Heineken v. Heineken

• Decision Date: 26 November 1996
• Docket Number: No. 96-525,96-525
• Citation: 683 So.2d 194
• Parties: 21 Fla. L. Weekly D2531 Thomas K. HEINEKEN, Appellant, v. Kathy Rae HEINEKEN, Appellee.
• Court: Florida District Court of Appeals

Page 194

683 So.2d 194

21 Fla. L. Weekly D2531

Thomas K. HEINEKEN, Appellant, v. Kathy Rae HEINEKEN, Appellee.

No. 96-525.

District Court of Appeal of Florida First District.

Nov. 26, 1996.

Gordon Edward Welch, Pensacola, for Appellant.

Gregory D. Smith, Pensacola, for Appellee.

VAN NORTWICK, Judge.

Thomas K. Heineken, the former husband, appeals a non-final order denying his motion to dismiss for lack of personal jurisdiction. We have jurisdiction. Rule 9.130(a)(3)(C)(i), Fla.R.App.P. Because we conclude that the former husband is not subject to the jurisdiction of Florida courts under the Florida long-arm statute, section 48.193, Florida Statutes (1995), we reverse.

Factual and Procedural Background

The appellant and appellee, Kathy Rae Heineken, the former wife, were married in Gainesville, Florida in 1979. The parties never established a matrimonial home in Florida, moving immediately after their wedding to Georgia and, as a result of the former husband's military service, living in Georgia, Kentucky, Germany, Kansas and Colorado during various times from 1979 through 1992. The parties separated in 1992 while residing in Colorado and a Colorado court entered a final decree of dissolution of marriage in 1994. Until 1992, the former husband claimed Florida as his domicile for military pay purposes. The former wife moved to Pensacola, Florida in 1993 and, on August 22, 1995, filed a petition to domesticate the Colorado decree of dissolution of marriage and to modify the alimony and child support provisions in the decree. The former husband, who continues to serve in the military and at the time of the hearing below asserted a Tennessee domicile, was served at his current residence in Ft. Hood, Texas. He moved to quash for insufficient service of process and to abate or dismiss for lack of personal jurisdiction.

Following a hearing, the lower court denied the former husband's motions and ruled that personal jurisdiction could be established over him. The court based its ruling on a finding that Florida was the former husband's designated domicile until approximately 1993 and that until 1993 the former husband was registered to vote in Florida and held a Florida driver's license. The trial court also noted that the parties considered Florida their legal residence until 1992.

While no statutory basis for asserting personal jurisdiction is stated in the order on appeal, the former wife argues that jurisdiction exists under either of two sections of the Florida long-arm statute, sections 48.193(1)(e) and 48.193(2), Florida Statutes (1995). We cannot agree.

Jurisdiction under Long-Arm Statute

Section 48.193(1)(e) provides that, with respect to a proceeding for alimony, child support or division of property in a dissolution action or with respect to "an independent action for support of defendants," jurisdiction is established by the defendant maintaining a marital domicile in Florida at the time the action is commenced or residing in the state "preceding the commencement of the action." Based upon the recent decision of the Florida Supreme Court in Garrett v. Garrett, 668 So.2d 991 (Fla.1996), however, this statutory provision cannot be a basis for the assertion of long-arm jurisdiction over the appellant in the instant action.

In Garrett, the parties were married in Florida in 1974, had a daughter in Florida in 1978, moved to Texas in 1986, and lived there together until their separation in 1991. Id. at 992. In rejecting the wife's contention that, under section 48.193(1)(e), the Florida trial court had jurisdiction over the husband, then domiciled in Indiana, the court held that the language in section 48.193(1)(e), which reads "if the defendant resided in this case preceding the commencement of the action," cannot be interpreted "so literally as to grant jurisdiction over any parties to a dissolution proceeding where the spouses had ever resided in Florida for any length of time." Id. at 994. The court reasoned that:

... [t]o allow the court to obtain personal jurisdiction under these circumstances would empower the Florida courts to exercise jurisdiction over any party to a dissolution proceeding if the couple had ever lived in this state, for however brief a time. This would clearly violate the Due Process Clause of the United States Constitution.

Id. (emphasis in original). See also, Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978) (In action to domesticate foreign divorce judgment, California court could not exercise in personam jurisdiction over nonresident noncustodial parent who failed to pay support for child residing in California with custodial parent). The Garrett court distinguished cases which upheld jurisdiction under section 48.193(1)(e) where "the matrimonial domicile had been in Florida and one spouse continued to maintain residence in Florida after the parties separated," 668 So.2d at 994, and ruled that when the parties jointly abandoned Florida as their state of residence, they lost the "protection" of this long-arm jurisdiction provision. Id.

Further, section 48.193(2) cannot be a basis for establishing jurisdiction over the appellant here. This long-arm provision subjects to the jurisdiction of Florida courts a party "who is engaged in substantial and not isolated activity within this state ... whether or not the claim arises from that activity." § 48.193(2), Fla.Stat. (1995). Appellee argues that jurisdiction under this statute is created in the instant case based on the appellant's possession of a Florida driver's license and a Florida voter registration card until 1993. These limited past contacts, however, do not constitute "substantial and not isolated" activities within the state sufficient to subject appellant to long-arm jurisdiction under section 48.193(2). Compare, Durand v. Durand, 569 So.2d 838, 839 (Fla. 3d DCA 1990), rev. denied, 583 So.2d 1034 (Fla.1991).

We recognize that the limitations on long-arm jurisdiction, represented by this case, Garrett, and Kulko, create serious and substantial difficulties for custodial parents who live in states that lack minimum contacts with the noncustodial parent and who seek to enforce or modify a child support order entered by a foreign court. Both courts ¹ and commentators ² have voiced their concern that, given the transient and interstate nature of contemporary families, such limited child support jurisdiction is detrimental to many children. Those concerns should, however, be expressed to the legislature. ³

Waiver of Lack of Personal Jurisdiction Defense

The former wife also argues that the former husband waived any objection to lack of personal jurisdiction by requesting in his motion to dismiss that the trial court "order the Former Wife to pay the Former Husband's attorney's fees and costs in prosecuting this motion." The former wife contends that this request seeks "affirmative relief" and thereby waives any defense of lack of personal jurisdiction. Because we conclude that by seeking to recover his attorney's fees incurred in asserting his jurisdictional defense the former husband is not seeking "affirmative relief," we hold that no waiver has occurred.

It is well-established that

[i]f a party takes some step in proceedings which amounts to a submission to the court's jurisdiction, then it is deemed that the party waived his right to challenge the court's jurisdiction regardless of the party's intent not to concede jurisdiction [; but] [d]efensive actions taken by a party do not constitute requests for affirmative relief inconsistent with the party's initial defense of lack of jurisdiction.

Cumberland Software, Inc. v. Great American Mortgage Corp., 507 So.2d 794, 795 (Fla. 4th DCA 1987); see also, Kimbrough v. Rowe, 479 So.2d 867 (Fla. 5th DCA 1985). The issue presented here is whether the former husband's request for fees is a request for affirmative relief or is merely a defensive action. The parties have not cited, and we have not found, any decision in Florida case law addressing whether a request for attorney's fees incurred in the prosecution of a motion to dismiss for lack of personal jurisdiction constitutes a request for "affirmative relief" which waives the objection to personal jurisdiction.

Courts in other jurisdictions have taken varied positions with respect to this issue. We are persuaded, however, by the reasoning of the Washington Supreme Court, which defines "affirmative relief" as "[r]elief for which defendant might maintain an action independently of plaintiff's claim and on which he might proceed to recovery, although plaintiff abandoned his cause of action or failed to establish it." Grange Insurance Assoc. v. State, 110 Wash.2d 752, 757 P.2d 933, 940 (en banc) (Wash.1988) (quoting, Black's Law Dictionary 56 (5th ed. 1979)). Applying this definition, the Grange Insurance court held that [a] motion for attorney's fees incurred in defending the plaintiff's suit, of course, is dependent on the plaintiff's claim; the defendant would have no right to attorney fees if the plaintiff had not brought his claim. Because [the defendant] was not seeking affirmative relief, its actions did not constitute a waiver of its arguments on the jurisdiction issue.

757 P.2d at 940-41; but see, e.g., In Re Marriage of Horst Adler, 271 Ill.App.3d 469, 208 Ill.Dec. 31, 648 N.E.2d 953 (1995).

Assuming a defendant could demonstrate entitlement to the recovery of fees under Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977), by the recovery of fees incurred in asserting the jurisdictional defense a defendant, such as the former husband here, would only be placed back in the status existing before the plaintiff sought to assert personal jurisdiction. Since the former husband's motion below only sought to recover the attorney's fees incurred in defending the former wife's claim, ⁴ we conclude that the request for fees was purely defensive in nature. Further, we...