Williams v. Williams, 80-260

• Court: Supreme Court of New Hampshire
• Writing for the Court: DOUGLAS
• Citation: 433 A.2d 1316,121 N.H. 728
• Parties: William WILLIAMS v. Anna WILLIAMS.
• Docket Number: No. 80-260,80-260
• Decision Date: 10 August 1981

Page 1316

433 A.2d 1316 121 N.H. 728 William WILLIAMS
v.
Anna WILLIAMS. No. 80-260. Supreme Court of New Hampshire. Aug. 10, 1981.

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[121 N.H. 729] Stephen R. Fine & Associates P.A., Manchester (Marshall D. Hickok, Manchester, on the brief and orally), for plaintiff.

Robert V. Johnson, II, Concord (Robert V. Johnson, Sr., Concord, on the brief and orally), and Anthony N. Del Rosso, Mineola, N. Y. (Anthony N. Del Rosso and another, Mineola, N. Y., on the brief and Ronald J. Chisena, Mineola, orally), for defendant.

DOUGLAS, Justice.

The issue in this case is whether the superior court had in personam jurisdiction over the nonresident defendant who did not appear in an action for divorce and distribution of marital property. We hold that it did.

The plaintiff, William Williams, is a domiciliary of New Hampshire. The defendant, Anna Williams, is a domiciliary of New York. The parties were married on February 14, 1969, in Mineola, New York. During the first two years of the marriage, the plaintiff, a Merchant Marines sea captain, spent eleven months each year at sea. In 1971, the parties built a house in New Castle, New [121 N.H. 730] Hampshire. The plaintiff moved to the house in New Castle; the defendant remained in New York. Throughout the next eight years, the parties visited each other on occasion.

On October 4, 1979, the plaintiff filed in the Rockingham County Superior Court a libel for divorce on the grounds of irreconcilable differences. Twenty-five days later, the defendant brought a separate action for divorce in New York.

The Rockingham County court twice issued orders of notice of the plaintiff's divorce libel, and twice the orders and copies

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of the libel were sent to the sheriff of Suffolk County, New York, to perfect service on the defendant. On each occasion, the sheriff was unable to serve the defendant. The plaintiff then moved for service by publication, and the court granted the motion. The order of notice and citation were published in a newspaper with a general circulation on Long Island on February 22, February 29, and March 7, 1980. In addition, the superior court sent a copy of the libel to the defendant by certified mail. The defendant received that copy of the libel on February 20, 1980.

Because the original hearing date on the divorce was scheduled less than thirty days after the return date of the orders of notice by publication, the Master (Linda S. Dalianis, Esq.) rescheduled the hearing for thirty days after the return date, see Superior Court Rule 152, and ordered a notice of hearing sent to the defendant. A hearing was held on May 14, 1980, and the defendant failed to appear.

The master recommended a decree of divorce of the parties in accordance with the proposed decree submitted by the plaintiff. That decree awarded to the plaintiff the house and land in New Castle, including the furniture and fixtures; a 1965 MGB automobile; all stocks and securities in the plaintiff's possession (except for 101 shares of Occidental Petroleum) the dividends and profits from those stocks and securities awarded to him; and the parties' savings account and certificate of deposit at the Piscataqua Savings Bank, a New Hampshire bank. In turn, the defendant was awarded all the personal property in her possession, all the real property in her name alone, and the shares, with dividends and profits, of Occidental Petroleum. On May 16, 1980, the Superior Court (Mullavey, J.) approved the master's recommendation.

On June 13, 1980, the defendant appeared specially and filed a motion to stay and set aside the decree of divorce based on lack of in personam jurisdiction over the defendant. A hearing on the motion was held on July 25, 1980, before the Master (Linda S. Dalianis, Esq.). The master recommended that the motion be [121 N.H. 731] denied, and on September 22, 1980, the Superior Court (Wyman, J.) decreed accordingly. By a notice of appeal filed June 13, 1980, and a petition for a writ...