Mitchim v. Mitchim

• Decision Date: 03 April 1974
• Docket Number: No. 12101,12101
• Citation: 509 S.W.2d 720
• Parties: Carmen R. MITCHIM, Appellant, v. Charles F. MITCHIM, Appellee.
• Court: Texas Court of Appeals

Page 720

509 S.W.2d 720

Carmen R. MITCHIM, Appellant, v. Charles F. MITCHIM, Appellee.

No. 12101.

Court of Civil Appeals of Texas Austin.

April 3, 1974.

Rehearing Denied May 8, 1974.

Gerard P. Nugent, Phillips & Norris, Austin, for appellant.

Greg Gossett, Logan, Lear, Massey & Gossett, San Angelo, for appellee.

SHANNON, Justice.

Appellee, Charles F. Mitchim, filed suit in the district court of Tom Green County seeking a declaratory judgment that the part of the divorce judgment of a superior court of Arizona awarding alimony, attorney's fees, and costs to appellant, Carmen R. Mitchim, was void . As grounds for that relief, appellee claimed that the Arizona judgment was void because that court lacked In personam jurisdiction . Upon trial to the district court of Tom Green County, judgment was entered declaring the Arizona judgment void and unenforceable in Texas insofar as it awarded appellant alimony, attorney's fees and costs.

Appellant and appellee were married in 1949 and were living in California when appellee retired from the Army in 1961 after serving for more than twenty-eight years. In 1966, they moved to Arizona and remained there several years. In the autumn of 1970, the Mitchims went to Ozona, Texas. They went to Ozona because appellee wanted to visit that community with a possible view of moving there. While in Ozona, they were shown several houses by several real estate sales persons. They then returned to Arizona. On January 8, 1971, appellee moved to Ozona and there began his practice of optometry. In January of 1971, the parties' Arizona home was placed on the market. In April of that year appellant went to Ozona to visit appellee. After a few days she returned to Arizona and there on June 28, 1971, she filed the suit for divorce against appellee.

Pursuant to the Arizona 'Long-Arm' statute, appellee was served with a copy of the divorce petition in Ozona on July 6, 1971. Appellee made no appearance in that proceeding and a judgment of divorce was entered on March 7, 1972, awarding appellant, among other things, a divorce, costs, attorney's fees and $950.00 each month as alimony.

In her first amended answer to appellee's petition appellant filed a cross-action asking the court to enforce the Arizona judgment, to require appellee to file a sworn inventory and appraisal, and in the alternative, to partition appellee's military retirement benefits.

The district court of Tom Green County entered judgment declaring that the Arizona court which entered the divorce judgment did not have jurisdiction to award a personal judgment enforceable in Texas against appellee for alimony, for costs of court, or for attorney's fees and that such judgment for those purposes was void. With respect to appellant's claim in her cross-action to appellee's military retirement benefits, the court declared that appellant have 3/114th of said benefits and that appellee have the remaining 111/114th thereof.

Upon request, the court filed findings of fact and conclusions of law, and, among other things, found that appellee had resided continuously in Texas since January of 1971, and that at no time after January 9, 1971, did appellee enter the territorial boundaries of Arizona. Appellee never agreed to subject himself to the jurisdiction of the Arizona courts, and that appellee, after January 9, 1971, did not have any legally significant contacts with the State of Arizona.

The court concluded that the part of the Arizona divorce judgment providing for the payment of alimony, costs, and attorney's fees, was void for want of jurisdiction over the person of appellee or his property outside the State of Arizona. The court determined further that the service of process upon appellee outside of Arizona was insufficient to confer In personam jurisdiction.

The full faith and credit clause, U.S.Const. Art. IV, § 1, requires the courts of each state to accord the judgment of a sister state the same effect as is given that judgment in the state of its origin. Leflar, American Conflicts Law § 76 (Rev.1968). Because a judgment entered without jurisdiction is void where rendered, the full faith and credit clause does not require that a sister state recognize that judgment. In a suit on an extrastate judgment, the defense may be that the court which entered the judgment lacked jurisdiction, and that defense is made good by proof that the facts relied upon as a basis for jurisdiction in the prior proceeding were inadequate to satisfy the requirements of due process of law. Due process is violated if the court enters an In personam judgment without jurisdiction over the person against whom it is entered. Leflar, American Conflicts Law § 80 (Rev.1968).

Unlike a divorce decree which purports only to affect the marital status of the parties, an In rem matter, an order to pay money as alimony, court costs, or attorney's fees is an In personam judgment. To be valid, that judgment must be entered by a court having In personam jurisdiction over the defendant. See Goodrich, Divorce and Conflict of Laws, 2 Tex.L.Rev. I, 24 (1923).

Traditionally, there have been several grounds for personal jurisdiction over a defendant, such as presence, domicile, consent or appearance. Stumberg, Principles of Conflicts of Law 326 (3rd Ed . 1963). In the case at bar appellant claims that In personam jurisdiction may be acquired over a non-resident defendant in a divorce proceeding by extraterritorial personal service of process if (1) a statute of the support ordering state has authorized the acquisition of such jurisdiction in that manner, and (2) there exist sufficient contacts between the defendant and the forum relevant to the cause of action to satisfy 'traditional notions of fair play and substantial justice.'

Our consideration of the validity of the Arizona judgment is controlled by the law of Arizona. O'Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.1966). In an effort to determine that law, we will first examine the Arizona 'Long-Arm' provision, Ariz.R.Civ.P. 4(e)(2), 16 A.R.S., to determine whether or not that rule applies to service of non-resident persons in divorce proceedings. The pertinent part of that rule provides as follows:

'4(e)(2) Summons; personal service out of state. When the defendant is a resident of this state, or is a corporation doing business in this state, or is a person, partnership, corporation or unincorporated association subject to suit in a common name which has caused an event to occur in this state out of which the claim which is the subject of the complaint arose, service any be made as herein provided, and when so made shall be of the same effect as personal service within the state. . . .'

The critical language, for our purposes, is 'When the defendant . . . is a person . . . which has caused an event to occur in this state out of which the claim which is the subject of the complaint plaint arose, service may be made . . .'

The rule makes no mention of its availability in a proceeding for divorce, or in a divorce suit wherein alimony may be awarded to the plaintiff. We have been unable to discover Arizona authority applying this language to a non-resident defendant in a divorce case . In Backora v. Balkin, 14 Ariz.App. 569, 485 P.2d 292 (1971), the guardian Ad litem filed a paternity suit for an infant in the superior court of Maricopa County, Arizona, against the defendant, as resident of Illinois. The defendant was served in Illinois pursuant to Ariz.R.Civ.P. 4(e)(2), as the infant alleged that all of the events which gave rise to her existence took place in Arizona. The court of appeals said simply, 'It is our opinion that the trial court properly assumed personal jurisdiction over the defendant.'

Unlike the single event which creates a claim for paternity, the basis for divorce action usually stems from many events. But whether one or many, those events could well occur, in the given case, within the State of Arizona. We are of the opinion that the terms of Rule 4(e)(2) are sufficiently broad to authorize the service of a non-resident person in an Arizona divorce proceeding.

By the terms of Rule 4(e)(2) it would be necessary to plead and show that the event or events forming the basis of the divorce occurred in Arizona. The record in the case at bar does not contain a copy of appellant's divorce petition and, as a result, we do not know the basis for appellant's divorce and, more importantly, we do not know where the event, or events, occurred which formed the basis for the default divorce judgment. Under these circumstances, we are unable to determine whether or not appellant could have availed herself of Rule 4(e)(2) to obtain valid service upon appellee.

The second aspect of appellant's contention that the Arizona court had In personam jurisdiction over appellee is that due process was accorded appellee because of his 'minimum contacts' with the State of Arizona. As authority, appellant relies upon Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679 (1968).

In Mizner the petitioner and his wife had maintained their matrimonial domicile for many years in California before they separate and petitioner moved to Nevada. The petitioner filed suit for divorce in Nevaca, and within a month his wife filed suit for divorce in California on the grounds of cruelty. Personal service of process was had upon petitioner at his home in Nevada pursuant to a California statute authorizing extraterritorial personal service where the defendant was a resident of that state when the cause of action arose. The petitioner made no appearance, and the California court awarded the wife a divorce and a judgment for alimony. She then filed suit on the California judgment in Nevada where the trial court granted her motion for partial summary judgment on the issue of alimony on the ground that the California judgment was entitled to full faith and credit. The Supreme Court of Nevada affirmed the judgment. The majority of the ...