Anna I. Mason v. Anthony J. Mason

Opinion issued June 24, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00809-CV

ANNA I. MASON, Appellant

v.

ANTHONY J. MASON, Appellee

On Appeal from the 245th District Court

Harris County, Texas

Trial Court Cause No. 2004–61300

O P I N I O N

In the trial court, appellee, Anthony J. Mason (“Tony”), obtained a “Final

Divorce Decree,” which granted a divorce between him and appellant, Anna I. Mason

(“Anna”), and divided their marital estate. Anna, a resident of California, who was

served by publication, filed a post-decree special appearance only with respect to

Tony’s claim for division of the marital estate; she did not specially appear with

respect to Tony’s claim for divorce.

Subject to her special appearance, Anna also filed a motion for new trial. The

trial court denied Anna’s special appearance and her motion for new trial. In two

issues, Anna appeals these rulings.

Because we hold that the trial court lacked the required jurisdiction to make the

property division, as asserted in Anna’s special appearance, we reverse the decree

insofar as it divides the property of the marital estate, and we render the judgment that

the trial court should have rendered.

Factual & Procedural Background

Tony and Anna were married in Virginia on November 27, 1992. The couple

lived together in Virginia until 1994. For the next two to three years, the couple did

not regularly reside together, with Tony living and working outside of Virginia for

at least a part of this time. In 1996 or 1997, Anna filed for divorce in Virginia. The

divorce, however, never became final. The couple remained married, but no longer

had contact with one another. The couple had no children together.

In January 2004, Tony moved to Texas. Around this time, he requested a copy

of the divorce decree from the Commonwealth of Virginia. The commonwealth

notified Tony that it had no record of a divorce between him and Anna.

On November 2, 2004, Tony filed for divorce in Harris County district court.

In his petition, Tony pled no jurisdictional facts indicating that the trial court had

personal jurisdiction over Anna. Tony stated that Anna could be served at an address

in Kings Beach, California. Anthony requested the trial court to grant him a divorce

from Anna and to divide the community estate “in a manner that the Court deems just

and right, as provided by law.”

After attempting unsuccessfully to serve Anna in California, Anthony obtained

the court’s permission to serve her by publication. The citation was published in the

Harris County Daily Court Review on February 3, 2005. To represent Anna, the trial

court appointed an attorney ad litem, who answered the suit by general denial.

On June 15, 2005, the trial court conducted a hearing on Tony’s divorce

petition. Tony and his attorney appeared, and the attorney ad litem appeared for

Anna, who did not appear. Tony confirmed that he was unable to locate Anna for

service of citation. The attorney ad litem also informed the court that she was unable

to locate Anna.

At the conclusion of the hearing, the trial court rendered judgment granting

Tony a divorce from Anna and dividing the marital estate. With regard to the

property division, the trial court’s decree provides that each party receive the personal

property in that party’s possession or titled in that party’s name as his or her “sole and

separate property.” The court ordered that each party be responsible for debts,

liabilities, and taxes incurred by that party.

Anna became aware of the divorce and property division in early 2007. On

June 14, 2007, Anna filed a special appearance in which she alleged that, because it

lacked personal jurisdiction over her, the trial court erred by dividing the marital

estate. Subject to her special appearance, Anna also filed a motion for new trial in

which she alleged, inter alia, that she had no knowledge of the divorce proceeding

prior to rendition of the decree and that she had a meritorious defense to the suit.

After conducting a hearing, the trial court denied Anna’s special appearance.

Anna filed a formal bill of exception complaining that the trial court had not allowed

her to provide jurisdictional evidence, specifically her own testimony, at the special

appearance hearing.

Following an evidentiary hearing, the trial court also denied Anna’s motion for

new trial. This appeal followed. In two issues, Anna challenges the trial court’s

denial of her special appearance and its denial of her motion for new trial.

Special Appearance

In her first issue, Anna contends that the trial court erred by denying her special

appearance.

A. Standard of Review

Because it involves a question of law, we review de novo a trial court’s

determination of a special appearance. See Kelly v. Gen. Interior Consrt., Inc. , 301

S.W.3d 653, 657 (Tex. 2010); Moki Mac River Expeditions v. Drugg , 221 S.W.3d

569, 574 (Tex. 2007).

B. The Parties Agree on Certain Points

To assist in framing the special-appearance issue for discussion, we note that

the parties agree on three significant points. First, the parties do not dispute that the

trial court had jurisdiction to grant a divorce between Tony and Anna.

It is well-established that a court may grant a divorce to a Texas resident, even

though it lacks personal jurisdiction over the non-resident spouse. See

Dawson-Austin v. Austin , 968 S.W.2d 319 , 324–25 (Tex. 1998). Stated differently,

a court may have jurisdiction to grant a divorce, which is an adjudication of the

parties’ status, but not have jurisdiction to divide their property, which is an

adjudication of parties’ rights. Id. at 324 (citing Estin v. Estin , 334 U.S. 541, 549 , 68

S. Ct. 1213, 1218 (1948)). As one court explained, “Where the trial court in a divorce

proceeding has no personal jurisdiction over the respondent, the trial court has the

jurisdiction to grant the divorce, but not to . . . divide property outside the State of

Texas. It may also lack jurisdiction to divide property within the state.” Hoffman v.

Hoffman , 821 S.W.2d 3, 5 (Tex. App.—Fort Worth 1992, no writ) (internal citations

omitted).

In short, a claim for divorce and a claim for division of marital property are

separate jurisdictional issues. See id. ; see also Tex. Fam. Code Ann. § 6.308 ( a )

(Vernon Supp. 2009) (“A court in which a suit for dissolution of a marriage is filed

may exercise its jurisdiction over those portions of the suit for which it has

authority.”). Here, Anna does not challenge the portion of the trial court’s decree

granting a divorce between her and Tony. Rather, she challenges only that portion

of the decree relating to property division.

Second, the parties agree that the trial court lacked personal jurisdiction over

Anna. Indeed, it is neither alleged nor shown that Anna ever lived in Texas,

transacted any business in Texas, or participated in obtaining any property or assets

in Texas. Nor is it alleged nor shown that Anna consented to or participated in

Tony’s transference of marital assets to Texas or in his acquisition of assets in Texas.

In his brief, Tony concedes the lack of in personam jurisdiction, but asserts that

“personal jurisdiction over Anna was not necessary to obtain the relief ultimately

granted in the [trial court’s judgment].” He contends that the trial court was permitted

to divide the marital estate “in absence of personal jurisdiction over Anna.”

Third, the parties correctly agree that the Texas supreme court’s opinion,

Dawson-Austin v. Austin , 968 S.W.2d 319 (Tex. 1998), guides the resolution of this

issue. Thus, we turn to that case, and its underlying principles, to determine whether

the trial court had jurisdiction to divide the marital estate in this case.

C. Analysis

To understand its holding, it is helpful to lay out the background of Dawson-Austin . There, Austin (“Husband”) started a business in Minnesota before his

marriage to Dawson-Austin (“Wife”). Id. at 320. During the marriage, Husband’s

business substantially increased in value. Id. Husband and Wife lived in Minnesota

for most of their marriage. Id. They also acquired property in other locations,

including a home in California. Id. at 320–21.

After they separated, Husband moved to Texas, and Wife moved to California.

Id. at 321. Six months after moving to Texas, Husband filed for divorce in Texas.

Id . Wife filed a special appearance objecting to the Texas court’s jurisdiction to

divide the marital estate. See id. The record showed that Wife had never lived in

Texas and had traveled to Texas only a few times on business. Id. The trial court

overruled her special appearance, and the court of appeals affirmed. Id. Wife

petitioned the Texas supreme court, which granted review.

Beginning its jurisdictional discussion, the Texas supreme court explained in

Dawson-Austin , “The United States Constitution permits a state court to take personal

jurisdiction over a defendant only if it has some minimum, purposeful contacts with

the state, and the exercise of jurisdiction will not offend traditional notions of fair

play and substantial justice.” Id. at 326 (citing Int’l Shoe Co. v. Washington , 326 U.S.

310, 316 , 66 S. Ct. 154, 158 (1945); CMMC v. Salinas , 929 S.W.2d 435, 437 (Tex.

1996)).

The Dawson-Austin court made clear, however, that the lack of personal

jurisdiction over Wife did not end the inquiry with regard to whether the trial court

could divide marital property located in Texas. See id. at 327 . “Even though the

district court did not have in personam jurisdiction over [Wife], it is possible under

the United States Constitution, and thus under Texas law, for the court to have had

jurisdiction to divide the marital estate located in Texas.” Id.

In Dawson-Austin , “[t]he property in Texas in which the parties claimed an

interest was [Husband’s] Dallas home and Texas bank accounts, which the parties

agreed was community property, and the stock certificate evidencing [Husband’s]

shares in [his business].” Id. To determine whether the trial court had jurisdiction

to divide this property, the Dawson-Austin court began by recognizing that,

historically, “a state court could exercise jurisdiction over property within the state’s

borders and determine the rights and interests of non-residents.” Id. (citing Pennoyer

v. Neff , 95 U.S. 714 (1877)). The court then explained that the United States Supreme

Court abandoned this position in Shaffer v. Heitner , 433 U.S. 186 , 97 S. Ct. 2569

(1977). Id. The Shaffer court held that jurisdiction over property “must be based on

minimum, purposeful contacts and must not offend traditional notions of fair play and

substantial justice.”

Id. (citing Shaffer , 433 U.S. at 212 , 97 S. Ct. at 2584 ).

In reaching this conclusion, the Shaffer court reasoned as follows:

The fiction that an assertion of jurisdiction over property is anything but

an assertion of jurisdiction over the owner of the property supports an

ancient form without substantial modern justification. Its continued

acceptance would serve only to allow state-court jurisdiction that is

fundamentally unfair to the defendant.

We therefore conclude that all assertions of state-court jurisdiction must

be evaluated according to the standards set forth in International Shoe

and its progeny.

Shaffer , 433 U.S. at 212 , 97 S. Ct. at 2584 .

After its discussion of Shaffer , the Dawson-Austin court offered the following

analysis of the facts before it:

[T]he location in Texas of property that either is or is claimed to be part

of the marital estate does not supply the minimum contacts required for

the court to exercise jurisdiction over [Wife]. [Husband] bought his

Dallas home, opened his Texas bank accounts, and brought his

[business’s] stock certificate to Texas after he separated from [Wife].

We do not believe that one spouse may leave the other, move to another

state in which neither has ever lived, buy a home or open a bank account

or store a stock certificate there, and by those unilateral actions, and

nothing more, compel the other spouse to litigate their divorce in the

new domicile consistent with due process. One spouse cannot, solely by

actions in which the other spouse is not involved, create the contacts

between a state and the other spouse necessary for jurisdiction over a

divorce action.

Dawson-Austin , 968 S.W.2d at 327 (citing In the Interest of S.A.V. , 837 S.W.2d 80 ,

83–84 (Tex. 1992) (holding that without personal jurisdiction over one parent, a court

could still decide custody of a child living in the State, but could not determine

support and visitation)). The Dawson-Austin court continued, “Moreover, [Wife’s]

claim to a part of the value of the [] stock is completely unrelated to the situs of the

certificate; rather, it is based on the parties’ efforts to increase the value of

[Husband’s business], most of which occurred in Minnesota.” Id.

The court concluded, “In no sense can it be said that [Wife] ever ‘purposefully

availed’ herself of the privilege of owning property in this State.” Id. (citing Burger

King Corp. v. Rudzewicz , 471 U.S. 462, 475 , 105 S. Ct. 2174 , 2183–2184 (1985)).

Hence, “the district court lacked jurisdiction to adjudicate [Wife’s] claim to part of

the value of the [business’s] stock or to divide the marital estate.” Id. at 328. The

Dawson-Austin court ultimately held, “The district court had jurisdiction only to grant

a divorce and not to determine the parties’ property claims.” Id.

Here, we begin by noting that Tony did not plead any jurisdictional facts with

respect to Anna. Any property in Texas that is part of the marital estate in this case

cannot, by itself, supply the requisite minimum contacts for the trial court to exercise

personal jurisdiction over Anna or quasi in rem jurisdiction to adjudicate the parties’

property interests. See id. at 327 ; see also Shaffer , 433 U.S. at 212–13, 97 S. Ct. at

2584 .

There is no indication in the record that Anna consented to Tony’s transference

of property to Texas or participated in the acquisition of property in Texas. And, it

appears undisputed that Anna has never resided in Texas, transacted any business in

Texas, or had any meaningful contacts with Texas. As in Dawson-Austin , it is not

consistent with the principles of due process in this case to permit Tony to force Anna

to litigate their divorce in Texas solely by his unilateral actions of moving to Texas

and acquiring property here.

See Dawson-Austin , 968 S.W.2d at 327 . Tony’s

conduct cannot create the requisite minimum contacts between Anna, Texas, the

property, and the litigation necessary for the trial court to divide the marital estate.

See id .; see also Hanson v. Denckla , 357 U.S. 235 , 253 78 S. Ct. 1228 , 1239–1240

(1958) (“The unilateral activity of those who claim some relationship with a

nonresident defendant cannot satisfy the requirement of contact with the forum State.

The application of that rule will vary with the quality and nature of the defendant’s

activity, but it is essential in each case that there be some act by which the defendant

purposefully avails itself of the privilege of conducting activities within the forum

State, thus invoking the benefits and protections of its laws.”).

We recognize that, in his responsive brief, Tony presents argument to support

the trial court’s denial of Anna’s special appearance. Tony points to language in

Shaffer , the United States Supreme Court opinion on which the Dawson-Austin court

relied. He contends that the following language in Shaffer indicates that a state court

may divide the property of a person over whom the court lacks personal jurisdiction

when that property is the subject matter of the underlying dispute:

The case for applying to jurisdiction in rem the same test of “fair play

and substantial justice” as governs assertions of jurisdiction in personam

is simple and straightforward. It is premised on recognition that “(t)he

phrase, ‘judicial jurisdiction over a thing,’ is a customary elliptical way

of referring to jurisdiction over the interests of persons in a thing.”

Restatement (Second) of Conflict of Laws § 56, Introductory Note

(1971) (hereafter Restatement). This recognition leads to the conclusion

that in order to justify an exercise of jurisdiction in rem, the basis for

jurisdiction must be sufficient to justify exercising “jurisdiction over the

interests of persons in a thing.” The standard for determining whether

an exercise of jurisdiction over the interests of persons is consistent with

the Due Process Clause is the minimum-contacts standard elucidated in

International Shoe .

This argument, of course, does not ignore the fact that the

presence of property in a State may bear on the existence of jurisdiction

by providing contacts among the forum State, the defendant, and the

litigation. For example, when claims to the property itself are the source

of the underlying controversy between the plaintiff and the defendant,

it would be unusual for the State where the property is located not to

have jurisdiction. In such cases, the defendant’s claim to property

located in the State would normally indicate that he expected to benefit

from the State’s protection of his interest. The State’s strong interests

in assuring the marketability of property within its borders and in

providing a procedure for peaceful resolution of disputes about the

possession of that property would also support jurisdiction, as would the

likelihood that important records and witnesses will be found in the

State. . . .

Shaffer , 433 U.S. at 207–08, 97 S. Ct. at 2581 (footnotes omitted). Relying on the

Shaffer court’s illustration, Tony asserts that, because the property of the marital

estate is the “subject matter” of the dispute here, the trial court had the requisite in

rem jurisdiction to make the property division.

We disagree with Tony’s reading of Shaffer . Whether the litigation is a dispute

over property located in the forum state is but one factor in the analysis. In a footnote

to the above-quoted text, the Supreme Court made clear: “We do not suggest that

these illustrations include all the factors that may affect the decision, nor that the

factors we have mentioned are necessarily decisive.” Id. at 208 n.28, 97 S. Ct. at

2581–82 n.28.

In addition, the Supreme Court was careful to state that “the defendant’s claim

to property located in the State would normally indicate that he expected to benefit

from the State’s protection of his interest.” Id. at 207–08, 97 S. Ct. at 2581 (emphasis

added). In a footnote to this statement, the Supreme Court clarified, “In some

circumstances the presence of property in the forum State will not support the

inference suggested in the text.” Id. at 207–08 n.25, 97 S. Ct. at 2581 n.25. Such

circumstances were present in Dawson-Austin and are present here. Dawson-Austin

and this case both involve a non-resident spouse with no past significant connections

with Texas, who neither consented to, nor participated in, the transference or

acquisition of the “subject” marital property in Texas.

This was the focus of the

Dawson-Austin court’s analysis when it determined that the trial court in that case

lacked jurisdiction to divide the marital estate.

See Dawson-Austin , 968 S.W.2d at

327 . And it is our focus here.

We, like the Dawson-Austin court, are also mindful that the Shaffer court

instructed that “[t]he standard for determining whether an exercise of jurisdiction

over the interests of persons is consistent with the Due Process Clause is the

minimum-contacts standard elucidated in International Shoe .” See Shaffer , 433 U.S.

at 207 , 97 S. Ct. at 2581 ; see also Dawson-Austin , 968 S.W.2d at 327 . The Supreme

Court in International Shoe made clear that the constitutional touchstone of a due

process inquiry is determining whether the defendant purposefully established

minimum contacts in the forum state. See Int’l Shoe , 326 U.S. at 316 , 66 S. Ct. at

158 ; see also Burger King Corp , 471 U.S. at 474 , 105 S. Ct. at 2183 . As discussed

supra , such minimum contacts are lacking in this case. The record before us does not

demonstrate that Anna purposefully availed herself of the privilege of owning

property in Texas. See Dawson-Austin , 968 S.W.2d at 327 . There is no indication

that Anna has purposefully availed herself of the benefits and protections of the laws

of this state in order to protect her interest in the marital estate.

Accordingly, the

trial court lacked the requisite jurisdiction to divide the marital property. See id. at

327–28.

We hold that the trial court erred when it denied Anna’s special appearance

challenging the trial court’s jurisdiction to divide the marital estate.

We sustain Anna’s first issue.

Conclusion

We reverse the portion of the trial court’s Final Divorce Decree insofar as it

divides the property of the marital estate, and we render the decree that the trial court

should have rendered.

See Tex. R. App. P . 43.3.

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.