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PERSONAL JURISDICTION OVER THE OUT-OF-STATE SPOUSE
© 2002 National Legal Research Group, Inc.
When two spouses live in different states, a valid divorce decree can be granted in any state in which either spouse is domiciled. Williams v. North Carolina, 325 U.S. 226 (1945). The Constitution does not require residency for any particular period of time, but most states have established such a requirement by statute.
But a court which has jurisdiction to grant the divorce does not necessarily have jurisdiction to divide the property or award spousal or child support. To consider the financial issues arising out of divorce, the court must have personal jurisdiction over the defendant spouse. Under the well-known rule of divisible divorce, jurisdiction over the divorce itself does not automatically confer jurisdiction over the financial issues. Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957); Estin v. Estin, 334 U.S. 541 (1948). Instead, the court can decide the financial issues only if the defendant spouse has sufficient connections with the state to meet the familiar "minimum contacts" test of International Shoe Co. v. Washington, 326 U.S. 310 (1945).
For specific cases holding that a state must have personal jurisdiction over the defendant under the minimum contacts test in order to divide marital property, see Cottone v. Cottone, 547 A.2d 625 (Del. Fam. Ct. 1988); Garrett v. Garrett, 668 So. 2d 991 (Fla. 1996); In re Marriage of Hoover, 314 Ill. App. 3d 707, 732 N.E.2d 145 (2000); Horlander v. Horlander, 579 N.E.2d 91 (Ind. Ct. App. 1991); In re Kimura, 471 N.W.2d 869 (Iowa 1991); In re Marriage of Salas, 28 Kan. App. 2d 553, 19 P.3d 184 (2001); Rutledge v. Rutledge, 26 Mass. App. Ct. 537, 529 N.E.2d 1361 (1988); Zwerling v. Zwerling, 167 Misc. 2d 782, 636 N.Y.S.2d 595 (Sup. Ct. 1995); Shamley v. Shamley, 117 N.C. App. 175, 455 S.E.2d 435 (1994); Smith v. Smith, 459 N.W.2d 785 (N.D. 1990) (excellent discussion); Squitieri v. Squitieri, 196 N.J. Super. 76, 481 A.2d 585 (Ch. Div. 1984); Schroeder v. Vigil-Escalera Perez, 76 Ohio Misc. 2d 25, 664 N.E.2d 627 (C.P. 1995); In re Marriage of Oberoi, 145 Or. App. 51, 928 P.2d 1007 (1996); Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998), cert. denied, 525 U.S. 1067 (1999); Toomey v. Toomey, 251 Va. 168, 465 S.E.2d 838 (1996); and Mock v. Mock, 11 Va. App. 616, 400 S.E.2d 543 (1991). See generally Turner, supra.
Last Marital Domicile
Case law applying the minimum contacts test in divorce cases can be divided into three categories. Where the forum state was the parties' last matrimonial domicile, the state almost always has personal jurisdiction over both spouses.
We also see no relevance in the fact that Joseph 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 not hard to imagine the chaos which would ensue in domestic relations law if one party could defeat jurisdiction merely by exiting the state before the summons is served.
Catlin v. Catlin, 494 N.W.2d 581, 590 (N.D. 1992).
[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 would 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[.]
Panganiban v. Panganiban, 54 Conn. App. 634, 736 A.2d 190, 195 (1995).
For additional cases upholding personal jurisdiction in the state of the last matrimonial domicile, see Durand v. Durand, 569 So. 2d 838 (Fla. Dist. Ct. App. 1990); Ali v. Ali, 279 N.J. Super. 154, 652 A.2d 253 (Ch. Div. 1994) (despite husband's move to Gaza; also relying on husband's application for permanent United States resident status); Horlander v. Horlander, 579 N.E.2d 91 (Ind. Ct. App. 1991); Staron v. Staron, 215 A.D.2d 646, 629 N.Y.S.2d 46 (1995); In re Marriage of Adams, 173 Or. App. 242, 21 P.3d 171 (2001) (husband left Oregon in 1995 and continued to visit regularly until divorce action was filed in 1998; visits were sufficient to retain minimum contacts which existed in 1995, even though the same visits would not have been sufficient to create minimum contacts without prior domicile); and Reynolds v. Reynolds, 2 S.W.3d 429 (Tex. App. 1999).
No Marital Domicile
Conversely, when the state in question was never the marital domicile, courts have had little difficulty concluding that the state lacks personal jurisdiction over an absent spouse. See Sena v. Sena, 709 So. 2d 48 (Ala. Civ. App. 1998); Atkins v. Atkins, 588 So. 2d 407 (La. Ct. App. 1991); State ex rel. Phelan v. Davis, 965 S.W.2d 886 (Mo. Ct. App. 1998); Shamley v. Shamley, 117 N.C. App. 175, 455 S.E.2d 435 (1994); Moon v. Moon, 499 N.W.2d 597 (N.D. 1993); Schroeder v. Vigil-Escalera Perez, 76 Ohio Misc. 2d 25, 664 N.E.2d 627 (C.P. 1995); Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998), cert. denied, 525 U.S. 1067 (1999).
The cases generally hold that occasional brief visits into the state, without establishment of a matrimonial domicile, are not a sufficient strong contact to create personal jurisdiction. See Latta v. Latta, 654 So. 2d 1043 (Fla. Dist. Ct. App. 1995); Miles v. Perroncel, 598 So. 2d 662 (La. Ct. App. 1992); State ex rel. Phelan v. Davis, 965 S.W.2d 886 (Mo. Ct. App. 1998) (even though parties had sex during visits); Shamley v. Shamley, 117 N.C. App. 175, 455 S.E.2d 435 (1994) (even though wife purchased a car in the forum state on one of her visits); DePaulitte v. DePaulitte, 138 Ohio App. 3d 780, 742 N.E.2d 659 (2000) (one-week visit not alone sufficient to establish minimum contacts); Bushelman v. Bushelman, 246 Wis. 2d 317, 629 N.W.2d 795 (2001) (husband's mere consent that wife and children live in Wisconsin, combined with one visit seven months before filing of the divorce action, was not sufficient minimum contact). The cases are particularly emphatic about this result when the occasional visits involved visitation of children after separation. To treat these visits as a sufficient contact would discourage divorced parents from visiting children, a result which is not in their best interests. Sena v. Sena, 709 So. 2d 48 (Ala. Civ. App. 1998).
Once in a great while, the courts will find that a defendant who has never been domiciled in the state has sufficient connections to satisfy the test. In Butler v. Butler, ___ N.C. App. ___, 566 S.E.2d 707 (2002), the parties lived during their marriage in the Bahamas. In 1995 or 1996, the wife and the child moved to North Carolina. The husband assisted the wife in acquiring a residence, which was titled in both parties' names. He visited the wife in North Carolina once a month for two years, staying three or more days at a time. Finally, he was a member of Moore County Hounds, a local social and sporting association.
The trial court held that the husband had sufficient minimum contacts to permit a North Carolina court to divide the marital property, and the appellate court affirmed.
[D]efendant's contact with this State is the result of his own actions and not the unilateral activity of plaintiff moving to North Carolina with defendant's daughter. In addition, defendant's contacts with this State are sufficiently related to the instant action (both defendant's contacts and the instant action arise out of the family relationship shared by defendant, plaintiff and the parties' daughter) to support the conclusion that defendant should have reasonably anticipated being subjected to suit in this State in relation to those contacts.
566 S.E.2d at 712; see also Snider v. Snider, 209 W. Va. 771, 551 S.E.2d 693 (2001) (parties had resided in West Virginia in past and planned to move back there, going so far as to purchase a home, but marriage broke down just before the actual move; husband visited wife in state after separation; West Virginia had jurisdiction over husband).
Butler is consistent with two particular trends in the personal jurisdiction cases. First, in the "commuter marriage" situation where the parties divide their time between residences in multiple jurisdictions, the general trend is to hold that personal jurisdiction is present in both states. See, e.g., Bourbon v. Bourbon, 259 A.D.2d 720, 687 N.Y.S.2d 426 (1999) (husband commuted back and forth between his family in New York and his employment in France; New York had personal jurisdiction over him); Jessie v. Jessie, 53 Ark. App. 188, 920 S.W.2d 874 (1996) (wife and son lived in Arkansas for 25 years, while husband lived in Texas and visited family regularly; husband subject to jurisdiction in Arkansas). Butler is not exactly a commuter marriage case the wife spent all of her time in North Carolina but the amount of time spent by the husband in North Carolina was still significant.
Second, there is a clear trend to find jurisdiction based upon a smaller volume of contacts when the alternative is to force an American resident to litigate in a foreign country. See Ex parte Brislawn, 443 So. 2d 32 (Ala. 1983) (parties spent wedding night in Georgia, then lived for 10 days in Alabama before husband moved to Germany on military duty; Alabama had personal jurisdiction over husband); Crommelin-Monnier v. Monnier, 638 So. 2d 912 (Ala. Civ. App. 1994) (husband and wife lived during marriage in France, but their 2 children were born in Alabama, and the husband lived in Alabama for 28 and 8 days respectively for the births of the children; asserting personal jurisdiction over husband); Phillips v. Phillips, 826 S.W.2d 746 (Tex. App. 1992) (husband, a member of the foreign service on duty in Kenya, made a total of 8 trips to Texas: 3 while courting the wife, 1 when the parties' child was born in Texas, and 4 to visit the wife's family; finding jurisdiction). If North Carolina lacked jurisdiction in Butler, the wife would have had to litigate the financial issues in the Bahamas.
Previous Marital Domicile
The most difficult personal jurisdiction cases are those in which the parties were domiciled at one point during the marriage in the forum state, but the forum state was not the last matrimonial domicile. The issue in these cases is whether the passage of time has sufficiently weakened the jurisdictional connection which undoubtedly existed in the past. The results of these cases depend heavily upon the facts.
The fact that jurisdictional connections can be lost is established by the Supreme Court's decision in Kulko v. Superior Court, 436 U.S. 84 (1978). The parties there were married in California and lived there for three days before the husband left for military service in Korea. If either spouse had filed a divorce or annulment action after the three days, California would clearly have had personal jurisdiction over both spouses. But the parties did not return to California for over 15 years afterward. The Court had little trouble holding that the jurisdictional connections had been lost through the passage of time.
Where the parties have been away from the forum state for five years or more and have not returned for regular visits, most of the cases find no personal jurisdiction. In Katz v. Katz, 310 N.J. Super. 25, 707 A.2d 1353 (App. Div. 1998), the parties lived from 1971 to 1976 in New Jersey. They then moved to Pennsylvania, which divorced them in 1983. In 1993, the wife filed a college support action against the husband in New Jersey. The court held that 5 years of domicile, ending 17 years ago, was not a sufficient contact to permit the present exercise of jurisdiction. The court also held that minimum contacts were not created by the husband's 1.047% ownership interest in a business owning New Jersey real property; his employment out of state for a New Jersey business; or his holding (but not actual use) of a New Jersey law license. See also Garrett v. Garrett, 668 So. 2d 991 (Fla. 1996) (parties lived in Florida from 1974 to 1986 and then moved to Texas; wife returned to Florida after 1992 separation and filed a Florida divorce action in 1994; no personal jurisdiction); Morris v. Morris, 672 So. 2d 622 (Fla. Dist. Ct. App. 1996) (parties lived in Florida from 1982 to 1984 and then moved to Virginia; wife returned to Florida after 1986 separation and filed divorce in 1994; no personal jurisdiction); Shammay v. Shammay, 491 So. 2d 284 (Fla. Dist. Ct. App. 1986) (parties lived in New York from 1973 to 1974, from 1975 to 1977, and for eight months in 1978 to 1979; divorce filed in New York in 1984; no personal jurisdiction); Windsor v. Windsor, 45 Mass. App. Ct. 650, 700 N.E.2d 838 (1998) (parties lived in Massachusetts from 1959 to 1966, but then moved out of state; wife returned in 1995 and filed for divorce; no personal jurisdiction over husband); Klente v. Klente, 167 A.D.2d 197, 561 N.Y.S.2d 580 (1990) (parties lived for six years in New York and then eight years in Connecticut; New York lacked personal jurisdiction).
Where the parties have been away from the forum, but have regularly visited the state after they left, a finding of jurisdiction is more likely. In Fraiberg v. Cuyahoga Court of Common Pleas, 76 Ohio St. 3d 374, 667 N.E.2d 1189 (1996), the parties lived in Ohio until 1991, at which point they moved to Florida. They continued to visit Ohio regularly, and in late 1993 actually spent more time in Ohio than Florida. They registered to vote in Florida, however, and filed a homestead declaration in Florida listing that state as their permanent home. The wife filed a legal separation action in Ohio in January of 1994. The majority of the marital property was located in Ohio, and the grounds for separation arose in Ohio. The court held that it had personal jurisdiction over the husband.
Likewise, in Levy v. Levy, 185 A.D.2d 15, 592 N.Y.S.2d 480 (1993), the parties were domiciled in New York from 1970 to 1974 and from 1979 to 1981. They then moved to California, from which they separated in 1982, with the wife returning to New Jersey. The husband lived in New Jersey from 1987 to 1988, not living with the wife, and made numerous other visits back to the state. In a divorce action filed in the early 1990s, the court asserted personal jurisdiction over the husband.
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