Dillon v. Dillon

• Decision Date: 28 April 1970
• Docket Number: No. 193,193
• Citation: 176 N.W.2d 362,46 Wis.2d 659
• Parties: Joan M. DILLON, Respondent, v. Joseph E. DILLON, Appellant.
• Court: Wisconsin Supreme Court

Page 362

176 N.W.2d 362

46 Wis.2d 659

Joan M. DILLON, Respondent, v. Joseph E. DILLON, Appellant.

No. 193.

Supreme Court of Wisconsin.

April 28, 1970.

This appeal is from that portion of an order of the county court dated November 19, 1968, and received and filed by the clerk of court on April 1, 1969, denying the motion of defendant-appellant, Joseph E. Dillon (hereinafter defendant), to dismiss the action for legal separation commenced on September 3, 1968, by plaintiff-respondent, Joan M. Dillon (hereinafter plaintiff). The order also denied defendant's oral motion to quash a temporary order of the Family Court Commissioner entered September 23, 1968, as to custody, alimony, support payments, and other matters relating to personal judgments against the defendant.

The defendant has at all times entered special appearances in these proceedings alleging lack of personal jurisdiction over him and that the separation action be dismissed for want of jurisdiction because the plaintiff was not a bona fide resident of the State of Wisconsin for the requisite thirty days preceding the commencement of the action. ¹

John W. Davison, River Falls, for appellant. Joseph E. Flynn, St. Paul, Minn., Peterson & Popovich, St. Paul, Minn., of counsel.

Lawrence P. Gherty, Hudson, for respondent. William J. Radosevich, Hudson, of counsel.

CONNOR T. HANSEN, Justice.

Affidavits were filed by the respective parties in connection with defendant's motions and there is considerable conflict over a number of facts. However, it is uncontroverted that the parties were married on July 9, 1949; eight children were born of this marriage; the parties maintained a residence in St. Croix county, Wisconsin, for a number of years; on or about February 1, 1966, the defendant moved to Washington, D.C., to associate with a law firm located there; in August, 1967, plaintiff and the children moved to Maryland where the children were enrolled in Maryland schools for the 1967--68 school year, with the exception of the eldest who attended a boarding school in Minnesota; following the completion of the school year (May, 1968), the plaintiff and children moved back to St. Croix county, Wisconsin, and she remained there until instituting this action in August, 1968.

Defendant alleges he is a resident of the State of Maryland, and he was served on September 3, 1968, with a summons, complaint, affidavit and order to show cause in connection with the separation action.

As we view this case, it presents two principal issues: (1) The right of the plaintiff to maintain an action for legal separation and custody of the children, and (2) personal jurisdiction over a nondomiciled defendant.

In this case, the trial court made no specific findings in support of its order. However, for the purposes of this opinion, we will consider that the trial court found that the plaintiff met the statutory requirements to bring an action for legal separation and custody of the children and also that the court had personal jurisdiction over the nondomiciled defendant.

LEGAL SEPARATION.

On review, the decision of the trial court must be sustained unless it is found to be contrary to the great weight and clear preponderance of the evidence. Strandberg v. Strandberg (1965), 27 Wis.2d 559, 135 N.W.2d 241. The only evidence in this case was conflicting affidavits of the respective parties. We have examined these affidavits and it cannot be said that the trial court's determination that plaintiff was a bona fide resident of St. Croix county for not less than thirty days preceding the commencement of this action is against the great weight and clear preponderance of the evidence. Sec. 247.05(1), Stats. Therefore, the trial court had jurisdiction of the plaintiff's action for legal separation and the temporary order awarding the plaintiff custody of the children pursuant to the provisions of sec. 247.05(4) ² could properly be entered. Also it was proper for the Family Court Commissioner to grant the plaintiff occupancy of the St. Croix county residence during the pendency of this action and temporary use of the automobiles then in her possession. However, on the record then before him and for reasons stated in considering the second issue, the trial judge should not have decided the motion to quash as it related to those provisions of the temporary order providing for payment of support and maintenance of the plaintiff and the minor children, and mortgage payments on the St. Croix county and Maryland residences. The question of whether the defendant's equity, if any, in the St. Croix county residence is subject to support and maintenance payments and other expenses is not before us on this appeal.

PERSONAL JURISDICTION OVER A NONDOMICILED DEFENDANT

This issue requires a determination of whether Wisconsin statutes purporting to give courts of this state in personam jurisdiction over a nonresident defendant personally served outside the state are violative of due process clause of the fourteenth amendment of the United States Constitution. The Wisconsin statutes involved are as follows:

'247.055 Jurisdiction over claims for support, alimony or property division. * * *

'(1m) Personal Jurisdiction Over Nondomiciled defendant. If personal jurisdiction over the defendant is acquired under s. 247.057, the court may determine claims and enter a judgment in personam against the defendant in an action to determine a question of status under § 247.05(1), (2) and (3), or in an independent action for support, alimony or property division. Such independent action must be commenced in the county in which the plaintiff resides at the commencement of the action.'

'247.057. Action in which personal claims are asserted against nondomiciled defendant. If a personal claim is asserted against the defendant in an action under s. 247.05(1), (2) or (3) or 247.055(1m), the court has jurisdiction 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 preceding the commencement of the action;

'(2) After the defendant left the state the plaintiff continued to reside in this state;

'(3) The defendant cannot be served under s. 247.06; and

'(4) The defendant is served under s. 247.062(1).'

The essence of sec. 247.055(1m), Stats., and sec. 247.057, is repeated in sec. 262.05(11), ³ Wisconsin's 'long arm' statute.

The defendant concedes the United States Supreme Court has upheld the state's long arm statutes, but argues that Pennoyer v. Neff (1878), 95 U.S. (5 Otto) 714, 24 L.Ed. 565, is still the rule with respect to claims for alimony, support and property division and that in domestic relation matters a state cannot exercise in personam jurisdiction over a nonresident not personally served in the state. We do not agree with this position.

Since Pennoyer, two broad concepts have been developed which encompass the requirements of jurisdictional due process. ⁴ The first requirement is that the manner of service employed must be reasonably calculated to give actual notice.

'But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected * * *.' Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 315, 70 S.Ct. 652, 657, 94 L.Ed. 865.

The statutes involved in this case are in keeping with the due process requirement of notice since only personal service on the out-of-state defendant will invoke jurisdiction. Sec. 247.057, Stats., and 247.062(1).

The second concept is amenability, or those conditions which are sufficient to subject a defendant to personal jurisdiction. As we view this case, that is what the defendant claims is missing from the Wisconsin statutes.

The concept in Pennoyer, i.e., that personal jurisdiction be grounded on consent, presence of doing business within the state, did not prove to be a satisfactory rule as our nation moved into the twentieth century. In International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, the Supreme Court considered amenability and enunciated further standards for establishing the limits of a state's jurisdictional power.

'(D)ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of suit does not offend 'traditional notions of fair play and substantial justice. " International Shoe Co. v. Washington, supra, 316, 66 S.Ct. 158.

In the same case, the Supreme Court also made clear that 'minimum contacts' were not be be measured by mechanical or quantitative standards. Other factors were noted in determining whether activities were amenable to suits within a state. First, if acts were not related to the cause of action, the nature and quality of those activities would have to be more significant in order to subject the defendant to personal jurisdiction.

'* * * Conversely it has been generally recognized that the casual presence of the corporate agent or even his conduct of single or isolated items of activities in a state in the corporation's behalf are not enough to subject it to suit on causes of action unconnected with the activities there.' International Shoe Co. v. Washington, supra, 317, 66 S.Ct. 159.

The Supreme Court also indicated that to the extent a corporation exercised the 'privilege' of conducting business, it enjoyed the benefits and protection of the laws of that state. This aspect was later enlarged upon in Hanson v. Denckla (1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. Finally, an 'estimate of the...