Long-arm Jurisdiction in Support and Divorce Actions—The Unwary Beware
Clearly, personal jurisdiction over a respondent can be obtained by service of process within the state. However, if resort to service outside of the state must be made, strict adherence to the applicable long-arm statute is required.1 Different states have different rules and procedures, although all must comport with constitutional mandates of due process.2
The rules and procedures for alleging and proving (or disproving) long-arm jurisdiction in support and divorce actions in Florida are not complex. Yet, a practitioner without knowledge of them could find himself or herself quite embarrassed.
This article does not pertain to the issue of what constitutes “proper” service outside of Florida. Suffice it to say that the requirements of F.S. §48.194(1), entitled “Personal service outside of state” must be strictly complied with. In a nutshell, such service must be made “in the same manner as service within this state by any officer authorized to serve process in the state where the person is served.”3 Service of process on persons “outside the United States may be required to conform to the provisions of The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” (hereafter “The Hague”). (Emphasis supplied). Why the term “may” (as opposed to “shall”) is unknown and creates confusion. For example, exactly who is to decide if the particular service in a given matter must conform (or not) to The Hague? Arguably, the legislature intended that service abroad in nations that are signatories to The Hague should be required to conform to its dictates.
Requisite Allegations
F.S. §48.193(1)(e) (1995) provides, simply enough:
Acts subjecting person to jurisdiction of courts of state
(1) Any person, whether or not a citizen or resident of this state, who personally. . . does any of the acts enumerated in this subsection thereby submits himself or herself. . . to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(e) With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not.
The “catch” is that unless the basis for claiming such long-arm service is specifically alleged in the petition, any service on the respondent outside of Florida will be deemed void. In other words, the petitioner must expressly aver that either the parties maintained a matrimonial domicile in Florida at the time of the commencement of the action or the respondent resided in Florida preceding the commencement of the action.
Alleging one or the other is easy and “may be done by simply tracking the language of the statute without pleading supporting facts.”4 Failure to do so, however, can be fatal. As recently reiterated in McMahan v. McMahan, ____ So. 2d _____, 26 Fla. L. Weekly D1809 (Fla. 3d D.C.A., July 25, 2001), the “[f]ailure to allege either. . . voids any attempted service under the long-arm statute.”5
Of course, pleading the requisite allegations for long-arm service only overcomes the “defective” pleading problem. The petitioner must still prove (or the respondent disprove) the veracity of the allegation(s). That is a unique procedure of itself.
Procedure
Initially, the petitioner seeking to serve a respondent out-of-state must plead the basis for long-arm service in the language of the statute.6
The respondent challenging long-arm jurisdiction must then timely file a motion to dismiss/quash. However, such a motion by itself does nothing more than raise the legal sufficiency of the petition. Therefore, if the requisite allegations are properly alleged in the petition, the respondent must file or submit with the motion, affidavits, transcripts of testimony, documents, and any other form of “evidence” supporting his or her contention that long-arm jurisdiction is lacking.
Again, while that may seem simple enough: Beware! Obviously, if the petition is completely devoid of the requisite long-arm allegations, the respondent “need not come forward with affidavits to prove a negative—that is, that there is no jurisdiction.”7 If, however, the petition even remotely alleges the requisite allegations, a respondent filing a motion to dismiss challenging the legal sufficiency of those allegations should also at the same time submit affidavits or other proof challenging the veracity of those allegations, or the latter challenge might be deemed waived.8
Once that is done, the burden shifts back to the petitioner to submit or file an affidavit or similar documents supporting his or her contention that long-arm jurisdiction exists.9
The trial court must then review (presumably in camera) the affidavits and other documents, harmonize and reconcile them to whatever extent possible, and thereafter make (if possible) a decision based upon the facts which are essentially undisputed. One appellate court observed:
The proceeding before the lower court based upon complaint and motion, with affidavits or other proof, is in the nature of a “mini-trial” or “trial within a trial” in which the issue of the applicability of the long-arm statute is decided.10
The Florida Supreme Court surmised that in “most cases” the affidavits or other proof “can be harmonized and the court will be in a position to make a decision based upon the facts which are essentially undisputed.”11 If not possible, a limited evidentiary hearing must be conducted.
It would appear, however, that a respondent at any such “limited evidentiary hearing” would be at a disadvantage because he or she should probably not testify in person at the hearing. That is so because a petitioner could possibly then serve the respondent (while in Florida) with process in the same or another (but similar) action between the parties.12
While parties who voluntarily enter Florida to attend court are generally immune from service of process when attending court and for a reasonable time before and after going to court and in returning to their homes,13 there is an apparent applicable exception. The exception exists:
[W]hen process is issued in litigation incidental to or correlated with the subject matter of the proceeding at which an attending non-resident is served.. . . This exception is strictly limited, however, to instances in which there is an identity of parties and issues between the two proceedings.14
Possible alternatives to appearing in person would include testifying by oral or written deposition,15 testifying by telephone,16 and perhaps testifying via video-teleconferencing.17
Limited Discovery Permitted
The Florida Supreme Court has held that “a plaintiff should be able to conduct limited discovery on the jurisdictional question in order to gather facts and file an opposing affidavit.”18 It cautioned, however: “We emphasize that the discovery which is envisioned by our holding here should not be broad, onerous or expansive, nor should it address the merits of the case. Also, where possible, the discovery should be carried out so as to minimize expense to the defendant.”
Veracity of Allegations
Pleading the requisite allegations is one thing, proving them might be quite another. Proving that the parties maintained a “matrimonial domicile”19 at the time of the commencement of the action or that the respondent previously “resided” in Florida requires proof of permanent residence. The term “resided” as used in F.S. §48.193(1)(e) has been interpreted as the equivalent to the word “reside” in F.S. §61.021,20 meaning permanent resident/domiciliary.21
Moreover, for long-arm jurisdiction, a respondent’s residence in Florida must “proximately precede” the commencement of the action.22 Precisely what “proximately precede” means depends upon the particular circumstances of a given case.23 Just because a petitioner is or was a resident of Florida does not necessarily mean his or her spouse is or was as well.24
The burden of proof is on the petitioner. That burden has been held to be by clear and convincing evidence25—a fairly heavy burden.26 The court must consider all pertinent factors on the issue of permanent residence or domicile since no one factor is controlling.27 Several questions, factors and indicia of permanent residence or domiciliary intent should be considered.28
Income and Other Tax Returns. Has the party filed United States individual tax returns? Under the Internal Revenue Code, resident aliens are required to file United States income tax returns based upon their “worldwide income.”29 If a United States income tax return was filed, what residence is listed and at what Internal Revenue Service office was it filed? What address is reflected on the party’s IRS Forms K-1, FBAR, or other forms? Similarly, did the party file a state income tax return in the other place(s) of residence as a resident or nonresident (such as is done in New York)? Did the party file a Florida intangible or tangible personal property tax return?30
Homestead Exemption. Did the party apply for homestead tax exemption for the Florida residence?31 Failure to avail oneself of Florida’s homestead laws and advantages is indicative that the residence was not his or her permanent home.32
Declaration of Domicile. Did the party file a declaration of domicile with the clerk of the court as permitted under F.S. §222.17(1) and (2)33 or file a similar document in another state or country? For example, permanent residence in the Bahamas is established by the filing of a certificate of permanent residence. In Germany, residents must specifically “register” and “deregister” their residence with the local government.
Wills and Trusts. If the party has a last will, a living will, or a trust, what is stated as that party’s place of domicile or residence? This can be a very strong “indicia” of intent if the will(s) or trust were executed proximately preceding the commencement of the action. If the party owns a burial plot, where is it located?
Voting Registration. Is the “resident” party registered to vote, and if so, where? Did he or she actually vote there, particularly of recent date?34
Driver’s License. Does the “resident” party possess a Florida driver’s license? In Arthurs v. Arthurs, 543 So. 2d 349 (Fla. 5th DCA 1989), long-arm jurisdiction over the husband was upheld where he “had a Florida driver’s license.” But in Beaucamp v. Beaucamp, 508 So. 2d 419 (Fla. 2d DCA 1987), and Sragowicz v. Sragowicz, 591 So. 2d 1084 (Fla. 3d DCA 1991), both Mrs. Beaucamp and Mrs. Sragowicz claimed to be permanent residents of Florida but were found not to be, notwithstanding that each possessed a Florida driver license.
Automobile Registration. Did the “resident” party register an automobile in Florida? While the mere fact that a party may have registered an automobile in Florida does not necessarily render that person a permanent resident, it is a consideration.35
Citizenship. Is the party a citizen of the United States? Although citizenship is not the test,36 it is a factor that should be considered.37
Passport and Travel Visa. What is reflected as the party’s residence or domicile in his or her passport, travel visa(s), and applications?
Immigration Status. If the party is not a citizen of the United States, what is the party’s federal immigration status? One court has denominated such status as a “material fact,”38 but it is not controlling. In Beaucamp, the Second DCA reversed the trial court’s finding of subject matter jurisdiction notwithstanding the wife had “resident alien status for purposes of the immigration laws.” Conversely, in Nicholas v. Nicholas,444 So. 2d 1118 (Fla. 3d DCA 1984), it was held that the wife could establish permanent residency status for divorce purposes notwithstanding she had never been granted permanent residency status by The U.S. Immigration and Naturalization Service.
Jury Duty. Where has the party been served with jury duty notice and did he or she serve on a jury?
Declarations of Party. Did the party recently testify in court, in a deposition, or state in a document under oath or on penalty of perjury the place of his or her residence? Has the party indicated to others (such as friends, relatives, business acquaintances, professionals) the place where he or she resides, “visits,” or considers “home”? Such declarations could be verbal39 or in writing.40
Place of Family and Business Affairs and Home Interests. Where is the place of the “resident” party’s employment or business, physician, attorney, accountant, hairdresser, lodge memberships, church or synagogue, friends, family, etc., located? Where is he or she occupationally licensed? If annual reports are filed, where are they filed and what do they reflect as to that party’s residence or address? In which residence are the family keepsakes kept? Where does the “resident” party give substantial contributions to eleemosynary institutions? As observed by the Florida Supreme Court in Chisholm v. Chisholm, 125 So. 694, 700 (Fla. 1929), a person’s place of permanent residence is “the place which he has made the chief seat of his household affairs or home interests.” If children are involved, where do the children mainly reside, where do they go to school, where is the pediatrician or physician located, what language do the children speak (if a foreign country is involved), where are most of the children’s toys located, etc.?
Important Personal Mail. Where is the party’s important personal mail received? If a change of residence is claimed to have been made, was a change of address form filed with the U.S. Postal Service. What does it reflect?
Use of Residence. What was the principal purpose or use of the Florida residence? If the intended use was a vacation or other temporary home, such is insufficient.41 If the party intended to retire to the Florida residence sometime in the future, that would also be insufficient.42
Size and Cost of Residence. What is the size and cost of the Florida residence as compared to the other of the party’s residences (in some place other than Florida)? It is arguably illogical that a party would consider a much smaller (or less expensive) place as his or her permanent home.
Sale of “Principal Residence.” Has the “resident” party taken advantage of I.R.C. §121, as amended by the Taxpayer Relief Act of 1997 (effective May 7, 1997), by claiming the Florida (or other) residence as his or her “principal residence”?
Personal Banking. Where does the “resident” party do his or her main banking, especially his or her main personal checking?
Number of Days in Florida. What was the total number of days the “resident” party actually spent at the Florida residence during the “proximately preceding” period? Spending the entire time in Florida or a substantial portion thereof might be indicative of permanent residence. Whereas, only spending a few days, weeks, or even one or two months may indicate permanent residence elsewhere.
Unless specific allegations using the words of the statute are plead, and further unless such allegations are proven, service of process and all proceedings will be rendered void as the court would be without jurisdiction.43 Beware of the pitfalls. q
1 Shefer v. Shefer, 440 So. 2d 1319 (Fla. 3d D.C.A. 1983).
2 A respondent or defendant must have certain “minimum contacts” with the state to satisfy constitutional due process requirements. The test is whether “the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
3 In Takiff v. Takiff, 683 So. 2d 595 (Fla. 3d D.C.A. 1996), it was held that where the other state’s law permitted process to be served by the sheriff “or by a disinterested person appointed by the court,” the Florida court could appoint such person.
4 McMahan v. McMahan, ___ So. 2d ____, 26 Fla.L.Weekly D1809 (Fla. 3d D.C.A., July 25, 2001). Courts will sometimes strive to find such allegations. In Arthur v. Arthur, 543 So. 2d 349 (Fla. 5th D.C.A. 1989), the wife’s complaint was devoid of the requisite long-arm allegations, but because the attached property settlement agreement referred to the parties jointly owned Florida residence as their “marital residence,” service upon the husband in New York was not voided.
5 It should be noted, however, that even if such long-arm service is void, the petitioner may still be able to proceed upon his or her request for a divorce (only) and custody of any children (if applicable). Personal jurisdiction “is not required in order for the Florida court to adjudicate the petition to the extent that it seeks dissolution” or custody of children under the UCCJA. Hurlock v. Hurlock, 703 So. 2d 535 (Fla. 4th D.C.A. 1997).
6 As gleaned from Venetian Salami Company v. J.S. Parthenais, 554 So. 2d 499 (Fla. 1989); Mowrey Elevator Company of Florida, Inc. v. Automated Integration, Inc., 745 So. 2d 1046 (Fla. 1st D.C.A. 1999); Morgan v. Morgan, 679 So. 2d 342 (Fla. 2d D.C.A. 1996); Tobacco Merchants Association of the United States v. Broin, 657 So. 2d 939 (Fla. 3d D.C.A. 1995).
7 Fishman v. Fishman, 657 So. 2d 44 (Fla. 4th D.C.A. 1995).
8 Miller v. Marriner, 403 So. 2d 472 (Fla. 5th D.C.A. 1981).
9 If the petitioner fails to do this, one appellate court has indicated that the motion to dismiss must be granted. Morgan v. Morgan, 679 So. 2d 342 (Fla. 2d D.C.A. 1996).
10 Elmex Corporation v. Atlantic Federal Savings and Loan Association of Fort Lauderdale, 325 So. 2d 58, 62 (Fla. 4th D.C.A. 1976).
11 Venetian Salami Company v. J.S. Parthenais, 554 So. 2d 499 (Fla. 1989).
12 An example of a similar action would be an action for support unconnected with dissolution of marriage, the issue of which is certainly similar to a divorce action in which support is being sought as incidental relief.
13 See, e.g., State ex. rel. Ivey v. Circuit Court of Eleventh Judicial Circuit, 51 So. 2d 792 (Fla. 1951); Munsell v. Bludworth, 474 So. 2d 1286 (Fla. 4th D.C.A. 1985).
14 Munsell v. Bludworth, 474 So. 2d 1286 (Fla. 4th D.C.A. 1985); but see, Keveloh v. Carter, 699 So. 2d 285 (Fla. 5th D.C.A. 1997), wherein the Fifth District concluded that a nonresident mother was immune from service in the very action she was challenging long-arm jurisdiction over her while she was in Florida to attend the evidentiary hearing on her motion to dismiss. Curiously, no mention was made of the exception to the immunity rule.
15 See Fla. R. Civ. P. 1.310, 1.320 and 1.330.
16 See Fla. R. Jud. Admin. 2.071.
17 See Fla. R. Jud. Admin. 2.071(d)(5).
18 Gleneagle Ship Management Co. v. Leondakas, 602 So. 2d 1282 (Fla. 1992). A strict or literal reading of the Gleneagle opinion indicates that only the petitioner (or plaintiff) can conduct discovery to file “an opposing affidavit,” evidently in response to the respondent’s (or defendant’s) affidavit challenging jurisdiction. That seems unfair. If limited discovery is to take place as to the jurisdictional facts, both parties should be entitled to conduct such discovery.
19 See Farrell v Farrell, 710 So. 2d 151 (Fla. 3d D.C.A. 1998), and Gould v. Gould, 194 N.Y.S. 745 (N.Y. App. Div. 1922), for good definitions of “matrimonial domicile.”
20 Fla. Stat. §61.021 pertains to a Florida circuit court’s subject matter jurisdiction over a divorce action. It provides, “To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.”
21 See Shammay v. Shammay, 491 So. 2d 284 (Fla. 3d D.C.A. 1986); Brophy v. Brophy, 3 Fla. L. Weekly Supp. 58 (Fla. 15th Cir. Ct., March 3, 1995).
22 Birnbaum v. Birnbaum, 615 So. 2d 241 (Fla. 3d D.C.A. 1993); Shammay v. Shammay, 491 So. 2d 284 (Fla. 3d D.C.A. 1986); Pasquini v. Pasquini, 2 Fla. L. Weekly Supp. 255 (Fla. 12th Cir. Ct., April 14, 1994).
23 See and compare Garrett v. Garrett, 668 So. 2d 991 (Fla. 1996); Birnbaum v. Birnbaum, 615 So. 2d 241 (Fla. 3d D.C.A. 1993); Durand v. Durand, 569 So. 2d 838 (Fla. 3rd D.C.A. 1990); Shammay v. Shammay, 491 So. 2d 284 (Fla. 3d D.C.A. 1986); Pasquini v. Pasquini, 2 Fla. L. Weekly Supp. 255 (Fla. 15th Cir. Ct., April 14, 1994).
24 McCabe v. McCabe, 600 So. 2d 1181 (Fla. 5th D.C.A. 1992).
25 Pasquini v. Pasquini, 2 Fla. L. Weekly Supp. 255 (Fla. 15th Cir. Ct., April 14, 1994); Brophy v. Brophy, 3 Fla. L. Weekly Supp. 58 (Fla. 15th Cir. Ct., March 3, 1995).
26 See Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th D.C.A. 1983), for an explanation of “clear and convincing evidence.”
27 See Bloomfield v. City of St. Petersburg Beach, 82 So. 2d 364 (Fla. 1955).
28 Since the permanent residence requirement is the same for long-arm personal jurisdiction and divorce subject matter jurisdiction, the indicia of intent and case law regarding both equally apply.
29 I.R.C. §7701(b); Treas. Reg. §1.871-2(b).
30 A Florida intangible personal property tax return is required if such property “is owned, managed or controlled by any person domiciled in this state on January 1 of the tax year.” See Fla. Stat. §§199.175(1) and 199.052(1).
31 Fla. Stat. §196.031(1). See also Arthur v. Arthur, 543 So. 2d 349 (Fla. 5th D.C.A. 1989) (Long-arm personal jurisdiction over husband found where, among other things, he “had filed for a Florida homestead exemption for the Melbourne home.”); Hoffman v. Hoffman, 552 So. 2d 958 (Fla. 1st D.C.A. 1989) (similar).
32 See Sragowicz v. Sragowicz, 591 So. 2d 1084 (Fla. 3d D.C.A. 1991) (wife held not to be a permanent resident where, among other things, she never filed for homestead exemption); Brophy v. Brophy, 3 Fla. L. Weekly Supp. 58, 59 (Fla. 15th Cir. Ct., March 3, 1995) (Same).
33 See, e.g., Winther v. Winther, 4 Fla. L. Weekly Supp. 656 (Fla. 20th Cir. Ct., March 27, 1997).
34 See and compare Hoffman v. Hoffman, 552 So. 2d 958 (Fla. 1st D.C.A. 1989); and Winther v. Winther, 4 Fla. L. Weekly Supp. 656 (Fla. 20th Cir. Ct. March 27, 1997) with Brophy v. Brophy, 3 Fla. L. Weekly Supp. 58 (Fla. 15th Cir. Ct. March 3, 1995). The Brophy court noted that a party’s “non-registration as a Florida voter [is] indicative of her lack of domiciliary intent.”
35 See and compare Bolles v. Bolles, 364 So. 2d 813 (Fla. 3d D.C.A. 1978), and Trethewey v. Trethewey, 115 So. 2d 712 (Fla. 2d D.C.A. 1959).
36 See and compare Markofsky v Markofsky, 384 So. 2d 38 (Fla. 3d D.C.A. 1980), and Shammay v. Shammay, 491 So. 2d 284 (Fla. 3d D.C.A. 1986).
37 See Pawley v. Pawley, 46 So. 2d 464, 471 (Fla. 1950).
38 Hasslacher v. Hasslacher, 664 So. 2d 993 (Fla. 4th D.C.A. 1995).
39 The party may have told a friend or colleague that he or she is a permanent residence of Florida or a permanent resident of some other place. More frequently, the party would refer to his or her place of permanent residence as “my home.”
40 Parties sometime declare on insurance application forms, automobile registration forms, bank account application forms, occupational or business licenses, dog licenses or registrations, membership applications (e.g., clubs, gyms, and social societies), etc., that the Florida residence is their “primary place of residence” or their “permanent place of residence.” Of course, such documents could also reflect that the Florida residence is the party’s “secondary place of residence” or “temporary place of residence.”
41 Sragowicz v. Sragowicz, 591 So. 2d 1084 (Fla. 3d D.C.A. 1991); Gillman v. Gillman, 413 So. 2d 412 (Fla. 4th D.C.A. 1982).
42 Curran v. Curran, 362 So. 2d 1042 (Fla. 4th D.C.A. 1978).
43 Any order or judgment entered in the absence of personal jurisdiction is void. See Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th D.C.A. 1984); Laney v. Laney, 487 So. 2d 1109 (Fla. 1st D.C.A. 1986); Rand v. Rand, 491 So. 2d 1293 (Fla. 4th D.C.A. 1986).
Christopher A. Tiso is an associate with the law firm of Melvyn B. Frumkes & Associates, P.A., of Miami and Boca Raton. He is admitted to practice in Florida and New York.
This column is submitted on behalf of the Family Law Section, Caroline K. Black, chair, and Rana Holz, editor.
