Stucky v. Stucky

Newton, J.,

dissenting.

I respectfully dissent from the- majority opinion in this case. That opinion presents a beautiful edifice built Upon a completely false .foundation.. It is true .that the terms “residence” and “domicile”.are not.always synonymous. It is also true that the. authorization .by. a Legis-. lature for the service, of summons, giving a. court jurisdiction' in personam if based, up ón'.either .domicile or resi-r *643 dence is sufficient to meet the requirements of the constitutional due process clause. Milliken v. Meyer, 311 U. S, 457, 61 S. Ct. 339 , 85 L. Ed. 278 , 132 A. L. R. 1357. It is also possible that the type of service of summons which the majority here seeks to authorize by judicial legislation may be desirable. That, however, is not for this court to determine. Nebraska has long authorized constructive service by publication and substituted service by personal service of summons outside the state, but all through the history of these statutes, over a period extending back a great many years, it has been recognized and, indeed, undisputed that such , service could be used only in cases and for purposes usually denominated as in rem. Never before have the courts of this state sought to base a judgment in personam upon such service. See, Rhoades v. Rhoades, 78 Neb. 495 , 111 N. W. 122 ; Gates v. Tebbetts, 83 Neb. 573 , 119 N. W. 1120 : Carpenter v. Carpenter, 104 Neb. 635 , 178 N. W. 217 . The first and third of these cases deal with questions growing out of divorce and alimony.

This same rule has been followed almost exclusively in all American jurisdictions. Since an action for divorce is universally considered to be an action in rem and an action for alimony or support money an action in personam, it is similarly, universally recognized that a divorce may be obtained on the basis of constructive or substituted service,, but a judgment for alimony or support money cannot be so obtained. As indicated, the cases so holding are legion. Attention is called to the following: Vanderbilt v. Vanderbilt, 354 U. S. 416 , 77 S. Ct. 1360 , 1 L. Ed. 2d 1456 ; Estin v. Estin, 334 U. S. 541 , 68 S. Ct. 1213 , 92 L. Ed. 1561 , 1 A. L. R. 2d 1412; Dorney v. Dorney, 145 F. Supp. 281 (1956); Wagner v. Wagner (D. C. Cir., 1961), 293 F. 2d 533 ; Rodriguez v. Rodriguez, 8 Ariz. App. 5 , 442 P. 2d 169 ; Carnie v. Carnie, 252 S. C. 471, 167 S. E. 2d 297 ; Shonk v. Shonk, 45 Ohio Op. 2d 86 , 16 Ohio Misc. 123 , 241 N. E. 2d 178 . See, also, 24 Am. Jur. 2d, Divorce and Separation, §. 544, p. 665, and § 828, p. *644 939; 27A C. J. S., Divorce, § 94, p. 333, and § 78, p. 280.

Section 42-305, R. R. S. 1943, has been in effect in Nebraska in substantially the same form for a great many years. See § 1571, R. S. 1913. During all these years, this statute has been construed in accordance with the Nebraska cases first above cited and the cited cases from other jurisdictions. Now for the first time an attempt is made to pervert the clear meaning of the statute under the guise of interpretation. That statute authorizes the entry of a decree of divorce based upon either constructive or substituted service, but it does not authorize the entry of a personal judgment for alimony on the basis of such service. It states in part: “No person shall be entitled to a divorce unless the defendant shall have either (1) been served with process in person if within this state, (2) been served with personal notice duly proved and appearing of record if out of this state, (3) been served by publication * * *.” Subsection (2) is the basis for the majority opinion. If subsection (2), providing for substituted service, can be so construed, then subsection (3), providing for constructive service, must also be construed as authorizing a judgment in personam for alimony. This would clearly be a violation of due process. The statute, as a whole, must be construed as a whole and it is positively barren of any distinction made between subsections (2) and (3) in regard to judgments in personam. Clearly, the Nebraska courts which, down through the years, have construed this statute as requiring personal service within the state as necessary to a judgment in personam are correct.

The majority opinion seeks to bulwark the result by adopting the “minimum contact” rule as a basis for approval of the service and judgment had in this case. The rule has not been heretofore applied in Nebraska. As pointed out above, the Nebraska statutes have been on the books, substantially unchanged, for at least half a century. They were adopted at a time when the federal *645 courts held it was a violation of the due process clause of the United States Constitution to enter a judgment in personam on substituted or personal service outside the state. Presumably the Legislature was aware of this situation and satisfied with the limited application of our statutes as they have not been changed, notwithstanding a reversal of the federal rule. In Nebraska it has been the uniform practice to deny in personam judgments where substituted service has been obtained on nonresidents.

As previously mentioned, Nebraska has followed the general rule. “Where there is no personal service upon defendant in a divorce case within the state and no appearance by him, the trial court is without jurisdiction to enter a personal decree against him for the payment of alimony, attorney’s fees, or court costs.” Allegrezza v. Allegrezza, 236 Minn. 464 , 53 N. W. 2d 133 . This rule has been followed in the great majority of jurisdictions. See, Pollock v. Pollock, 273 Wis. 233 , 77 N. W. 2d 485 ; Carnie v. Carnie, 252 S. C. 471, 167 S. E. 2d 297 ; Curtis v. Curtis, 215 Ga, 367, 110 S. E. 2d 668 ; Stauffer v. Stauffer, 204 N. Y. S. 2d 217, 26 Misc. 2d 254 ; Cockrum v. Cockrum, 246 N. Y. S. 2d 376, 20 App, Div. 2d 642; Wagner v. Wagner (D. C. Cir., 1961), 293 F. 2d 533 ; Dorney v. Dorney, 145 F. Supp. 281 (1956); Accardi v. Accardi, 97 R. I. 336, 197 A. 2d 755 ; Emmons v. Emmons, 124 Vt. 107 , 197 A. 2d 812 ; King v. Superior Court, 99 Cal. App. 2d 91 , 221 P. 2d 120 ; Rodriguez v. Rodriguez, 8 Ariz. App. 5 , 442 P. 2d 169 .

There have been some recognized exceptions to the general rule. These cases involve instances wherein the defendant was not a bona fide nonresident. One such case is Mounts v. Mounts, 181 Neb. 542 , 149 N. W. 2d 435 . Others are: Gill v. Gill, 277 Minn. 166 , 152 N. W. 2d 309 ; Dupuis v. Patin (La. App,), 156 So. 2d 768 ; Morelli v. Morelli, 226 N. Y. S. 2d 459; Lansdale v. Lansdale, 150 N. Y. S. 2d 42, 1 App. Div. 2d 374.

The wisdom of adopting the “minimum contact” rule *646 in certain types of eases is now becoming generally recognized, but in no instance has any jurisdiction applied it generally in all types of cases. This would be the result in Nebraska if the rule is adopted by judicial action in the present case. The interpretation given to section 42-305, R. R.. S. 1943, is necessarily applicable also to section 25-521, R. R. S. 1943, which provides for substituted service: “In all cases where service may be made by publication, and in all other cases where the defendants are nonresidents, * * To thus widen the scope and generally extend the use of personal service outside the state on nonresidents in obtaining judgments in personam has not been contemplated either in Nebraska practice or by the Legislature.

The only states that have applied the “minimum contact” rule have done so by statute. These statutes are quite comprehensive and clearly specify in what types of cases and under what circumstances it is applicable. In no instance has the rule been made available in. all types of cases. The states that have adopted the rule are. California, Wisconsin, Kansas, and Illinois.

Wisconsin adhered to the general rule and prohibited judgments in personam under the minimum contact rule. See Pollock v. Pollock, 273 Wis. 233 , 77 N. W. 2d 485 . Since the 1959 passage of a statute specifically authorizing in personam judgments under certain circumstances in divorce cases, it too recognizes the rule in a limited manner. -

The case of Mizner v. Mizner, 84 Nev. 268 , 439 P. 2d 679 , does not apply the rule in Nevada by judicial fiat. It simply gives full faith and credit to a California-judgment entered in compliance with, the California statute adopting the rule, and makes, á pitch 'for approval -of the rule' without legislating it into 'Nevada law: . In- fact, the case specifically holds that , one- requirement-is-.“a statute of the support ordering state has authorized the acquisition of such' jurisdiction hi. that'mánüer:”.' (Sic personal service-out of state.)

*647 - The California statute appears to have been adopted in 1957 and applies the rule only in cases, where the defendant “was a resident of this State.*. * * at the time of the commencement of the action, or * * * at the time that the cause of action arose, or * * * at the time of service.” (Emphasis supplied.)

In no instance has any state adopted the minimum contact rule by judicial decision. The opinion cites section 25-536, R. S. Supp., 1969, which, in effect, adopts the “minimum contact rule” in certain cases. It obviously is not applicable to divorce cases. The logical conclusion is that they were purposely omitted and the effect of the majority opinion is to amend this statute by judicial legislation.

I conclude that the advisable course would be to leave this matter to the Legislature.

White, C. J., and Boslaugh, J., join in this dissent.