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.