BARBARA S. HARGRAVE, APPELLANT,
v.
JOHN W. HARGRAVE, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Barbara Hargrave appeals the trial court's denial of her motion to dismiss for lack of jurisdiction in a divorce action filed by her husband John Hargrave in Florida while the parties were residing in Maryland. The court held that failure to allege proper jurisdictional facts under Florida Statutes section 48.193(1)(e) renders service of process void, and reversed the trial court's denial of her motion.
The court held that failure to allege the requisite jurisdictional facts under section 48.193(1)(e) results in void service of process. The court also held that while in rem jurisdiction under Chapter 49 might support a dissolution of marriage alone, it cannot support requests for property division and child custody, which require personal jurisdiction predicated on proper allegations under section 48.193(1)(e). The trial court's denial of the motion to dismiss was therefore improper.
[1] Failure to allege proper jurisdictional facts under section 48.193(1)(e), Florida Statutes, renders service of process void in actions for alimony, child support, or divi…
[2] A party invoking jurisdiction under Florida's long-arm statute bears the burden of proving facts that clearly justify its use.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the person invoking jurisdiction under ... [long-arm] statutes has the burden of proving facts which clearly justify the use of such method of service.”
Establishes that the party seeking to effect service of process bears the burden of proving sufficient jurisdictional facts.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMr. and Mrs. Hargrave were married in Orange Park, Florida in 1971 and have one child. Mr. Hargrave, a Navy dentist, was stationed at Bethesda Naval H…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Matrimonial Domicile cases and more on FLexlaw
SHIVERS, Judge.
The jurisdictional issue in this case arises out of a divorce action which the appellee, John W. Hargrave, commenced on October 16, 1985. Appellant Mrs. Hargrave appeals the trial court’s denial of her motion to dismiss for lack of jurisdiction and to quash service of process. At issue in the instant case is whether failure to allege proper jurisdictional facts under section 48.193(l)(e) results in void service of process. We conclude that it does and reverse the trial court’s denial of Mrs. Hargrave’s motion.
Mr. and Mrs. Hargrave were married in Orange Park, Florida, in 1971, and have one child as a result of their marriage. Mr. Hargrave is a career dentist in the United States Navy. Sometime after their marriage in 1971, Mr. and Mrs. Hargrave moved to Bethesda, Maryland, where Mr. Hargrave was stationed at the Bethesda Naval Hospital. In his petition for dissolution of marriage, Mr. Hargrave stated that he had been a resident of Florida for six months prior to his filing for divorce.
Mr. Hargrave served his wife in Maryland on October 29, 1985, through use of a process server. In his petition, Mr. Har-grave sought a dissolution of marriage, division of property, and primary custody of the couple’s only child, Jennifer. On November 19, 1985, Mrs. Hargrave by special appearance filed a motion to dismiss for lack of jurisdiction and to quash service of process. It is the trial court’s denial of Mrs. Hargrave’s motion which is at issue in this interlocutory appeal.
Section 48.193, Florida Statutes (1984), governs the instances in which an out-of-state party submits him or herself to the jurisdiction of a Florida court:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
* # * * * #
(e) With respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage.
We note initially that “the person invoking jurisdiction under ... [long-arm] statutes has the burden of proving facts which clearly justify the use of such method of service.” Citizens State Bank v. Winters Government Securities Corp., 361 So. 2d 760, 762 (Fla. 4th DCA 1978).
A party seeking to effect service of process under section 48.193 must make specific allegations demonstrating sufficient jurisdictional facts. In particular, section 48.193 requires that a complaint must allege either that the defendant (the wife in this case) had resided in this state previous to the commencement of the action or that the parties had maintained a matrimonial domicile in this state at the time of the commencement of the action. A complaint must allege one of these factors and if it does not, any attempted service of process under section 48.193 is void., Electro Engineering Products Co. v. Lewis, 352 So. 2d 862 (Fla.1977); Wynn v. Aetna Life Insurance Co., 400 So. 2d 144 (Fla. 1st DCA 1981).
In Laney v. Laney, 487 So. 2d 1109 (Fla. 1st DCA 1986), this court, on facts very similar to those of the instant case, reversed a trial court’s denial of a motion to vacate final judgment of dissolution of marriage for lack of personal jurisdiction. Laney concerned a wife who had separated from her husband in North Carolina and later moved to Florida where she eventually sought a divorce. In her petition, the wife requested: (1) dissolution of marriage, (2) temporary and permanent child support, (3) rehabilitative alimony, (4) primary pa rental responsibility of the parties’ minor children. 487 So. 2d at 1109. We held in Laney that the wife’s failure to allege that either the couple had maintained a marital domicile in Florida at the time the action was brought or that the husband had resided in Florida prior to its commencement, resulted in void service of process under section 48.193(l)(e) and therefore the trial court’s final judgment of dissolution should be vacated. See also Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th DCA 1984).
Because Mr. Hargrave did not allege either that he and Mrs. Hargrave maintained Florida as their place of matrimonial domicile or that Mrs. Hargrave resided in Florida preceding the commencement of this action, his service of process was void and the trial court improperly denied Mrs. Har-grave’s motion to dismiss and to quash service of process.
Mr. Hargrave argues in the alternative that even if the trial court did not have personal jurisdiction under section 48.-193(l)(e) to adjudicate his requests for division of property and primary custody it nonetheless had in rem jurisdiction under Chapter 49 to dissolve the marriage. In support of this contention, Mr. Hargrave cites Arnstein v. Arnstein, 422 So. 2d 1052 (Fla. 4th DCA 1982).
In Amstein a husband seeking a divorce attempted to effect personal service on his wife under section 48.193(l)(e), Florida Statutes (1981).
The court in Amstein acknowledged that publication, which is provided for in Chapter 49, was technically the proper method of obtaining service of process for dissolution of marriage. Notwithstanding the husband’s incorrect selection of Chapter 48 as a vehicle for effecting personal service, the Fourth District Court of Appeal held that the marriage could be dissolved on the basis of in rem jurisdiction. 422 So. 2d at 1053. The court also observed that the wife had received adequate notice and that “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 wife.” Id.
The Amstein decision is factually distinguishable from the case at bar. In Am-stein the party seeking to effect long-arm jurisdiction sought only a dissolution of marriage. By contrast, Mr. Hargrave seeks custody of his child as well as division of property.
Under section 48.193, Florida Statutes (1985), where either of these two factors are sought, a sufficient jurisdictional predicate must be laid and this entails allegations of either marital domicile or that the defendant had resided in Florida prior to the commencement of the action. Amstein might therefore be more persuasive for purposes of the instant case if Mr. Hargrave were merely seeking a divorce. But Mr. Hargrave’s petition for dissolution of marriage indicates that he desires additional relief for which he has failed to satisfy his statutory burden under section 48.193.
We conclude that because Mr. Hargrave did not properly seek a dissolution by publication under Chapter 49, his attempted service of process on Mrs. Hargrave is void. However, in accordance with Shammay v. Shammay, 467 So. 2d 1040 (Fla. 3d DCA 1985), we remand with instructions to permit Mr. Hargrave to re-serve Mrs. Har-grave by amending his complaint and adding proper jurisdictional facts if such facts exist.
REVERSED.
SMITH and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
McCABE v. McCABE, 600 So. 2d 1181 (Fla. 5th DCA 1992)…ided in Florida prior to the commencement of the dissolution action. This failure renders the husband’s service of process upon the wife under Florida’s long-arm statute void.3 Feder v. Feder, 526 So. 2d 780 (Fla. 3d DCA 1988); Hargrave v. Hargrave, 495 So. 2d 904 (Fla. 1st DCA 1986); Laney v. Laney, 487 So. 2d 1109 (Fla. 1st DCA 1986); Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th DCA 1984).4 On remand, the husband must amend his petition for dissolution to allege the requisite jurisdictional requirements of se…
-
Arthur v. Arthur, 543 So. 2d 349 (Fla. 5th DCA 1989)…commencement of the action, whether cohabiting during that time or not.... § 48.193(1)(e), Fla.Stat. (1987). Failure to allege such jurisdictional facts is generally fatal. Service is void, and any judgment obtained is void. Hargrave v. Hargrave, 495 So. 2d 904 (Fla. 1st DCA 1986); Laney v. Laney, 487 So. 2d 1109 (Fla. 1st DCA 1986); Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th DCA 1984). Cf. Kimbrough v. Rowe, 479 So. 2d 867 (Fla. 5th DCA 1985). A void judgment obtained without personal jurisdiction or subj…
-
Kilvington v. Kilvington, 632 So. 2d 701 (Fla. 1st DCA 1994)…(1991) he was required to allege in his complaint that the parties maintained a marital domicile in Florida at the time of the commencement of the action or that the wife resided in Florida preceding commencement of the action. Hargrave v. Hargrave, 495 So. 2d 904, 905 (Fla. 1st DCA 1986); accord, Laney v. Laney, 487 So. 2d 1109 (Fla. 1st DCA 1986). Failure to allege one of these jurisdictional facts rendered the service of process void, and the trial court’s final judgment of dissolution must be vacated. Id.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Electro Eng'g Prods. Co., Inc. v. Lewis, 352 So. 2d 862 (Fla. 1977)
- Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th DCA 1984)
- Citizens State Bank v. Winters Gov't Sec. Corp., 361 So. 2d 760 (Fla. 4th DCA 1978)
- Wynn v. AETNA Life Ins. Co. & Marilyn Ann Wynn, 400 So. 2d 144 (Fla. 1st DCA 1981)
- Arnstein v. Arnstein, 422 So. 2d 1052 (Fla. 4th DCA 1982)
- Laney v. Laney, 487 So. 2d 1109 (Fla. 1st DCA 1986)
- Emir Shammay v. Shammay, 467 So. 2d 1040 (Fla. 3d DCA 1985)