Filed 9/19/02
CERTIFIED FOR PUBLICATION
COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ANDREW MUCKLE,
Petitioner,
D040086
(San Diego County
Super. Ct. No. DN120345)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
CASSANDRA BURGESS-MUCKLE,
Real Party in Interest.
Proceedings in mandate after superior court denied motion to quash for lack of
personal jurisdiction. Jeffrey B. Barton, Judge. Petition granted.
Stephen Temko on behalf of Petitioner.
Richard A. Thomas & Associates, Richard A. Thomas, Jill M. Church; and Karyn
Massie on behalf of Real Party in Interest.
Andrew Muckle (Andrew) petitions for a writ of mandate commanding respondent
court to vacate its order of April 4, 2002, denying his motion to quash service of
summons in the action commenced by real party in interest Cassandra Burgess-Muckle
(Cassandra)1 for dissolution of their 11-year marriage, spousal support and property
division, or dismiss the action on the ground of inconvenient forum, and to enter a new
and different order granting the motion.2 The question raised is whether, consistent with
the due process clause of the United States Constitution, California can exercise personal
jurisdiction over Andrew, who has been domiciled in Georgia since December 1998.
Based on the record presented, we answer the question in the negative and issue a writ of
mandate to prevent the court from exercising such jurisdiction.
BACKGROUND AND PROCEDURE
Andrew and Cassandra met in Georgia, where Andrew lived and worked and
Cassandra visited her mother. When Cassandra's mother died in 1988, she moved into
her mother's house in Georgia, where she resided continuously until marrying Andrew
there in 1989. During their 11-year marriage they lived at various times in Georgia and
California, separating and reconciling repeatedly. The couple had no children during
their marriage.
1
We refer to the parties by their first names, not out of familiarity or disrespect, but
for ease of reference and because such is the preferred practice in family law cases. (In
re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)
2
Andrew also requests costs incurred in this proceeding and any other relief this
court deems just and proper.
2
In July 1998, while the parties were living in California, Andrew purchased a
home in Georgia, taking title to it in his name alone. In December 1998, Andrew
returned to Georgia to live in the house. Shortly thereafter Cassandra followed,
eventually moving in with Andrew. In the spring of 2000, Cassandra returned to
California and lived in a trailer Andrew bought for her. At some point, she sold the
trailer, keeping the proceeds, and filed her petition for dissolution.
On about August 21, 2001, Cassandra served dissolution papers on Andrew in
Georgia by substituted service. In those papers Cassandra claimed as community
property both the home Andrew had bought in Georgia while living in California in 1998
and another house in Georgia that had been purchased in 1985 with title in Andrew's
name and that of his son Phillip Muckle.
On March 1, 2002, Andrew made a special appearance to contest jurisdiction
(Code Civ. Proc., § 418.10; Cal. Rules of Court, rule 1234), moving to quash service of
summons for lack of personal jurisdiction or, alternatively, to stay or dismiss the action
on the ground of inconvenient forum. He argued he had insufficient minimum contacts
with California for the trial court to establish personal jurisdiction over him, and,
alternatively if such were found, the court should dismiss the action on the ground of
forum non conveniens. (Code Civ. Proc., § 410.30.) In his supporting declaration,
Andrew noted he was 65 years old, had lived in Georgia continuously since December
1998, had worked and paid taxes in Georgia, had a Georgia driver's license, was
registered to vote in Georgia, had no personal or real property in California, and asserted
3
he could not afford to travel to California to "fight this litigation [or] transport witnesses
to verify [his] rights and interests in the houses [he] own[ed] in Georgia."
Cassandra countered Andrew's position, declaring he had been a resident of
California from January 1998 through December 1998, that the subject property had been
bought in Georgia in July 1998, thus making it community property under Family Code
section 760,3 that Andrew had refused to submit to the court's jurisdiction to determine
her community property interests in such property, and that she was "too ill to travel to
Georgia to litigate this matter."
At the March 11, 2002 hearing on the matter, Cassandra's counsel conceded there
were not minimum contacts for personal jurisdiction over Andrew for spousal support
purposes, but argued the trial court did not need personal, only "in rem," jurisdiction over
him to divide his home in Georgia because it was purchased during the marriage while he
was living in California. The court took the matter under submission on the agreed upon
issue of whether the court had jurisdiction to determine the rights of the parties in the
Georgia property that was purchased while the parties resided in California.4 That same
3
Family Code section 760 states that, "Except as otherwise provided by statute, all
property, real or personal, wherever situated, acquired by a married person during the
marriage while domiciled in this state is community property."
4
Although the court found there was no showing of due diligence at the time of the
hearing to find that Andrew was properly served in Georgia by substituted service, it
impliedly treated the matter as waived when Andrew's counsel stated he preferred the
court make an immediate decision on the issue of minimum contacts regarding the
Georgia property rather than continue the matter so Cassandra could show substituted
service was proper.
4
date, Andrew filed supplemental points and authorities supporting his motion to quash,
arguing the same "minimum contacts" standard necessary for personal jurisdiction over a
person was also required to exercise in rem or quasi in rem jurisdiction when property
rights were asserted.5
On March 14, 2002, Cassandra filed points and authorities in opposition to
Andrew's motion to quash, arguing Andrew had maintained sufficient minimum contacts
with California due to his "purposeful availment" of privileges of conducting activities in
California by residing and working in California for over 10 years before returning to
Georgia in 1998, by filing and receiving $150,000 on a worker's compensation claim
against his Escondido employer, by using $70,000 of those funds for his down payment
on the property he purchased in Georgia while the parties were married and lived in
California, and by traveling from Georgia to California on numerous occasions.
Cassandra asserted it was reasonable to exert jurisdiction over Andrew because of his
above affirmative conduct and the facts he was in "excellent health," while she was
"suffering from an attack on her auto-immune system which makes walking for her more
difficult each day." She stated she had been a resident of California for over 10 years and
that California had a strong public policy of equal division of community property for
which she did not have an alternative forum to litigate her interests because Georgia is
not a community property state. She further asserted that "'progress in communications
5
It is unclear from this record whether Andrew's supplemental authorities were
received by the court before, during or after the hearing on the matter.
5
and transportation has made the defense of a suit in a foreign tribunal less burdensome.
[Citation.]'" Cassandra filed no declaration or evidence in support of the factual
allegations contained in her papers filed after the matter was taken under submission.
On April 4, 2002, the trial court issued its order on the matter, "[a]fter considering
the Briefing filed by the parties, both before and after the hearing and entertaining oral
argument," as follows:
"1. The Court denies [Andrew's] companion Motion to Quash
Service of Process. The factual basis for this ruling is that the
parties had an 11-year marriage with no children. They met and
married in Georgia and lived in both Georgia and California. The
parties lived in California until at least December of 1998. While in
California, [Andrew] rented an apartment in Vista from January,
1998 through December of 1998. He purchased property in Georgia
while he was still a resident in California. He was a California
resident for ten (10) years prior to December of 1998. He filed a
worker's compensation claim against an Escondido employer while a
resident of California. He received $150,000 from the worker's
compensation claim while a resident in California and used $70,000
of these funds to purchase property in Georgia. [¶] 2. Under these
circumstances, the Court believes that [Andrew] has 'minimum
contact with a forum state, such that maintenance of the suit does not
offend traditional notions of fair play and substantial justice." [(]In
re Marriage of Lontos (1979) 89 Cal.App.3d 61 [Lontos], citing
International Shoe v. Washington (1945) 326 U.S. 310[
(International Shoe).)]
The court also noted authority for its ability to adjudicate the rights of the parties
to the property in Georgia, and stated "[t]he pivotal factor[s] for the Court in this matter
in determining minimum contacts are the fact that [Andrew] lived in California and
availed himself of the protections offered by this forum during his period of residency,
including participation in the California Worker's Compensation program."
6
Andrew thereafter filed the current petition for writ of mandate, challenging the
trial court's ruling denying his motion to quash service of summons. (Code Civ. Proc.,
§ 418.10.) We issued an order to show cause why the relief requested should not be
granted and set the matter for oral argument.
DISCUSSION
In general, "jurisdiction" to adjudicate matters in a marital case involves three
requirements: 1) that the court have authority to adjudicate the specific matter raised by
the pleadings (subject matter jurisdiction) (see Fam. Code, § 2010); 2) that the court have
"in rem" jurisdiction over the marital "res" to terminate marital status ("in rem"
jurisdiction) (see Marriage of Zierenberg (1992) 11 Cal.App.4th 1436, 1444-1445); and
3) that the court have jurisdiction over the parties to adjudicate personal rights and
obligations (personal jurisdiction). (See Code Civ. Proc., § 410.10; Burnham v. Superior
Court (1990) 495 U.S. 604 (Burnham); In re Marriage of Fitzgerald & King (1995) 39
Cal.App.4th 1419, 1425 (Fitzgerald & King).)
Once the court has met these jurisdictional requirements it may determine not only
the marital status, but also the personal rights and obligations of the parties, including
custody and support of minor children of the marriage, spousal support, settlement and
division of the parties' property rights, and the award of costs and attorney fees. (Fam.
Code, § 2010.) With regard to property rights, the court generally looks to the domicile
of the parties at the time the property was acquired to characterize it as separate or
community for the purposes of division upon a dissolution of the marital status. (Grappo
v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 505.) "[M]arital interests in
7
money and property acquired during a marriage are governed by the law of the domicile
at the time of their acquisition, even when such money and property is used to purchase
real property in another state. [Citations.]" (Ibid.) California law provides that "[e]xcept
as otherwise provided by statute, all property, real or personal, wherever situated,
acquired by a married person during the marriage while domiciled in this state is
community property." (Fam. Code, § 760.) It is further settled California law that "'a
court having jurisdiction of the parties [in a dissolution action] may adjudicate their rights
to land located in another state and that the adjudication is res judicata and is to be
accorded full faith and credit in the situs state regardless of whether the decree orders
execution of a conveyance. . . .' [Citations.]" (In re Marriage of Economou (1990) 224
Cal.App.3d 1466, 1479-1480; see also Fam. Code, § 2660.)
Here, the parties do not contest that the California trial court has subject matter
jurisdiction and in rem jurisdiction to adjudicate the status of their marriage due to
Cassandra's domicile in California at the time of filing her petition for dissolution. (See
Marriage of Gray (1988) 204 Cal.App.3d 1239, 1250.) Rather the parties conflict only
on whether the trial court can exercise personal jurisdiction over Andrew who is now a
resident and domiciled in Georgia for purposes of adjudicating his rights in real property
located in Georgia and for spousal support.
8
As the court in Fitzgerald & King noted, "[d]ue process permits the exercise of
personal jurisdiction over a nonresident defendant in the following four situations:6 (1)
where the defendant is domiciled in the forum state when the lawsuit is commenced
[citation]; (2) where the defendant is personally served with process while he or she is
physically present in the forum state [citation]; (3) where the defendant consents to
jurisdiction [citations]; and (4) where the defendant has sufficient 'minimum contacts'
with the forum state, such that the exercise of jurisdiction would not offend '"traditional
notions of fair play and substantial justice"' [citation]." (Fitzgerald & King, supra, 39
Cal.App.4th at pp. 1425-1426.) Because Andrew is not domiciled in California, was not
personally served with process while present in California, and did not consent to
jurisdiction, the trial court could only support its denial of his motion to quash the
summons served on him in Georgia by predicating personal jurisdiction to determine any
property rights of the marriage for division on Andrew having "minimum contacts" with
California.
In determining whether such "minimum contacts" exist for a valid assertion of
jurisdiction over a nonconsenting nonresident who is not present in the forum, a court
must look at "'the quality and nature of [the nonresident's] activity' in relation to the
forum [to determine whether it] renders such jurisdiction consistent with '"'traditional
6
"California's 'long-arm' statute, Code of Civil Procedure section 410.10, empowers
California courts to exercise personal jurisdiction to the full extent permitted by due
process. It provides: 'A court of this state may exercise jurisdiction on any basis not
inconsistent with the Constitution of this state or of the United States.'"
9
notions of fair play and substantial justice."'" (Burnham, supra, 495 U.S. at p. 618;
International Shoe, supra, 326 U.S. at pp. 316, 319.) Although the existence of sufficient
"minimum contacts" depends on the facts of each case, the ultimate determination
generally rests on some conduct by which the nonresident has purposefully availed
himself of the privilege of conducting activities within the forum state to invoke its
benefits and protections, and a sufficient relationship or nexus between the nonresident
and the forum state such that it is reasonable and fair to require the nonresident to appear
locally to conduct a defense. (Kulko v. Superior Court of California (1978) 436 U.S. 84,
93-94, 96-97 (Kulko); Khan v. Superior Court (1988) 204 Cal.App.3d 1168, 1175-1176
(Khan).) This latter "fairness" finding requires a balancing of the burden or
inconvenience to the nonresident against the resident plaintiff's or petitioner's interest in
obtaining effective relief, and the state's interest in adjudicating the particular dispute,
which ultimately turns on the nature and quality of the nonresident's forum-related
activity. (Kulko, supra, 436 U.S. at p. 94; see also Khan, supra, 204 Cal.App.3d at pp.
1179-1180.)
Where as here, in an initial family law proceeding for marriage dissolution, a
nonresident moves to quash for defective personal jurisdiction on grounds he lacks
minimum contacts with the forum state, the court looks at the contacts at the time of the
proceeding and not on whether past minimum contacts might suffice. (Tarvin v. Tarvin
(1986) 187 Cal.App.3d 56, 60-61.) When the contacts are "substantial, continuous and
systematic," general personal jurisdiction may be exercised as to any cause of action,
even one unrelated to the nonresident's activities within the forum state. (Perkins v.
10
Benguet Consolidated Mining Co. (1952) 342 U.S. 437, 447-448.) Even when the
nonresident's contacts are not "substantial, continuous and systematic" forum-state acts, a
court may still exercise "specific" personal jurisdiction limited to claims arising out of the
forum-related acts. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472-473
(Burger King).)
The test for whether a court may exercise "specific" personal jurisdiction requires
that the nonresident purposefully directed his acts to the forum state or otherwise
purposefully established contacts with the forum state, that the cause of action be related
to or arise or result from the acts or contacts in the forum, and that the exercise of
personal jurisdiction by the forum would be reasonable. (Burger King, supra, 471 U.S. at
pp. 476-478; see Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434,
446-448 (Vons); In re Marriage of Hattis (1987) 196 Cal.App.3d 1162, 1173 (Hattis).)
As the court in Vons, stated:
"When a [nonresident] moves to quash service of process on
jurisdictional grounds, the plaintiff [or petitioner] has the initial
burden of demonstrating facts justifying the exercise of jurisdiction.
[Citation.] Once facts showing minimum contacts with the forum
state are established, however, it becomes the defendant's burden to
demonstrate that the exercise of jurisdiction would be unreasonable.
[Citation.] When there is conflicting evidence, the trial court's
factual determinations are not disturbed on appeal if supported by
substantial evidence. [Citation.] When no conflict in the evidence
exists, however, the question of jurisdiction is purely one of law and
the reviewing court engages in an independent review of the record.
[Citation.]" (Vons, supra, 14 Cal.4th at p. 449.)
In this case, Cassandra had the initial burden of establishing facts to justify the
trial court's exercise of personal jurisdiction over Andrew with regard to determining the
11
rights of the parties in the Georgia property admittedly purchased while Andrew lived in
California during his marriage to Cassandra. At the time the matter was taken under
submission, those were the only facts supported by evidence before the court concerning
Andrew's contacts with the state of California other than the length of the marriage, that it
was entered into in Georgia, that there were no children of the marriage, that the parties
lived at various times in Georgia and California, separating and reconciling repeatedly
during the marriage, that Andrew left California in December 1998, and that Cassandra
followed him to Georgia to live with him shortly thereafter. Although there was evidence
that sometime after Cassandra left Andrew in Georgia to return to California to live in the
spring of 2000, he bought a trailer in California for her, there were no underlying facts
established as to whether Andrew came to California at that time or merely gave
Cassandra the money to use to purchase the trailer. Regardless, evidence showed that the
trailer had been sold before Cassandra filed her schedule of assets and debts in the
dissolution action she filed in California. Thus, at the time of the motion to quash
hearing, there was no evidence of any contacts by Andrew with California at the time the
dissolution action was filed by Cassandra; only past contacts with California by Andrew
were shown.
The trial court, however, took into consideration unsubstantiated "alleged facts" in
Cassandra's points and authorities in opposition to the motion filed after the matter was
taken under submission regarding Andrew's additional past and arguably continuing
contacts with California to support its denial of the motion. In addition to the court
considering new material after an issue was taken under submission, there was no
12
evidence in the record to support the assertions by Cassandra that Andrew lived and
worked in California for 10 years before he departed for Georgia in December 1998, or
that he received and then used money from the settlement of a California worker's
compensation claim to purchase the property he bought in Georgia in July 1998. The
trial court relied heavily on such facts to find that Andrew had so availed himself of the
benefits of this state in the past that traditional notions of fair play and substantial justice
would not be offended by making him appear in California to defend his rights to the
property in Georgia. On the paucity of evidence in this record, we cannot find the trial
court's finding of minimum contacts for personal jurisdiction over Andrew supported by
substantial evidence. Nor does our independent review of the matter render a different
conclusion.
Unlike the situation in Lontos, supra, 89 Cal.App.3d 61, which the trial court cited
as authority for finding personal jurisdiction, the parties did not meet or marry in
California, they did not have any children in California, they did not live in California at
the time of the separation, and there is no evidence Andrew abandoned Cassandra or
failed to provide for her after the separation. In Lontos, the parties had met and married
in California; one of their three children was born in California; they had lived
continuously in California for six years before they moved to New Mexico where
husband, who was in the United States Marine Corps, had been transferred. (Lontos,
supra, 89 Cal.App.3d at pp. 64-65.) The husband then abandoned his wife and three
children, leaving them $10 for support; and wife and children returned to San Diego and
obtained welfare assistance when husband refused to pay court-ordered support. (Ibid.)
13
Based on these facts, the court in Lontos found that husband's contacts in California
together with his abandonment of the family, which constituted "proof of a purposeful
causing of an effect creating a substantial contact in California," were "of such quality
and nature that it [was] 'reasonable' and 'fair' to require him to conduct his defense in
California." (Id. at pp. 71-72.)
Although "California has a manifest interest in providing effective means of
redress for its residents" (McGee v. International Life Ins. Co. (1957) 355 U.S. 220, 223),
we do not believe such interest coupled with the mere fact of past residency, during
which a party while married purchased out of state property, is sufficient contacts of such
nature and quality to entertain even "special" personal jurisdiction over Andrew
consistent with "traditional notions of fair play and substantial justice." (Burnham,
supra, 495 U.S. at p. 618.) Andrew's contacts with California since 1998 have not been
"substantial, continuous and systematic," and there is no evidence he purposefully
directed any activities since that time in or toward California other than to provide some
shelter for Cassandra.
However, even if we were to find that Cassandra had met her burden of showing
Andrew had sufficient minimum contacts at the time she filed the dissolution action, we
would find the exercise of personal jurisdiction over Andrew on this record unreasonable.
Although Cassandra is purportedly of ill health, there is no evidence she is a burden on
the state (as in Lontos, supra, 89 Cal.App.3d 61 or Hattis, supra, 196 Cal.App.3d 1162)
or that she does not have financial resources to pursue her action on the division of the
property and spousal support in Georgia after obtaining a dissolution of the marital status
14
in California. As she noted in her declaration, "'progress in communications and
transportation has made the defense of a suit in a foreign tribunal less burdensome.
[Citation.]'"
On the other hand, Andrew has submitted evidence to show he has been domiciled
and has worked in Georgia since December 1998, has paid taxes there, has a Georgia
driver's license, and only owns property in Georgia -- thereby taking advantage of the
benefits of that state. There is also evidence that the parties met and married in Georgia
and lived in Georgia almost two years before they separated and Cassandra returned to
California in 2000. Although Andrew does not mention anything about his health, he
does say he is 65 years old and without much wealth, making it a financial burden to
travel to California to "fight this litigation," which would entail transporting witnesses
from Georgia to verify his rights and interests in the houses he owns in Georgia.
Balancing these factors against those in favor of Cassandra due to her current residency
in California and the state's connection to the parties marriage via her uncontested
domicile here, and the fact any potential clash in the marital property laws of Georgia and
California may be accommodated through application of Georgia's choice-of-law rules,
we conclude it would be unreasonable or unfair to require Andrew to come to California
to litigate issues of spousal support and property rights. Accordingly, a writ of mandate
is proper to prevent the trial court from asserting personal jurisdiction over Andrew for
purposes of determining such rights and support. (Code Civ. Proc., § 418.10, subd. (c).)
15
Having determined that the trial court erred in denying Andrew's motion to quash
on the evidence properly before it, we need not address Andrew's additional arguments
concerning judicial estoppel and forum non conveniens.
DISPOSITION
Let a writ of mandate issue directing the Superior Court of San Diego to vacate its
order of April 4, 2002, denying Andrew's motion to quash service of summons in the
dissolution action and to enter a new and different order granting the motion and
quashing the service of summons in such action. Costs are awarded to Andrew.
CERTIFIED FOR PUBLICATION
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McCONNELL, J.
16
