Stucky v. Stucky

• Decision Date: 09 April 1971
• Docket Number: No. 37643,37643
• Citation: 186 Neb. 636,185 N.W.2d 656
• Parties: Dorothy Bailey STUCKY, Appellee, v. Glenn Elmer STUCKY, Appellant.
• Court: Nebraska Supreme Court

Page 656

185 N.W.2d 656

186 Neb. 636

Dorothy Bailey STUCKY, Appellee, v. Glenn Elmer STUCKY, Appellant.

No. 37643.

Supreme Court of Nebraska.

April 9, 1971.

Syllabus by the Court

1. A state has judicial jurisdiction over an individual who is domiciled in the state.

2. A domicile once established continues until it is superseded by a new domicile.

3. The burden of proof is on the party who asserts that a change of domicile has taken place.

4. Domicile in the state is alone sufficient to bring an absent defendant within reach of a state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service. Personal service of summons is adequate to meet the requirements of due process of law.

5. In personam jurisdiction may be acquired over a nonresident defendant in a divorce action by extraterritorial personal service of process made in accordance with a statute of this state if there exist sufficient contacts between the defendant and this state relevant to the cause of action to satisfy traditional notions of fair play and substantial justice.

Bauer, Galter & Nelson, Hal Bauer, Lincoln, for appellant.

Woods, Aitken & Aitken, Bert L. Overcash, Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

McCOWN, Justice.

This is a divorce action brought by Dorothy Bailey Stucky against Glenn Elmer Stucky. Defendant filed special appearance challenging jurisdiction. The special appearance was overruled and default entered. The decree awarded plaintiff a divorce, custody of a minor child, and certain real and personal property. The decree also ordered the defendant to pay child support, alimony, and costs, including an attorney's fee. The defendant has appealed. The sole issue is whether the court had in personam jurisdiction of the defendant to support its order to pay support, alimony, costs, and fees.

Plaintiff and defendant were married in South Dakota in 1942. The defendant was a civil engineer. Since the completion of defendant's military service, he has been employed by the Soil Conservation Service of the United States Department of Agriculture. The parties lived in Sidney, Montana; Belleville, Illinois; Billings, Montana; and Lansing, Michigan; before moving to Lincoln, Nebraska, in 1961. In 1962, they purchased a home at 1726 South 51st Street in Lincoln. Title to the home was taken in joint tenancy between plaintiff and defendant. A mortgage requiring monthly payments was placed on the house. This became and was the home of plaintiff and defendant and their three children.

In February 1965, the defendant left Lincoln. Between then and December 30, 1969, the defendant had returned to Lincoln twice. On each occasion he was at the home for a very brief period of about an hour. After his initial departure in February 1965, the defendant each two weeks sent checks to the First National Bank of Lincoln for deposit in the joint bank account of plaintiff and defendant. In the calendar years 1965 through 1968, the total amounts varied from $7,883 to $8,880 per year. Beginning in 1969, the defendant decreased the amounts to $250 each two weeks. All credit accounts and all utility accounts at the home in Lincoln were in defendant's name, and were never discontinued nor had names been changed. Mortgage payments on the house were joint.

By agreement between plaintiff and defendant, the plaintiff filed joint income tax returns for the family for each of the calendar years 1965 through 1968. The return for the calendar year 1968 shows that it was prepared by a Lincoln accountant and his signature as preparer was dated April 12, 1969. The federal income tax returns were signed by the defendant in blank and forwarded to the plaintiff along with his lists of deductions and his withholding statement. The home address shown on the joint income tax returns was 1726 South 51st Street, Lincoln, Nebraska. The employee's address shown on the defendant's withholding statement, Form W--2, prepared by the United States Department of Agriculture, attached to the return, showed defendant's address as 1726 South 51st Street, Lincoln, Nebraska.

In Nevember 1968, the defendant filed a divorce complaint in Montana and alleged that he had been a resident of Montana for more than a year. That complaint was later dismissed. In the spring of 1969, the defendant filed an action for divorce in Pennsylvania.

The plaintiff's petition for divorce was filed in the district court for Lancaster County, Nebraska, on May 28, 1969. On that date plaintiff's attorney filed a praecipe for service of summons supported by an affidavit stating that the defendant was a nonresident of the State of Nebraska and was a resident of the State of Pennsylvania. The summons was served on the defendant personally in Pennsylvania on June 3, 1969.

The decree of the district court for Lancaster County, entered on January 21, 1970, specifically found that the court had jurisdiction 'over the parties.' The decree also found that the defendant should be awarded the hunting and fishing equipment and his personal belongings located in the residence in Lincoln, Nebraska.

The defendant contends that the district court for Lancaster County, Nebraska, did not have personal jurisdiction over the defendant and that a personal judgment for support, alimony, and costs based on constructive service outside the territorial limits of Nebraska was wholly ineffectual to sustain a judgment in personam.

Section 42--305, R.R.S.1943, provides: 'A petition for divorce, alimony and maintenance may be exhibited by a wife in her own name, as well as by a husband, and in all cases the defendant may answer such petition without oath. No person shall be entitled to a divorce unless the defendant shall have either (1) been served with process in person if within this state, (2) been served with personal notice duly proved and appearing of record if out of this state, (3) been served by publication under section 42--305.01, or (4) entered an appearance in the case.'

Section 42--305.03, R.R.S.1943, provides: 'Personal notice as provided in subsection (2) of section 42--305 shall not be had without the plaintiff or his attorney filing an affidavit showing that the defendant is a nonresident of this state, or if a resident of this state that the defendant is absent therefrom, and that personal service cannot be had on the defendant in this state. Such notice shall be served upon the defendant in person by issuance and delivery of summons in the manner provided in section 25--521.' Service here was in full conformity with section 25--521, R.R.S.1943.

Proposed Official Draft, Restatement, Conflict of Laws 2d, s. 27, p. 151, states the bases for the state's power to exercise judicial jurisdiction over an individual. Domicile and residence will each support jurisdiction. In Mounts v. Mounts, 181 Neb. 542, 149 N.W.2d 435, we held that a state has judicial jurisdiction over an individual who is domiciled in the state and that a domicile once established continues until it is superseded by a new domicile. See, also, Proposed Official Draft, Restatement, Conflict of Laws 2d, s. 19, p. 99. Comment (c) under that section states: 'The burden of proof is on the party who asserts that a change of domicil has taken place.'

In layman's language, the primary meaning of 'domicile' is 'home.' 'It is commonly said that a person may have more than one residence, but only one domicile.' Leflar, American Conflicts Law, s. 16, p. 30. 'Every person has a domicil at all times and, at least for the same purpose, no person has more than one domicil at a time.' Proposed Official Draft, Restatement, Conflict of Laws 2d, s. 11(2), p. 53.

The evidence in this case establishes that the defendant continuously and systematically maintained his family in a permanent home in Lincoln, Nebraska, and that that particular dimicile was established in 1962. The defendant has failed to carry the burden of proof that a change of that domicile took place. Domicile in the state is alone sufficient to bring an absent defendant within reach of a state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service. Milliken .v Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357 (1940). Personal service of summons is clearly adequate to meet the requirements of due process of law.

We have thus far dealt with the problem under traditional concepts. Older cases generally denied personal jurisdiction over a nondomiciliary of the forum state unless service of summons was made within the jurisdiction. Since International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945), the doctrine of minimum contacts has been adopted in many states. Nebraska's statutory version was adopted in 1967. See, sections 25--535 to 25--541, R.S.Supp.1969.

Section 25--536, R.S.Supp.1969, provides in part: '(1) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's: (a) Transacting any business in this state; (b) Contracting to supply services or things in this state; (c) Causing tortious injury by an act or omission in this state; (d) Causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; (e) Having an interest in, using, or possessing real property in this state; or (f) Contracting to insure any person, property, or risk located within this state at the time of contracting.'

While that language does not cover divorce in specific words, it indicates clearly the ligislative intention to apply the minimum contacts rule where it does not offend traditional concepts of fair play and...