Rodrigues v. Rodrigues
| Decision Date | 04 December 1987 |
| Docket Number | No. 11647,11647 |
| Citation | 747 P.2d 1281,7 Haw.App. 102 |
| Parties | Joseph L. RODRIGUES, Plaintiff-Appellant, v. Carol J. RODRIGUES, Defendant-Appellee. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. There is no statutory or common-law basis for the Hawaii family court, by service by publication in a divorce case, to acquire in personam jurisdiction over the defendant, even if defendant is a domiciliary of Hawaii.
2. In Hawaii divorce cases where the defendant is served by publication, the family court can acquire in rem jurisdiction to divide and distribute the parties' property and debts located in Hawaii by satisfying the following requirements: (1) the requirement that the defendant had certain minimum contacts with Hawaii such that the exercise of in rem jurisdiction over the property and debts located in Hawaii does not offend traditional notions of fair play and substantial justice; (2) the publication requirements imposed by Hawaii Revised Statutes § 580-3(d) (1985); and (3) the requirement that the publication reasonably specify and identify the parties' property and debts located in Hawaii over which in rem jurisdiction is being exercised.
Charles W. Totto (Ing and Lebb, of counsel), Honolulu, on the brief, for plaintiff-appellant.
William J. Worthington and Sharyn Stephani Monet, Waianae, for defendant-appellee.
Plaintiff Joseph L. Rodrigues (Joseph) appeals the September 12, 1986 divorce decree. Specifically, Joseph appeals the family court's decision that it lacked jurisdiction to divide and distribute some of the property of the parties because it lacked in personam jurisdiction over defendant Carol Rodrigues (Carol) and in rem jurisdiction over the property. We affirm the family court's ruling that it lacked in personam jurisdiction over Carol and in rem jurisdiction over the property of the parties. Consequently, we sua sponte 1 vacate portions of the September 12, 1986 divorce decree wherein the family court purported to decide in Joseph's favor issues relating to spousal support and the division and distribution of some of the property and debts of the parties.
The issues and our answers are as follows:
1. In Hawaii divorce cases where the defendant is served by publication, can the family court acquire in rem jurisdiction to divide and distribute the property and debts of the parties? With respect to the parties' property and debts located in Hawaii, the answer is yes.
2. In Hawaii divorce cases where the defendant is served by publication, how can the family court acquire in rem jurisdiction to divide and distribute the parties' property and debts located in Hawaii? The family court can acquire such jurisdiction by satisfying the following requirements: (1) the requirement that the defendant had certain minimum contacts with Hawaii such that the exercise of in rem jurisdiction over the property in Hawaii does not offend traditional notions of fair play and substantial justice; (2) the requirements imposed by Hawaii Revised Statutes (HRS) § 580-3(d) (1985); and (3) the requirement that the publication reasonably identify the parties' property and debts located in Hawaii over which in rem jurisdiction is being exercised.
3. In this case, was the family court right or wrong when it decided that it did not have in rem jurisdiction to divide and distribute some of the parties' property located in Hawaii? It was right.
4. In this case, did the family court have jurisdiction to divide and distribute some of the property and debts of the parties and to adjudicate their rights and liabilities as to spousal support? No.
Joseph and Carol were married on October 2, 1976. Their daughter was born on December 17, 1970 prior to their marriage. Throughout their marriage, both Joseph and Carol lived in Hawaii. Carol had a Hawaii driver's license. She owned separate and joint bank accounts and other personal property in Hawaii. She worked at Red Baron's Pizza Parlor in Waianae, Hawaii. She jointly owned with Joseph a house and lot in Waianae, Hawaii.
On December 28, 1984 Carol left Joseph and took their daughter with her without informing Joseph where they were going or whether they would be returning. A few days later, Carol telephoned Joseph, refusing to give him her telephone number and address. At that time Joseph mentioned that he would be getting a divorce. Carol replied that she would think about it.
On February 7, 1985 Joseph filed a complaint for divorce in which he requested that an unspecified portion of the property of the parties be awarded to him.
Joseph exhausted all known resources in his attempts to locate Carol. He contacted her relatives, friends, former employers, and their daughter's school; he flew to Maui, Kauai, California, Nevada, Colorado, and Arizona; he examined documents, including telephone bills, for clues to Carol's whereabouts.
On March 19, 1986 Joseph filed an asset and debt statement listing the following assets and debts:
Item Title Gross Debt
Value
87"204 Auyong Homestead Rd. Joint $85,000 $32,0-
00
1956 VW Bug Joint
1968 VW Bug Joint
1968 Chevrolet Truck Joint
1968 VW Camper Joint
1971 Toyota Joint
Ironworkers Union Local 625 unmatured retirement Husband
benefits for 24 years of service
Tools Husband 5,000
Sears Husband 1,200
Because Carol could not be located for personal service, Joseph, on February 5, 1986, moved for service by publication pursuant to HRS § 580-3(d) (1985) and Hawaii Family Court Rules 4(e)(3)(i) and 88. The family court authorized publication as follows:
It appearing to the satisfaction of the undersigned that service by publication is appropriate and reasonable,
IT IS HEREBY ORDERED that this cause be set for hearing on March 25, 1986 at 2:00 p.m. of said day in the Family Court, Kaahumanu Building, 2nd Floor, 777 Punchbowl Street, Honolulu, Hawaii.
IT IS HEREBY FURTHER [ORDERED] that notice of the pendency of this cause and of the above ordered time and place of hearing thereof be given to the Defendant above named by publication of such notice in The Honolulu Advertiser, a newspaper suitable for the advertisement of notices of judicial proceedings, published in this State, which publication shall be at least once in each of three (3) successive weeks, the last publication to be not less than twenty (20) days prior to the time above set for hearing; and
IT IS HEREBY FURTHER ORDERED that such notice include the statement that in the event the Defendant fails to appear and defend as required further action may be taken in this cause, including judgment for the relief demanded in the complaint, without further notice to the Defendant.
The publication in the Honolulu Advertiser on February 14, 21, and 28, 1986, addressed to Carol, stated as follows:
GREETING: You are hereby notified that a Complaint for Divorce has been filed in this Court against you and is set for hearing in the Courtroom of the Presiding Judge of the above-entitled Court, Kaahumanu Building, Second Floor, 777 Punchbowl Street, Honolulu, Hawaii, on Tuesday, March 25, 1986, at 2:00 o'clock in the afternoon of said day. In the event you fail to appear, further action may be taken in this cause, including Judgment for the relief demanded in the Complaint, without further notice to you.
On March 25, 1986 Carol did not appear at the scheduled divorce hearing, and the hearing proceeded by default. 2
On September 12, 1986 the trial court filed its decree as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
(1) A decree of absolute divorce is hereby granted to Plaintiff, the bonds of matrimony between Plaintiff and Defendant are hereby dissolved and the parties hereto are restored to the status of single persons, and either party is permitted to marry from and after the effective date of this decree.
(2) The parties shall have the joint legal care, custody and control of the minor child of the parties, and Defendant is awarded the physical custody of said minor child until otherwise mutually agreed or until further order of the Court, subject to Plaintiff's rights of reasonable visitation. The custodial parent shall keep the noncustodial parent informed of the residence address and telephone number of said minor child.
(3) The name and birth date of the minor child of the parties [is] as follows:
Name Birth Date
DOLORES ANN RODRIGUES December 17, 1970 (4) Other matters covered by this decree are as follows:
(a) No spousal support is requested by either party and none shall be awarded.
(b) The issue of child support is reserved for future determination by this Court.
(c) Each party shall retain as his or her sole and separate property any and all interests in any retirement, pension and/or profit sharing plans which he or she has accumulated or may subsequently accumulate and/or receive as a result of his or her employment and/or military service.
(d) Each party shall be responsible for and pay any and all outstanding debts personally incurred by him or her at any time.
(e) Each party shall retain as his or her sole and separate property any and all personal effects, belongings, household goods, tools and other personal property in his or her possession.
(5) The Court has no jurisdiction to award, divide or distribute jointly-owned property or joint debts of the parties, including the following items:
(a) The 1971 Toyota (BEN 345), 1968 VW Camper (AXJ 598), 19...
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