12.4 Strategies for Representing the Out-of-state Defendant

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

12.4 STRATEGIES FOR REPRESENTING THE OUT-OF-STATE DEFENDANT

12.401 Direct and Collateral Attack.

A. Differences Between Direct and Collateral Attack. Any state in which either the husband or the wife is domiciled can exercise jurisdiction over the marriage by granting or denying a divorce. The state can regulate marital status if it has a sufficient relationship with either of the spouses, and being domiciled within the state constitutes a sufficient relationship with the state to permit the state to grant a divorce. ⁴⁹ However, a state can grant spousal support and determine property distribution only if it has personal jurisdiction over the defendant. When the defendant resides outside of the forum state and believes that the plaintiff was not validly domiciled in the forum state, the defendant can challenge the forum state's jurisdiction

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either directly or collaterally. Furthermore, when the defendant resides outside of the forum state and the forum state lacks personal jurisdiction over the defendant, the defendant can challenge the improper assertion of personal jurisdiction either directly or collaterally.

A direct challenge is one in which the out-of-state defendant retains counsel in the forum state to make a special appearance on the defendant's behalf and object either to the plaintiff's lack of bona fide domicile in the forum state or to the forum state's lack of personal jurisdiction over the defendant. If the defendant makes a general appearance in the forum state's proceeding, the court can obtain personal jurisdiction and bilateral litigation results. If the defendant loses the challenge to the court's jurisdiction, the defendant can directly appeal the trial court's decision through the forum state's appellate courts. If the defendant loses the appeal in the highest court in the forum state's court system and the challenge is based on constitutional due process principles, the defendant can appeal to the United States Supreme Court.

A collateral attack on the forum state's decree will be available if the decree was based on an ex parte judgment. This will be the case where the forum state does not have personal jurisdiction over the defendant and the defendant does not appear or answer the claims or participate in the proceeding in the forum state. It also will be the case where the out-of-state defendant enters a special appearance limited to challenging the court's lack of personal jurisdiction over the defendant. The collateral attack can be made in the defendant's own state of domicile.

B. Attacks Barred by Res Judicata and Full Faith and Credit. The judicially created doctrine of res judicata aims to prevent relitigation of the same cause of action where the parties to both suits are the same and the court has entered a final judgment in the first suit. The doctrine applies only in bilateral proceedings and is inapplicable to divorce judgments obtained in ex parte proceedings. Generally, "the same cause of action" refers to relitigation of "the same cause of action, or any part thereof which could have been litigated, between the same parties and their privies." ⁵⁰ "Cause of action" is defined in Rule 1:6(a) of the Rules of the Supreme Court of Virginia as follows:

(a) Definition of Cause of Action. A party whose claim for relief arising from identified conduct, a transaction,

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or an occurrence, is decided on the merits by a final judgment, shall be forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought. A claim for relief pursuant to this rule includes those set forth in a complaint, counterclaim, cross-claim or third-party pleading. ⁵¹

Unlike estoppel by conduct, res judicata applies to a court's judgment in the suit rather than to the conduct of the parties. Res judicata serves public policies favoring certainty in the establishment of legal relations, bringing an end to litigation, and preventing the harassment of parties. ⁵² In a divorce suit heard by a court of a sister state, the defendant who has appeared and had an opportunity to litigate issues of personal jurisdiction will be barred from relitigating the determination of personal jurisdiction by the combination of res judicata and the Full Faith and Credit Clause of the United States Constitution. ⁵³ A determination that a valid judgment of a sister state offends the public policy of another state will be insufficient to support a collateral attack on the judgment because of the Full Faith and Credit Clause. ⁵⁴ The bar to relitigating applies where the parties before the court with the opportunity to question the court's jurisdiction did not raise the issue, and it applies even if the court of the sister state relied on incorrect facts or law in reaching its judgment. ⁵⁵

12.402 Challenging Plaintiff's Domicile.

A. Importance of Domicile. Because a state will lack jurisdiction to grant a divorce unless one of the parties is domiciled in the state,

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the validity or invalidity of the domicile claim can be a significant issue of fact. Sometimes the nonresident defendant believes that the plaintiff has falsely claimed to be domiciled in the forum state. In Sherrer v. Sherrer, ⁵⁶ for example, shortly after the wife and children left Massachusetts to "vacation" in Florida, she informed her husband that she would not return to Massachusetts. A Massachusetts male friend arrived in Florida soon after the wife, and they married immediately following her Florida divorce. About a month later, they left Florida and returned to Massachusetts. The issue of whether the wife intended to remain in Florida indefinitely at the time she filed her Florida divorce suit and claimed to be a Florida domiciliary or whether she intended to return to Massachusetts went to the heart of the interstate jurisdiction puzzle. If she established residence in Florida with the intent to remain there indefinitely, Florida had jurisdiction. If she intended to return to Massachusetts, Florida lacked jurisdiction. A similar issue regarding the validity of the plaintiff's claimed domicile was decided in Williams II. ⁵⁷

B. Difficulties in Determining Domicile. The traditional situation in which a married couple lives in a single home and has a single marital domicile is no longer the case for some married couples. They may have jobs located in different jurisdictions and may follow a schedule where each visits the other at the other's residence on a fairly regular basis. Determining the matrimonial domicile for each spouse may pose a challenge. ⁵⁸ Furthermore, a married couple living together might view their Virginia residence as the family's "home" and the other residence, located outside of Virginia, as merely a vacation home. As the couple nears retirement and uses the vacation home more often, they might even intend to move to their vacation home permanently. If the marriage falters and one spouse moves to the vacation home, that spouse may claim to be domiciled in the other state, potentially allowing both states to exercise jurisdiction over the couple's marital status. ⁵⁹

C. Case 2: The Commuter Marriage.

A Delaware lawyer has sought your assistance to represent a Delaware wife in a divorce suit recently filed by

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the husband in the Richmond, Virginia circuit court. The lawyer thinks that both the husband and wife are Delaware domiciliaries and that Virginia lacks jurisdiction to determine the husband's claim for divorce. Here is what you've learned: the husband and wife resided and were domiciled in Delaware for more than 15 years. The husband lost his job as a computer programmer when his employer closed the Delaware division of the company and sent its jobs overseas. He was out of work for several months before he found a comparable job in Richmond three years ago. The wife was and remains self-employed as an accountant and has good relations with a number of long-term clients. When the husband took the Virginia job, their youngest child had only two more years of high school before graduation. The husband and wife decided that she and the child would remain in Delaware, at least until their son...