Walker v. Walker, 15740
| Decision Date | 12 May 1994 |
| Docket Number | No. 15740,15740 |
| Citation | 10 Haw.App. 361,873 P.2d 114 |
| Parties | Fumiko WALKER, Plaintiff-Appellant, v. James A. WALKER, Defendant-Appellee. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
The four discrete parts of a divorce case are (1) the divorce, (2) spousal support, (3) child custody, visitation, and support, and (4) the division of property (assets and liabilities). When the husband files a complaint for divorce in Texas, serves it by mail on the wife at her residence in Hawai'i, and there is no valid basis for the Texas court to assert in Fred Y. Abe (McCorriston Miho & Miller, of counsel), on the brief, Honolulu, for plaintiff-appellant.
rem jurisdiction over the wife's interest in any of part (4), the Texas court has in rem jurisdiction over part (1), but no jurisdiction over the wife's interest in parts (2), (3), and (4), and its decree with respect to the wife's interest in parts (2), (3), and (4) is void. Moreover, the fact that the Texas decree finally adjudicated part (1) does not preclude or inhibit Hawai'i's jurisdiction to subsequently adjudicate parts (2), (3), and (4) when it has in personam jurisdiction over the husband and the wife.
James A. Walker, Fort Worth, TX, defendant-appellee, pro se.
Before BURNS, C.J., and HEEN and WATANABE, JJ.
Plaintiff Fumiko Walker (Wife) appeals the family court's November 5, 1991 order granting the October 18, 1991 Motion to Dismiss filed by defendant James A. Walker (Husband) and dismissing Wife's September 6, 1990 Complaint for Divorce. We affirm in part and reverse in part.
Chronologically listed, the relevant events occurred as follows:
FACTS
1971 Husband joined the United States Air Force.
November 4, 1976 Husband and Wife were married.
April 6, 1977 Daughter Tina was born.
October 13, 1979 Daughter Patricia was born.
February 1983 The Air Force assigned Husband to Hawai'i. Husband, Wife,
and daughters moved to Hawai'i.
December 12, 1985 Husband filed his Complaint for Divorce in Hawai'i First
Circuit Family Court FC"D No. 85"4480.
March 31, 1986 Husband was reassigned to Texas. Wife, Tina, and Patricia
remained in Hawai'i.
May 19, 1988 FC"D No. 85"4480 was dismissed without prejudice for want
of prosecution.
August 1, 1990 Husband filed a complaint for divorce in No.
322"151563"90 in the District Court of Tarrant County,
Texas, 322nd Judicial District. Wife was served in
Hawai'i by mail.
September 6, 1990 Wife filed her Complaint for Divorce in this case, FC"D
No. 90"3447; in it Wife sought a divorce, spousal
support, custody of the daughters, child support, and a
portion of the property and debts.
January 31, 1991 A Final Decree of Divorce was entered in No.
322"151563"90; it named Wife "Managing Conservator" and
Husband "Possessory Conservator" of Tina and Patricia;
it awarded Husband the right "to possession" of Tina
and Patricia at certain specific times; it ordered
Husband to pay Wife child support of $500 per month
through the Tarrant County Child Support Office
commencing February 1, 1991, and continuing until no
later than when both children reach the age of 18
years; it ordered Husband to maintain major medical and
health insurance coverage for the daughters and to pay
one-half of all health care expenses for them that are
not paid by insurance; it awarded Husband the right to
claim the dependency exemption for Tina; and it awarded
Husband the property and debts in his name or
possession (including his vested and future military
retirement benefits) and Wife the property and debts in
her name or possession.
June 20, 1991 In FC"D No. 90"3447, Husband was personally served in
Honolulu, Hawai'i.
October 1, 1991 In FC"D No. 90"3447, attorney Richard Hacker was
appointed counsel for Husband in compliance with the
Soldiers and Sailors Civil Relief Act.
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Wife contends that the family court reversibly erred in dismissing her complaint because (1) Husband failed to submit his affidavit and a memorandum of Texas law and procedure in violation of Hawai'i Family Court Rules (HFCR) Rule 7; (2) the family court did not decide that the Texas court had jurisdiction over the cause of action and the parties and was not authorized to give the Texas divorce decree full faith and credit until it did so; and (3) the family court did not consider the other economic claims made by Wife in her complaint.
HFCR Rule 7(b) states in relevant part as follows:
(b) Motions and Affidavits.
(1) An application to the court for an order ... if involving a question of law shall be accompanied by a memorandum in support of the motion....
(2) If a motion requires the consideration of facts not appearing of record, it shall be supported by affidavit, signed by the person having knowledge of the facts and competent to testify....
Since all relevant facts are on the record and no relevant facts are disputed, HFCR Rule 7(b)(2) did not require an affidavit.
HFCR Rule 7(b)(1) required Husband's October 18, 1991 Motion to Dismiss to be accompanied by a memorandum of law. However, Husband's violation of HFCR Rule 7(b)(1) does not mandate a dismissal of his motion. The family court's implicit waiver of the violation was within its allowable discretion.
In a March 6, 1991 letter to Husband's counsel, Wife's counsel stated in relevant part as follows:
There is no doubt that Texas had jurisdiction to terminate the marriage and the divorce is entitled to full faith and credit. However, the Court has no personal jurisdiction of [Wife].... Therefore, the orders in the decree which requires [sic] personal jurisdiction is [sic] not entitled to full faith and credit.
We agree with this statement of law by Wife's counsel. See Rodrigues v. Rodrigues, 7 Haw.App. 102, 108, 747 P.2d 1281, 1286 (1987); 24 Am.Jur.2d Divorce and Separation § 242 (1983); 20 Am.Jur.2d Courts § 118 (1965).
The four discrete parts of a divorce case are (1) the divorce, (2) spousal support, (3) child custody, visitation, and support, and (4) the division of property (assets and liabilities). Black v. Black, 6 Haw.App. 493, 728 P.2d 1303 (1986). Wife's September 6, 1990 Complaint for Divorce asked the family court to adjudicate parts (1), (2), (3), and (4).
The Texas court had in personam jurisdiction over Husband and in rem jurisdiction over part (1). Therefore, the Texas The Texas court did not have in rem jurisdiction with respect to part (4), see Rodrigues v. Rodrigues, supra, or in personam jurisdiction over Wife. Thus, it did not have any jurisdiction with respect to Wife's interest in parts (2), (3), and (4). See 24 Am.Jur.2d Divorce and Separation § 550 (1983). Therefore, with respect to Wife's interest in parts (2), (3), and (4), the Texas court's decree is void.
decree finally adjudicated part (1) and there was no part (1) for Hawai'i to adjudicate.
Hawai'i's Family Court of the First Circuit has in personam jurisdiction over Husband and Wife and their interests in parts (2), (3), and (4). The fact that the Texas decree finally adjudicated part (1) does not preclude or inhibit Hawai'i's jurisdiction to subsequently adjudicate parts (2), (3), and (4) when it has in personam jurisdiction over Husband and Wife. It follows that the family court was right when it dismissed Wife's Complaint for Divorce with...
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