Weller v. Weller
| Decision Date | 03 November 1999 |
| Parties | Cynthia S. WELLER, Appellant, v. Ty S. WELLER, Respondent. |
| Court | Oregon Court of Appeals |
Robert T. Scherzer, Portland, argued the cause and filed the briefs for appellant.
David N. Hobson, Jr. argued the cause for respondent. With him on the brief was Hobson, Hobson & Angell.
Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.
In this proceeding, which follows earlier domestic relations proceedings between the same parties, plaintiff (wife) appeals from a judgment in which the trial court determined that it did not have personal jurisdiction over defendant (husband), but in which the court nevertheless awarded to wife the parties' personal property located in Oregon. Wife contends that the trial court erred in concluding that it lacked personal jurisdiction over husband and in failing to make an award to her based on husband's enhanced earning capacity. Husband cross-assigns error to the trial court's denial of his motion to dismiss wife's complaint for lack of subject matter jurisdiction and for failure to state ultimate facts sufficient to constitute a claim, and his motion to strike as a sham pleading wife's request for a judgment based on his enhanced earning capacity. Because we agree that the trial court did not have subject matter jurisdiction to make an award based on husband's enhanced earning capacity, we need not decide whether the trial court was correct when it ruled that it lacked personal jurisdiction over husband. We affirm the award of personal property to wife because the court had in rem jurisdiction to make that award.
The parties appear to agree on most of the pertinent facts. We need not describe those facts in detail because much of the factual showing made below dealt with the issue of personal jurisdiction and because, as we explain later, we do not reach that issue. The parties went to high school together in Oregon, and they were married here in 1986. Husband then received his undergraduate degree and went to medical school in Oregon. Wife worked as a receptionist while husband was in medical school. After graduating from medical school, husband first interned at a Portland hospital. The parties then left Oregon so that husband could complete his residency in New Hampshire and undertake a fellowship in Australia. The parties returned to the United States in early 1996. Apparently, the marriage had become strained while the parties were in Australia and, after they returned, husband went to Idaho, where he now lives and practices medicine.
Husband has not lived in Oregon since 1991. After moving from Oregon, however, husband retained some ties to this state. He renewed his Oregon driver's license while living in New Hampshire and again before going to Australia, using wife's parents' address as his on the renewals. After moving to Idaho, he obtained two vehicle loans through an Oregon credit union, where he kept an open account that he used to pay bills while in Australia. He also remained registered to vote in Oregon while he was away, although he asserts that he has not in fact voted in Oregon since 1991 and that he also registered to vote elsewhere, first in New Hampshire and later in Idaho, after moving to those states. Apart from a three-day visit to the state after husband finished his residency, wife never has been in Idaho.
About seven weeks after moving to Idaho, husband filed a dissolution proceeding in that state, which has a six-week residency requirement for such actions. Idaho Code § 32-701. In that proceeding, wife questioned whether the Idaho court had jurisdiction over her, but she agreed that the court could dissolve the parties' marriage. After the Idaho court entered its order dissolving the marriage, the court entered a further order, concluding in part that the Idaho court did not have personal jurisdiction over wife. The Idaho court also determined that it had no "in rem jurisdiction" over husband's enhanced earning capacity because enhanced earning capacity "is not property within the State of Idaho[.]" Finally, the Idaho court "declined" to exercise jurisdiction over the parties' personal property because relatively little of that property was in Idaho, because "[s]ignificant items of personal property acquired during the marriage of the parties are located" in Oregon, and because, in the Idaho court's view, exercising its jurisdiction "would result in a piecemeal adjudication of the property rights of the parties."
After husband filed the dissolution proceeding in Idaho, but before the Idaho court entered its decree, wife filed what she termed a "COMPLAINT [DIVISION OF MARITAL ASSETS]" in this state. (Brackets in original.) In that proceeding, wife sought spousal support, an equitable property division, and an award of her attorney fees. Husband moved to dismiss that case on the ground, inter alia, that "there [was] another action pending between the same parties for the same cause," ORCP 21 A(3)—specifically, the Idaho dissolution proceeding. At the hearing held on husband's motion to dismiss, wife's attorney told the trial court, after being pressed by it to identify some injury to her interests that might result from a dismissal, that wife would not be harmed if the court granted the motion to dismiss, without prejudice, based on the then-pending Idaho dissolution proceeding. Consequently, in December 1996, the trial court dismissed the Oregon case "without prejudice" because of the pending Idaho case. The judgment stated that wife could "refile an action in [this state] when a determination is made by the Idaho Courts as to the scope of the relief granted in the [then]-pending proceedings in Idaho[.]" Wife did not appeal from that judgment of dismissal.
Instead, some five-and-a-half months after the Idaho court granted the decree of dissolution and two-and-a-half months after the Idaho court entered its findings, conclusions, and order, wife filed the complaint that is the subject of this appeal. In this second Oregon case, wife sought spousal support, an equitable property division (including an award based on husband's enhanced earning capacity), and an award of her attorney fees. Husband again moved to dismiss. He asserted that the court lacked personal jurisdiction over him, that it lacked subject matter jurisdiction, and that wife had failed to plead ultimate facts sufficient to state a claim. ORCP 21 A(1), (2), (8).1 He also moved to strike as a "sham" pleading wife's request for an award based on his enhanced earning capacity. ORCP 21 E.2 The general theme of husband's motions, apart from his motion to dismiss based on lack of personal jurisdiction, was that, after the parties' marriage was dissolved in Idaho, the Oregon court had no authority to award spousal support, to divide the parties' property, or to make an award based on enhanced earning capacity.
After the parties submitted affidavits and other materials, the trial court ruled on husband's motions to dismiss and to strike. The court granted husband's motion to dismiss based on lack of personal jurisdiction, but denied his motion to dismiss based on lack of subject matter jurisdiction and failure to plead ultimate facts sufficient to constitute a claim. The court "decline[d] to rule" on husband's motion to strike because "the Court's dismissal of the case for lack of personal jurisdiction [was] dispositive." Later, the court entered a judgment, incorporating its earlier rulings on husband's motions and ordering that the remaining personal property of the parties in the State of Oregon be awarded to wife. In an earlier letter opinion, the trial court explained that, if it found personal jurisdiction over husband, wife could "go forward with her cause of action regarding property located in Oregon, including [husband's] enhanced earnings," but that, if the court found that it lacked personal jurisdiction over husband, wife could "go forward on the disposition of property located" in Oregon, "excluding [husband's] enhanced earnings." The trial court also concluded that wife could "not go forward on the issue of spousal support" because that "issue had been foreclosed by the dissolution proceeding in Idaho."
On appeal, wife first assigns error to the trial court's determination that it lacked personal jurisdiction over husband.3 We conclude, however, that we do not need to determine if that trial court ruling was wrong. Regardless of whether the trial court had personal jurisdiction over husband, its disposition of the case was proper because it lacked subject matter jurisdiction to make an award based on husband's enhanced earning capacity.4
The essence of husband's challenge to the court's subject matter jurisdiction is that the court's authority over the requested relief derives solely from the dissolution statutes and that, once the parties were no longer married, that source of authority no longer applied. It follows, husband contends, that once the Idaho dissolution proceedings were concluded, the Oregon court could not exercise jurisdiction to divide the parties' property or to base an award on his enhanced earning capacity. With respect to enhanced earning capacity, we agree. We conclude, however, as did the trial court, that the trial court had in rem jurisdiction to divide and award the parties' personal property remaining in Oregon.
In urging that the trial court lacked subject matter jurisdiction, husband relies on the Supreme Court's decision in Rodda v. Rodda, 185 Or. 140, 200 P.2d 616, 202 P.2d 638, cert. den. 337 U.S. 946, 69 S.Ct. 1504, 93 L.Ed. 1749 (1949). In that case, the wife had obtained an Oregon decree of separate maintenance that required the husband to pay monthly support. The husband thereafter moved to Nevada and obtained a divorce in that state. The Nevada court did not acquire personal jurisdiction over the...
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MATTER OF MARRIAGE OF TROTTS
...of either or both of the parties as may be just and proper in all the circumstances." (Emphasis added.) See also Weller v. Weller, 164 Or.App. 25, 32, 988 P.2d 921 (1999) (under ORS 107.105(1) and ORS 107.115(1), "[t]he legislature has expressly conditioned a circuit court's subject matter ......
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§ 13.01 Jurisdiction and Choice of Law
...S.E.2d 265 (1997). Kansas: In re Marriage of Salas, 28 Kan. App.2d 553, 19 P.3d 184 (2001). Oregon: Weller v. Weller, 164 Ore. App. 25, 988 P.2d 921 (1999). Texas: Fox v. Fox, 559 S.W.2d 407 (Tex. Civ. App. 1977). But see, Shamley v. Shamley, 117 N.C. App. 175, 455 S.E.2d 435 (1994).[32] Da......