Pinebrook v. Pinebrook, 74--1655

• Decision Date: 26 March 1976
• Docket Number: No. 74--1655,74--1655
• Citation: 329 So.2d 343
• Parties: Inge PINEBROOK, a/k/a Inge Fletcher, Appellant, v. William E. PINEBROOK, Appellee.
• Court: Florida District Court of Appeals

Page 343

329 So.2d 343

Inge PINEBROOK, a/k/a Inge Fletcher, Appellant, v. William E. PINEBROOK, Appellee.

No. 74--1655.

District Court of Appeal of Florida, Fourth District.

March 26, 1976.

Edna L. Caruso, of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, P.A., West Palm Beach, and Gilbert T. Brophy, Tequesta, for appellant.

Willard C. Wheeler, Jr., Jupiter, for appellee.

OWEN, Judge.

Appellant-wife is appealing from an order dismissing with prejudice her complaint to establish and enforce a California divorce decree as is relates to certain real properly located in Florida.

The wife's amended complaint is in two counts: the first seeks enforcement of that provision of the California divorce decree directing the parties to sell certain real property located in Jupiter--Tequesta, Florida, and to divide the proceeds therefrom equally between them; the second count requests, alternatively, that the Florida court provide for a division of the property in question based upon the concept of tracing community funds. In response to the complaint, the defendant-husband, appellee, filed a motion to dismiss the complaint on the ground that the court lacked jurisdiction 'over the subject matter' because that aspect of the judgment sought to be enforced was a personal judgment which had been entered without acquiring personal jurisdiction over him in California. From the trial court's order granting this motion and dismissing the complaint with prejudice, the wife now appeals.

The essential issue with which we are confronted is: whether the California court had personal jurisdiction over defendant so as to permit entry of a valid personal judgment against him which is, in turn, entitled to enforcement in this state under the full faith and credit clause of the United States Constitution.

We note initially that the submission and decision of this issue on a motion to dismiss was premature and improper. No suggestion has ever been made, here or below, that the court in which appellant's amended complaint initiating the present action was filed was not the proper forum to entertain such an action, or that service of process over the husband consonant with the applicable Florida statutes was not obtained, and in the absence of these factors, the lower court lacked neither jurisdiction over the subject matter nor over the parties and the motion to dismiss should have been denied. Defendant's motion, contesting, as it did, the jurisdiction of the California court to enter the judgment which the wife seeks to enforce in Florida, was plainly addressed to the merits of the cause and was properly a subject for a defensive pleading, not a motion to dismiss for lack of jurisdiction. Perceiving, however, that little would be accomplished by requiring the defendant and the lower court to present and decide this issue in its proper procedural context, as the practical result would undoubtedly be the same, and the identical issue would undoubtedly be returned to us, we have elected to address the merits of the case in its present posture.

The parties were married in California in 1964. They established a marital domicile in that state which they maintained for over eight years' duration. At the time of the institution of the divorce action in California in 1973, the appellant and the parties' minor son continued to reside in California. However, appellee was then residing in Utah and it was there that he was served with the summons and divorce complaint by certified air mail, return receipt requested. The record reflects that appellee signed the return receipt, but he made no appearance in the California action. A judgment of dissolution of marriage was subsequently entered, awarding appellant custody of the parties' minor child, ordering appellee to pay alimony, child support and attorney's fees and directing the parties to sell the Florida real property (which is the subject of the present action) and to divide the proceeds therefrom. Appellee's contention in this court is that the California judgment is a nullity insofar as it purports to order him to dispose of the Florida property because such is a personal judgment which can only be entered upon the acquisition of personal jurisdiction.

In order to determine whether or not the California court obtained personal jurisdiction over appellee, we must make a two-fold inquiry, Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679 (1968), cert. denied, 393 U.S. 847, 89 S.Ct. 130, 21 L.Ed.2d 117 (1968); Mitchim v. Mitchim, 518 S.W.2d 362 (Tex.1975); Fox v. Fox, 526 S.W.2d 180 (Tex.Civ.App.1975); Wright v. Wright, 114 N.J.Super. 439, 276 A.2d 878 (Ch.1971): (1) does the law of the forum state (here, California) authorize acquisition of such jurisdiction by service of process in the manner here employed; (2) were there sufficient minimum contacts between appellee and the forum state relevant to the cause of action to satisfy traditional notions of fair play and substantial justice.

With respect to the first question, § 410.10 of California's Civil Procedure Code, Title V: Jurisdiction and Service of Process, vests the California courts generally with the broadest possible jurisdiction:

' § 410.10. (Jurisdiction exercisable)

A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.'

Subsequent sections in this title specify how this jurisdiction is to be invoked, Specifically, for our purposes, § 413.10 provides:

' § 413.10. (Application of this chapter of foreign law to service in or outside this state and outside United States: Court's direction)

Except as otherwise provided by statute, a summons shall be served on a person: (a) Within this state, as provided in this chapter.

(b) Outside this state but within the United States, as provided in this chapter or as prescribed by the law of the place where the person is served.

* * *'

This same chapter provides for five different forms of service of process (1) personal delivery, (2) delivery to a specified person, usually at defendant's abode or place of business, (3) delivery by ordinary mail with return acknowledgement, (4) delivery by registered or certified air mail with return receipt, (5) publication), and § 415.40 expressly authorizes the use of any of these five forms for serving out-of-state defendants:

' § 415.40. Service on person outside state.

A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by any form of air mail requiring a return receipt. . . .'

Clearly, California law authorized the manner of service employed in this case and allowed for the type of jurisdiction, based upon this service, that was exercised. ¹ The only caveat, insofar as Californai law is concerned, is that the exercise of this jurisdiction comport with the constitutional requirements of due process. These requirements are basically two: first, the manner of service employed must be reasonably calculated to give actual notice, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); second, there must be sufficient minimum contacts, relevant to the cause of action, between the forum state and the person sought to be reduced to its jurisdiction to satisfy traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). ²

As to the due process requirement that the form of service be reasonably calculated to give actual notice, we think that this requisite was satisfied in this case by serving appellee by certified air mail, return receipt requested. Such form of service has been deemed sufficient to acquire personal jurisdiction over out-of-state defendants in other types of actions, e.g., Travelers Health Ass'n v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Rosenblatt v. American Cyanamid Company,86 S.Ct. 1, 15 L.Ed.2d 39 (1965) (Goldberg, J. in Chambers), app. dism'd.382 U.S. 110, 86 S.Ct. 256, 15 L.Ed.2d 192 (1965), and, although the divorce cases which we have examined which have dealt with the problem of acquiring personal jurisdiction over out-of-state residents have all been premised upon Personal extraterritorial service, ³ e.g., Soule v. Soule, 193 Cal.App.2d 443, 14 Cal.Rptr. 417 (1961), cert. den. 368 U.S. 985, 82 S.Ct. 600, 7 L.Ed.2d 523 (1962); Farah v. Farah, 25 Ill.App.3d 481, 323 N.E.2d 361 (1975); Hines v. Clendenning, 465 P.2d 460 (Okl.1970); Mizner v. Mizner, and other cases cited, supra, we see no reason to distinguish between these types of service and/or cases, or to require a more rigorous form of notice in divorce actions, the sole relevant criterion in every case being, under the particular circumstances of the case, whether the service is reasonably calculated to give notice to that defendant may appear and be heard.

We now turn to the second due process requirement and the second prong of our initially posed inquiry, whether appellee had sufficient minimum contacts with the forum state, California, to justify the imposition of personal jurisdiction. The power of a court to obtain personal jurisdiction over an out-of-state defendant has been greatly expanded since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877) which held that personal jurisdiction over a nonresident could only be obtained by personal service within the boundaries of the forum state or by the defendant's voluntary appearance in the action. The basic modern rule was announced in International Shoe Co. v. Washington, supra:

'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...