MacLeod v. MacLeod

• Decision Date: 10 March 1978
• Citation: 383 A.2d 39
• Parties: Maggie S. MacLEOD v. Walter E. MacLEOD.
• Court: Maine Supreme Court

Page 39

383 A.2d 39

Maggie S. MacLEOD v. Walter E. MacLEOD.

Supreme Judicial Court of Maine.

March 10, 1978.

Hart, Stinson & Lupton, P.A., by Ronald A. Hart (orally), Bath, for plaintiff.

Fitzgerald, Donovan, Conley & Day by Mark L. Haley (orally), Bath, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

McKUSICK, Chief Justice.

The plaintiff, Maggie S. MacLeod, appeals an order of the Superior Court, Lincoln County, dismissing this action brought against her former husband, Walter E. MacLeod.

We sustain the appeal. We hold that the Superior Court erred in granting defendant's motion to dismiss on the ground of forum non conveniens. We do grant the defendant, however, relief from having to defend Mrs. MacLeod's suit in Maine. We direct the Superior Court to stay this Maine action conditioned upon Mr. MacLeod's submitting to suit in Virginia, which is, he argues and we agree, a more appropriate forum than Maine.

The plaintiff and the defendant were married in New York City on October 15, 1955. Their one child, Scott Michael MacLeod was born the following year. Encountering marital difficulties, they on June 15, 1971 entered into a separation agreement whereby Mrs. MacLeod was given custody of their son, and Mr. MacLeod agreed to pay his wife child support and alimony, as well as certain storage and travel expenses. The separation agreement does not recite where it was entered into, but the record otherwise shows that the MacLeods were living in France at the time, Mr. MacLeod being an employee of the Central Intelligence Agency.

The couple was divorced on June 12, 1973, by decree of the Tribunal de Grande Instance de Paris (in this record translated as the "County Court") in Paris, France, where Mrs. MacLeod was then living. The French divorce decree gave a San Francisco APO address as Mr. MacLeod's "domicile"; the record before the court shows that he was working for the CIA in Bangkok, Thailand, at the time. The French court awarded custody of their son to Mrs. MacLeod and ordered Mr. MacLeod to pay the plaintiff child "upkeep" and alimony in a total amount of 3150 francs a month.

Mrs. MacLeod instituted the present action in Superior Court, Lincoln County, in July 1977. In her complaint, she alleged that she resided in the Commonwealth of Virginia and that the defendant was a resident of Newcastle in Lincoln County, Maine. ¹ In one count of her complaint Mrs. MacLeod attempts to collect an amount of $19,490 alleged to be due to her from the defendant under the French divorce judgment as child "upkeep" and alimony; and by another she seeks damages of an unstated amount for the defendant's alleged default on the separation agreement.

On July 30, 1977, Mrs. MacLeod succeeded in obtaining personal service upon the defendant at his parents' home in Newcastle, Maine. At the time, Mr. MacLeod was in Maine to attend his parents' golden wedding anniversary.

On August 15, 1977, the defendant filed a motion to dismiss, supported by his affidavit stating that (i) he now resides in Bangkok, Thailand, and during the past ten years, as a CIA employee, has lived in four different foreign countries; (ii) although he is an American citizen, his sole contact with the United States is his Virginia driver's license; and (iii) he has never resided, held property, or paid taxes in the State of Maine.

Following a hearing on the defendant's motion to dismiss, the Superior Court justice dismissed the action "with prejudice" ² on the grounds that "neither party is a resident of the State of Maine, and that the Court, in its discretion, declines to exercise jurisdiction over this matter." Both parties interpret this cryptic statement to be an invocation of the doctrine of forum non conveniens.

The present action concerns a nonresident plaintiff suing a nonresident defendant upon transitory causes of action which did not arise in the State of Maine. Given those facts, the trial court could rightly consider exercising its discretionary power, notwithstanding the existence of both subject matter and personal jurisdiction, to decline jurisdiction over the action. Foss v. Richards, 126 Me. 419, 139 A. 313 (1927). Dismissal for forum non conveniens, although discretionary, must be predicated upon the trial court's initial determination that dismissal will further the ends of justice and promote convenience of the suit for all parties. See, e. g., Brown v. Clorox Co., Inc., 56 Cal.App.3d 306, 128 Cal.Rptr. 385 (1976); Houston v. Caldwell, 347 So.2d 1041 (Fla.App.1977); Gulf Oil Co. v Woodson, 505 P.2d 484 (Okl.1972); Zurick v. Inman, 221 Tenn. 393, 426 S.W.2d 767 (1968). The trial court's determination is reviewable by this court for a clear abuse of discretion. Foss v. Richards, supra. Cf. Dorati v. Dorati, 342 A.2d 18 (D.C.App.1975); Atlantic Coast Line R. R. Co. v. Cameron, 190 So.2d 34 (Fla.App.1966); U. I. P. Corp. v. Lawyers Title Ins. Corp., 65 Wis.2d 377, 222 N.W.2d 638 (1974).

For reasons of both justice and comity, a nonresident plaintiff in a transitory action is usually entitled to have his complaint heard and resolved by the forum of his choice. Dismissal of his action by a court with legal power to grant relief places the plaintiff in the position of having expended time and money in a wasted action, and during the period of his reliance he risks running afoul of the statutes of limitations in other jurisdictions. In recognition of the harshness of dismissal, a court will not dismiss for forum non conveniens unless the ends of justice strongly militate in favor of relegating the plaintiff to an alternative forum. E. g., Goodwine v. Superior Court, 63 Cal.2d 481, 47 Cal.Rptr. 201, 407 P.2d 1 (1965); Allison Drilling Co., Inc. v. Kaiser Steel Corp., 31 Colo.App. 355, 502 P.2d 967 (1972); Sears Roebuck & Co. v. Continental Ins. Co., 9 Ill.App.3d 287, 292 N.E.2d 75 (1972); Vandam v. Smit, 101 N.H. 508, 148 A.2d 289 (1959); Plum v. Tampax, Inc., 399 Pa. 553, 160 A.2d 549 (1960). See also Restatement (Second) of Conflicts § 84, Comment c (1971).

The many factors to be weighed in applying the doctrine of forum non conveniens have been identified by the Supreme Court of the United States as follows:

"An interest to be considered, and the one most likely to be pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.

"Factors of public interest also have place in applying the doctrine." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062 (1947).

See also, e. g., Allison Drilling Co., Inc. v. Kaiser Steel Corp., supra; American Home Assurance Co. v. Northwest Industries, Inc., 50 Ill.App.3d 807, 8 Ill.Dec. 570, 365 N.E.2d 956 (1977); Cray v. General Motors Corp., 389 Mich. 382, 207 N.W.2d 393 (1973); Amercoat Corp. v. Reagent Chemical & Research, Inc., 108 N.J.Super. 331, 261 A.2d 380 (1970).

Whatever relative weight is given those factors bearing upon justice and convenience in a particular action, however, courts unanimously agree that the availability of an alternative forum is essential to exercise of the power to dismiss for forum non conveniens.

"In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them." Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 506-07, 67 S.Ct. at 843, 91 L.Ed. at 1061.

Accord, e. g., Harry David Zutz Ins., Inc. v. H. M. S. Associates, Ltd., 360 A.2d 160 (Del.1976); Lonergan v. Crucible Steel Co. of America, 37 Ill.2d 599, 229 N.E.2d 536 (1967); Panhandle Eastern Pipe Line Co. v. Herren, 207 Kan. 400, 485 P.2d 156 (1971); Leeper v. Leeper, 116 N.H. 116, 354 A.2d 137 (1976); Varkonyi v. S. A. Empresa de Viacao Airea R. G., 22 N.Y.2d 333, 292 N.Y.S.2d 670, 239 N.E.2d 542 (1968). ³

The present record is barren of any facts whatsoever indicating that this plaintiff, a Virginia resident, has available any "alternative" forum, at least within American territory, let alone one that is in addition "more appropriate." The defendant, according to his own uncontradicted affidavit, is now a resident of Thailand. The defendant's sole "contacts" with any state are those he has with Virginia by virtue of his possession of a driver's license from that state and the fact that the CIA, his former employer, maintains its headquarters there. Virginia is also, of course, the present residence of his former wife. Those limited contacts are not such, however, as to render him personally subject to the jurisdiction of any court located in the Commonwealth of Virginia. ⁴ Nor does the record display any other facts so much as hinting that the defendant is subject to personal jurisdiction anywhere else in American territory. ⁵ We would ill serve the interests of justice and comity should we shut the doors of the Maine Courts to this plaintiff who has in reality no "alternative" forum. ⁶

Therefore, the presiding justice erred in dismissing the plaintiff's action. Our holding does not, however, lead us to reverse and remand...