This week’s consolidated Round-Up features three unpublished cases from the Court of Appeals. But because I’m on vacation, I’ve decided to shake things up a bit and focus on one case in particular involving international divorce issues (with a brief foray into two recent Hague cases), before finishing off the Round-Up.
Who Decides? International Divorce Jurisdiction and Some Observations on The Hague Convention
In re the Marriage of Shults vs. Shults, A13-1892 (Minn. Ct. App. June 23, 2014). A case the Court of Appeals aptly summarized in its opening sentence: “both [parties] want a divorce but dispute where the divorce should occur.”
The parties married in 1984 and resided in Minnesota from 1998 until 2006, when they relocated to Norway. Wife returned to Minnesota with the parties’ youngest child in 2009, while Husband remained in Norway. The parties’ jointly applied for a Norwegian legal separation license in August of that year, and each sought a divorce the following year. That’s where things get messy.
Husband applied to the local county governor in Norway for a “dissolution license” in July of 2010, and a copy of the application was mailed to Wife in September. Wife served her petition for dissolution in August, and a copy of the Petition was placed in Husband’s mailbox that same month.
So the question is, which country gets to decide the divorce. Husband argued that his Norwegian proceeding was started first, and that Norwegian authorities already dissolved the marriage on September 30, 2010 (after he received notice of Wife’s Petition–which was left in his mailbox–but before he was “personally served” which didn’t occur until early October).
Wife responded that her Petition was served in accordance with the Hague Service Convention on August 31, before she had notice of Husband’s Norwegian proceeding.
Accepting Husband’s arguments the lower Court originally dismissed Wife’s Petition, finding that Husband had not be properly served and that the Norwegian proceeding took precedence. The Court of Appeals reversed in a 2012 decision requiring the Court to apply the Hague Service Convention to determine whether Husband had been properly served.
On remand, the District Court found that because Wife’s mailbox service was acceptable under Norwegian law and the Hague Convention on Service, Wife’s proceeding was the first to be commenced and Minnesota could dissolve the marriage. The lower Court then proceeded to enter a Judgment and Decree dissolving the marriage, awarding Mother all the marital property located in Minnesota, and reserving a determination of spousal maintenance until such time as the Court obtained personal jurisdiction over Husband.
Husband appealed, arguing:
1. That Wife’s mailbox service of her Petition was ineffective;
2. That Minnesota should have allowed the parties’ divorce to proceed in Norway because the Norway action was filed prior to the Minnesota action;
3. That the Court should not have reserved spousal maintenance because it lacked personal jurisdiction over Husband; and
4. That the Court should not have awarded Wife nearly all of the parties’ marital property.
Husband’s arguments were all unsuccessful. The Court of Appeals affirmed the finding of effective service with references to Norway’s civil code which permits “leaving written notice in a” mailbox when no one is home to accept service. The Court also rejected Husband’s contention that the Norwegian proceeding should take precedence as first-filed where Husband’s dissolution application was improper under Norwegian law (having been filed less than a year after the parties were granted a legal separation).
The Court of Appeals also affirmed the District Court’s substantive determinations.
As to maintenance, the Court of Appeals offered a helpful reminder that if the Court lacks personal jurisdiction over a party at the time a dissolution is entered, the appropriate remedy is to reserve the establishment of spousal maintenance for a later date. Unlike an establishment of maintenance, a reservation does not require personal jurisdiction over a party, while leaving the issue open to be determined at a later date. If maintenance is not explicitly reserved, the ability to award maintenance may be lost forever.
The Court also included an aside calling into question the 1952 decision in Allegrezza, 53 N.W.2d 132, 135 (Minn. 1952). While Allegrezza has not been specifically overruled, the Court noted that its holding (“that a court has no jurisdiction to award a personal judgment for alimony in a divorce action against a nonresident if there is no personal service of process in the action within the state and defendant does not appear”) has been broadly expanded by Minnesota’s adoption of the Uniform Interstate Family Support Act (UIFSA) codified in Minnesota Chapter 518C.
Finally, the Court affirmed the District Court’s award to Wife of all of the parties’ marital assets located in Minnesota. While these sorts of 100%/0% awards aren’t particularly common, the Court reasoned that the long term marriage and Wife’s substantially lower income supported the award.
Keeping with the international theme, I also wanted to highlight two decisions coming out of the First Circuit in the past few months, interpreting the “habitual residence” provision of the Hague Convention on the Civil Aspects of Child Abduction.
In Sanchez Londono vs. Gonzalez, the First Circuit affirmed a lower Court’s ruling that the United States remained a child’s “habitual residence” despite residing with Mother in Columbia for most of the three years prior to the petition. Key to the Court’s analysis was that, regardless of the length of time the child spent in Columbia, both parties intended her permanent residence to remain in the United States.
In Neergaard Colon vs. Neergaard, the First Circuit similarly relied on the parent’s shared intent in reversing a District Court finding that Singapore was a child’s habitual residence. In remanding for further findings, the First Circuit observed that abandoning one habitual residence is not equivalent to establishing another, and thus the parties’ agreement to leave the United States for Singapore for three years was not necessarily sufficient to render Singapore the child’s new permanent residence.
Overall the two cases are a helpful discussion of what makes (and unmakes) a habitual residence. Sometimes not an easy determination in an increasingly mobile world.
As an aside, for readers interested in more on international divorce issues, I’d recommend a particularly excellent blog by New York attorney Jeremy Morely that covers a wide variety of international and Hague issues.
Rounding Out the Round-Up: Income Imputation and More on Spousal Maintenance
In re the Matter of Hagen vs. Schirmers, A14-0231 (Minn. Ct. App. June 23, 2014). A brief affirmance of a lower Court’s imputation of income to child support obligor, Father. On appeal, Mother argued that the Court committed error by imputing income to Father (a less-than-successful manager of a concrete business) at a rate lower than what he paid his sole employee. The Court of Appeals affirmed, holding that the Child Support Magistrate acted within his discretion in using DEED (Department of Employment and Economic Development) data to set a wage for Father that matched the work Father would be doing if forced to shutter his business. While the Court of Appeals seemed to raise an eyebrow at the wage imputed to Father, it declined to find reversible error.
In re the Marriage of Toso vs. Toso, A13-1916 (Minn. Ct. App. June 30, 2014). An appeal following remand of a temporary spousal maintenance award. The Court affirmed the lower court on both spousal maintenance and attorney’s fees.
In the parties’ prior appeal, the Appellate Court remanded an award of maintenance which the lower Court had based largely on the time Wife would need to gain further education when Wife never indicated any intention of furthering her education. The Court of Appeals also remanded an award of conduct-based attorney’s fees for additional findings.
On remand, the parties stipulated that Wife did not intend to further her education, and the Court reduced the maintenance award slightly (from $3,200 per month to $3,000 per month) while maintaining the 5-year term. The lower Court also made additional findings relative to its prior award of conduct-based attorney’s fees to Wife. Husband again appealed, and the Court of Appeals affirmed.
Rejecting Husband’s arguments, the Court noted that the record as a whole supported the spousal maintenance award to Wife whether or not she sought additional education:
By arguing that spousal maintenance is inappropriate because [Wife] is not seeking retraining or education, [Husband] essentially asks this court to disregard the supreme court’s instruction that each marital dissolution is unique and that we should not view one specific case as enunciating an immutable rule of law
The Court was just as unconvinced by Husband’s arguments relative to conduct-based attorney’s fees, and affirmed the entire $30,000 award, based on Husband’s evasive conduct and discovery shenanigans.
Finally, while we’re still waiting for decision in Citizens Bank of Norwood Young America , the Minnesota Supreme Court has accepted review in Dakota County vs. Gillespie, which I previously blogged about here.