Williams v. Williams

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

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.

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 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 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 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 of certiorari filed in this court on October 20, 1980, the defendant challenges the superior court decrees.

The dispute in this case is not over the decree of divorce itself but over "the point where in the modern divorce action the contest nearly always occurs, over money." H. Clark, The Law of Domestic Relations in the United States § 11.4, at 316-17 (1968). The defendant seeks a "divisible" divorce by agreeing to the termination of the marriage status but challenging the court's decree dividing the parties' property. The defendant alleges that the property aspect of the decree is void because the court did not have in personam jurisdiction over her.

Traditionally, a State court had no jurisdiction to render a personal judgment against a nonresident defendant unless he was brought within the court's jurisdiction by service of process within the State, or he appeared voluntarily. Pennoyer v. Neff, 5 Otto 714, 733, 95 U.S. 714, 733, 24 L.Ed. 565 (1877); State v. Luv Pharmacy, Inc., 118 N.H. 398, 403, 388 A.2d 190, 193 (1978); see Duncan v. McDonough, 105 N.H. 308, 309-10, 199 A.2d 104, 105-06 (1964). Gradually, however, the rule expanded to allow in personam jurisdiction over a nonresident defendant who has "certain minimum contacts with ... (the forum State) such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " (Citations omitted.) International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). State v. Luv Pharmacy, Inc., supra, 118 N.H. at 403, 388 A.2d at 193. But, "(i)n the absence of personal service within this State, (in personam) jurisdiction over a nonresident can only be obtained if the legislature has provided another method of service of process." (Citations omitted.) Hutchins v. Del Rosso, 116 N.H. 421, 423, 365 A.2d 127, 129 (1976).

The defendant argues that New Hampshire has no statute that provides for in personam jurisdiction over nonresident defendants in divorce proceedings. We disagree. In Duford v. Duford, 119 N.H. 515, 516, 403 A.2d 431, 432 (1979), this court held that RSA 458:5 provides in personam jurisdiction when service is made in accordance with RSA 458:9.

RSA 458:5 provides in pertinent part: "(j)urisdiction of the parties exists in the following cases only: ... III. Where the plaintiff was domiciled in the state for one year next preceding the time when the action was commenced...." The plaintiff is a life-long domiciliary of the State and thus meets the requirements of RSA 458:5 III. RSA 458:9 provides for notice to the defendant "as the court shall order." Initially, the court ordered personal service upon the defendant, but when she could not be found the court ordered notice by publication. Additionally, the court sent a copy of the libel to the defendant by certified mail. Because the plaintiff met the domicile requirements of RSA 458:5 III and the defendant was served according to RSA 458:9, the court had in personam jurisdiction over the defendant. Duford v. Duford, supra at 516, 403 A.2d at 432.

Having found that the superior court had in personam jurisdiction over the defendant under New Hampshire law, we must determine...