GEORGE J. ARNSTEIN, PETITIONER,
v.
ETHEL J. ARNSTEIN, RESPONDENT
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In a dissolution of marriage proceeding, the Florida District Court of Appeal reversed an order quashing service of process, holding that personal service on a non-resident spouse outside Florida is permissible under the Long-Arm Statute as an alternative to service by publication, provided the court does not attempt to adjudicate matters requiring personal jurisdiction and adequate notice is given.
The court reversed the order quashing service of process, holding that personal service on a non-resident spouse, when feasible, is an acceptable method of service in dissolution proceedings as an alternative to service by publication. The court may proceed with dissolution on the basis of in rem jurisdiction and adequate notice to the absent spouse, provided it does not attempt to adjudicate matters such as alimony or division of property that require personal jurisdiction.
[1] Personal service of process under a long-arm statute is inappropriate when the defendant is not and has never been a resident of the forum state.
[2] In dissolution proceedings, publication is the statutorily designated mode of service when the respondent is not a resident of the state.
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Join FLexlaw to unlock all legal intelligence“In view of the foregoing there is no impediment to continuing with the dissolution proceedings on the basis of in rem jurisdiction and adequate notice to the absent wife.”
Establishes the holding that dissolution can proceed despite lack of personal jurisdiction over the non-resident spouse
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Join FLexlaw to unlock all legal intelligenceGeorge Arnstein sought dissolution of marriage from his wife, Ethel Arnstein, who was not a resident of Florida and never had been. Petitioner attempt…
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HERSEY, Judge.
Petitioner seeks certiorari review of an order quashing service of process. In dissolution proceedings petitioner inappropriately chose to effect personal service on his wife in New Jersey under the Long-Arm Statute. § 48.193(e) Fla.Stat. (1981). The wife is not now and never has been a resident of the State of Florida, making publication the statutorily designated mode of obtaining service of process. Unquestionably the court does not have personal jurisdiction over the wife. On the other hand, the court does have subject matter jurisdiction over these dissolution proceedings; it is indisputable that the wife has had adequate notice forestalling any due process attack on the final judgment and we have no indication that the court intends to (and of course it could not) adjudicate questions of alimony or division of property, requiring personal jurisdiction over the absent wife.
In view of the foregoing there is no impediment to continuing with the dissolution proceedings on the basis of in rem jurisdiction and adequate notice to the absent wife.
Responding to the concerns of the special concurring opinion, Section 49.011 Florida Statutes (1981) provides that service of process “by publication may be made in any court on any person mentioned in s. 49.021, in any action ... (4) For dissolution ... of marriage; ...” The section referred to (§ 49.021) provides that service may be by publication “Where personal service of process cannot be had, ...” This would appear to contemplate personal service of process in preference to or at least as the substantial equivalent of service by publication when the current address of the party to be served is known. In either event the purpose of service under these circumstances is not to acquire or exercise jurisdiction. It is to give notice in a due process sense so that the method selected should be one reasonably calculated to bring the proceedings to the attention of the party upon whom service is sought. Personal service, when feasible, seems admirably suited to accomplish that purpose.
Accordingly, we reverse the order quashing service of process and remand for further appropriate proceedings.
WRIT OF CERTIORARI GRANTED.
BERANEK, J., concurs.
ANSTEAD, J., concurs specially with opinion.
ANSTEAD, J.,
specially concurring:
I agree that the service of process authorized by the majority makes eminent good sense. My concern, however, is that we may be encroaching upon the legislature’s domain. Service of process is controlled by legislation. Personal service of process on out-of-state residents does not appear to be specifically authorized in dissolution actions. Section 48.193, Florida Statutes (1981). Constructive service is authorized. Section 49.011, Florida Statutes (1981). It is difficult for one to fault the trial court for requiring compliance with the legislative scheme. I would urge the legislature to formally approve personal service of process in dissolution cases where the party resides in Florida and the other in another state and only a dissolution is sought.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th DCA 1984)…tion. The court indicated that personal service on persons in foreign jurisdictions is clearly appropriate to acquire jurisdiction for the portion of the [*386] petition seeking a dissolution of marriage. In the earlier case of Arnstein v. Arnstein, 422 So. 2d 1052 (Fla. 4th DCA 1982), the petitioner/husband “inappropriately chose to effect personal service on his wife in New Jersey under the long-arm statute.” The wife was not and had never been a resident of Florida. The court stated, however, that the court…
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Orbe v. Orbe, 651 So. 2d 1295 (Fla. 5th DCA 1995)…ies, provided the subject matter requirement for jurisdiction is met (six months residency of that spouse in Florida prior to filing the petition). § 61.021, Fla.Stat. (1993); Perez v. Perez, 519 So. 2d 1104 (Fla. 3d DCA 1988); Arnstein v. Arnstein, 422 So. 2d 1052 (Fla. 4th DCA 1982); Bowers v. Bowers, 287 So. 2d 722 (Fla. 1st DCA 1973). This is known as the divisible divorce concept.2 See Davis v. Dieujuste, 496 So. 2d 806 (Fla.1986); Pawley v. Pawley, 46 So. 2d 464 (Fla.), pet. denied, 47 So. 2d 546 (Fla.);…
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Emir Shammay v. Shammay, 491 So. 2d 284 (Fla. 3d DCA 1986)…dy Jurisdiction Act, pursuant to section 61.1308, Florida Statutes (1985), for which proper service of process was made. The fact that such proceedings result from the bifurcation of the present action is of no consequence. See Arnstein v. Arnstein, 422 So. 2d 1052 (Fla. 4th DCA 1982). . This dismissal is without prejudice to Terry filing a petition strictly for dissolution of marriage pursuant to section 61.052, Florida Statutes (1985). See Orlowitz v. Orlowitz, 208 So. 2d 849 (Fla. 3d DCA 1967) (domicile of…
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