Long-arm jurisdiction in support and divorce actions: the unwary beware.

AuthorTiso, Christopher A.

Clearly, personal jurisdiction over a respondent can be obtained by service of process within the state. However, if resort to service outside of the state must be made, strict adherence to the applicable long-arm statute is required. (1) Different states have different rules and procedures, although all must comport with constitutional mandates of due process. (2)

The rules and procedures for alleging and proving (or disproving) long-arm jurisdiction in support and divorce actions in Florida are not complex. Yet, a practitioner without knowledge of them could find himself or herself quite embarrassed.

This article does not pertain to the issue of what constitutes "proper" service outside of Florida. Suffice it to say that the requirements of F.S. [section] 48.194(1), entitled "Personal service outside of state" must be strictly complied with. In a nutshell, such service must be made "in the same manner as service within this state by any officer authorized to serve process in the state where the person is served." (3) Service of process on persons "outside the United States may be required to conform to the provisions of The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters" (hereafter "The Hague"). (Emphasis supplied). Why the term "may" (as opposed to "shall") is unknown and creates confusion. For example, exactly who is to decide if the particular service in a given matter must conform (or not) to The Hague? Arguably, the legislature intended that service abroad in nations that are signatories to The Hague should be required to conform to its dictates.

Requisite Allegations

F.S. [section] 48.193(1)(e) (1995) provides, simply enough:

Acts subjecting person to jurisdiction of courts of state

(1) Any person, whether or not a citizen or resident of this state, who personally ... does any of the acts enumerated in this subsection thereby submits himself or herself ... 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 a proceeding 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.

The "catch" is that unless the basis for claiming such long-arm service is specifically alleged in the petition, any service on the respondent outside of Florida will be deemed void. In other words, the petitioner must expressly aver that either the parties maintained a matrimonial domicile in Florida at the time of the commencement of the action or the respondent resided in Florida preceding the commencement of the action.

Alleging one or the other is easy and "may be done by simply tracking the language of the statute without pleading supporting facts." (4) Failure to do so, however, can be fatal. As recently reiterated in McMahan v. McMahan,--So. 2d --, 26 Fla. L. Weekly D1809 (Fla. 3d D.C.A., July 25, 2001), the "[f]ailure to allege either ... voids any attempted service under the long-arm statute." (5)

Of course, pleading the requisite allegations for long-arm service only overcomes the "defective" pleading problem. The petitioner must still prove (or the respondent disprove) the veracity of the allegation(s). That is a unique procedure of itself.


Initially, the petitioner seeking to serve a respondent out-of-state must plead the basis for long-arm service in the language of the statute. (6)

The respondent challenging long-arm jurisdiction must then timely file a motion to dismiss/quash. However, such a motion by itself does nothing more than raise the legal sufficiency of the petition. Therefore, if the requisite allegations are properly alleged in the petition, the respondent must file or submit with the motion, affidavits, transcripts of testimony, documents, and any other form of "evidence" supporting his or her contention that long-arm jurisdiction is lacking.

Again, while that may seem simple enough: Beware! Obviously, if the petition is completely devoid of the requisite long-arm allegations, the respondent "need not come forward with affidavits to prove a negative--that is, that there is no jurisdiction." (7) If, however, the petition even remotely alleges the requisite allegations, a respondent filing a motion to dismiss challenging the legal sufficiency of those allegations should also at the same time submit affidavits or other proof challenging the veracity of those allegations, or the latter challenge might be deemed waived. (8)

Once that is done, the burden shifts back to the petitioner to submit or file an affidavit or similar documents supporting his or her contention that long-arm jurisdiction exists. (9)

The trial court must then review (presumably in camera) the affidavits and other documents, harmonize and reconcile them to whatever extent possible, and thereafter make (if possible) a decision based upon the facts which are essentially undisputed. One appellate court observed:

The proceeding before the lower court based upon complaint and motion, with affidavits or other proof, is in the nature of a "mini-trial" or "trial within a trial" in which the issue of the applicability of the long-arm statute is decided. (10)

The Florida Supreme Court surmised that in "most cases" the affidavits or other proof "can be harmonized and the court will be in a position to make a decision based upon the facts which are essentially undisputed." (11) If not possible, a limited evidentiary hearing must be conducted.

It would appear, however, that a respondent at any such...

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