Windsor v. Windsor

• Citation: 700 N.E.2d 838,45 Mass.App.Ct. 650
• Parties: Beverly Ann WINDSOR v. James Harry WINDSOR.
• Decision Date: 22 October 1998
• Court: Appeals Court of Massachusetts

Page 838

700 N.E.2d 838

45 Mass.App.Ct. 650

Beverly Ann WINDSOR v. James Harry WINDSOR.

Appeals Court of Massachusetts,

Barnstable.

Argued April 14, 1998.

Decided Oct. 22, 1998.

Robert C. Lawless, Barnstable, for defendant.

Jeremy M. Carter, Mashpee, for plaintiff.

Before WARNER, C.J., GILLERMAN and LAURENCE, JJ.

LAURENCE, Justice.

In April, 1959, Beverly Ann Windsor (wife) married James Harry Windsor (husband) in Massachusetts. ¹ The couple left Massachusetts in 1966. In June, 1977, while living in Florida and pregnant, the wife left the husband and moved back to Massachusetts, where a daughter was born in September, 1977. In June, 1995, the wife filed a complaint for divorce in Barnstable Probate and Family Court, alleging cruel and abusive treatment by the husband. In her complaint she requested that the court "order a suitable amount for [her] support" and that of the parties' then seventeen year old daughter who lived with her.

The husband, who had resided since 1975 in Florida, where he was served, filed a "motion to dismiss [the complaint] pursuant to 12(b)(2) for lack of personal jurisdiction," arguing insufficient contacts with Massachusetts. After a non-evidentiary hearing in October, 1995, attended by the wife but not the husband, the court denied the motion. (The court entered findings of fact and conclusions of law on its denial on February 7, 1996.) The husband took no further part in the proceedings, except to assert once again the court's lack of in personam jurisdiction in opposition to a contempt complaint brought by the wife following the husband's failure to comply with temporary support orders. On October 23, 1996, the court granted the wife a divorce and ordered the husband to pay weekly child support, to maintain medical insurance for the wife and their daughter, and to pay one-half of the daughter's educational expenses. In addition, the court awarded the wife a one-half interest in the husband's military pension plan. ²

In his appeal, the husband principally contends that the court erred by denying his motion to dismiss and ruling that it could exercise personal jurisdiction over him. ³ We agree with his contentions, because the wife failed to provide the court (as was her burden) with facts sufficient to establish the in personam jurisdiction that was a prerequisite to the court's right to issue binding orders for support and property division against him. ⁴

1. Jurisdictional fundamentals. To mandate a support obligation or property division as part of a divorce decree, the court must have in personam jurisdiction over the obligor spouse. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); Kulko v. Superior Ct. of Cal., 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Blitzer v. Blitzer, 361 Mass. 780, 782-783, 282 N.E.2d 918 (1972); Morrill v. Tong, 390 Mass. 120, 129, 453 N.E.2d 1221 (1983). "Generally, a claim of personal jurisdiction over a nonresident defendant presents a two-fold inquiry: (1) is the assertion of jurisdiction authorized by statute, and (2) if authorized, is the exercise of jurisdiction under State law consistent with basic due process requirements mandated by the United States Constitution? Jurisdiction is permissible only when both questions draw affirmative responses." Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6, 389 N.E.2d 76 (1979). A paramount due process requirement is that there exist "minimum contacts" between the nonresident defendant and the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316-317, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Such contacts must not be merely casual or accidental, but must rather reflect acts performed by the defendant "by which [he] purposefully avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

Whether the exercise of personal jurisdiction over a defendant is permissible under this analysis is dependent upon the particular facts of each case. Good Hope Indus., Inc., supra at 2, 389 N.E.2d 76. When, as here, the assertion of in personam jurisdiction has been challenged under rule 12(b)(2), "the plaintiff[ ] bear[s] the burden of establishing sufficient facts on which to predicate [that] jurisdiction." Good Hope Indus., Inc., supra at 3, 389 N.E.2d 76. "In resolving the issue [of whether the plaintiff has satisfied her burden], we accept as true only the uncontroverted facts as they appear in the materials which were before the ... judge." Heins v. Wilhelm Loh Wetzlar Optical Mach. GmbH & Co. KG., 26 Mass.App.Ct. 14, 16, 522 N.E.2d 989 (1988).

2. The facts as to jurisdiction. The wife's unverified complaint alleged that the parties were married at Otis Air Force Base (located on Cape Cod) in April, 1959. They had four children, three of whom were emancipated at the time of the complaint. The couple last lived together in Florida in June, 1977. "On or about June, 1977, the parties suffered an irretrievable breakdown of the marriage. The [husband] was also guilty of cruel and abusive treatment on this date and other divers dates and occasions." The youngest child was born in September, 1977. The wife filed no affidavit elaborating upon any of these facts.

The husband supported his motion to dismiss with his affidavit. It stated that the couple had last lived in Massachusetts in 1966. Thereafter, he was transferred to various military bases, eventually moving to Florida with his wife in 1975. He has resided in Florida since 1975. The wife "left [him] in Florida" in June, 1977. The parties' youngest child was conceived in Florida and born in Massachusetts in September, 1977. He has never owned any real estate in Massachusetts and has transacted no business in Massachusetts since 1966. He has visited Massachusetts only once since 1977, to see his daughter graduate from Falmouth High School (apparently in June, 1995). The wife filed no affidavit controverting any of these averments.

The court's hearing on the motion to dismiss occupies only six pages of transcript. It essentially consisted of arguments of counsel and questions by the court. No witnesses were sworn nor any testimony taken. The only evidentiary matter presented was the husband's affidavit in support of his motion to dismiss. The wife was present at the hearing but did not testify under oath. ⁵

3. The motion to dismiss. The court's determination of the husband's motion to dismiss--asserting its exercise of jurisdiction over him on two grounds--was not supported by the exceedingly meager record.

a. The court first concluded that in personam jurisdiction lay under § 3(g ) of our long-arm statute, G.L. c. 223A, "since the Defendant 'maintain[ed] a domicile in the Commonwealth while party to a marital relationship out of which arises the claim for divorce,' namely cruel and abusive treatment." ⁶ No appellate decision appears to have discussed the present version of § 3(g ) relied on by the court. Its plain language would confer jurisdiction over the nonresident husband here only if the wife could demonstrate, at the time of the motion to dismiss, that the cause of action for the 1995 divorce arose while the parties maintained a marital domicile in Massachusetts, namely from 1959 to 1966. She failed, however, to allege, much less to establish, any facts bringing the husband within § 3(g ).

The unverified complaint identifies no conduct by the husband giving rise to the divorce between 1959 and 1966, and describes no cruel or abusive treatment by him during that period of time. The wife failed to submit an affidavit specifying the dates or occasions when any act constituting the claimed cruel and abusive treatment occurred, and no evidence on the issue was introduced at the hearing on the motion to dismiss. Consequently, no facts exist on this record justifying the court's assertion that the cruel and abusive treatment complained of by the wife occurred while the parties maintained a marital domicile in Massachusetts. The record did not, therefore, permit the court's exercise of jurisdiction over the husband under G.L. c. 223A, § 3(g ). ⁷

b. The court saw a second and independent basis for jurisdiction over the husband in G.L. c. 209D, § 2-201(5), "since 'the child resides in the Commonwealth as a result of acts of the [husband],' namely continued cruel and abusive treatment of the Mother which caused her and the children to flee to Massachusetts." ⁸ We agree with the husband that, once again, no facts were presented by the wife, nor developed in the record, on which the court could base a finding bringing the case within § 2-201(5).

No affidavit, testimony, or authenticated or verified document even intimates, let alone establishes, that the wife and her children were caused "to flee" from Florida to Massachusetts as a result of any cruel and abusive acts of the husband or any "directive" he made. Contrast Franklin v. Virginia, 27 Va.App. 136, 497 S.E.2d 881 (1998) (the only other State decision construing the "acts and directives" jurisdictional provision of the Uniform Interstate Family Support Act [UIFSA], on which G.L. c. 209D, § 2-201, was modeled, holding that jurisdiction was properly exercised on proof that after physically assaulting the wife, the husband had ordered her and their children out of their home in Africa, causing the wife to have to return to their prior home in Virginia; the Virginia court contrasted the situation in Franklin with several cases decided under a pre-UIFSA Texas statute similar to § 2-201, in which the fact that nonresident husbands had acquiesced or had registered no objection when the mother moved out of State with the child was held insufficient to confer personal jurisdiction on the Texas courts).

Nor does anything in the record show that whatever causative conduct the...