In re Marriage of Gunderson v. Gunderson, No. 51717-1-I (WA 10/4/2004), 51717-1-I
| Decision Date | 04 October 2004 |
| Docket Number | No. 51717-1-I,51717-1-I |
| Court | Washington Supreme Court |
| Parties | In re the Marriage of: LORRAINE C. GUNDERSON, Respondent, v. ROBERT A. GUNDERSON, Appellant. |
Appeal from Superior Court of King County. Docket No: 01-3-08096-6. Judgment or order under review. Date filed: 12/20/2002. Judge signing: Hon. Michael C Hayden.
Counsel for Appellant(s), Gregory Mann Miller, Attorney at Law, 505 Madison St Ste 220, Seattle, WA 98104-1111.
Counsel for Respondent(s), Philip Albert Talmadge, Talmadge Law Group PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Candiss Anne Watson, Attorney at Law, 2618 Walnut Loop NW, Olympia, WA 98502-4416.
The trial court entered a divorce decree upon the petition of Lorraine Gunderson, who held a temporary visa allowing her to live in the United States. On a theory that the trial court lacked jurisdiction, appellant Robert Gunderson seeks to vacate the decree. The trial court properly concluded that Lorraine was domiciled in Washington and that Robert had consented to personal jurisdiction. We affirm.
Robert and Lorraine Gunderson are Canadian citizens. They began living together in 1992, and eventually married in Victoria, British Columbia in 1996. The Gundersons, who have no children, moved to Washington in the fall of 1999 and made their residence on Mercer Island until they separated in the fall of 2001. Robert went back to Canada. Lorraine, who remained on Mercer Island, filed a petition for dissolution of marriage in King County Superior Court on October 26, 2001. Robert's response, filed in January 2002, claimed that the marriage was not irretrievably broken, the court lacked subject matter and personal jurisdiction, and that the venue was improper. After a trial on December 16, 2002, at which Robert was not present or represented by counsel, the court entered a decree of dissolution. Robert appeals.
A judgment entered without subject matter jurisdiction is void. In re Marriage of Ortiz, 108 Wn.2d 643, 649-50, 740 P.2d 843 (1987). Robert contends that a trial court lacks subject matter jurisdiction to render judgment in a dissolution if neither one of the parties was domiciled in the state. See Mapes v. Mapes, 24 Wn.2d 743, 167 P.2d 405 (1946). The premise that domicile is jurisdictional is supported by the language used in such cases as Williams v. North Carolina, 325 U.S. 226, 229-30, 65 S. Ct. 1092, 89 L. Ed. 1577 (1945) and In re Marriage of Ways, 85 Wn.2d 693, 696-97, 538 P.2d 1255 (1975).
We have some doubt as to the soundness of the premise. `A tribunal does not lack subject matter jurisdiction solely because it may lack authority to enter a given order A tribunal lacks subject matter jurisdiction when it attempts to decide a type of controversy over which it has no authority to adjudicate.' Marley v. Department of Labor & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994).
The state constitution vests the superior court with subject matter jurisdiction in a variety of matters including divorce and annulments of marriages. Const. art. IV, sec. 6. Our Supreme Court has held that `jurisdiction' to grant a divorce may be acquired after the action is commenced and need only exist by the time the decree is entered. Ways, 85 Wn.2d at 700. Because the superior court's authority to adjudicate a divorce exists by virtue of the state constitution, it is somewhat jarring to think of subject matter jurisdiction over a divorce as something the court `acquires' in the processing of a particular case. The analysis in Ways suggests that the Court may have been using the term `subject matter jurisdiction' to refer to the degree of the State's interest in the marriage necessary to satisfy due process, not in the strict sense of an authority without which the judgment is void. The parties' briefs, however, do not indicate that they see any difficulty in analyzing the issue of Lorraine's domicile as a question going to subject matter jurisdiction.
Because the arguments of the parties do not support an attempt by this court to avoid the references to `jurisdiction' in Williams and Ways, for purposes of analyzing this case we will accept the premise that the trial court lacked subject matter jurisdiction unless Lorraine was domiciled in Washington.
Domicile has two aspects: physical presence and intent to reside. The indispensable elements of domicile are `residence in fact coupled with the intent to make a place of residence one's home.' In re Marriage of Strohmaier, 34 Wn. App. 14, 17, 659 P.2d 534 (1983).
When Lorraine petitioned for dissolution in October 2001, Robert was residing in Canada, and Lorraine was in Washington on a `TN' visa under the North American Free Trade Agreement. A TN visa allows the holder entry into the United States on a temporary basis only. Temporary entry in this context means entry without the intent to establish permanent residence. 8 CFR sec. 214.6(a). Robert argues that Lorraine's TN visa status precludes a finding that she was domiciled in Washington because as a matter of federal law she could not intend to make Washington her home.
Robert supports his argument by citing Carlson v. Reed, 249 F.3d 876 (9th Cir. 2001). In Carlson, an alien in California on a NAFTA TN/TD visa attempted to establish residence in California in order to get the benefit of lower university tuition available to residents. The court held Carlson was not a resident, but its holding was based on a statute that tied the definition of `resident' to a federal immigration law. Under California law, an alien cannot establish residency for the California State University system if `precluded by the Immigration and Nationality Act (8 U.S.C. 1101, et seq.) from establishing domicile in the United States.' Carlson, 249 F.3d at 878 (citing Cal. Educ. Code sec. 68062). Because Washington's dissolution statutes do not define residency or domicile in this manner, Carlson does not require a holding that a person with a TN visa cannot establish residency for the purpose of obtaining a dissolution of marriage.
The court appreciates the parties' submission of supplemental briefs in response to the court's inquiries about Ways and dePape v. Trinity Health Systems, Inc., 242 F.Supp. 2d 585, 593 (N.D. Iowa 2003). Together, these cases suggest that if immigration status is dispositive of domiciliary intent and thus as a matter of law can deprive a court of subject matter jurisdiction in a dissolution, Lorraine may have cured the defect by obtaining before the decree was entered a different type of visa, namely an H-1B visa, that is more consistent with an intent to reside permanently in the United States. Ultimately, however, after examining cases from other states, we have concluded that Lorraine's immigration status is not dispositive of her domiciliary intent. `It is not necessary for the courts of this state to carry out immigration policy by denying nonimmigrant aliens a judicial forum when they otherwise meet domiciliary requirements and when they are subject to the courts of this state for other purposes.' Dick v. Dick, 15 Cal. App. 4th 144, 155, 18 Cal. Rptr. 2d 743 (1993). See also Alves v. Alves, 262 A.2d 111, 115 (D.C. App. 1970): We find these cases persuasive and hold that domicile for purposes of dissolution does not depend on federal immigration laws.
The existence of domiciliary intent is a question of fact ultimately to be determined by the trial court. If supported by substantial evidence, the trial court's determination will not be disturbed on appeal. Stevens v. Stevens, 4 Wn. App. 79, 83, 480 P.2d 238 (1971). Substantial evidence supports the trial court's determination that Lorraine was domiciled in Washington rather than in Canada in 2001. During the trial, Lorraine testified that she had no plans to leave the state of Washington. Her only driver's license was issued by Washington. She said she paid United States income tax, does not maintain any bank accounts in Canada, and last resided in Canada in 1997. She moved to the state of Washington in the fall of 1999, and was maintaining a rental home on Mercer Island. She stated that all of her furniture and personal possessions were in Washington, she had a very strong local network of friends, her family came to Washington to visit her, and all of her bank accounts were in this state. We conclude the court did not err in finding sufficient evidence of Lorraine's domicile in Washington. Her petition for dissolution was properly before the trial court, and the judgment was not void for lack of subject matter jurisdiction.
Robert also contends the judgment was void because the court did not have personal jurisdiction over him.
When statutory service of process requirements are not satisfied, a court lacks personal jurisdiction over a party and any judgment entered against the party is void. Scott v. Goldman, 82 Wn. App. 1, 6, 917 P.2d 131 (1996). Robert contends service upon him was ineffective because Lorraine delivered the summons and petition to him personally. See CR 4(c) (). But by answering the complaint without objecting to the method or type of service, Robert waived any objection he might have had. Friend v. Cove Methodist Church, Inc., 65 Wn.2d 174, 179, 396 P.2d 546 (1964).
Furthermore, personal jurisdiction, unlike subject matter jurisdiction, may be conferred by agreement. Voicelink Data Service, Inc. v. Datapulse, Inc., 86 Wn. App. 613, 620, 937 P.2d 1158 (1997). Robert explicitly consented to personal jurisdiction when he signed an acceptance of service form which stated:
The respondent accepts service of: the summons and petition in this...
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