniture from the marital home to Oklahoma. ..."33 Wife alleges that Husband refused to let Wife stay in their marital home in Missouri,34 and that Wife had no choice but to move into her parents' home in Oklahoma. She alleges that the parties attended counseling prior to the move, and Husband argues this same point in his motion to dismiss stating that the both of them "had open discussion concerning a separation or pending divorce." 35 She also alleges being fearful of Husband due to his verbal abuse and threats against her, his erratic behavior including D.U.I. arrests, alcoholism, one instance of breaking a locked door to gain access to her and one instance of his falling down stairs while carrying a child. She alleges that before moving to Oklahoma she would lock herself in a room in their home for her personal safety.36

116 A federal court is a court of limited jurisdiction and jurisdiction must be pled by the party invoking the court's jurisdiction.37 The federal rules require that the allegations of jurisdiction satisfy the notice-pleading standard in Federal Rule of Civil Procedure, Rule 8(2), which requires a short and plain statement of the grounds upon which the court's jurisdiction depends.38 Un*1073like the Federal Rule 8 jurisdictional pleading requirement in federal courts, prior to 1969 an Oklahoma District Court was considered to be a court of general jurisdiction, and a plaintiff was not required to plead in his or her petition the jurisdictional facts necessary to support a judgment of an Oklahoma District Court. Howard v. Duncan, 1933 OK 256, 163 Okla. 142, 21 P.2d 489, 490-491. Since 1969 Oklahoma District Courts are not courts of mere general jurisdiction, but they exercise unlimited original jurisdiction of all justiciable matters, except as otherwise provided by the Constitution. Jernigan v. Jernigan, 2006 OK 22, n. 16, 138 P.3d 589, 545. Thus, specific and detailed allegations of each and every relevant jurisdictional fact need not be pled on the face of a petition invoking this unlimited jurisdiction of an Oklahoma District Court.

117 Various methods may be used to place facts before a trial court to receive judicial recognition, and Professor Fraser has stated that "... if a long-arm statute must be used to serve the defendant the plaintiff should plead facts that show such service is proper." George B. Fraser, The Petition Under the New Pleading Code, 38 Okla. L. Rev. 245, 246 (1985). That showing of proper service is based upon a notice-pleading standard, for the facts necessary to support in personam jurisdiction must appear of record, not necessarily on the face of the petition itself.39 For example, we have explained that when a non-resident defendant challenges in personam jurisdiction, the facts in support of such jurisdiction must appear on the face of the trial court record, and the plaintiff, the party asserting that such jurisdiction exists, has the burden of placing those facts before the trial court in the proper form for adjudication.40 Professor Fraser also stated that the pleading requirements for an Oklahoma petition were not designed to impose more exacting procedural burdens than those imposed by the federal rules; rather, the Oklahoma pleading requirements were modeled after the federal rules. 38 Okla. LRev. at 245. Oklahoma pleading requirements for the petition, like their similar federal counterparts, impose a notice-pleading standard in accordance with which a plaintiff's petition meed only give fair notice of the plaintiff's claim and the grounds upon which it rests. Gens v. Casady School, 2008 OK 5, ¶ 9, 177 P.3d 565, 569. This Court has explained in various contexts that Due Process may require a plaintiff to allege and show on the face of the trial court record certain facts, or the adjudication of certain facts41 Due Process 'does not require that a plaintiff plead in the petition each and every necessary fact in support of in personam jurisdiction and thereby prevent a plaintiff from raising by amended petition, or some other post-petition method, facts in addition to those asserted by petition, and which support long-arm jurisdiction and *1074are then made of record in the trial court proceeding.42 The petition should contain facts which give fair notice of the plaintiff's assertion of in personam jurisdiction and the factual grounds upon which in personam jurisdiction may be asserted as to the nonresident defendant.

118 In summary, when a plaintiff's petition invokes a court's long-arm jurisdiction 43 a defendant may use a timely motion to dismiss to challenge the facial sufficiency of the petition's allegations and assert that they fail to give fair notice of the factual basis for long-arm jurisdiction, a defendant may use a timely motion to dismiss with attached affidavits to challenge the petition by raising facts not of record on the face of the petition, and a plaintiff may respond to the motion with affidavits in support of the in personam jurisdiction.44 We need not discuss other trial court procedures because Husband's filings challenged the facial sufficiency of the petition and did not raise any extra-record fact by affidavit, pleading, or form of evidence.45

119 In supervisory review of a trial court's order adjudicating a motion to dismiss challenging the facial sufficiency of a petition asserting long-arm jurisdiction, we must determine if the allegations of the petition give fair notice of the factual basis for long-arm jurisdiqtion sufficient to comply with Due Process. Is Wife's petition facially sufficient to give Husband notice of the factual basis for her assertion of long-arm jurisdiction? We hold that the petition is facially sufficient, for reasons we now explain.

B. In Personam Jurisdiction

120 The trial court relied on Taylor v. Taylor, 1985 OK CIV APP 26, 709 P.2d 707 (released for publication by order of the Court of Civil Appeals) as authority to proceed with the petition for divorcee and for a determination of child custody. In Taylor the appellate court reversed the trial court's award of support alimony, child support, costs, fees and a judgment for arrearages because the trial court lacked in personam jurisdiction. In Taylor the appellate court also concluded that although in personam jurisdiction was lacking the trial court possessed jurisdiction to determine the request for divorcee and child custody. The Taylor court did not explain the trial court's jurisdictional basis for adjudicating divorce and child custody, and appears to have applied the concept of divisible divorcee.

121 In our present case, a Missouri court previously directed Husband to litigate the divorce and all other issues in Oklahoma instead of in Husband's Missouri divoree proceeding, and the Oklahoma trial court relied upon the orders of the Missouri court for *1075exercising jurisdiction to adjudicate the personal support obligations of Husband. Wife seeks a divoree and child custody as well as a decree imposing personal monetary obligations against Husband. We are not presented with the cireumstance of one spouse seeking a divisible divorce or seeking to impose personal obligations after a divisible divorce has been granted,46 and we need not address the status of divisible divorce or the power of the trial court to adjudicate child custody in Oklahoma when a non-resident spouse/parent objects to the in personam jurisdiction of an Oklahoma court.47 Additionally, the issue before us today does not involve the correctness of Taylor v. Taylor, supra, and we express no opinion on whether Taylor is correct or incorrect. In summary, the prohibition issue before us as pled in the trial court and briefed by the parties before us involves in personam jurisdiction raised by a motion to dismiss challenging the facial sufficiency of pleadings apart from the effect of the Missouri court's orders, apart from any evidence the parties may or may not present at some future time in the trial court, and apart from the application of Taylor or any other matrimonial case which separates claims for the basis of in personam jurisdiction analysis.

122 The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution limits the power of a state court to render a valid personal judgment against a non-resident defendant. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Kulko v. California Superior Court, 486 U.S. 84, 91-92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978). The non-resident defendant must have minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Kulko v. California Superior Court, 436 U.S. at 92, 98 S.Ct. 1690; Gilbert v. Security Finance Corp. of Okla., Inc., 2006 OK 58, ¶ 16, 152 P.3d 165, 173, Further, "[like any standard that requires a determination of 'reasonableness' the 'minimum contacts' test ... 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. Additionally, an essential criterion in all cases is whether the "quality and nature" of the defendant's activity is such that it is "reasonable" and "fair" to require the defendant to conduct a defense in that forum and the defendant should reasonably anticipate being haled into court in that forum. Kulko, 436 U.S. at 92, 98 S.Ct. 1690; Gilbert, 2006 OK 58, at ¶ 16, 152 P.3d 165.

1 23 In the present cases, Husband relies on the fact of his physical presence in Missouri. He also relies upon Kulko supra, and World-Wide Volkswagen Corp., supra, for the proposition that it would be unfair for him to defend his divorcee and support obligations in Oklahoma. Wife focuses on Husband's activities in Missouri that, according to her unrefuted pleadings, forced or directed her to move to Oklahoma. She distinguishes Kulko and her pleadings allege that *1076her presence in Oklahoma did not result from her unilateral conduct and Husband's mere acquiescence, but from purposeful conduct by Husband.

124 Kulko was decided by the Court in 1978, during a twenty-five year period in which the Court's due process jurisprudence in the area of judicial jurisdiction was evolving substantially. In Quill Corporation v. North Dakota, 504 U.S. 298, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992), a unanimous Court observed that "our due process jurisprudence has evolved substantially in the 25 years since [National] Bellas Hess[ v. Dept. of Revenue, 386 U.S. 753, 87 S.Ct. 1389, 18 L.Ed.2d 505 (1967) ], particularly in the area of judicial jurisdiction." Id. 504 U.S. at 307, 112 S.Ct. 1904. In Quill the Court determined that due process did not require a corporation's physical presence in a state as a condition for the state to tax the corporation. Id. 504 U.S. at 308, 112 S.Ct. 1904. In Quill the Court focused on those elements also used in Kulko which involved the nonresident's conduct in purposefully availing himself or herself of benefits received from the forum state. Id. 504 U.S. at 307, 112 S.Ct. 1904, explaining Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Husband's physical presence in Missouri and not Oklahoma is insufficient, by itself, to negate in personanm jurisdiction based upon a minimum contacts test that could satisfy the High Court's due process jurisprudence in Kulko, Quill, Burger King, and other opinions of that Court.

$25 Opinions from the U.S. Supreme Court have explained in non-matrimonial disputes that when a non-resident purposefully directs activity in a state, the activity may be sufficient for the state to exercise in personam jurisdiction over the non-regident.48 Phrased another way, "there must be some act by which the defendant purposefully avails himself of the privilege of conducting activity within the forum state." Yery v. Yery, 1981 OK 46, 629 P.2d 357, 361-362. In Kulko the Court explained that "'The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.... [I]t is essential in each case that there be some act by which the defendant purposefully avails [him]jself of the privilege of conducting activities within the forum State. ...'" Kulko v. California Superior Court, 436 U.S. at 93-94, 98 S.Ct. 1690, quoting Hanson v. Denckla, 357 U.S. 235, 246, 78 S.Ct. 1228, 1285, 2 L.Ed.2d 1283 (1958). In Kulko the unilateral activity of the mother and child who left the marital domicile was again emphasized by the Court's observation that "It is appellant who has remained in the State of the marital domicile, whereas it is appellee who has moved across the continent." Id. 436 U.S. at 97, 98 S.Ct. 1690. The characterization of their conduct as unilateral was based upon a legal conclusion that when a non-resident father consented to his daughter living in California and sent her there he did not thereby commit a "purposeful act" availing himself of the privilege of conducting activities within California. Id. 436 U.S. at 94, 98 S.Ct. 1690. The Supreme Court stated that a "father who agrees, in the interests of family harmony and his children's preferences, to allow them to spend more time in California than was required under a separation agreement can hardly be said to have 'purposefully availed himself of the 'benefits and protections' of California's laws." Kulko, 436 U.S. at 94, 98 S.Ct. 1690. The Court also explained that to find personal *1077jurisdiction in a State on the mere basis of the mother's residence "would discourage parents from entering into reasonable visitation agreements..." and that such jurisdiction "could arbitrarily subject one parent to suit in any State of the Union where the other parent chose to spend time while having custody of their offspring pursuant to a separation agreement." Id. 436 U.S. at 93, 98 S.Ct. 1690. In Gullo v. Gullo, 2003 OK CIV APP 61, 74 P.3d 612 (released for publication by order of the Court of Civil Appeals), our Court of Civil Appeals observed that according to Kulko a parent's mere acquiescence, or agreement, in one state for a child's residence in a second state does not satisfy the "effects test;" ie, the acequies-cence does not thereby cause an "effect" in the second state justifying in personam jurisdiction. Id. at ¶¶ 14-16, 74 P.3d at 626.49

1 26 In our case, Wife points to Oklahoma's version of the Uniform Interstate Family Support Act (U.I.F.S.A.), 48 O.8.Supp. 2004 § 601-101, et seq, specifically § 601-201(A)(5) which states a basis for jurisdiction over a non-resident when "The child resides in this state as a result of the acts or directives of the individual." 50 This language was considered by the Colorado Supreme Court in In re Marriage of Malwitz, 99 P.3d 56, 58-59 (Colo.2004), holding as follows:

We granted certiorari to address whether the trial court had jurisdiction to order child support under section 14-5-201(5) based on the Defendant's acts of domestic violence, which caused Malwitz to flee to Colorado where the child was born and now resides with Malwitz. Accepting the trial court's factual findings regarding the Defendant's abuse and harassment of Malwitz, we find that the Defendant's actions were sufficient to constitute "acts or directives" that caused Malwits to flee Texas for Colorado within the meaning of section We further find that, under these circumstances, the exorcise of personal jurisdiction over the Defendant is consistent with due process. We therefore hold that the trial court had personal jurisdiction over the Defendant for purposes of entering a child support order.

Id. 99 P.3d at 59 (emphasis added).

In Malwitz acts of abuse and harassment occurred in the State of Texas, the husband made harassing phone calls to his wife's father in Colorado, and these phone calls were for the purpose of "further harassing and intimidating" his wife and her family. Id. 99 P.3d at 58, 61. The Colorado court explained that the facts therein were similar to those in Franklin v. Virginia, 27 Va.App. 16, 497 S.E.2d 881 (1998), where in personam jurisdiction was found to exist:

We find that, like the family in Pronklin, the pregnant Malwitz and her daughter were effectively forced to flee Texas for Colorado by the affirmative acts of the Defendant. Although the Defendant did not specifically direct Malwitz to leave, his persistent abuse and harassment left Mal-witz with little choice but to leave Texas and seek safety near her father's home in Colorado. See Id. (noting that the mother "made no such choice" to leave Africa, but was forced to Virginia because "[they had to go somewhere").

Malwitz, 99 P.3d at 60-61.

The Colorado court, noting that the husband knew that his wife's family resided in Colorado, concluded that "the Defendant knew or should have known that his actions would *1078drive Malwitz to her father's home in Colorado." Id. 99 P.3d at 61.

127 In Malwitz the court noted that the abusive husband knew that the wife's only family ties were in Colorado, and that the husband should have foreseen that the abused wife would flee to the protection of her family. Malwitz 99 P.3d at 59. The court also noted that very little time passed between the harassment and abuse and the subsequent relocation of the spouse from Texas to Colorado. Id. 93 P.3d at 61.51 Threats of abuse and harassment, abused spouse's immediate family located in a different state, the foreseeability on the part of the abusing spouse that the abused spouse would flee to that family for support and a place to live, and the timeliness of the move to Colorado in relation to the abuse were factors considered by the Colorado court.

T28 When we examine statutes there is a presumption that they are constitutional and we construe them, if at all possible, to be consistent with constitutional provisions. In re Baby Girl L., 2002 OK 9, ¶ 29, 51 P.3d 544, 556. Thus, we read the "acts or directives" language in § 601-201(A)(5) as no broader in scope than what due process allows.52 Does spouse and child abuse occurring in one state constitute "acts or directives" pursuant to § 601-201(A)(5) whereby the abusing spouse is purposefully availing himself or herself of conducting activity in another state to which the abused spouse and child flee? In Kulko the Court observed that the "minimum contacts" test of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) "is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite 'affiliating cireumstances' are present ... [and] this determination is one in which few answers will be written 'in black and white'...." Kulko v. California Superior Court, 436 U.S. at 92, 98 S.Ct. 1690. Spousal abuse cannot, by itself, serve as a mechanically applied test to satisfy the due process of law.

129 We must also consider the "fair play and substantial justice" test. Due process is satisfied if a non-resident defendant has "minimum contacts" with the forum state "such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice'" 53 In determining fairness to the non-resident spouse to litigate child support in the forum, the U.S. Supreme Court has considered the reasonable expectations of the non-resident and the personal or commercial benefits received by the non-resident from the child's presence in the forum state.

130 Here, could Husband reasonably anticipate being haled before a court in Oklahoma? The verified and uncontested allegations in Wife's pleadings are that Husband and Wife discussed separation or divoree and Husband refused to let Wife stay in their marital home in Missouri with their four-month-old child. Additionally, that Wife, with no economic means, had no choice but to move with their child into her parents' home in Oklahoma, and that Husband knew *1079that this was her only available choice for economic support and a place to live with the assistance of her parents. She alleges that before her move to Oklahoma Husband agreed with her assisted move to Oklahoma with the child and her furniture. She also specifically alleges that Husband knew that her parents would come to Missouri to move her and their child to Oklahoma in consequence of his conduct towards Wife, and he agreed with the location to which she and the child would move. She also alleges being fearful of Husband due to his verbal abuse, threats against her person, his erratic behavior, including D.U.I. arrests, alcoholism, an instance of his breaking a locked door to gain access to her, and an instance of his falling down stairs while carrying a child.54 She alleges that before moving to Oklahoma she would lock herself in a room in their home for her personal safety.55 These allegations do not go the next step and allege that Husband expressly directed Wife to bring her divorce, custody, and support action in Oklahoma, or that Husband expressly agreed to Oklszhoma as a forum for the divorce. They also do not contain allegations that the nature of the alleged abuse prevented her from seeking divorce, custody, or support in Missouri. However, Wife does allege that Husband caused her to leave the marital home by refusing to allow her and the child to stay in the home. Her allegation is that she was given the choice of no place to live in Missouri, with no economic support in Missouri where she could file for a divorcee as a Missouri resident, or the choice of moving with her child to Oklahoma to reside with her parents.. Her argument is that she had no independent choice where to live, but was required to follow her Husband's agreement for her parents to move her to Oklahoma.

131 In Malwitz after noting that the abused spouse was directed by the acts of the abusive spouse to live in Colorado, the court noted consequences of that conduct, including the abused spouse receiving public assistance in Colorado and thereby creating a debt. Malwitz, 99 P.3d at 62-63. Malwitz also observed that "all states share a common interest in protecting victims of domestic abuse and providing an effective means for redress for such victims." Id. 93 P.3d at 63. An interest to protect children and spouses that is shared in common with other forums, whether from abuse or lack of eco-nomie support, is insufficient, by itself, to make Oklahoma a fair forum as to a nonresident.56 Wife's allegations are essentially that her parents acted as agents for her and her husband when they helped her move to Oklahoma, and that her move should be no different from her husband physically driving her across the state line and directing her to establish her residence with the child in Oklahoma. Kulko cannot be read so broadly as to allow a Missouri husband/father to cereate marital financial obligations in Oklahoma by purposefully causing his wife and child to live in Oklahoma, and then deny in person-am jurisdiction in an Oklahoma proceeding brought by the wife to satisfy those obligations. Husband allegedly created the cir*1080cumstances of his wife and child living in Oklahoma without his economic support and Kulko cannot, as suggested by Husband, be read as requiring a non-supported wife and child to always seek legal relief only in the non-resident's state of residence.57

182 Although acts of child and spouse abuse in one state are insufficient, by themselves, to create in personam jurisdiction over a non-resident spouse in a different state, we do agree with the Supreme Court of Colorado that affiliating cireumstances such as those in Malwitz may provide the facts necessary to show that an abusive spouse is purposefully availing himself or herself of conducting activity in the forum state by directing and controlling where the abused spouse and child reside. It is alleged herein that Husband directed and controlled the location of residence by agreeing to, and desiring, that location for his family, that this location is the result of Husband's physical abuse, that this location is the result of his complete and abrupt failure of both spousal and child economic support in both Husband's state of residence and the state to which he directed and compelled them to move their residence, and that he was aware that his lack of support required this specific change in residence.

183 In Malwitz the wife was afforded a hearing in the trial court on the issues of fact relating to the in personam jurisdiction of a non-resident spouse. A federal court may hold an evidentiary hearing on Jurisdictional issues, Federal Deposit Ins. Corp. v. Oaklawn Apartments, supra, and an Oklahoma District Court must adjudicate motions raising contested issues of fact, Crest Infinti II, LP v. Swinton, supra. Our Court of Civil Appeals has concluded that contested facts related to an assertion of in personam jurisdiction pursuant to § 601-201 over a non-resident spouse must be adjudicated by the trial court. Gullo v. Gullo, 2003 OK CIV APP 61, ¶¶ 18-20, 74 P.3d 612, 616-617 (released for publication by order of the Court of Civil Appeals). The issues before us do not involve contested facts, but a motion challenging the sufficiency of the allegations in the petition, as amended. The trial court must afford a full and fair opportunity for the parties to litigate facial attacks on pleadings as well as an opportunity for them to contest issues of fact involving in personam jurisdiction.

[ 34 Notice pleading does not require Wife to catalogue in her petition each and every fact of alleged physical and economic abuse that could be used to support an evidentiary finding and conclusion that Husband's spousal/child abuse and intentional spousal economic failure caused her and her child to reside in Oklahoma. Similarly, notice pleading does not require her to catalogue in a petition every alleged fact that could be used to support her argument that Husband directed her to move to Oklahoma, and that he used Wife's parents as agents to complete the alleged plan for his family to live in Oklahoma. We are not concerned at this time with the sufficiency of the evidence to support Wife's jurisdictional arguments, but whether the District Court was correct that Wife satisfied her pleading burden according to the record presented to us in these extraordinary writ proceedings and the burden of the petitioner (Husband) herein to show that Wife failed her mnotice-pleading burden in the District Court. Whether Wife's allegations are indeed the facts present in the cases before us today is a question we may not reach in advance of the parties litigating the actual existence of such facts in the District Court.

135 The trial court's order in FD-2008-983 determined that the trial court possessed, in fact, in personam jurisdiction *1081when the Husband's challenge presented only the narrower issue of the sufficiency of Wife's petition, as amended. Prohibition hereby issues (1) to prevent enforcement of the order of the District Court in FD-2008-983 which sustained a motion for reconsideration and determined jurisdiction respecting divorce and all related issues, and (2) to direct the District Court that it must provide a full and fair opportunity for parties to present any evidence on the issue of in per-sonam jurisdiction for the trier of fact to determine that issue consistent with this opinion. We hold that the allegations of Wife's petition, as amended, in FD-2008-983 are sufficient to give notice of the grounds upon which the trial court's jurisdiction depends and the allegations thus satisfy Wife's notice-pleading burden. Thus, we grant prohibition in part, that is to prevent enforcement of the specific order challenged herein; and we also deny prohibition in part, with respect to Husband's claim that the trial court record is insufficient, according to a notice-pleading burden, to show in personam jurisdiction over Husband based upon the petition's allegations.

136 In summary, we conclude that allegations of spousal/child physical abuse and intentional spousal failure of economic support combined with allegations of a nonresident's spouse's agreement and purposeful conduct for the location of the residence of the other spouse and their child may be used pursuant to 43 O.S.Supp. 2004 § 601-201 to show in personam jurisdiction over a nonresident spouse/parent that is consistent with due process of law. We also conclude that in No. 105,611 Husband's extraordinary writ record is insufficient to show that either Wife failed to meet her notice-pleading burden in the District Court or that she failed to produce evidentiary facts by affidavit, or otherwise, that would justify in personam jurisdiction over a non-resident. We conclude in No. 106,432 that Husband failed to show that Wife's District Céurt petition, as amended, was facially insufficient to give fair notice of her grounds upon which in personam jurisdiction allegedly rests. Original jurisdiction is assumed in both No. 105,611 and No. 106,432, the petition for a writ of prohibition is denied in No. 105, 611, and the petition for writ of prohibition is granted in part and denied in part in No. 106,482 with directions to the District Court as specified herein.