STATE COURT JURISDICTION:
THE LONG-ARM REACHES DOMESTIC RELATIONS CASES
CAL L. RAUP
STATE COURT JURISDICTION.
THE LONG-ARM REACHES DOMESTIC RELATIONS CASES
A recent Texas
Sup~eme
Court case has far-reaching impli-
cations for domestic relations law in Texas.
In Mitchim v.
~I itchiml the ,court upheld the exercise of long-arm jurisdiction over Charles Mitchim, a Texas resident who had been personally serve~ with process in Texas, pursuant to Arizona's
g eneral long-arm statute. 2
According to Ari zona law, thi s ex-
traterri torial:, service was sufficient to support in personam
jurisdiction ' dver the defendant in a divorce suit filed, by plaintiff, Carmen
M i~chim;
Arizona court.
The defendant chose not to appear in the
A default judgment was entered, granting the
pla intiff a divorce, alimony, costs, attorney's fees, and a partial property ,settlement.
When her former husband faiied to ma~e alimony payments,
plai ntiff obtained an Arizona judgment for arrearag es.
To pre-
vent enforcement of the ' Arizona jud gment for a rrearag es, the
,defendant filed suit in Texas seeking a declaration that the
Arizona court was without personal jurisdiction over a Texas re~ident.
The Texas district court granted relief to the defen-
dant, holding tha t the Arizona judgment was not entitled to full
faith and credit. J
The court of civil appeals found that Carmen Mitchim had
f a iled to prove that personal jurisdiction over the defendant had
4
been properly acquired by the Arizona court.
The Arizona judgment, therefore, ' was denied full faith and credit.
In /.';i tchi'in v. Mi tchim 5 ' the supreme court upheld the exercise of long-a'rm jurisdiction , over a Texas resident in a suit to
"
enforce marital obligations.
.
'
0
More importantly, the court stated
'
in general terms i ,t s approval of the practice.
The principal
issue 7 or th" ,:c~se was whether the Arizona court had acquired
personal juris'd iction over Charles Mitchim.
Applying Arizona law,
the court was >required to"'discover the limits of personal jurisdiction const!:tutionally allowed, then decide whether the case be,, "
"
,"
8
fore us falls 'within those limits.'"
The limits the court referred to are Imposed by .the due process clause. 9
The supreme court began its , disoussion of due process by re- ,
' jecting the argument that personal jurisdiction ~ver nonresidents
cannot be acquired in aometilOic rela'tions cases. 10
The courts of
several states' have upheld the exercise of long-arm jurisdiction
over nonresidents in 'suits to enforce marital obiigations. 11
The Supreme Court of the United st1tes, however, has not address, 12'
ed the issue. :, ' Treating this silence as imp.ll.Clt approval of
the practice', "the Mi tchim court went a step beyond mere approval
of long-arm jurisdiction in the case at barl it stated broadly
that .. , the minimum contacts concept of in personam jurisdiction'
' is peculiarly :suited to matrimonial support cases.,"lJ
In the final step of its analysis, the court examined the
defendant's contacts with Arizona. , They were substantial. 14
Under Arizona 'procedure, however, the plaintiff must show that
the defendant "caused an event to occur in Arizona out of which
the plaintiff's claim 'a rose.1 5 Because of a procedural error in
the lower couits,16 no' finliings of fact were made on this issue.
The case, th'ez:efore, was remanded"
-2-.
The impor;tance of the lI\ i tchim decision lies in the supreme
cour t's appro.Jal of a sie nificant jurisdictional tool--the domes tic relations long-arm statute.
Long-arm juris diction has
become indispensa ble in ,other types ' of litigatiorr. 17 The need
for multista te litie ation to enforce marital obligations has
para lleled the needs that led to the expansion of jurisdiction
in other areas. iS Expa nsion of jurisdiction in the field of dome s tic relations. however. began only recently.1 9
have 'ada pted
th~
How the states
concept of long-arm jurisdiction to domestic re-
lations cases is the subject of this comment.
The expansion , of
long-arm jurisdiction in g eneral must be surveyed before consid,
ering the cases that deal with the specific problem" of domestic
relations
long ~ arm
jurisdiction.
I •
, THE
PENN OYER V. NEFF
I
POWER THEORY OF JURISDICTION
Traditional concepts of personal jurisdiction are derived
.
from the 1877 ' United States Supreme Court ' decision. Pennoyer v.
Neff. 20 In Pennoyer; , the Supreme Court defined the limits of
,
state
jurisdi~t.ion un~er ~he
due process clause by formulating
rules that were based largely upon the states' sovereignty.
.( .
,
,
These rules were adequate for the nineteenth century United States.
The basis of a state court's authorit~~ according to Pe nnoyer.
"(E1 very
state n", s t he power to determ lne.
'
21
for itself the civil sta tus and capacities of its inhabitants • ••• "
is physical "p6wer."
.i
But "no State , ca n exercise ' direct jurisdiction and authority over
persons or prop erty without its territory.,,22
The net effect 'of ,the Pennoyer decision is to confine the
exercise of state judicial power to the geographical boundaries
-)-
of the state.
Substituted service is permissible, therefore,
only for in rem suits.
"Process from the tribunals of one State
ca nnot run into another State, and summon parties there
domicil~
ed to leave its ' territo~y 'and respond to ,proceedings against
them.,,2)
As the united States became a more mobile socIety, the significance of state
borders decreased. Accordingly, the Pennoyer ,
theory of juri~diction lost much of its relevancy. The Supreme
Court soon developed fictions to solve problems created by the
inflexibility "of the Pennoyer rule. 24 The defendant most often
subjected to ,jurisdiction on the basis of judicial fiction was
the multistat~ icorporation.2,5
By 1945, however, the Supreme Court
became dissatisfied with fiction and subjected a corporate defendant to state in personam jurisdiction on a unique theory-minimum contacts.
II.
THE MINIMUM CONTACTS CONCEPT
,
26
In International Shoe Co. v. Washington,
the
SuP?e~
Court' began ' to cut through the fictions it had devised- to ,cir- '
cumvent FennoYer's ,limi t'at;ions on jurisdiction. 27 This ~
mark case, decided in 194~, extended- personal jurisdiction by
broadening the amenability of nonresident defendants to state
, process.
The 'vehicle for
~his
expansion was a test to deter-
mine whether the exercise of state court jurisdiction violates
due ,process. ' First" to subj.ect a nonresident defendant to personal jurisdiction, ~he defendant must have certain "minimum
contacts" with the forum. 28 • These minimum contacts insure
\
that the maintenance ' of a suit in the forum against a particu-
-4-
,
l a r d efendant' "does not offend traditional notions of fair play
an d s ubst a ntia l ' justice."2 9 In a ddition, courts must undeI"t-a.k~
an "e s tima te' of the inconvenience s" to the defendant,J°'
T'o jus- :
tify this expa nsion , of jtir~sdiction,
the Supreme Court note<:!"
tha t a defend a,nt who exerci ses the privileg e of conducting activi t i es within' the state enjoys the benefits and protection of
~he
laws of the state.
in the forum
there . J1
~t
' obli g~ tio n s
A.
1949 I
is re a sonable,
ther~fore,
to enforce
that a rose out of activities conducted
The Expansion Beg ins ,
Tr ave l ers Health As sociation v. Vir ginia ex. reI. St a t e
Corpor a tio n C ommission, ~ 2a 1950 case, further justified the
"
extension of personal j\lrisdiction by linking the exercise of
sta te judicial power to the attainment of valid state goals. '
The Supreme Court reasoned that some state interests' may be protected even ,though the "'state action may have repercussions beyond state li'nes ....)J
It "accordeli 'great ,wei ght' to the 'con-
sequences' of" ", incurring local obligations. J4
The Court empha-
sized that the state may have a great interest in insuring that
these obligations are performed faithfully.
As a practical mat-
ter, restrict ,i ons upon the exercise of juris diction may interfere
with these int erests I the pla intiff may be fina nci a lly unable to
main tain a su:i t in
a state
in which jurisdiction ca n be acquir-
ed under traditionalconcepts. J5
The Court concluded that
"lt1 he Due Proc es s Clause does not ' forbid a state to protect its
citizens from s uch injustice."J6
A 1952 'case
add~d
another dimension to the exercise of state
-5-
jurisdiction.
In Perkins Y. Benguet ConSolidated Mini ng Co. 37
the Supreme CO,urt upheld
38 the exercise
'
of ' jurisdiction in a
cause of action that ,did not arise out of, or even relate to,
the defendant', s "' activities in the forwn.
,
The constitutional
issue was characterized by the Court as "one of general fairness. ,,39
The 'only question decided by the Court was 'the amount
and kind of activity required to subject the defendant to jurisdiction, consistent with due process.
tinuous and
The Court found that con-
sys~ematic,
yet limited, activity was sufficient to
justify the exercise of jurisdiction over a nonresident. 40 A
point not discussed by the Court may have been another significant factor. 'the only alternate forwn was the post:"war Phillipines. 41 Tak,'e n together, Travelers Health and Perkins demonstra~e
a percepti-bl~ shift by the Supreme Court toward decision~d
larg ely upon, practical considerations.
McGee
extent to
v. International Life Insurance Co. 42
Which ' pra~matism ~~ad replaced power as
illustratetl- the
the touchstone
in cases involving the exercise of state jurisdiction over
resident defendants.
nori~
In, this 1957 case the Supreme ,Court upheld,
jurisdiction on, facts that fell far short of the "continuous and
"
"
4
systematic" contacts required by Perkins. 3. The Court ' observed
a "cleraly discernible" trend toward expansion of state jurisdic,
,
44
tion over nonresidents. ,
Due process was satisfied, the Court
stated, by the 'e xistence, o'f a "'s ubstantial connection" with the
state. 45 As th~ facts o~ the ' case indicate, "substantial' con,
'
46
nection" is not a stringent standard.
In the paragraph devoted to due process the Court again discussed
practic~l
considerations.
-6-
The state; it reasoned, has a
·
"manifest interest" in' providing
redress for its residents. ~7
Thus, the state can create a · procedural advantage for its residents by providing a con'venient ·forum.
the resident ·wiluld be · fo.~ced to
ii tigate
often an economic impossibility.
Without this .advantaee,
in a distant state--
A solvent defendant, therefore,
might be rendered effectively ·judgment proof.~8
This
anal~sis
suggests that the Supreme Court made the
de~
.
fendant's financial condition a factor in deciding the propriety
of · an exercise' of jurisdiction.
A
manifest state interes_t ap-
parently was sUbstituted for minimum contacts when the alternative was to deny the plaintiff a forum.
The power theory of
jurisdiction apparently had been· discredited thoroughly.49 In its
.. -.
place, the
Supre~e
contacts.
This .concept was soon diluted, however, by decisions _
Cou 7t had substituted the concept of minimum
based upon pragmatic considerations that were decidedly plaintiff-oriented. · If due process was indeed the basis of post-International Shoe -decisions, -the Court's emphasis must have changed to procedur~l, rather than SUbstantive due process. 50
B.
1958 I
The Expan'sion Ends
,. 51
Hanson v. · Denckla, decided in · 1958, signaled a retreat by
the Supreme Court from an expanding theory of personal jurisdiction based largely upon the satisfaction of procedural due process requirements.
The majority recognized the trend toward ex-
pand.ing personal jurisdiction over nonresidents.
I
"But," the ma-
jority stated, · "~t isa mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdictionof -state courts. ft52 The Court pointed out that re-'
-7-
strictions on 'state jurisdiction are the result of terri tori-'
al limitations on the exercise of state power. 53
Even if the
defendant isoniy slightly inconvenienced by distant litigation. a state , is .. without. personal jurisdiction unless the de~
fendant has mtnimum contac,t s with the forum state.
Further,
the defendant 'm ust by some act purposefully avail himself of
the privilege' of conducting' activities within the forum state,
,
thereby invoking the benefits and protection of its la;:-54:.
I .i
"The unilateral act'ivity of those who claim some relationship
.
'1,.
.
'
with anonreside'nt defendalft cannot satisfy the requiremeii't--of
contact
with ' thefo~um
State.,,55
With this language, the ma-
jority clearly: reinstated minimum contacts as a sine qua ~ to
the exercise of personal jurisdiction over a nonresident.
The dissent, on the other hand, urged a return to the pragmatic consid'e rations which had been the bsis of previous decisions.
These j'us-tices ,argued that the forum state had sufficient
interest in the litigation to apply its' own law.
Jurisdiction,
they reasoned ..r,' sh'o uld ' di!pend
upon. similar considerations .56
•
Re-
o
counting the r 'e asonsfcir', the'
ie~axation of limits on state juris,
,
diction, the , d'i ssent 'predicted that "further relaxation seems
,
,
certain. ,,57
The disse'n t was prophetic, as the Mi tchim case indicates,
"
further relaxation has taken place.
Whether this relaxation meets
the requirements ,of due process, however, remains an open question.
The Supreme Court has avoided a decision on the applica-
bili ty of the minimum contacts concept to domestic relations
cases. 58
In t ,h e vacuum created , by the Supreme Court. state
courts have be'come active., ' in extending the rationale of International Shoe .'todomestic relations cases.
Frequently, these
courts have o:Verlooked any restrictions that the Hanson decision may hav~ imposed.
.The absence ~f Supreme Court authority
leaves this ,jurisdictional aspect of domestic relations laW'-:Ln.
an unfortunate state of uncertainty. This problem is acute ,because the
doct~ine
pf ,
"divisible divorce"59 makes properly
ae-
quired personal jurisdicti'on an issue of utmost importance.
III:.
THE DIVISIBLE DIVORCE DOCTRINE
,
i
The Supreme Court has declared certain aspects ' of a divorce decree t :o be ' in ' personam.
over the
defen~ant,
Properly acquired ,jurisdiction
therefore, is vital if the entire decree is
to be given full faith and credit.
Under the divisibl,e divorce doctrine, a divorce decree can
.
\"
affect two dis't inct interests.
First, a divorce decree termi-
, 60
nates the marital status.
'
Second, "the decree can impose personal obligations or terminat~ personal rights. 61 Because of
the nature of ;:the interests affected, the Supreme Court has held
, that separate !bases for ,jurisdiction exist.
In Williams v. North Carolina62 the Supreme Court held that
jurisdiction totp~ate the status of marriage may6J be based
upon the
bo~a';~~ide
domicile of either party. 64 ' , Thus, an ex
parte divorce, based upon the plaintiff's domicile in the forum,
is entitled to full faith and credit.
But ,if the plaintiff seeks
to affect the defendant's personal rights or obligations, in
personam jurisdiction is required. 65 ~n Estin v. Estin66 the
Supreme Court 'held that divorce is "divisible." ' A divorce de-
-9-
cree based sol~lY upon the/plaintiff's domicile need not be hon- ;
ored insofar ' a~ it purports to grant or deny alimony or child
support. or to,' di vide the marital property. 67
In a mobile society:. ti\e ' defendant in a domestic relations
case may use
t~e
divisible divorce doctrine to great advantage
, ,
by leaving the ;' state to' avoid
marital obl i gations. 68 The, plaintiff. in the absence 0'1: a long-arm statute, will have two
choices.
pursue the defendant to another state or obtain an in-
adequate remedy.69
By a~plying long-arm statutes to domestic
relations cases; several 'states have taken affirmative action to
reduce the incidence ot interstate travel to avoid marital obligations.
The"'approach taken by these states will be analyzed
,in light of the United States Supreme ' Court cases that created
the constitutional ' , basis for long-arm jurisdiction.
IV. ' ,EXPANDING STATE JURISDICTION IN
'DOMESTIC RELATIONS CASES
The minim~ contacts concept made a relativelY late ap.. ( .
. .
.
.'
pearance in ,sui'ts 'to enforce marital obligations.
,
This ex-
'
pansion of jurisdiction began in California. with cases that were
to be followed :by
the courts of several states.
..
Statutes in a
~.
, ni.unber of states were , drafted to take advantage of this valuable Jurisdictional device. , In opinions that applied these
statutes. several courts failed to consider the restrictions on '
jurisdiction that Hanson reinstated.
,
A.The "Omnibus" Statute
,
In a dis'c ussion of the expansion of state domestic relations jurisdiction, California is the starting place. both chron-
-1'0-
ologically and conceptually. California pioneered this jurisdictional frontier 70 with its 1961 decision, Soule v. Soule. 71
In the Soule case the plaintiff, Mildred Soule, was awarded an
interlocutory divorce de,cree.
In addition to terminating the
mari tal status, ,the trial court awarded temporary alimony,
costs, attorney's fees, and a partial property settlement. 72
Personal jurisidiction over ' the defendant Lyle Soule was acquired under section 417 of the California Code of Civil Procedure. 7 ) Thill ' section authorized the entry of personal judg"
ment against ,a',i nonresident defendant under specified conditions.
First, the defendant must have been personally served with pro,cess. 74 Next, ,t he defendant must have been a domiciliary750f
the forum state at one of three times.
commenced I
(2~
(1) when the suit was
,when the cause of action arose. or ()
when per-
sonally served :;'}6
Both parties in ,the Soule case were California domiciliaries
' during their marriage.
The "cause of action arose" during that
time, but the' defendant moved to Montana before the plaintiff
filed her suit 'for divorce. 'Personal service on the defendant
was effected in Montana.
The California trial court found that
compliance with , s,e ction 417 was adequate to confer personal jurisdicition over the defendant.
When he failed to appear at trial,
defaul t judgment was entered.
" On appeal the defendant challenged section 417 as violative of due process.
For the first time.
an
appellate court was
called upon to decide whether the due process clause permits expanded jurisdiction for the enforcement of marital obligations.
In arriving at its decision. the Soule Qourt ' quoted extensively
-11-
from another landmark case, morens v. Superior Court. 77
Owens i 's an en banc decision of the California Supreme
Court.
Justic .. Traynor wrote the opinion which applied sec, ,
tion 417 to a ~efendant who had been domiciled in California
'
at the time the cause of action arose.
Citing the United
States Supreme,: Court, 78 the Owens court stated that amenability to suit is an incident of domicile, even if the domiciliary has left the state. 79 This principle, Justice Traynor reasoned,app1ies as well to a person who has changed his
state of domicile.
Responsibilities incurred by virtue of the
domiciliary relationship with a state are not terminated by
merely acquiring a new domicile.
Inactions arising out of
this relationship, the defendant remains amenable to the personal jurisdiction 'of his original domicile.
Further, the
court reasoned, section ,417 satisfies procedural due process
, requirements by requiring personal service--the method best
suited to give the def~ndant actual notic~ , Of the suit. 80
Next the court considered the rationale of International
Shoe.
Signirlcant1y, the court held the minimum contacts test
applicable to :individuals as well as to foreign corporations. 81
Justice Traynor found the exercise of jurisdiction consti:tutionally justified, "because it is reasonable and fair to require a
defendant whose voluntary acts have given rise to a cause of action in a ' state to litigate his responsibility for that conduct
at the place Where it occurred. • •• ,,82
If the procedural re-
quirements of section 417 have been complied with, therefore, a
.j
.
. •
California court is authorized to assert jurisdiction to the full
extent permitted bY" the United States ,Const:itution.
,
-12-
Soule, with its reliance upon Owens, settled any questions
regarding the 'c onsti tutionali ty of section 417--at least in California.
By analogy to Owens, the Soule court held that the ex-
ercise of jurisdiction over defendant Lyle Soule satisfied due
process. B3 The question that remained was one of full faith and
credit.
Would California judgments entered under this practice
,be honored by its sister states?B4
This question was not to ' be
answered for several years.
It was Mizner v. Mizner 85 that provided the test of full
faith and credit for a personal judgment rendered under the California procedure approved in Soule.
The defendant,86 Willis
Mizner, had lived in California for 18 years with his wife, Ruth.
The defendant moved to Nevada where he filed a suit for divorce.
The plaintiff filed a divorce suit in California and obtained
personal service on the defendant as required by section 417. 87
When the defendant's Nevada suit came to , trial, plaintiff Ruth
Mizner had obtained an interlocutory California divorce decree
, that included an award of alimony.
She appeared in the Nevada
divorce suit, presented t ,h e California divorce decree, and mov:
ed for a summary, judgment on the issue of alimony.
The Nevada
trial court granted the plaintiff's California in personam judg- ,
ment full faith and credit and granted the summary judgment. '
On appeal the defe'n dant challenged the consti tutionali ty
of personal jurisdiction acquired under California's section 417.
He argued that, Pennoyer still controls the acquisition, of personal jurisdiction in domestic relations cases. 88 The court,
however, found ' the Pennoyer rule "substantially eroded ... 89
-13-
The court also, pointed out that strict application of Pennoyer '
encourages
mi~ratory
divorce, a problem that may be solved in
part by the extension of personal jurisdiction beyond state lines,
The Nevada Supreme pourt in Mizner adopted the rationale
of International Shoe because, "the minimum contacts concept of
in personam jurisdiction is peculiarly suited to matrimonial
support cases.,;90
In applying the minimum contacts test, the
court was aided by the similarity of the facts in
Soule~
Suf-
ficient contacts with California were present to justify Cal~
.'
ifornia's exercise of in personam , jurisdiction over the defendant.
The court also observed that the matrimonial domicil6-has,
,
a deep interest in'its citizens.
It advances a legitimate :ob-
jective, therefore, by taking steps to prevent their impover1'shment. 91
'l.'he dissent opposed extension of the minimum contacts concept to the field of domestic relations.
proach taken
They rejected the ap-
in Soule because the united States Supreme Court
had not approv~d the pr!'-ctice. 92
According to the dissen1;, the
divorce decree ' was not , entitled to full faith and credit because
the california'. court had not acquire~ personal jurisdiction. 93
,
The dissenting :'justice's \argued 't hat the inherent uncertainty of
domestic relati'ons judgments makes the use of the minimum 'con",
"
94
tacts concept inappropriate.
In domestic relations cases,
jurisdiction is often retained by the decreeing court'.
The de-
cree, therefore, is subject to modification upon a showing of
changed circumstances. 95 Retained jurisdiction, the dissent reasoned, could ' subject the defendant to the continuing personal
jurisdiction of 'o ne state for life.
-14-
The dissent in Mizner criticized the extension of in personam jurisdiction ' achieved by California under section 417. 96
Two years later California repealed section 417.
The long-arm
statute with which itwa,s replaced, llowever, was not designed
to meet the criticisms "leveled by the Mizner dissent.
The new
\
statute, enacted in 1970, has been described as "a one-line
statement of' general constitutional principle.,,97
It states
that, "A court ' of this state may exercise jurisdiction on any
.,
basis not inconsistent with the Constitution of' this state or
the United Sta'tes. ,,98
This statute has no limitations except
the Constitution itself.
It also has no guidelines for its use.
Each exercise of jurisdiction under such an indefinite mandate
raises a quest,lon of consti tutiona). law. 99 This "omnibus" approach to
10n~';'arm
jurisdiction encompasses any basis of juris-
diction that the Supreme Court may approve.
But as a recent
Nebraska case 'indicates; this bt-oad grant of authority may invite judicia1inischief'.
The Supreme Court of Nebraska apparently used an omnibus
statute to acquire personal jurisdiction over a nonresident defendant.
In Stucky v. Stucky100
the court reasoned that, al-
though its general long-arm statute does not specifically mention divorce, nit indicates clearlY' the legislative intention to
apply the minimum contacts rule where it does not offend traditional concepts of fair play and substantial justice.,,101
addi tion. the court quoted a second Nebraska statute I
In
"(a]
court of this state may exercise jurisdiction on any other bas- .
is authorized by law.,,102
On the basis of one, or possibly both
of these statutes, the ' court upheld the exercise of personal jur-
-15-
isdiction over Ii nonresident defendant.
The court's, obscure
opinion, however, adds little to the body of case la~ in this
important area'" of ' expanding state jurisdiction.
Stucky could ' have b,eeil decided without any exte'n sion of
, Nebraska's long-arm jurisdiction. traditional concept's of jur-
iSdictio~ would I have be~n su,f ficient.
Stucky case
we~edomicile?
Both parties to the
in Nebraska.
Although the defend-
ant, Glenn Stucky, subsequently left the state, he retained numerous indici~ '~f a continued Nebraska domicile. 10 ) The court
, stated that a : domicile is presumed to continue until it has
!
104 The defendant failed to rebut this pre1!ttmp,been superseded
~
tion, and the court found him to be a Nebraska domiciliary," ' This
finding led the court to
a discussion
of a 1940 united StateSSupreme Court case, Milliken v. Meyer. 1 0S Milliken permits a
state to exercise in personam jurisdiction over an absent domiciliary who has, been personally ' served.
Although , the defendant
in Stucky was personally served, the, court ,declined to exercise
"
personal j'urisdiction under the procedure approved in Milliken.
1~
The court chose, instead, ' to apply the minimum contacts concept.
The statutory basis for this choice is unclear.
The
court recited both jurisdictional statutes, but relied expressly
on neither.
The court, however, 'did state that its unlimited
equity jurisdicition and its divorce statutes historically gave
the court personal jurlsdiotion "in cases such as thil'l'."107
The
'"
court cited no ,authority.
The Nebraska court then noted that Penn oyer had limited
state jUdicial , pow~r by imposing "due process restrictions ... 108
Next, the courf,concluded that, followipg Mi1.liken and Inter-
-16-
national Shoe . . .. those restrictions were removed ... 109
In con-
clusion. the Nebraska court found it 'reasonable and fair to subject Glenn St}lcky to the jurisdiction of Nebraska.
Althougll Stucky is ,consistent with the trend toward expand- :
ed jurisdiction in domestic relations cases, it will be
ed precedentlal value.
I
oflLtmit~
I
A trial court justifiably would be reluc-,.......
tant to exercise jurisdict~on over a nonresident on the basis of,
.'
I
such an ill-defined concept of minimum contacts. Stucky appears
to hold that in personam jurisdiction may be exercised over a
defendant who has minimum ' contacts with Nebraska, but this holding was not ad'o pted by a majority of the court. l1O In addition,
the court inisstated the. effect of International Shoe and substituted for minimum contacts a finding,that the exercise of jurisdiction was reasonable' and fair.
Because there is neither ju-
dic.i al nor ' statutory a:u~hori tythat explains how this holding is
I
to be applied. Stucky should not playa significant role in the
expansion of · state long-arm jurisdiction in the field of domestic
relations.
B• . The "Marital Relationship" Statute
In 1964 Kansas enacted the first long-arm statute specifically designed for use in domestic relations cases. lll ~t has
served as a prototype for statutes. adopted by several other
states. 112 The statute is straightforward, carefully drafted,l1)
and easy to apply. 114. It also imposes certain limitations upon
the exercise of jurisdiction, a feature that eliminates most of
the questions
~ concerning
its constitutionality.
In Scott v. Hall 115 'the Kansas Supreme Court . upheld the ac-
-17-
quisi tion of p'e rsonal ' jurisdiction 'u nder the first true domestic relation's long-arm statute.
The plaintiff, William Scott,
had served as legal counsel to Betty Hall in her divorce suit against the defendant, Charles Hall. ' The divorce court awarded
,
at,t orney' e feee to the wife ae part of a contra,ctual property
settlement.
The defendant left Kansas shortly thereafter and
'acquired a domicile ih Texas,
When he failed to pay the legal
fees, the plaintiff used the Kansas domestic relations longarm statute to acquire personal jurisdiction over him,
When
judgment was entered against the defendant, he appealed, thereby
giving the Kansas court an opportunity to discuss the operation
of its domestic relations long-arm statute.
rhe Kansas statute authorizes personal extraterritorial service upon any ': person "who has submitted to the jurisdiction" of
, :
116
the state's courts.
The statute enumerates various acts by
which this submission to jurisdiction is deemed to occur.
'{il
of the enumerated acts is
One
i ving in thtt marital relationship
within the sta:te notwithstanding subsequent departure from the
state, ••• ,,117 Jurisdiction acquired under this , procedure will
' support actions to enforce ' "all obligations arising for alimony, child support, or property settlement •••• ,,118
The stat-
ute expressly ' limi ts 'i til availabli ty, however, to plaintiffs
who have maintained a continuous ' domicile in the forum.
.
This
statute was attacked in the Kansas Supreme Court by a defendant
'
who argued that the statute could not constitutionally confer in
personam ' jurisdiction over a nonresident.
In Scott the court observed that the Kansas ,statute was
",
drafted to acconimodate the expansion of
, state personal 'juris';'18-
diction authorized by the Supreme Court in International Shoe. 1l9
The court's analysis suggests 'that it also intended to satisfy
the more restrictive language in Hanson. 120 The Scott court relied on cases :thathad 1hterpreted the statute in light of the
Hanson case. 12l ' In addition, the court found that the defendant
"invoked the benefits and protection of the laws of this'state,"122
a finding that goes far toward satisfying Hanson's more strin' gent requirements.
The ease 'w ith which the ,court upheld jurisdiction over the
defe'n dant in Scott obscures the significance of two limitations
imposed by the Kansas domestic relations long-arm statute'. First,
a Kansas plaintiff must prove that the "marital relationship" existed within th'e
~tate.12J This requlrement has the effect of
closing Kansas' courts to the forum-shopping plaintiff.
In ad-
dition, it virtuallya's sures that the minimum contacts test will
be satisfied. !: Once the plaintiff has established the existence
\
of the mari tal ', relationship in Kansas, the ' court has the basis
for a finding that the defendant "invoked the benefits and pro~
tection of the laws of this state.,,124
Minimum contacts, there"
fore, would exist in most situations that satisfy the marital relationship test'.
The second limitation is more difficult to justify.
In ad-
dition to the marital relationship , requirement, the plaintiff
must have maintained a continuous domicile in the forum state,
SUbsequent to 'the plaintiff's departure. 125 A piaintiff who
leaves the forum, for even a brief period, may be found to have
acquired a new domicile. This finding bars the suit, even though
,
the plaintiff's absence may have
been oaused by exigent circum>
,
-19-
stances.
As 'the Supreme ' Court noted in McGee, the practical
effect of such' a limitation may be to make judgment proof, an
otherwise solv'e nt defendant. 126 This result is not in keeping
.',
wi th the ' remedial , purpos.e of domestic relations long-arm statutes.
Nor is
required to satisfy due process.
~t
Wisconsi";;:has adopted a domestic relations long-arm statute similar 't o "the Kansas statute. 127 A case decided under the
Wisconsin version illustrates ' how the "continuous domicile" requirement can work an injustice on the Plaintiff. 128
Joan and 'Joseph Dillon were domiciliaries of Wisconsin.
After several years in Wisconsin, Joseph Dillon moved to Maryland, associated ' with
a law
firm there, and acquired a Maryland
Six: months later, the pl~intiff, Joan 'Dillon, and the
,
Dillon children moved to Maryland. The Dillon family lived todomicile.
,
gether in Maryland during the subsequent school year.
The plain-
tiff took actions that could have been construed as the acquisition of a Maryland domicile. 129 Other factors indicated that sh;e
retained
Wisconsin domicile. 1JO
a
At the end of
the Maryland school year, the plaintiff re,
'
turned to Wisconsin with her children.
She then filed suit for
legal separation, alimony, and child custody.
Personal juris-
diction was acquired over the defendant, Joseph Dillon, pursuant
to the Wisconsin domestic relations long-arm statute.
The de-
fendant's motion to dismiss for lack of personal jurisdiction was
denied, and h'e : appealed.
In Dillon! v. Dillon1Jl the Wisconsin Supreme Court quickly
found that.
th~:
been satisfied::.
I
statutory "marital relationship" requirement had
The issue was not disputed~
-29-_
The second limita-
tion on the ex'ercise of long-arm jurisdiction, the "continuous
domicile" requirement, was a more difficult question.
On the
affidavits presented, it was impossible to determine whether
Joan Dillon ha:d acquireq a Maryland domicile during her stay in
that etate. 132;': The case was remanded for a determination of the
issue o,f "continuous domicile."
The Wisconsin ' court's analysis of expanding state in personam jurisdic;tion suggests that the "continuous domicile" requirement is i :n'c onsistent with t 'h at court's view of the remedial
purpose of domestic relations long-arm jurisdiction. The court
,
identified two elements that encompass the requirements of jurisdittional
due process.
First, the mode of service must be
reasonably calculated to give the defendant actual notice. 133
A statute that', specifies personal service, the court observed,
satisfies
tht~ ' requirement,
More importantly, the defendant must
"
satisfy the mi:nimum contacts test -to be amenable to process of
the forum
state~
In its discussion of minimum contacts, the
court stressed ' the state's interest in providing dependent familymembers an effective means of redress. 134 The court acknowledged that the absence of expanded personal jurisdiction
encourages a spouse to cross state lines to avoid marital ob,ligations .135 . I~ addition, the opinion enumerated safeguards
that protect the defendant from exercises of jurisdiction that
approach the limits of due process. 136
In its finding that Joseph Dillon had the required contacts with Wisc9nsin, the court observed that the "marital relationship" requirement is designed to satisfy the minimum oontacts test.
137 ' ,
,
"
Under the Wisconsin version of this statute,
-21-
the marital relationship must exist in the state for a period
of 6 months !luring the 6 years preceding . the suit,138 As the
court noted, : tl:lis requirement satisfies the test devised by the
Supreme Court /in Hanson •.1 )9 In its ·consideration of the "continuous domicile" requirement, the Wisconsin court omitted any
. suggestion tha~ significant state · interests were· to be furthered
~y
tory
,I
its application.
languag~
The court dutifully applied the statu-
and remanded the case·. 140
The facts ' in Dillon would justify a jury's finding that the
plaintiff' acquired a domicile in MarYland. 141 Su'ch a finding
would bar her suit in Wisconsin, even though she was domiciled
there before her trip to Maryland, and again upon her return.
Joan Dillon was not engaged in forum-shopping,
At the time of
trial, she was a bona fide Wisconsin domiciliary, living in her
marital residence. 142 . The requirement that .could foreclose ad• equate reli~f , 143 therefore, was neither necessary' to satisfy
due process nor required . to prevent forum-shopping.
By adopt'-
ing" the continuous domicile requirement, Wisconsin and a number
'.
..
of other states have 'rejected the goal of expanding state in
:personam jurisdiction to the full extent permitted by due pro. cess. l44
The Illinois statute has been characterized as "a practi.
,
cal step towards overcoming many of the hardships arising from
family separation in our highly mobile society." 145 The statute permits the exercise of jurisdiction over a defendant whose
matrimonial domicile existed in Illinois, without requiring that ,
the plaintif'f"~ domicile in Illinois be continuous,l46
The stat-
,
ute also provides a 'limited basis for the ex.:ercise of juris-22....
diction over ' a ,defendantwhose acts in Illinois gave rise to
the cause of action.
Under the' Illinois statute, a defendant submits to jurisdiction by thecommissiQn in Illinois of certain acts, out of
which the plaintiff's cause of action must have arisen. 147 Two
separate categor,iesof acts are specified in suits for divorce
and separate maintenances
the maintenance in Illinois of the
"
,
matrimonial domicile at the time the cause of action arose, or
the commission 'of any act in Illinois thiLt gives rise to the
'
cause of action.
1~
,
The existence of a marital domicile in the
state, therefore, may be the basis for the exercise , of in personam jurisdiction.
AI second basis exists, however, if the de\
".
fendant's acts ' in Illinois give rise to the cause ot action and
,
'
also satisfy the minimum contacts test.
Hanson requires that
the defendant's acts be purposeful acts, by which the defendant
invo,k es the benefits ' and protection of Illinois law. l49
As a
recent case illustrates, Illinois courts are aware of this restricti on.
In Hawes ' v. Hawes 150 an Illinois court found insufficient
contacts to justify the exercise ot in personam jurisdiction over
a nonresident de'fendant.
The case arose out , of' a divorce suit
filed in Illinois by plaintiff Douglas Hawes. ' He' obtained a divorce decree awarding him child custody and declaring that the
defendant, Lois Hawes, ' was not entitled to alimony.
In person-
am jurisdicti'on had been obtained by personal service on the de"
fendant in Michigan. , She did not appear in the Illinois suit.
,
A year later the defendant entered a special appearance to
challenge the ' e,xercise of in personam jurisdiction by the Illinois
-23-
court.
The trial court found that the defendant had insuffi-
dent contacts' wi th Illinois to support an in personam judgment.
It thElrefore vacated the orders relating to child cus-
tody and alimQny.
On appeal;, the plaintiff argued that the defendant had
. commi ttedan e,'c t in Illinois out of· which the cause of action
arose .151 The: court cited Illinois cases that define as constructive desertion the failure of a wife to follow her husband to his new domicile. 152 Under these decisions, the act of
desertion occurs in Illinois.
The Hawes court, tiowever, held
that the defendant had "committed no act in Illinois."153
Citing Hanson, the court found that the defendant had not
engaged in acts that invoked the benefits and protection of
.
54
Illinois law. 1 . No basis existed, therefore, for the trial
court·s exercise' of in personam jurisdictionr the court was
wi thout author.i ty to grant child custody or to withhold ali- ·
mony.
The Hawes court recognized Hanson as a limiting factor on
the exercise of .s tate court jurisdiction. 155 This analysis limits the reach ·of Illinois jurisdiction no more than the due process clause requires, but provides adequate protection for the
defendant who~e contacts with Illinois arenegligible. l56 An exercise of long-arm jurisdiction is of little significance, however, unless' it . is honored by the courts of : other states. 157 The
Illinois statute was recently subjected to this test by 'the Supreme Court of New Hampshire.
Eleanor ~ickas: the plaintiff in Nickas v. Nickas,15 8 had
been domiciled in Illinois for 6 years.
-24-
The defendant, Paul
Nickas, had b~en a New Hampshire domiciliary for 10 years.
The
couple were m~rried in Illinois, where they lived as husband and
wife for onlY ' ) weeks. 159 After the defendant returned to New
Hampshire, the plaintiff: filed a divorce suit in 'Illinois.
' defendant was personally served in New Hampshire.
The
He appeared
specially in Illinois and was found to be subject to the jurisdiction of the Illinois court, he did not argue the merits of
his case.
Having obtained an , in personam judgment in Illinois by the
defendant's default, Eleanor Nickas filed suit in New Hampshire
to enforce her judgment.
The New Hampshire Supreme Court found
that Paul Nickas had sufficient contacts with Illinois to justify its exercise of jurisdiction overhim. 160 Citing Hanson,
the court found that the defendant had invoked the benefits and
protection of Illinois law during his brief stay.
Because these
activities gave rise to the cause of action, the court found the
Illinois statute constitutional as applied . to this defendant,161
As the Nickas decision indicates, the Illinois domestic relations long-arm statute has allowed Illinois courts to extend
their jurisdiction to the full extent permitted by due process.
The statute applies, however, only to defendants who ha:ve main,
.
tained specified relationships with Illinois.
.
The Hawes decisiol! _
illustrates that Illinois courts are willing to prevent overI
zealous application of the statute to defendants who ' are without
minimum contacts ' in Illinois.
In addition, the Illinois minimum
contacts analysis includes consideration of the restriction that
,Hanson' imposes upon state ' 'jurisdiction. ' By 'satisfying ,t his more
restrictive minimum contacts test, Illinois, courts have entered
-25-
,divorce decree!s ' that are certain to 'be acco~ded , full faith and
credit.
,c.
The "Any Relation" Statute
The Oklahoma domestic relations long-arm statute states
that it is l~mited only by the United States Constitution.~62
. Although inart.f ully drafted, the statute apparently bases jurisdiction upon' the maintemince of any relation to the state or
to its domiciliarie,s " 'including minor children--if that relation
, .; ' .
.
.
!
•
is sUfficient)o satisty the requirements of , due process.
..
'. 1
This
"-
statute avoids restrictions imposed by the Kansas-Wisconsin stat<
ute.
Its language ie , so broad, however,
th~t
It requires judi-
cial construction. IIt . is incumbent upon thf Oklahoma Supreme
Court, therefor,~, to define accura tel'Y the ~imi ts of; state in",'
.
,
' :
'
-.
.
:
,-
In a recent case th~ Oklahomil court ' over-
personam jurisdiction.
looked important due process considerations that determine
whether a cour.t has , properly acquired jurisdiction over a nonresident. defenda'n t. ,
.,
.
In Hines v'. ' Clendenning
16]
a California resident challenged
;':
an exercise of,;
jurisdiction under the . Oklahoma statute.
.. /
~.
arose out of
~'he
~
The case
marriage .of Glenda and James Hines while they
I'"~
,' ,
I
were students :1n Oklahoma.
,r
The defendant"James Hines, obtained,
I,
.'
an undergraduate degree in Oklahoma and then was admitted to medr
ical school in , Lo~isiana.
!
Upon James' graduation from me~
.
. . '. ..
1
school, the couple returned to Oklahoma, where the defendant', re;',
ceived his iicense to practice medicine.
He then entered~ ,
Air Force and was transfer~ed to California.
•
After 2 years in
California, the defendant sent his wife back to Oklahoma with instructions noti,
to return,.
;1
The plaintiff filed for a divorce in
,~
t",
, ' .·~26'-
"
,Oklahoma.
She acquired, in personal jurisdiction over her hus'-
band by personai service in California.
The defendant then in-
vokedthe Oklahoma Supreme Court's or~ginal jurisd!~tion to prohibit the exercise of ,jurisdiction over him.
In Hines the Oklahoma Supreme Court found that the defendant had sufficient contacts with Oklahoma to justify the exercise
of in personam jurisdiction over him. 164
The court stated that
passage of the Oklahoma long-arm statute evidenced legislative
intent to extend the jurisdiction of Oklahom~ courts over nonresidents to t 'he outer lim'i ts perini tted by the due process
clause. 165 ' The, court', the:r:efore, discussed the minimum contacts
,
,
required to satisfy due process.
It stated ';that cases decided
by. the United .States
Supreme Court subsequent to InternationalI
Shoe have mi'r)i~'ized the contacts required arid have placed more
emphasis on "fairplay and substantial justice ... 166
'A ccordingly,
' the Oklahoma court discussed practical considerations. the state' ,S '
manifest interest ,in the financial incidents of marriage and the
potential for ' iriconvenierice to the plaintiff if jurisdiction were
denied.
Theco,u rt failed to mention Hanson.
On the basis of the defendant's contacts with Okiahoma, the
court found th~t ,"the ,; minimum co'n tacts' required by the Interna~
tional ,Shoe C6;:' case exist in this case ... 167 That assertion is undoubtedly correct.
It is misleading, however, if it is:rn~~d
as a statemerit 'of the test that should be applied to det ermine t~e
reach of Oklahoma's long-a~ statute.
jurisdictIon must
s~tisfY ~e
An assertion of lo~rm
requirements of Hanson.,
The Hines
decision, there:fore, failed to identify the limits of due process--
;'2(7- "
the only standard by which Oklahoma long-arm jl,lri'sdiction can be
evaluated.
' case under
Un~il
~ts
the ,Oklahoma Supreme Court again decides a
domestic relations long-arm statute, Oklahoma
trial judges , a'r e to give more weight to practical considerations,
although the Supreme Court expressly rejected this approach in
Hanson. 168
, V.ANALYSIS
The courts" of several states have exercised , in personam jurisdiction over nonresident defendants, in suits to""enforce martal obligations, on the theory that Hanson is not a significant
restriction on their ,judicial power.
This theory places more em-
phasis on the" fair play and substantial justice" aspects of International Shoe than upon the defendant's contacts with the forum. 169 In their zeal to provide redress for dependent family
I
m!!mbers, these courts may have overlooked "territorial limita- '
.
,'
. '
; /' 170
/
.
tl.ons on the power of,,: therespectl.ve States.'
A more cautl.ous
approach is indicated because the ' stakes are highs
the defend-
ant, by virtil~of a c;:ourt's continuing jilri~diction, may remain
subject to thati court's jurisdiction for lifI e. 171
,
Moreover, theplaintiff willi derive little benefit from ah overzealous exercise
of jurisdiction if the resulting jupgment Wi ll not be accorded
full faith and credit.
To provide ,for the dependent spouse or children, state
courts are just,ified -in extending domestic relations long-arm jurisdiction to the full extent permitted by due process. 172 AchieveI
'
I
ment of this goal requir~s accurate identification of the limits
of due ,process;, ' Because , the Supreme Cciurt has not yet defined
-28-
these limits , in maz:ital support casss" state courts function in
an area of l1!anifest uncertainty. ' This uncertainty should be resolved by circUmspect analysis of available case l~w , and an aware,ness that continuing Personal obligations are being imposed.
Hanson' s 'r~newed ,emphasis on minimum contact,~ may have no
' application tl? domestic , relations litigation :~~ 73 , Tn1s theory is
.
a ,valid area for ' spectiTation by legal commentators, but it is not
,
an area '1 n wtlich .state courts may exercise discreti~n.
The Su-
preme Court specifically rejected, ' as the basis for stats longarm jurisdiction, the practical considerations it had relied upon in previous' decisionSI "trhe state) ' does ! not acquire that jur,
'
.
'
isdiction by b'e ing the 'center
of gravity' of, the controversy,
.
'
.
or the most cqnvenitmilocation for litigation.
The issue is per-
sonal jurisdic;~ion, not choice of ' l8.w."174It is essential that '
the defendant "bY some purposeful act invoke : the benefits and 'protection ' of the, ~aws of the forum.
ThePerklns characterizati-OIt
of ji.lrisdictlQ~ ' as a question of general faIrness is\ no' longer
,
, valid.
Accordingly, courts that base jurisdiction solely on con;';
.
.
.
.
.~.
.
'
,
'
,
.
siderations of ' convenienceor state interest in the litigation,
act in direct ' c~nfli~t with Supreme Court authority.
To properly acquire in personam 'jurisdiction over a nonresident, courts must first apply the minimum contacts tests of International
Sh~e
and Hans'o n .175 ' HaVing ' decided this vi tal th:Sh-
hold- question , ', courts : are then free to conclude that ". tinl inimuni , ,
I '"
'
contacts' alon'e is an inadequate doctrinal tool, for in this re- i
pect it reveals little about the factors which must inf~
judgment."176 ',T his conclusion merely admits that substaritfY'e in,L.
terestll inescapably will 'bl? !!- " factor il'l the jurisdiction
-29-
OOsio~.
,Adoption of a requirement that minimum contacts be present does
"
not preclude recognition
of these interests, particularly when
thO! defendant ',s contacts with the forum present a 'c lose ques~ion.
Minimum contacts analysis is of necessity an abstractl'on, and policy considerations are properly a part of the oo.urt's decision
whether to ' exerCise jurisaictiiltl.
The ,contacts r~quired by Han-
son are not tangibles ', that courts can weigh or measure. . Whether
minimum contacts do or do not exist in a given situation, there,
fore, is largely a matter of judiCial opiniol1 •
The 'primary ef-
fect of Han's on;: is not ";;0 exclude conside.rations of conve~ience or
state iilterest in arri"ltng at that opinion.
"
Instead , its effect ·
,
is to insure that the.se factors are not the sole basis for an ex:ercise of jurisdiction.
,r
:
Minimum contacts analysis is a constant in the
\
~tate
long-
A nonresident defendant'~ contacts
arm jurisdiction equation.
wi th 'the state:' must always be evaluated in order to satisfy due
process,
The ,variabie in this jurisdictiol) equation is the state's
,
long-arm statute.
The ,statutes that have
been applied to domes.
tic relations c:a.-ses, for the purposes of this comment, have been
grouped very g~nerally into :3 types of statutes.
of' long-arm st'atute is the Momnibus" statute. 177
The first type
"
Omnibus jurisdictional
statutes provide very general au-
thority for the exercise of jurisdiction over nonresid~~178
These statutes alloW
~he
courts of a state to exercise ~uri:sdic:'
tion to the full
, , extent . permitted by the due process c~ Th~
outer limits
:, due 'procesJ, therefore, mark the boundaries of
oi
•
state court . jurisdictlon, pursuant to an omnibuB statute.
-30-
This
aPt>roach permit's a state to expand or contract t~e reach of its
long-arm statute to accommodate changes in the Supreme Court's
concept of 'due ' process. " Omnibus statutes do not become obsolete I they automaticallyencompasB
change~
in the requirement,s
of due process., Inherent in this statutory ,approach to jurisdiction is a ' legislative judgment that, the state's courts will '
define accurately the effect of the due process clause on their
judicial authority .Predictabl,y, cri tism of, the exercise of
jurisdiction under an omnibus statute centers around the court's
treatment of due process.
In Stuc,lS,l79
the Nebraska Supreme
I
Court illustrated the difficulty that state ' courts have encountered in ,discovering the limits of due ~rocess as a resu~
of the uncertainty ,l eft ' by International Shoe and it'~ progeny.
When a court undertakes minimum c9ntacts analysis, ' it enters an
area of unsettled 'law.
As this concept is extended to domestic
relations cases;' the unanswered questions multiply. ' for the Su,
preme Court has! never discussed the applicability of long-arm
jurisdiction , til "suits for the enforcement of family obligations;80
",".
Extension of an omnibus statute to domestic relations cases, therefore. is a ' step few states have 'taken.
By contraet, the most
popular type ,~f statute has been the type referred to in this
comment as the "marital relationship" statute;181
,
'
A number of states base the. exercise of long-arm jurisdiction on a requirement
that, I the defendant live in the
,
"in the marital ' rel~tionshi.p ... 182
a precise relationship
with~he
for~ate'
Because' these statutes specify
state for the exercise of long-arm
jurisdiction, "they
provide a measure ,of 'certainty , that omnibus
,
statutes cannot, provide.
The defendant·s act
of living in the
marital relatfonship within the forum should satisfy Hanson's
requirement that the defendant by purposeful act invoke the benefits and protection of the laws of the. forum.
Although the mari-
tal relationship requirement alone should s,tisfy the minimum
,
,"
. I,
contacts testiri most cases. Wisconsin has added a requirement '
that this reH.tionship exist in the state for a minimum 'of 6
months during .'the
6. yeQ.rs preceding
suit. 18 ) Besides satisfying
I'·
'.
minimum 60ntacta ,analy~is. these limitation~ on the availability
of long-arm jUI1isdi'ction have the. saluta ry '\!ffect of preventing
"
forUm-shopping'~·
.
I
' __
.The courts of a marital reiationsht p state will
-
be open only to suits arising out of marriage
contra'~ts
that. at
least in part ;·"were performed .there • .
An additional limi1;ation that appears in marital relation"
.
.
184
ship statutes lis the requirement of "continuous domicile."
'. I
.
.'
This limitati~r :defeata' the exercise of long-arm jurisdiction by
a plaintiff who ' has been domiciled outside the forum state at
any time sUbs'e 'q llent to ' the defen'd ant' s departure.
No minimum
period of time': is specified, and the reason for 'the Plaintiff's'
absence if! 'n6t 'a factor. the court considers only whet1i~
plaintiff"s ·,r ei.a:tionship 'wfth another state 'constitutes theaCq~ i­
si tion of a "ne:wdomicil'e;'
of a
~ouse 'who
is
For example. the exigent circum-s-ta:nc~'S
abandon~d
in the f.orum may ' necessitate
rea.oc~~­
tion. ' If a :jury 'ffnds ' that this move, !l>lbeit of ·short·duration.
amounted to th'' I.e; acqufaitionofa
new <lomi'cile·•. ·the X:equireme'nts for
.
I
jurisdiction have not · been: satisfied.
l'he plaintiff' must either
pursue the err!lnt
to another state or be content with the
. . spouse
,
recovery avai~~blethrou'ghURESA; 1-8,5
.
,
The cont1nuous do~icil~requirement 'is a serious limitation
"
.,.)2-
on the availability of long-arm jurisdiction.
It
~annot
be jus-
,I
fled' as necessa,ry' to ' discourage 'forum-shopping, 'each ' state that has
the" continuous domicile requirement also deters :t'orum-shopping
"
by opening its:' courts only to parties who have maintained a marital relationsh'1.p in that state.
The continuous domicile re-
quirement, J therefore,
imposes restrictions on state long-arm
,
'
jurisdiction: ~ithout pro;'iding concomitant benefits. ' As the
Dillon case illustrates, requiring the plaintiff to maintain a
continuous domicile in the forum may forecl:ose recovery by a
f~rum
domiciliary 0;' the
,
"
on a cause of acti,o n that arose there. 1S6
-
In sum, the r~quirement.9f continuous domicile conflicts with
the basic pollcy that underlies the extensi.!on of long-arm jur'isdiction to the ,: field' 'of domestic relations ~' the elimination of
interstate tra,t el. ,as a means of
tions. 187
avoi~ing f,~milY
support obliga:'"
The final statute ,to be, considered bases juris'd iction on
"any relation~ to the stat'e or t ,o its rellidents. if "that relation affordli
;,
a ;consti
tutional ' basis
"
' .
'.
, .
" ,
for the exercise, of personal
1~8 '
,
"
"
'.
,
jurisdiction.
Oklahoma has adopted a statute of this type
by amending the' Uniform Interstate and ' International Procedure
Act to make, it 'specifically appltcable' to domestic relations
189 This statutory scheme matches the fle'x ib,l.:lity of om· ,
cases • .
,,
,
,
nibus legislation, but can 'provide "for greater certainty in it~
I
,
applicatiol)'
I
Because the statute bases jurisdiction on ~e-
lation," Oklahoma co'urts can adopt the "mari tal reil.atio~ship"
..
. "
'.
' -
.
I
standard, but' without i tsr statutory count'erpart, the contInuou~
domicile requirement.
,
Th4s approach would allow Oklahoma to - ex-.
tend its jurisdiction on the basis of a relationship that is de-
-33-
signed to satisfy Hans.on I s test for minimum contacts.
An exer-
cise of jurisdiction accomplished in this manner would be far .
more reliable 'than the method used by the 'Oklahoma court in
, Hines. 190 Furi'her, jud~cial adoption of the marital relation,',
ship as the basis for jurisdiction leaves the state's ,courts
free to adopt ., any changes in the minimum contacts 'c oncept that
future Supreme Court decisions may require.
Because continuing personal obligations are the ultimate
goal of
long-~'~m
jurisdiC?tion in family support cases, in per-
sonam jurisdiction ,must be properly acquired.
Hanson's renewed
emphasis on territorial limitations on stat,e court jurisdiction
make acquisition of in personam jurisdictio'n over nonresidents monr
difficul t.
In an att 'e mpt . to avoid 'these, li~l tations, s ome courts
have simply' disregarded Hanson.
•
f "
'Others hav:e chosen a reliable
basis for jur fs~iction
that will satisfy a ~stringent minimum
..
' ,
contacts tes't . ,The Supreme Court could el ~minate this problem.
,,
", ' ,
by limiting Hahson to its facts.
• f
,
Until tQat time ,~tate courts
should require ,asub'stantlal relationship with the f\orum before
concluding t hat ' an exercise of long-arm jurisdiction, satisfies
due process;,
1.
518 S.W.2cj 362 (Te'x.1975).
2.
Ariz. R. Civ. P. i 4(e)(2).
I
"
"
Rule 4(e)(2) provipes in relevant part:
4 (e) (2) Summons; personal service out of state.
When the defendant~
is a residen~ of t~iS stat"!, or is a corporation doing businessIrr--utis :
state, or is' a person, part:nership, corporation or unincorporated
association ~ubject to suit in a common name which has caused an event
to occur in ' this state out ~f which the claim which is the subject of
the complaint arose, service may be made as herein provided, and when so
made shall be of the same effect as personal service within the state •
3.
.
,
The judgments of sister states must' be given the full effect to which they are
entitled in the 'rendering state.
They are, however, entitled to no greater
\
effect.
I f the rendering 's t\.te was without lIurisdiction, the'refore, sister
,
\,
states are not bou~d by th'7 ju~gm~nt..
330 U.S. 610,
4.
New York ~ rei.
Halvey v. Halvey,
614 : ~~ 947).
Mitchim v. Mitchim, 509 S.W.2d 720 ,(Tex. ,Civ. App.--Austin 1974,-,writ granted)
<! '
I'
The Court of Civil Appeals ,imposed upon the foreign judgment holder the burden
.: .
of proving that het', judgment was valid.
~
at 724.
5.
518 S.W.2d 362 (Tex. 1975); ,
6.
Judgment was not rendered for the Arizona plaintiff.
See note 7 infra.
"
.
r. .
!~
..
.
.
The case
~aB
remanded to
decide whether the,; defendant had caused an event to occur in Arizona, out of
' which the cause of t action arose.
' . L I
~
at 367.
7.
A secondary issue pealt with proof of a foreign judgment.
The Court of Civil
Appeals had held that the burden of
, proof is on the holder of a foreign judgment,
,
'
to prove its valiqity.
The Texas Supreme Court pointed out that introduction of
a foreign judgment, makes a prima
8.
~
case of its validity.
Id. at 364.
Id. at 365, citing ,Phillips v. Anchor Hocking Glass Corp., 100 Ariz. 251,413
P.2d73'2 (1966).
9.
U.S. Const. amend. XIV.
"
10.
518 S. W.2d at 365., " This was one of the arguments upon which the court of civil
appeals had relied ' in denying full faith and credit to the Arizona judgment.
Mitbhim v. Mitchim,
. 509 S.W.2d 720, 724-25 (Tex. Civ. App.--Austin 1974, writ
'
granted).
This , argument first appeared in the dissent to Mizner v. Mizner, 84
•
,
I~·
Nev. 268, 439 P.,2d , 679, cert. denied, 393 U.S. (1968).
11.
518 S.W.2d at 365.
The court cited the
majo~
cases:
Soule v. Soule, 193 Cal.
App. 2d 443,14 Cal. Rptr. 417 (Ct. App. 1961), cert.denied, 368 U.S. 985 (1962);
Scott v. Hall, a03 Kan. 331, 454 P. 2d 449 (1969); Stucky v,, Stucky, 186 Neb. 636,
185 N.W.2d 656 (1971);
393 U.S. 847 (1968);
Mizner v. Mizner, 84 Nev. 268,439 P.2d 679 cert. denied,
Hines v. Clendenning, 465 P.2d 460 (Okla. 1970);
Dillon v.
Dillon, 46 Wis. 2d 659, 176 N. W. 2d 362(1970).
12.
The Supreme
Cou~t
has denied certiorari in two cases that upheld the exercise of
longarm jurisdiction:
Soule v. Soule, 193 Cal. App. ' 2d 443, 14 Cal. Rptr. 417
(Ct. App. 1961), cert. denied, ' 368 U.S. 985 (1962); , Mizner v. Mizner, 84
439 P'.2d 679, cert. denied, 393 U.S. 847 (1968).
-2-
N~v.
268,
13.
518 S.W.2d at 365, quoting Mizner v. Mizner, 84 Nev. 268,. 439 P.2d 679,
,
cert. denied, 393 U.S. 847 (1968) .
14.
The court listed the following contacts:
"Arizona was the marita1 domicile of the parties from 1966 until
l'?efendant] moved to TI.xas early in 1971.
They owned their home in
Arizona and continued to own it when the divorce was granted.
O'L°nQ,.
moving to" .'
f
After
,
(defendant} made mortgage paymentB on the Arizona
•
home an~ ~sent money 'to \'plaint1f~ in Arizona."
jiixixWx~.x~xi"x
518 S.W.2d at 36'6.:
• >1.
15.
See note 2 supra-I.
I
: ....
16.
'S ee note 4 supra.
17 .
See generally Developments In The Law--State-Court Jurisdiction, 73 Harv . L. Rev.
909 (1960).
1'8.
See generally Comment, ANew Expansion Of Jurisdict'ion1. 6 Tex. Tech. L. Rev.
105 (197+) .
19.
See generally lIote, Long-Arm Jurisdiction In Alimony And Custody Cases, 73
Colum . L. Rev. 289 . (1973) .
==
=
20.
95 U.S. 714 (1877).
21.
Id. at 722 (Emphasis oriJ1;inaH.
'.
,
-3-
22.
Id.
23.
Id. at 727.
24.
See Kurland, The "'Supreme Court, The Due Process Clause And The In Personam
,I
Jurisdiction of 'State Courts, 25 U. Chi. L. Rev. 569 (1958) fhereinafter cited
"
, as , Kurland] .
25.
Id. at 577-86.
26.
326 U.S . 310
27.
The Court refused ' to base its holding on the fictional presence of a corporation
(194~)
.. ,
•
in the forum:
To say that 'the
corporation ,i s so for • present" there as to satisfy due
,
process requirements , for purposes of taxation or the maintenance of suits
against it in the courts 'of the stafe, is to beg the question to be decided.
\
For the terms "present" or "presence" are used merely to symbolize these
activities of , the corpor~tion's agents within ' the state which courts will
"
deem to be 'sufficient to satisfy the demands ,of due process.
?Id. at 316-17.
28.
Id. at 316.
29.
Id.
30.
Id. at 317.
-3-
31.
Id. at 319.
32.
339 U.S. 643 (1909).
33.
Id. at 647" Quoting osborJ v. ,ozlin, 310 \U.S. 53, 62 (1940).
34.
339 U.S. at ' 648, ,quoting Hoopeston Canning Co. v. Cullen; ~18 U.S. 313 (1943).
35.
339 ,U.S. at 648~49;
36.
Id. at 649.
37.
342 U.S. 437 (1952).
38.
The Court's exac't holding was:
,"the Fourteenth Amendment leaves Ohio free to
take or declin~ 'j~risdiction ove~ the corporation."
Id. at 438.
The Court
thus rej ected ;the " argument that due ,p rocess compels the state , to open its courts
to the plaint ~f ~~" "
39.
Id. at 445. ,
40.
Id. at 448.
Id. at 440.
Th~' defendant was a Phillipine ..liming company.
When the Japanese
occupied the Phillipines, the defendant's president returned to his home in
Ohio .
There he supervised the limited wartime activities of the company.
this period of time, the president was served with summons.
41.
See Kurland, supra note 24, ' at 602, n.178.'
-4-
During
42.
3.55 U.S. 220 (1957).
43.
The defendant wa~. a foret'gn .~orpbrat1on with no office .or agent in California.
1 '.
The contacts
upo~:' which
.
'
'
.
.
jurisdictio.n was based were the defendant's offer by
mail to insure t 1!leplaintiff and · the plairttiff'a payment of premiums by maiL
Id •• at
221-22~
44.
l!!.:. at 222.
45.
Id. at 223.
46.
See note 43 Bupra.
47.
355 U.S. at 223.
This langu!lge has been adopted frequently by state courts
as they expand l .o ngarm jurisdiction to ' the field of domestic relations.
48.
Id.
49.
The evidence was convincing enough that Professor Ehrenzweig referred to
~
as the probable coup de grace to Pennoyer's power theory of jurisdiction. Ehrenzweig,
Pennoyer Is Dead--Long Live Pennoyer, 30 Rocky Mt; L. Rev. 285 (1958).
s
50.
=
=
The Court's entire discussion of due process as it applied to the defendant in
. ~ was as follows:
Turning to this case we think it apparent that the Due Process Clause did
not preclude the Califo~nia court from entering a judgment binding on
respondent.
was
It is sufficient for purposes of due process that the sui;(based
on a contract · which had substantial connl!ction with .that State. [Citations
-5-
omitted] :The contract was delivered in California. the prem..!-ums were ,
mailed from Ithere ,and the insured was a resident of that State when- he
died.
J
It cannot be denied that California has a manifest interest in
providing effective means of redress for its residents when their
insurers refuse to pay claims.
These residents would be at a severe
disadvantage ' if they were forced to follow the insurance company to a
distant Btate in order, to hold it legally accountable.
When claims were
small or moderat,e individual claimants. frequently 'could not afford the cost
of bringing an action in
a foreign forum--thus in effect making the company
I, ,
judgment proof.
\
Often\
the crucial witnesses--as here on the company's
defense of suicide--wilV be, found in the insured's locality.
Of course
there may be inconvenience to the insurer' if it is held amenable to suit in
"
California where it had this contract but certainly nothing ' which amounts to
a denial of l: due process.,
[Citations omitted]
respondent 'did not have adequate
prepare its. defenses 'a nd appear.
355 U.S. at 2i3~f4.
51.
357 U.S. 235 (1958)
•
. J;.
52.
Id. at 251.
53 .
Id.
54.
Id. at 253
55.
Id.
~otice
There is no contention that
of the suit or sufficient time to
'5 6.
The dissent. wOUld, 'have discarded minimum cont.act.s as a t.est. for jurisdiction.
These Just.ices, would hav~ balanced the state's interest in providing s forum
against. inconvenience t.o the defendant..
The majorit.y reject.ed t.he dissent.'s
c~oice of law approach t.o j1.\risd,i ction:
, ''It. does not, acquire thst. jurisdiction
by being the ·Ce~t.er of sravi,t y r of the controversy, or t.he moatt convenient
location for t.he:::1'it'i ga,t1qli. "
law."
57.
58.
' ~at
The iasue ia personal jurisdiction, not choice of
357 ' U.S. Iit ' 254 .
260.
See not.e 12 supra.
~34
,59 • .This term was coined in Est.in v. Estin,
U.S. 541 (1948).
For a discussion
of the divisible ,divorce doct.rine' see Krauskopf, Divisible Divorce and Rights t.o
Support. Propert.y and Custody, 24 Ohio St.. L. J. 346 (191\3).
=
' 60.
SEle generally
H.: Clark,
,I'
¥
==
The Law Of Domestic Relations '~L 2 (1968) [herei';atter
'; _
- ited as Clark"} ·i,," "
, ~J
.!
61.
ld. I 11.1
62.
317 U.S. 287 (1942) (Williams 1).
63.
In Alton v. Alton, 207 F,2d 667 (3d 'Cir. 1953). Judge Goodrich, writing for the
court held
that ~; jurisdiction
to end the marital status
~
be based upon domicile.
A statute whi~h ~: purported to base jurisdiction upon mere presence was held t.o
--
violate t.he due 'iprocess clause." ,l d. at. 677.
,
64.
Sist.er atateti ·, ~~~ ' free, however, to relitigate the bona fidea of the plaintiff'.
" -7-
Williams ·v. North !Carolina. · 325 u.s. ni. 11"4~\
.
domicile in the" decreeing
.state.
,.
(Williams II).
65.
Estin v. Estin, '.334 U.S / 541 (1948). ,' See also Vand,rbilt' v. Vanderbilt, 354
I' ;
U.S. 416 (1957). '
66.
334 U.S. 541 (1948).
67.
These aspects _
of a divorce decree are clearly in personam,'.
note 60, at 8 11.4.
.
;
See Clark, supra
Child custody was not referred to because ,the jurisdictional
requirements for ·.child custody orders have not been clearly enunciated by the
Supreme Court.
II 11. 5;
SeE! May v. Anderson, 345 U.S. 528 (195');
Clark, supra note 60 at
=
Krauskopf. Divisible Divorce and Rights to Support , Property and Custod#,
,
!
24 Ohio St. L. J," : 346 (1963).
,
......
,
68.
Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679, cert. denied, 393 U:s. -847:. (1968).
89.
The enforcement problems inherJnt in U.R.E.S.A. are beyond the scope of this
comment.
See ·generally Note, Long-Arm Jurisdiction In Alimony And Custody Cases,
73 Colum. L. Rev • . 289, 306-07 (1973);
=
=
Note,- The Uniform Reciprocal Enforcement
f
of Support Act, 13 Stan. L. Rev. 901, 915-19 (1961);
Ehrenzweig, Interstate
=
Recognition of Support Duties, 42 Cal. L. Rev. 382 (1954).
70.
Kansas was the first state ,to enact a longarm statute that included a specific
provision for domestic rela~ions ,cas'ea..
See note 111 infra.
California was
the first state to exercise iongarm jurisdiction in a domestic relations case;
the long arm statute did not specifically provide for dOmestic relations cases.
See note 73 in,h/. '
/
71.
193 Cal. App. 2(4p, 14 . Cal; Rptr. 417 (Ct. App. 1961), ~ 'denied, 368
,
Q.S. , 985 (1962);
72.
These items, und~;,' the' divisible divorce d~ctrine, are enforcible only i f the
court properly acquired in, personam jurisdiction.'
I
~
authorities cited
n9~~
.'
• I
67 supra.
73.
Cal. Civ. Pro. Code 11417 (1954) (repealed effective July I, 1970).
-Thl-s se~tion
,
provided in relevant part:
,Jurisdiction to
r~nder
personal
ju~gment
against person served out of state
Where jurisdiction is acquired over a person who is outside of this State
the court shall have ,the power to render a personal judgment against
such person': emly ' if he was ,personally served with a copy of the summons and
complaint, ' ~nd
, was a resident ' of this State (a) at the time of the commencement of the '.action; or (b) at thl. tim,\ that the cause of action arose, or (c)
at the time, of servic~
Rhode
I~land
a1B.o
h~s i an:, ~n~~~~
lo.{garm statute. •
&,1.
Gen. Laws Ann.
119-5-33 (1970),
14.
See note 73 supra.
75.
The term ." resident" in the statute has been construed to mean "domiciliary".
~
See,
Owens v.Superior Court, 52 Cal. 2d 822, 827, 345 P.2d 921, 922 (1959).
supra~ '
76.
See note 73
77.
52 Cal. 2d 822, : ; 34~ P. 2d921 (1959).
,
In Owens, the plaintiff was bitten by the
,
defendant's dog :while both parties lived in California.
• , '1"
-9-
Before the suit was filed,
the defendant
to Section
78.
,
'
,
~:ved
to ,Arizona.
He"as personally aerved.. in Arizona, pursuant
41i;'
,
The case cited !, w~s Milliken v. Meyer, 311
u.S.
457 (1940).
In Milliken, the
Supreme Court he~d , that a domiciliary of the forum who is sbsent may be
subjected to pe~~onal jurisdiction if he i8 personally served.
Thus the forum
retains the pote~tial for in personsm jurisdiction over all domiciliaries who,
,although absent .:from the ,s tate, have not yet acquired a new domicile.
existence of
mi~~mum
,
The
contacts with the state is not a factor.
"
79. ' Justice Traynor was careful ' to pOint out that,
the mere ' fact of ,past , domicile in the state , would not subject him to its
jurisdicU';n ' indefinitely, 'for a past domicile having , no relationship to
.
,
the litigat'ion at hand ' wouid not afford ' a reasonable basis for an assertion
of jur1sdi"i:1on.,
52 .~al. 2d at~1 345 P,.2d at 923.
80.
'M:.
' 81.
The rationale of the International Shoe csse ·is not limited to foreign
corporations, and both its language and ,the cases sustaining jurisdiction
over nonresident motorists make clear that the, minimum contacts test, for
jurisdiction applies to individuals as well as' foreign corporations.
It
is now settled that'juriadiction over nonresident motorists does not rest
on consent but on thl\ir ,act!vity in the state.
M:.
at 345 P.2d at 924-25.
-
The Fifth Circuit>' arrived at ,the same conc'llision i l Calagaz v. Calhoon, 309
,248 (5th Cir. : 1962): '
,
,
" -10- ,"
F: 2d
-
Indeed, it would seem that the same considerations · of fairness and the
nature of the ·defendant "s activity in the state which are utilized in ,
determining jurisdictiC\n over corporations should be equally applicable
','
when the · de'f endant 18 "a natural perl!!lon.
Id. at 255.
' Cf.
Comment, ,Ex't ending "Minimum Contacts" To Alimony:
Mizner v. Mizner, 20
ratings L. J " 3~1, 370-72 (1961~).
==
82.
== .
:
.
52 Cal . . . . . . 2d· at ___ ,345 P.2d at 925,
As the dissent in Hanson predicted,
further relaxation ' of state jurisdiction had taken place.
•
Justice Traynor's
analysis of Hanson was, at best, superficial. ,
~
i
\
,
.]
193 Cal. App. 2d, at ___ , ,14 Cal. Rp,tr. at 419.
83.
independent constitutionat analysis.
The Soule court did not undertake
Instead, it relied exclusively on Owens.
See .note 82 sup':!!:.. '
84.
See note 3 supra'; '
85 • . 84 Nev. 268, 439) .2d 679, cert. denied, 393 U.S. 847 (1968).
For an excellent
treatment of the Mizner case see Comment, Extending Minimum Contacts to Alimony:
86.
The parties will ·be referred to as they were aligned in the California court •
.
87.
See text aocompanying notes 74-76 supra.
88.
84 Nev. at
---'
43~ P.2d at 680~'
-11-
89.
Id.
90.
Id.
This language was quoted with approval by the Texas Supreme Court in
Mitchim v. Mitch1m, '518 · S.W.'2d 362, 365 (Tex. 1975) .
..439 P.2d ,at
91.
84 Nev. at
92.
Id. at __ , 439 P.2d at 684.
--, '
680-81.
From the same lack of judicial authority, the
Texas ' Supreme Court drew a contrary conclusion.
I:'
See Mitchim v. Mitchim, 518
S.W.2d 362, 365 '(Tex. 1975).
93.
Under the doctrine of divi.sible divorce, \the dissent's position would have no
effect on the portion of the decree that terminated the status of marriage.
Only , the in personam aspects of the decree would be denied full faith and credit.
"
See text accompally:Lng
notes 60-67.supra;
94.
84 Nev. at __ , ,439 P.2d at , 683 (Collins, J. dissenting);
Id. at __ , 439
P.2d at 686 (Batjer, J. , dissenting).
95.
Justice Traynor ,came to a contrary conclusion in Sampsell v. Superior Court, 32
Cal. 2d 763, 197 P.2d 739 (1948), a child custody ,case decided by the California
Supreme Court,
Justice
~
Trayn~r
bane.
Because the custody decree in question was modifiable,
reasoned, a lesser jurisdictional standard was required:
Since the courts of this state do not finally and conclusively determine
custody in 'a divorce proceeding, there is no reason to attempt to arrive
at some basis for jurisdiction that should be accepted as final and conclusive
in all states.
Id. at
96.
--'
197 Ip. 2d at 750.
'I
See note 73 sup~i.·.
-12-
97.
Anderson, Using Long-Arm
67 (1972);
~urisdiction
To Enforce Marital Obligations, 11 J. Fam. L,
Anderson, Using Long-Arm JurisdictIon To Enforce Marital Obligations, 42
Miss. L. J. 183 ,(1971).
98 •. Cal. Civ. Pro. Code 8 410.10 (1954).
See generally J. Gorfinkel & R. Lavine,
Long-Arm Jurisdiction in California Under New Section 410.10 of the Code of
Civil Procedure,:-' 21 Hastings L. J. 1163 (1970).
==
==
,I
R.1. Gen. Laws Ann.
99.
II
9-5-33 (1970).
See generally Anderson, Using Long-Arm Jurisdiction To Enforce Marital Obligations,
11 J. Fam. L. 67 (1972);
Anderson, Using Long-Arm Jurisdiction To Enforce Marital
Obligations, 42 Miss. L. J. 183 (1971).
The author suggests tn:Pt traditional
judicial con9~~v~tiBm may cause a contraction, rather than an ' expansion of
jurisdiction, iunder a. statute that has no ' guidelines for its application •
.
jl
.
n
•
100.
186 Neb. 636, 185 N.W.2d 656 (1971).
101.
Id. at
I'
--'
185 ':N.W.2d at 659.
This general longarm statute appears at
Neb. Rev. Stat'. ,8 25-536 (Supp. 1972).
It applies specifically to such acts
bu~iness
in~ury
as transacting
in the state, causing tortious
to occur in the
state, or contracting to insure ' within the state.
102.'
186 Neb. at
, 185 N.W.2d at 659.
The statute, which appeats in the text in
full, is Neb, Rey. Stat. 8 25-539 (Supp. 1972). ' There is no indication of
which statute was used.
103.
186 Neb. at _~ ,,185 N.W.2d at 658.
104.
.!!!"..
105.
311 U. S. 457 (1940), cited in Stucky v.' Stucky, 186 Neb. 636,
at
--'
185 N;W.2d at 659.
---
,
--'
185 N.W.2d r
656, 659 (1971) , ' Under Milliken, a defendant who has not acquired a new dom!i:cile/
remains subject: to the personal jurisdiction of his state of
dom~.
In
Stucky, the defen,
d,ant was unable to rebut the presumption that his_ Nebraska.
....
~::
domicile continued.
He was,
~herefore,
subject to in personsm jUN.llflictlon :in
Nebraska under Milliken.
106.
The court undertook the analysis necessary to support an exercise of jurisdiction
,
I '
'
under Milliken. It then switched ' to a discussion of the minimum contscts doctrine.
No further mention was made of Milliken as the basis for jurisdiction over the
defendant.
107.
See ,note 110 infra.
186 Neb. at __ ,185 N. W~ 2d' lat 659-60 .'
approach.
Two courts have refused to adopt this
In Renaudin v. ' Ret\audin, 37 App. Div. 2d 81, 323 N.Y.S.2d 145 (1971),
the court refused to extend its iongarm statute to domestic relations cases.
" ~r
An Oregon court refused to extedd ' its statute in Doyle v. Doyle, 522 P.2d 906
(Ore. 1974).
A New Jersey cout t ' has gone a step further than the Stucky court.
In Egbert v.
,
Egbert, 125 N.J. , Super. 171,309 A.2d 746 (Super. Ct. 1973), the court exercised
jurisdiction, no !: on the basis of a statute, but rather on the basis of "the
facts found and case law cited."
"
125 N.J. Super. st __ , 309 A.2d at 749.
Process was served on the defendant's mother because the defendsnt could not be
"
found.
108.
Id.
186 Neb. at _ , ' 185 N. W.2d at ~60;
-14-
1'09.
Id.
At best" this assertion was a gross overstatement of the effect of
International Shoe.
1l0.
It adds: little to the credibility of the opinion.
Three ' ~ustices joined in the opinion that embraced the minimum contacts
concept.
Three dissented ' on the ground
th~t
the state's courts were without
statutory authority to exerFise jurisdiction in the case.
\
The justice who
'
cast the deciding : vote concurred in the result--solely on the basis of the
\
'
defendant's confinued domiciie in'
N~braska.
explain why the 'c ourt discussed Milliken.
111.
This difference of opinion may
See note 106 supra.
Kan. Civ. Pro. Stat. Ann. 8 60-308 (Vernon Supp. 1974).
The statute provides,
in pertinent part ':
Personal service outside state.
(a) Proof ~nd effect.
(1) Personal service of summons may be made upon
any party qutside the state.
If upon a person domiciled in this state or
upon a person who has submitted to the jurisdiction of the courts of this
..
'
,
state, it ' shallhav~ the force and effect of personal service of summons
within this state;
'otherwise it ,shall have the force and effect of service
by publication •.••
(b) Submitting to jurisdiction--process. , Any person, whether or , not a
citizen or resident of this state, who in person or through an agent o,r
instrumentality doesi any of the acts hereinafter enumerated, thereby
submits said person, ' and, if an individual, his personal representative,
to the
~urisdiction
of the courts of this state as ,'to any cause of action
arising from the doing of any of said acts: ,
. . ..
(8) Living in the marital telationship within the state notwithstanding
subsequent ,departure from 't he sllate, as to all obli~ations aris12.ng fo7'
-15-
alimony, child support, or property settlement under article 16, if
the other party to the \"Brital relationship continues ' to reside in the
state ....
The Kansas statute embodies the submission to jurisdiction approach
adopted by Illinois in its general longarm statute.
See note 146 infra. Kansas .
was the first state to add "living in the marital relationship'! as an act
signifying submission to jur.isdiction.
See Hopson, Divorce And Alimony Under The
New Code, 12 Kan. ' L. Rev. 27, 36-37 (1963).
~ generally Casad, Long Arm And Convenient Forum, 20 Kan. L. Rev. 1
==
(1971).
==
This compr'ehensive article gives only cursory treatment to domestic
relations jurisdict'ion.
112.
Ind. Trial R. 4.4(1973);
II 21-3-16 (Supp. 1973);
Nev. Rev. Stat. II 14.065 (1969);
N.H. Stat. Ann.
Ohio R. Civ. P. 4.3 (Supp. 1973).
The Indiana and Ohio ,rules add child custJdy to the actions for which
longarm jurisdiction may be',
113.
as~erted.
!. ,
Compare the Kansas ' statute, note 111 supra,
l!ll!!.
the Oklahoma statute, note 162
infra.
114.
Compare the Kansas statute, note 111 supra, with th~ Californi'\. statute, note 73
-
"
supra and accompanying' text.
115.
203 Kan. 331, 454 F.2d 449 (1969).
116.
See note 111 liupra;'
,
Submission to juriadiction is a concept that originated with
- , &.. _-
the Illinois longarm statute.
In Woodring v. Hall, 200 Kan. 597, 438 P.2d
135 (1968), the Kansas Supreme Court adopted the Illinois Supr,eme Court's
Construction of its longarm statute.
The Woodring case arose, ,out of the same
, divorce action ' tha't gave' rise to Scott v. Hall.
117.
Kan. Civ. Pro. :Stat . Ann. 8 60-308(b)(8) (Vernon Supp. 1973).
ll8.
Id.
, \.,
.
'\
In Scott )1':i Hall "all obligations" was held to include attorney fees
awarded the pr'~I ~kiling
party.
",
ll9.
203 Kan. at
,,' II'
_~ ll454
.
,
P.2d at 454 •
', "
120.
See text accompanying notes 51-55 supra.
121.
The court cited Woodring v. Hall, 200 Kan. 597,438 P.2d 135 (1968).
In
Woodring, the Kansas Supreme Court upheld the constitutionality of the Kansas
longarm statute -:
,v . DeQckla.
Among the cases considered by the Woodring court was Hanson
200 Kan. ,597, _ , 438 P.2d 135, 140-41 (1968).
122.
203 Kan. at _,454 P.2d at 455.
123.
See, note III supra.
124.
Hanson v.
D~kla,
Washington,
357 U.S. 235, 253 (1958);
3~6
U.S. 310,319 (1945);
. ,
P.2d 449, 455 (1969).
125.
See note 111 supra.
-17-
International Shoe Co. v.
Scott v. Hall, 203 Kan. 331, _,454
126.
McGee v. International Life Ins. Co., 355\ U.S. 220, 223 (i,957).
127.
Wis. Stat. Ann. 1111 247.057, 247.055 (lm) (Supp. 1914).
Sectiort 247.057 provides in relevant part:
Actions in which personal claims are asserted against nondomiciled defepdant.
If a personal
, . claim is asserted against the defendant in an action under • • •
'. 247; 055 (lmhi ' the. court has j urisdic tion to grant .such relief if:
(1) The defendant resided in this state in marital relationship with the
plaintiff for not less than 6 consecutive months within the 6 years next
proceding the commencement of the action;
(2) Af ter . the defendant left the state the plaintiff continued to reside
in this state. • • •
Section 247.055 (1m)' provides:
Personal jJrlsdiction over nondomiciled defendant.
If personal jurisdiction
over the defendant is acquired under 8. · 247.057, the court may determine
claims and 1~nter a judgment in personam against the defendant in an action
to determine a question of status • •
i
or in an independent action for
I
support, alimony or property division
These provisions are repeated in the Wisconsin statutes dealing with
civil procedure.
Wis. Stat. Ann. II 262.05(11) (Supp. 1974):
Personal jurisdiction, grounds for generally.
A court of this state
having juri.sdiction of ' the subject matter has jurisdiction over a person
' . ' • under any of the following circumstances:
• • •
(ll) Cert,a in marital actions. In any action to determine a question of
'or in an independent action for support, .alimony or property
status
division
.. '
• ' . when tl)e defendant resided in this state in maritsl relationship
':. "
with the plaintiff for not less than 6 consecutive
. ," , !
m~nths
within the 6 years
next precl.ding the commencement of the action, and after the defendant
left the st,ate the plaintiff continued to reside in this state
The
kr:~consin vers,ion of the statute adds to ·the "marital rela tionship"
requirement a minimum of six months.
It also provides for an independent
action to impose!:these marital obligations.
126.
Dillon v. Dillon.; '46 Wis. 2d 659, 176 N.W.2d 362 (1970).
129.
D.efendant' s affidavit alleged that the following conduct indicated the plaintiff ,' 8
intent to abandon her 'Wisconsin ',domicile and to acquire a new 'domicile in
Maryland:
"(1) planning and building a new $54,000 home in the State of Maryland,
"(2) borrow'ing $20,000 from her mother for a downpayment on that home,
"(3) making a~rangements for the children to return to ,!Ichool in the
'.
State " ~f , Maryland in the fall of 1968,
"(4) applying for a driver's license as a resident of Maryland,
,
"(5) leaving Maryland without all of the aspects of family household
possessions and ·c lothes,
"(6) discussing with the appellant the date of the return to the State of
Maryland as late as August 21, 1968, and
"(7) acceptance of a new stationwagon by the r~spondent at the time of the
Democratic convention in Chicago in llugus,t of 1968 for the trip back
to Maryland." ' .
Id. at
130.
--'
176
' N.W.2~
at 170.
.,'
Her affidavit recited the following conduct to establish the qontinuity of her
domicile:
"(1) The ,responde"t" s move . to the State of Maryland for the 1967-68 school
,
' ,.
I
-18-
term was lintended ,to be temporary, and was intended to be only for
the school term.
"(2) Respondent did not relinquish her constant add continuing desire to
return. to Wisconsin, nor did she ever intend to become a resident of
Maryland or establish a domicile there.
"(3) In the' ,fall of 1967 while 1n Maryland, the respondent applied for
renewal of her Wisconsin motor vehicle operator's license.
"(4) During:, February of 1966 wtoloi!lIiiz_....·IIII·_;g.ol_Ii·",;_... the
r~gistration
plates: on the 1963 station wagon owned by the parties, and which at
that
t~me
was located in the State of Maryland, was renewed with
I
Wisconsin registration plates.
"(5) Immediately upon the completion of the school term in May of 1968,
respondent returned with the children Do the family home in St. Croix ,
County, Wisconsin.
"(6) Respondent maintained her voting privileges in St. Croix County,
Wisconsin."
Id. at _ , 176 N.W.2d at 870-71.
131.
46 Wis. 2d 659, 176 N.W.2d 362 (1970).
132.
See!' notes 129 and 130 supra. The court did find that the plaintiff was a
Wisconsin domiciliary at the time of suit.
46 Wis. 2d at ___ , 176 N.W.2d at
364.
133.
46 Wis. 2d at
&
---' 176 N',W.2d at 365, citing Mullane v. Central Hanover Bank
Trust Co., 339 U.S. 306 (1950). ,
'134.
46 Wis.2d at
135.
&
at
" ,176 N.W.2d at 366.
:--;r:':i
""' (1 '
,176'r·:R.W.2d
at 368, cititig Miznerv. Mizner, 84 Nev. 268, 439
~ I·. "
--
P.2d 679 (1968)'.
:.
136.
.
!
46 Wis. 2d at ..2!', 176 N.W. 2d at 368-69.
"
,
137. , The court stated:,
l T1 he "6 co;"secutive ';"'nths" requirement constitutes more than isolated
and singular contact which, under some circumstances, could fall short of
the systematic and ' cGntinuous activities required to establish minimum
contacts.
46 Wis. 2d at --.:, 176 N. W. 2d at 368.
,
" 138.
See" note 127 supra.'
,
'139.
140.
"
'
See note 137 'supra. ,
The court did raise an important issue sua spo.te:, whether the minimum contacts '
concept applies to the individual defendant, as well as to the corporate defendant.
It concluded that the Supreme Court approved of the jextension of minimum contacts
. ! j
to the individual defendant.
141.
.
See note 129 ' supra .
"
142.
46 Wis. 2d at
,
46 Wis. 2d at ' " ' ~ 176 N.W.2d , at 364.
~I
.
,
.
"
.
.
-20-
-
,
,176 ,'iI.W.2d at 367-68.
-
I ' .,'
.
143.
If the defendant',S state has\ a residency requirement for divorce actions, the
plaintiff would have to ri!loc'a te ' for an extended period of time to obtain
subject matter' jJ~isdiction in the forum.
This period can be as long as a year.
Sosna v. Iowa, 43': U.S.L.W. 4125 (U.S. Jan. ' 14,1975).
144.
Other states hav~ "officially stated an intention to extend their jurisdiction
to ' the full ext e'n:t , possible.
~~,
Hines v. Clendenning, 465 P.2d 460
(Okla. 1970).
145.
Friedman, Extension Of The Illinois Long Arm Statute:
Maintenance, 16 DePaul L. Rev . 45 (1966).
But
~
Divorce And Separate
note 182 'infra.
Illinois was the first state to enact a longarm statute.
' act introduced the concept of submission to jurisdiction .
part of the new 'illinois Civil Practice Act.
This 1933
In 1956 it became
See generally
Clea~
& Seder,
Extended Jurisdictional Bases for the Illinois Courts, 50 Nw. U. L. Rev. 599
(1956) ;
Currie, : The Growth Of The Long Arm:
In Illinois, 1963 U. Ill ; L. F. 533.
Eight Years Of Extended Jurisdiction
Both articles deal with longarm jurisdiction
prior to its use in domestic relations cases.
Kansas enacted' a similar stattite in
to domestic relations cases.
1964~
making it expressly applicable
See note 111 supra. Illinois amended its statute
in' 1965 by adding domestic relations cases to its reach '
146 ;
Ill. Ann. Stat'. ch .' 110 , II 17 (Smith-Hurd 1968).
See note 146 infra.
This statute provides in relevant
part:
Act submitting to jurisdiction--Process
(1)
Any person,
whether or not a citizen or resident of 'this State, who in
,,
, -21- '
person or through ,'an agent does any of the ' acts hereinafter enumerated, thereby
submits such person, ' and, ' i f , an individual, his personal representative, to the
jurisdiction of the courts of thia State as to any cause of action arising from
the doing of al'v : ~'lch acts:
.....
"1:'0' ,a ctions
(e) With respect
of divorce and separate maintenance, the maintenance
in this State of a matrimonial domicile at the time the cause of action arose or
' the commission in this State of any act giving rise to the cause of action
This s'tatutory scheme has been adopted in Idaho and Utah:
II 5-514 (Supp. ' 1974);
Idaho Code
Utah Code Ann, • 78-27-24 (Supp. 1973).
=
= =
147.
See note 146 syp~a .'
148.
Id.
149.
See text accompanying notea .51-55 supra.
'"
150;
130 Ill. App. 2d 546, 263 N.E.2d 625 (Ct. App. 1970).
151.
Id. at _ , 263 N.E.2d at 626.
152.
The court avoided any discussion of the validity of these cases.
stated that the, defendant' "committed ' no act in Illinois.
her husband int'f this
Sta~e'."
It merely
She 'failed to follow
Id. at _ ' _; 263 N.E.2d at ' 627.
"
153.
See note 152 supra.
154.
130 Ill. App.
:~ ~:\at __ , ,'263N.E.2d at 627. , The court also found that the
defendant
mainta~ned
no matrimonial domicile in Illinois, although this pOint
apparently had ' nat 'been argued.
155.
Id.
Certain language ,in Han90n, although not quoted by the
application to these facts:
~
court, has direct
"The unilateral activity 'of those who claim some
relationship with a nonresident defendant cimnot satisfy the requirement of
.
.i .
\
contact with the : forum State." , Hanson v. Denckla, 357 U.S. 235,253 (1958).
,The' court also wa~ guided " by \an excellent pre-Hanson case, Nelson v. Miller,
\
11 Ill. 2d 378, J43 N.E.2d 673 (1957,).
156.
Hawes v. Hawes; .1 30 Ill. App. 2d 546, 263 N.E.2d 625 ' (Ct. App. 1970).
Illinois
courts, applying 'the Illinois longarm statute, have jurisdiction over nonresidents
to the full extent permitted by the due process clause.
Ill. 2d 378, _ ,:','i43 N.E.2d 673, 679 (1957).
Nelson v. Miller, 11
An exercUe of jurisdiction in
. .
Hawes, therefore ~\would )lave violated the due process ' clsuse.
.
~
.
157.
See note 3 supra ~,:
158.
113 N.H. 261, ,306 A.2d 51 (1973) .
159.
They were married in Illinois on Jsnuary 13, 1969.
.
'
New Hampshire on February 4, 1969.
The defendant returned to
Id. at ___ , 306 A.2d at 52.
160.Id. at _ , 306 F2d at 54. ,'
1'61.
Id.
"
-23 ..
162.
Okla. Stat. Ann !: t,1t. 12, 11 '1701.02 (Supp. 1974).
Thisstatute\ provides in
, I
pertinent part:
Bases of
~urisdiction.
(a) A court', may exercise personal jurisdiction Over a person, who acts
direc tly or by an agent, as to a cause of action or claim for relief
,
.....
srising from the person's:
,
,
(7) maintjoining any other relation to this state of to persons or: __
property
' in~luding
support I for minor children who are
resid~hiS":
state which ,:'affords a basU. for the exercise of personsl jurisdiction
,
,I
'
.
'.
b~
.....
this state consistently with the Constitution of the U.ited States. '
(Ok~a.,
163.
465 P.2d 460
1970).
164.
465 P.2d at 463-~4 j ,
L ·· . '
165.
Id . at 462.
166.
Id.
167.
Id. at 463.
The:" defendant ' s contacts might not hav e satisfied the Hanson test:
(i) the mar"'iage was contracted in Oklahoma;
(2) the par'ties twice resided here under circumBtances strongly indicating
domic ile;
(3)
defendant Hines attended college here , obtained a license to pract i ce
medicfne here , registered to vote and did vote here;
" 1\<'
(4)
he sen:( h1s wife back to Oklahoma, her home state and the home of her
":
I
parent,s, and refused to permit her to return to him in California;
(5)
the" wif¢, at her huslland's direction, was , effectively abandoned in
.',./
Oklahoma : lind her right, i f any, to alimony may be ssid to have sccrued
st least in 'part :irl Oklahoma.
Id.
168.
See text accompanying note,s 51-5'6 supra.
,,
169.
This is the app~dBch tBk~ri by the Oklahoma 'court in _H_in_e_s_.
See text accompanying
note 166 supra.
170.
Hanson v. Deockla, 357 U.S. 235, 251 (1958).
,
171.
See the dissenting
,
, opinions in Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679 (1968).
172.
This extension of' :state court jurisdiction is a development that Professor Clark
thought unlikely. ;
173.
' See Clark" supra note 60, at II 11.4, at 315.
Carri~gton
,
&
,
Martin, Substantive Interests And The Jurisdiction Of! :Stati
Courts, 66 Mich. L. Rev. 227 (196');
i
Hazard, A General Theory OL-State Court,
,
, Jurisdiction, 1965 Sup. Ct. Rev. 241.
==
--
235~
174.
Hanson v. Deuckla, 357 U.S.
254 (1958).
175.
See part II supra.
,
176.
Carrington & Martin, ' Substantive Interests And The Jurisdiction Of State Courts,
,
66 Mich. L. Rev. ' ·227
(l96'~.
-25.). :
177.
See part IV.
A.
supra.
178 . . See note 73 supra and text · accompanying note 102 supra.
179.
See part IV. A• .supra.
180.
See note 12 supra .. '
181.
See part IV. B. supra.
182. . .Illinois bases jurisdiction on the presence of the "matrimonial . domicile"
in the state.
This was an unfortunate choice of terms, for the Supreme
Court rejected' the matrimonial domicile as a basis for divorce jurisdiction
in Williams v . . North Carolina, 317 U.S. 287 (1942).
Presumably, the term
may be classified safely as the functional equivalent of "matrimonial
!
relationship." . Cf. Friedman, Extension Of The Illinois Long Arm Statute;
Divorce And Spparate Maintenance, 16 DePaul L. Rev • .45 (1966).
u
183.
See note 127 supra.
184.
See note 127
185.
su~ra. ·
Uniform Reciprocal Enliercement Of. Support Act.
==
=
==
186.
See text acco;"pan~ing notes· 141-42 supra.
187.
See Mizner
v.Mi~~er, . 84Nev.
268,439 P.2d 679 (1968).
-26-