Mouzon v. Mouzon

• Decision Date: 01 November 1984
• Docket Number: No. 83-1028,83-1028
• Parties: William C. MOUZON, Jr., Appellant, v. Ramona L. MOUZON, Appellee.
• Court: Florida District Court of Appeals

Page 381

458 So.2d 381

William C. MOUZON, Jr., Appellant, v. Ramona L. MOUZON, Appellee.

No. 83-1028.

District Court of Appeal of Florida,

Fifth District.

Nov. 1, 1984.

James K. Freeland, P.A., and Joel A. Spector, Orlando, for appellant.

Albert P. McIntosh, Jr., Orlando, for appellee.

ORFINGER, Judge.

In this appeal from a judgment dissolving the marriage of the parties, awarding the wife custody of the three children and ordering the husband to pay monthly child support, to provide medical coverage for the children, and to pay a fee to the wife's attorney, the husband contends that the judgment was void for lack of jurisdiction. We agree and reverse.

The wife filed a petition for dissolution of marriage ¹ and had the husband served with process in North Dakota under sections 48.193 and 48.194, Florida Statutes (1981), Florida's Long Arm Statute. Section 48.193 says in pertinent part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:

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(e) With respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage.

The complaint did not allege that the parties had maintained a matrimonial domicile in this state at the time of the commencement of the action or that the defendant had resided in this state preceding the commencement of this action, nor did it contain any allegation that would bring it within the ambit of section 48.193. The husband filed no papers or pleadings and made no personal appearance in the cause. A default was entered against him following which the court entered the judgment appealed from. The petition for dissolution contains no allegation to show that service of process under the long arm statute is appropriate here.

Failure to adequately allege in the complaint a basis for long arm jurisdiction under 48.193 voids any service of process made pursuant to section 48.194, with the result that there was no in personam jurisdiction over the respondent husband. Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977); Newton v. Bryan, 433 So.2d 577 (Fla. 5th DCA 1983); Wynn v. Aetna Life Insurance Company, 400 So.2d 144 (Fla. 1st DCA 1981).

Neither does the complaint or any affidavit attached to it show any of the jurisdictional requirements of section 61.132 or 61.1308, Florida Statutes (1981) so as to vest the court with custody jurisdiction, nor does the complaint even allege that the children reside in Florida, so there is no basis upon which the court could have acquired jurisdiction over the children.

Although not necessary to this decision, we feel compelled to address an issue raised in the specially concurring opinion, lest there be any misconception among the members of the bench and the bar that the concurring opinion is the accepted view of this court. We have previously pointed out that concurring opinions have no precedential value, O'Brien v. State, 454 So.2d 675 (Fla. 5th DCA, 1984), Dunn v. State, 454 So.2d 641 (Fla. 5th DCA, 1984) but they are occasionally cited, nevertheless. We reject the view expressed in the special concurring opinion to the effect that service of process to dissolve a marriage cannot be obtained under the long arm statute.

Section 48.193(1)(e) of Florida's long-arm statute provides in part that a person submits himself (herself) to the jurisdiction of the court for any cause of action arising from the doing of certain enumerated acts, among which is the maintenance of a marital domicile in the state, with respect to proceedings for alimony, child support or division of property in connection with an action to dissolve a marriage. Service under the long-arm statute is effected in the same manner as service within the state, namely by delivering a copy of the petition and the original process to the defendant's usual place of abode and leaving it with any person over age 15. Fla.Stat. §§ 48.194 and 48.031 (1981). Thus when properly perfected, "long-arm" personal service outside the state is the equivalent of personal service within the state.

The concurring opinion would have us believe that the legislature intended that there be two services of process in a dissolution of marriage proceeding where one spouse was out of the state and proper "long-arm" jurisdiction could be obtained against that spouse. According to the concurrence, the petitioning spouse would be required to serve the respondent by publication in order to dissolve the marriage, and simultaneously serve the respondent with "long-arm" personal service in order to secure a money judgment for alimony, child support, and would not be entitled to claim attorney's fees because that claim isn't justified under either method of service. To the contrary, we believe any such construction of the statute is strained, and we cannot ascribe any such intention to the legislature, when no such construction is required, and where the legislative intent in that regard seems so clear. A dissolution of marriage clearly is a cause of action that can arise out of the maintenance of a marital domicile in this state, as does the claim for alimony, child support, or division of property on which it depends. The claim for attorney's fees, where properly allowable, also arises out of that relationship when the marriage is dissolved.

Section 48.193 permits personal service of process upon absent spouses "[w]ith respect to proceedings for alimony, child support or division of property in connection with an action to dissolve a marriage ..." under certain specified conditions. The verb "connect" means "1. to join or fasten together; link; unite. 2. To associate or consider as related." The American Heritage Dictionary of the English Language, 282 (1979). The noun "connection" has been defined as "the state of being connected or joined; union by junction, by an intervening substance or medium, by dependence or relation ..." Black's Law Dictionary 274 (rev. 5th ed.1979). Clearly then, the legislature has said that where personal service (albeit under the long-arm statute) is available, that service shall be used for both the dissolution action and the money demands.

In Palmer v. Palmer, 353 So.2d 1271 (Fla. 1st DCA 1978) the court noted that prior to the enactment of section 48.193(1)(e) and (2), and 48.194, a plaintiff had to obtain personal service of process upon a defendant by serving the defendant personally in Florida. By this service plaintiff achieved in personam jurisdiction. Where personal service was impossible the only alternative open to plaintiff was to obtain service of process by publication. This type of service resulted in only in rem jurisdiction. The Palmer court recognized that with the enactment of § 48.193 a plaintiff in a dissolution of marriage action now has three methods by which he or she may serve a spouse: in-state personal service, long-arm personal service and constructive service, depending on "the alternative available and the option of the plaintiff." Id. at 1272.

Long-arm personal service is a product of the realization that it is unreasonable to require the plaintiff to lure the prospective defendant into the state so that in personam jurisdiction could be achieved. It is clear that in-state personal service (a single process) will subject a properly served defendant to the jurisdiction of the court for purposes of dissolving the marriage as well as for the appropriate money demands and child custody. Section 48.193(2) makes no distinction between in-state personal service and out-of-state personal service, but rather treats them the same way, viz:

(2) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in s. 48.194. The service shall have the same effect as if it had been personally served within this state. [Emphasis added].

The cornerstone of any analysis of long-arm personal service and its due process implications is International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) in which the United States Supreme Court reasoned:

Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 55 L.Ed. 278, 132 A.L.R. 1357.

The adequacy of personal service under long-arm statutes similar to Florida's has been recognized by both state and federal courts. In Mullane v. Central Hanover Bank & Trust Co....