Gaboury v. Gaboury

• Decision Date: 22 December 2009
• Docket Number: No. 1603 WDA 2008,1603 WDA 2008
• Parties: Lisa GABOURY, Appellant v. Christopher GABOURY, Appellee.
• Court: Pennsylvania Superior Court

988 A.2d 672

2009 PA Super 251

Lisa GABOURY, Appellant v. Christopher GABOURY, Appellee.

No. 1603 WDA 2008

Superior Court of Pennsylvania.

Argued April 23, 2009.

Filed December 22, 2009.

Andrew D. Glasgow, Pittsburgh, for appellant.

Brian C. Vertz, Pittsburgh, for appellee.

BEFORE: BOWES, DONOHUE and POPOVICH, JJ.

OPINION BY BOWES, J.:

¶ 1 Lisa Gaboury ("Wife") appeals from the August 29, 2008 order granting her divorce from Christopher Gaboury ("Husband"). On June 3, 2008, the trial court dismissed all economic claims against Husband, determining that it had jurisdiction to dissolve the parties' marriage but lacked the necessary personal jurisdiction over Husband to adjudicate related economic claims. For the following reasons, we affirm.

¶ 2 Husband and Wife met on an Internet site while Husband was living in Texas, and Wife was living in Canada. In April 2004, the parties moved from their respective locations to Pennsylvania and married a year later on April 21, 2005, in Lancaster, Pennsylvania. They resided in Pennsylvania in rental housing until Husband's job transfer in December 2006, when they relocated to Wisconsin and lived in a rented apartment. N.T., 6/12/08, at 2. The couple separated, and Wife moved to Beaver County, Pennsylvania, in August 2007. Husband remained in the marital residence in Wisconsin. Plaintiff's Answer and New Matter to Defendant's Objections to Complaint in Divorce, 4/28/08, ¶ 9, 17-21.

¶ 3 Wife filed a divorce complaint in Pennsylvania on March 12, 2008, alleging an irretrievable breakdown of the marriage pursuant to 23 Pa.C.S. § 3301(c). In her complaint, Wife set forth economic claims for equitable distribution, counsel fees, expenses, spousal support, alimony pendente lite, alimony, and permanent alimony. On April 9, 2008, Husband filed preliminary objections¹ challenging the court's personal jurisdiction over him. Wife filed an answer and new matter on April 28, 2008. Following a hearing on May 19, 2008, the trial court concluded that it had jurisdiction to dissolve the bonds of matrimony, but it did not have the requisite personal jurisdiction over Husband to decide any economic claims. Thus, it entered an order on June 3, 2008, granting Husband's preliminary objections, in part, and dismissing counts two through five of the divorce complaint. On June 12, 2008, the trial court denied Wife's motion for reconsideration. The trial court subsequently granted the divorce decree on August 29, 2008, and this appeal followed.²

¶ 4 On appeal, Wife avers that the trial court erred in granting Husband's preliminary objections and dismissing counts two through five of her complaint, and in so doing, misapplied and misapprehended the law. Wife's brief at 5. Our standard of review in an appeal from an order granting preliminary objections challenging the exercise of in personam jurisdiction is as follows:

When preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt. . . . Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.

Nutrition Mgmt. Servs. Co. v. Hinchcliff, 926 A.2d 531, 535 (Pa.Super.2007); see also Milam v. Milam, 450 Pa.Super. 597, 677 A.2d 1207 (1996) (same). "[T]his Court will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or an abuse of discretion." Rambo v. Greene, 906 A.2d 1232, 1235 (Pa.Super.2006). "Once the moving party supports its objections to personal jurisdiction, the burden of proving personal jurisdiction is upon the party asserting it." Barr v. Barr, 749 A.2d 992, 994 (Pa.Super.2000) (citing Scoggins v. Scoggins, 382 Pa.Super. 507, 555 A.2d 1314, 1317 (1989)). Courts must resolve the question of personal jurisdiction based on the circumstances of each particular case. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

¶ 5 Our Divorce Code requires a six-month residency period in order to maintain an action for divorce, and domiciliary intent is inferred from the residency. 23 Pa.C.S. § 3104(b); see also Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483, 486-87 (1974) ("The jurisdiction of a state to enter a divorce decree is dependent solely upon the domicile of one spouse."). Instantly, since Wife moved to Pennsylvania seven months before initiating divorce proceedings, she satisfied the residency requirement and was able to obtain a divorce in this Commonwealth. In order to resolve the parties' ancillary economic claims, however, the trial court required personal jurisdiction over Husband. See Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (economic claims that may be joined pursuant to authority of Divorce Code require in personam jurisdiction).

¶ 6 In declining to find the existence of personal jurisdiction over Husband, the trial court explained:

The Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts. A valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant. Pennoyer v. Neff, 95 U.S. 714 (1898) [(1877)]. Due process requires that in order to subject a defendant to a judgment in personam, if he is not present within the territory of the forum, he [must] have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95] (1945).

There were no children born of this marriage, and any marital property if it exists, is located in Wisconsin. The parties have acquired no real estate during the term of the marriage, in either Pennsylvania or Wisconsin. Unilateral conduct of the Plaintiff/Wife by moving to Pennsylvania cannot satisfy the requirement of sufficient contact with Pennsylvania for this Court to have personal jurisdiction over the Defendant. This Court believes that the Defendant of his own volition must do a purposeful act that provides the minimum contact necessary for personal jurisdiction. Kulko v. Superior Court of California In and For the City and County of San Francisco, 436 U.S. 84 [98 S.Ct. 1690, 56 L.Ed.2d 132] (1978) and Hanson v. Deckla [Denckla], 357 U.S. 235 [78 S.Ct. 1228, 2 L.Ed.2d 1283] (1958).

Trial Court Opinion, 6/3/08, at unnumbered 2-3.

¶ 7 The result herein, the court's grant of a party's request for dissolution of a marriage and the concomitant dismissal of economic claims, effected a "divisible divorce." In Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948), the United States Supreme Court held that a foreign divorce decree, although entitled to full faith and credit regarding the divorce itself, is not necessarily dispositive of the economic aspects of the divorce. Where a foreign decree has failed to address the economic aspects of the divorce, the divorce is "divisible," leaving such questions open for determination in other jurisdictions. The "divisible divorce" concept is recognized in Pennsylvania. Wagner v. Wagner, 564 Pa. 448, 768 A.2d 1112 (2001); Milam v. Milam, supra; Scoggins v. Scoggins, supra; Stambaugh v. Stambaugh, supra.

¶ 8 As the Estin Court explained, "The requirements of procedural due process [are] satisfied and the domicile" of one party in the forum state is the "foundation for a decree effecting a change in the marital capacity of both parties in all the other States of the Union. . . ." Estin v. Estin, supra at 544, 68 S.Ct. 1213. That same court, however, lacks jurisdiction to address issues of alimony and equitable distribution if it does not possess personal jurisdiction over the defendant. WILDER, PENNSYLVANIA FAMILY LAW PRACTICE AND PROCEDURE, § 19:3 (7TH ED. 2008); Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957). In such a case, the inability of the court to address ancillary economic claims results in a divisible divorce.

¶ 9 Although concluding that it had subject matter jurisdiction to enter a divorce decree, the trial court herein determined that it could not resolve the economic claims due to a lack of personal jurisdiction over Husband. The court could have acquired in personam jurisdiction over Husband if he had been present in Pennsylvania at the time process was served, 42 Pa.C.S. § 5301(a)(1)(i), if he was a domiciliary of Pennsylvania at the time process was served, 42 Pa.C.S. § 5301(a)(1)(ii), if he had consented to personal jurisdiction, 42 Pa.C.S. § 5301(a)(1)(iii), or if there existed sufficient minimum contacts with Pennsylvania to support the exercise of in personam jurisdiction by extraterritorial service. 42 Pa.C.S. § 5322.³

¶ 10 While personal jurisdiction over non-resident defendants may be conferred by 42 Pa.C.S. § 5322, the Pennsylvania Long-Arm Statute,⁴ certain conditions must be met:

The Pennsylvania Long-Arm Statute, 42 Pa.C.S. § 5322, is basically divided into two sections. Section (a) contains ten subsections, which specify particular types of contact with Pennsylvania which will be deemed sufficient to warrant the exercise of long-arm personal jurisdiction. Section (b) is a catchall provision which authorizes the exercise of personal jurisdiction over persons who do not come within one of the express provisions of the ten subsections of section (a) so long as the minimum requisites of federal constitutional law are met.

Scoggins v. Scoggins, supra at 1318. Thus, "A court may assert in personam jurisdiction over a nonresident, provided that jurisdiction is conferred by the state long-arm statute and exercise of jurisdiction pursuant to that statute meets constitutional standards of due process." WILDER, PENNSYLVANIA FAMILY LAW PRACTICE...