IN RE MARRIAGE OF BUSHELMAN v. Bushelman

• Decision Date: 03 May 2001
• Docket Number: No. 00-0670.,00-0670.
• Citation: 246 Wis.2d 317,629 N.W.2d 795,2001 WI App 124
• Parties: IN RE the MARRIAGE OF: Theresa Ann BUSHELMAN, Petitioner-Respondent, v. William Henry BUSHELMAN, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

246 Wis.2d 317

2001 WI App 124

629 N.W.2d 795

IN RE the MARRIAGE OF:

Theresa Ann BUSHELMAN, Petitioner-Respondent, v. William Henry BUSHELMAN, Respondent-Appellant.

No. 00-0670.

Court of Appeals of Wisconsin.

Submitted on briefs November 7, 2000.

Decided May 3, 2001.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Richard J. Ward of Stern, Skiles & Ward of Madison.

On behalf of the petitioner-respondent, the cause was submitted on the briefs of Kimberly P. Sebranek of Eustice, Laffey & Shellander, S.C. of Sun Prairie.

Before Dykman, P.J., Vergeront and Roggensack, JJ.

¶ 1. VERGERONT, J.

William Bushelman, a resident of Arizona at the time Theresa Bushelman filed this divorce action, moved to dismiss on the grounds of lack of personal jurisdiction. He appeals the trial court's order denying his motion, contending there is no statutory basis for jurisdiction over his person and his contacts with Wisconsin are insufficient to satisfy due process.¹ We conclude William's contacts with Wisconsin do not satisfy the requirements of either WIS. STAT. § 801.05(1)(d) (1999-2000)² or the due process clause, and we therefore reverse.

BACKGROUND

¶ 2. The relevant facts were established either by the parties' affidavits or by evidence Theresa presented at an evidentiary hearing, and most are not in dispute. Theresa and William were married in April 1989 in Arizona and their two children were born there, the first in 1990 and the second in 1991. Theresa was raised in Wisconsin, but William has never resided here. In May 1991, and again in May 1993, she and William traveled to Wisconsin to visit her sister and other relatives. They brought their older child with them on the first trip and stayed for one week to ten days; on the second trip they brought both children and stayed ten days. In August 1994, Theresa came to Wisconsin to visit her sister with the two children and was here five days. During that time she was hospitalized, and William came to Wisconsin to help her and the two children return to Arizona, staying here two days.

¶ 3. Sometime after August 1994 and before October 1996, William was sentenced to prison and incarcerated. Theresa and the children moved to Erie, Pennsylvania, and then, in October 1996, while William was still incarcerated, they moved to Wisconsin. They have resided here since. While William was in prison, he called the children once a week in Wisconsin, and after he was released, he called them twice a month, also speaking to Theresa. He also frequently called Theresa's sister to see how Theresa and the children were doing. He has written many letters to Theresa since she has lived in Wisconsin. In April 1998, William began sending child support of $200 to $250 each month. He came to Wisconsin to visit Theresa and the children in October 1998 and stayed one week. ¶ 4. Theresa filed this divorce action on May 26, 1999, seeking custody, child support, maintenance, property division, and attorney fees; she filed a motion for a temporary order at the same time. William was served on July 8, 1999, with the summons, petition for divorce, and motion in Arizona where he was then residing. He moved to dismiss on the ground of lack of personal jurisdiction.

¶ 5. William did not appear at the hearing on the motion but was represented by counsel. Theresa, her sister, and her brother-in-law presented testimony that established the facts recited above. In addition, the court accepted into evidence the cover sheet of a case report from the Sun Prairie Police Department indicating that on August 29, 1994, William asked an officer to accompany him to pick up his two children from Theresa's sister's house. On cross-examination, Theresa testified it was her decision and William's decision that she move to Wisconsin with the children; he said "it was fine that I moved to Wisconsin"; he directed her to move to Wisconsin; and he told her to take the children to Wisconsin and take care of them there. This contradicted the averment in William's affidavit that he "did not direct that my children reside in the state of Wisconsin."

¶ 6. The court recognized there was a dispute over whether William had directed Theresa to live in Wisconsin or had merely consented that she do so. It found William had "supported Tess and the kids to come to this community so that she can receive support from her family." The court concluded it did have personal jurisdiction over William under WIS. STAT. § 801.05(1)(d) because William had carried on substantial and not isolated activities within the state. The court also determined that William's visits to Wisconsin, his consent that Theresa live here with the children, his phone calls, letters, and payment of child support, and his availing himself of the services of the Sun Prairie Police Department were activities related to his family, which was the subject of the divorce action, and the court decided these activities were sufficient to meet the constitutional standard for subjecting William to the jurisdiction of the courts of Wisconsin.

DISCUSSION

[1-3]

¶ 7. In order for a Wisconsin court to have jurisdiction over a person, there must be a statutory basis for personal jurisdiction, and the application of that statute to the individual must meet the requirements of due process. Lincoln v. Seawright, 104 Wis. 2d 4, 10, 310 N.W.2d 596 (1981). Due process requires that in order for a court to have jurisdiction over the defendant, there must be sufficient contact between the defendant and the forum state to make it fair that the defendant have to defend the action in that state. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).³ Because WIS. STAT. § 801.05, Wisconsin's "long-arm statute," represents an attempt to codify the rules regarding minimum contacts for personal jurisdiction established in International Shoe, compliance with a section of this statute is "prima facie compliance" with the due process requirements. Lincoln, 104 Wis. 2d at 10. However, the presumption of compliance with due process arising from § 801.05 may be rebutted by a defendant, and courts have used a five-factor test to analyze the substantiality of the defendant's contacts for due process purposes: the quantity of the contacts, the nature, and quality of the contacts, the source of the cause of action and its connection with those contacts, the interest of Wisconsin in the action, and convenience to the parties. Lincoln, 104 Wis. 2d at 11 (citing Zerbel v. H.L. Federman & Co., 48 Wis. 2d 54, 64-65, 179 N.W.2d 872 (1970)). The burden is on the party filing the action to establish personal jurisdiction. Id. at 9.

¶ 8. William contends on appeal, as he did before the trial court, that there is no statutory basis for personal jurisdiction because in an action affecting the family, WIS. STAT. § 801.05(1)(d) applies only to activities that are business or employment related, and there is no other applicable statutory basis. Alternatively, he argues that even if § 801.05(1)(d) is not so construed, its application to him violates due process requirements.

¶ 9. We consider first William's argument that WIS. STAT. § 801.05(1)(d) applies only to business or employment related activities when the action is one affecting the family. WISCONSIN STAT. § 767.05(1) provides that "[a] court of this state having jurisdiction to hear actions affecting the family may exercise jurisdiction as provided under ch. 769 [Uniform Interstate Child Support Act] or 801." Theresa did not contend in the trial court that any jurisdictional provision in WIS. STAT. ch. 769⁴ was applicable to William, and we therefore turn our attention to WIS. STAT. ch. 801.⁵

¶ 10. WISCONSIN STAT. § 801.05(11) provides in part:

CERTAIN MARITAL ACTIONS. In addition to personal jurisdiction under sub. (1) and s. 801.06,⁶ in any action affecting the family, except for actions under ch. 769, in which a personal claim is asserted against the respondent commenced in the county in which the petitioner resides at the commencement of the action when the respondent resided in this state in marital relationship with the petitioner for not less than 6 consecutive months within the 6 years next preceding the commencement of the action and the respondent is served personally under s. 801.11. (Footnote added.)

Section 801.05(1), to which § 801.05(11) refers, provides:

Personal jurisdiction, grounds for generally. A court of this state having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to s. 801.11 under any of the following circumstances:

(1) LOCAL PRESENCE OR STATUS. In any action whether arising within or without this state, against a defendant who when the action is commenced:

(a) Is a natural person present within this state when served; or

(b) Is a natural person domiciled within this state; or

(c) Is a domestic corporation or limited liability company; or

(d) Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise.

William contends para. (1)(d) should be construed to provide a basis for personal jurisdiction in an action affecting the family only where the activities are not family related but are business or employment related. He contends that if the activities in Wisconsin are family related, the six months within six years requirement of § 801.05(11) must be met when maintenance is sought, and the requirements of WIS. STAT. § 769.201⁷ must be met when child support is sought. This construction is necessary, William contends, because otherwise §§ 769.201 and 801.05(11) are superfluous.

[4, 5]

¶ 11. William's argument presents a question of statutory construction, an issue of law which we review de novo. Wisconsin Dept. of Revenue v. Milwaukee Brewers Baseball Club, 111 Wis. 2d 571, 577, 331 N.W.2d 383 (1983). The aim of statutory construction is to ascertain...