Poston v. Poston

POSTON_V_POSTON.92-139; 160 Vt. 1; 624 A.2d 853


[Filed 19-Feb-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-139



 JoAnne M. Poston                             Supreme Court

                                              On Appeal from
      v.                                      Orleans Family Court


 James G. Poston                              December Term, 1992


 Shireen Avis Fisher and Walter M. Morris, JJ.

 Charles D. Hickey, St. Johnsbury, for plaintiff-appellee

 Peter F. Langrock, Kevin E. Brown and Mitchell L. Pearl of Langrock Sperry &
    Wool, Middlebury, for defendant-appellant


 PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.),
           Specially Assigned


      MORSE, J.     James Poston, who had already obtained a Texas divorce
 from JoAnne Poston, appeals the judgment of the Vermont Family Court
 granting JoAnne child support, maintenance and attorney's fees.  James'
 claims of error are that once the Texas divorce had been granted, the
 Vermont judgment violated the federal constitutional guarantee of full faith
 and credit, and that Vermont lacked statutory authority for the award.  We
 affirm.
      James and JoAnne Poston were married in 1971.  During the next sixteen
 years, they moved frequently.  The first three years they lived in Dallas,
 Texas, where James completed his medical internship and residency.  They
 then moved to Ohio, Florida, Mississippi, Vermont, Minnesota, and, in 1982,
 back to Vermont, where James worked at the North Country Hospital in
 Newport.  The couple separated in October 1987, and James returned to Texas,
 his current residence.  JoAnne and their two children remained in Newport.
      James filed for divorce in Texas in May 1989.  JoAnne was served in
 Vermont by certified mail, but never appeared in that action.  In July
 1989, JoAnne filed for divorce in Vermont.  James was personally served
 while he was in Newport that summer, and he appeared and defended the
 Vermont action.
      On March 20, 1990, the 78th District Court of Wichita County, Texas,
 issued a decree of divorce to James Poston, asserting "sole and exclusive
 jurisdiction" over the action and noting that JoAnne had "not appeared and
 wholly made default."  JoAnne was given physical custody of the children.
 James was awarded visitation and ordered to provide the children an
 automobile, health insurance, education expenses, and airline tickets for
 visitation.  He was also ordered to pay JoAnne $2,500 a month in child
 support, which would be reduced to $2,000 a month when the older child no
 longer qualified for it.  The Texas court noted that the parties had, as
 agreed upon, sold their residence and split the proceeds, that James had
 purchased a car for JoAnne, and that JoAnne had received the majority of
 the parties' furnishings and possessions.  The court remarked that JoAnne
 had "received benefits substantially in excess of one-half (1/2) of the
 property."
      Further, the Texas court found that JoAnne was employed as a trained
 registered nurse and also was receiving support, unspecified in amount, from
 James.  Although JoAnne had set aside her professional aspirations in favor
 of those of her husband and had spent much of her married life as a
 homemaker, the court found that she "voluntarily chose[] to work only part-
 time in the past" and that "no reason or necessity exists" for the award of
 maintenance.  The court valued James' anesthesiology practice, which
 provided him with a six-digit income, at $10,000, $9,000 of which was
 attributed to his goodwill, leaving a net value of $1,000.  The court then
 awarded James all of his retirement and IRA accounts and ordered that he pay
 a lump sum of $30,000 to JoAnne, that each party pay their own attorneys'
 fees, and that James pay the court costs of bringing the Texas action.
 JoAnne did not appeal.
      In Vermont, James sought to dismiss JoAnne's complaint under the
 doctrines of full faith and credit and res judicata, and on the ground that
 15 V.S.A. { 752 did not permit the court to order maintenance to JoAnne
 because she was no longer married to him.  The family court denied the
 motion, holding that although the Texas decree served to terminate the
 marriage, JoAnne did not have the requisite "minimum contacts" with Texas to
 subject her to personal jurisdiction there.  Consequently, the Vermont court
 did not owe full faith and credit to the remainder of the Texas judgment.  A
 temporary hearing was held April 18, 1991, at which the parties entered into
 a stipulation for child support and a temporary order governing the parties'
 financial and personal relationship.  The matter went to trial on the merits
 on July 25, 1991, and September 18, 1991.
      Meanwhile, in August 1991, the Texas court, finding that JoAnne's
 conduct caused James "great expense and anguish," issued an order enjoining
 JoAnne from taking any action, including a suit for divorce, that might
 interfere with the Texas divorce order or that would seek any process or
 satisfaction of any judgment in Vermont.  Additionally, the Texas court
 ordered that JoAnne pay James $1,500,000, plus post-judgment interest, in
 damages should she pursue litigation and receive a judgment in Vermont
 against him.  Finally, the Texas order was punctuated with a judgment in
 James' favor for $25,000 in attorney's fees incurred in defending himself in
 Vermont.
      In February 1992, the Vermont Family Court ordered James to pay $2,500
 a month in child support, maintain health insurance for the children, and
 pay the children's educational and transportation expenses, including the
 purchase and maintenance of the children's automobiles.  The court found
 that in 1990, JoAnne earned $21,656, while James earned $441,598, and that
 JoAnne had a savings account and IRA account totalling $45,000, while James'
 Merrill Lynch and IRA accounts totalled $183,000.  Based on the substantial
 disparity in income between the parties and the fact that JoAnne lacked
 sufficient property and income to meet her reasonable needs and could not
 support herself at the standard of living established during the marriage,
 the court ordered James to pay permanent maintenance adjusted yearly for
 inflation.  Maintenance was set at $1,000 per month while child support was
 owing, increasing to $5,000 per month after child support was no longer due
 in order to build a retirement fund for her, the payments to end when she
 reached age sixty-two.  If JoAnne remarried, the maintenance would be
 reduced to $12,000 per year.  James was also ordered to maintain life
 insurance of $500,000 for JoAnne's benefit.  The court ordered James to pay
 $1,500 a month in a maintenance supplement under 15 V.S.A. { 661(a), to
 mitigate the lower standard of living for the children when residing with
 their mother.  Finally, the court awarded JoAnne over $16,000 in attorney's
 fees.  James then appealed to this Court.
                                     I.
      The United States Constitution requires that "Full Faith and Credit
 shall be given in each State to the public Acts, Records, and judicial
 Proceedings of every other State."  U.S. Const. art. IV, { 1.  Full faith
 and credit of the Texas divorce judgment, however, is conclusive in Vermont
 only if Texas had jurisdiction to render the judgment.  Williams v. North
 Carolina, 325 U.S. 226, 229 (1945).
      There is no question that the Texas court had jurisdiction to end the
 parties' marriage, and that the divorce is entitled to full faith and
 credit.  "[E]ach state, by virtue of its command over its domiciliaries and
 its large interest in the institution of marriage, can alter within its own
 borders the marriage status of the spouse domiciled there, even though the
 other spouse is absent."  Williams v. North Carolina, 317 U.S. 287, 298-99
 (1942).
       Under the doctrine of "divisible divorce," however, issues other than
 the dissolution of the marriage are severed from the divorce action when the
 court does not have personal jurisdiction over one spouse; in that case, the
 judgment does not resolve issues other than the marital status of the
 parties.  Conlon by Conlon v. Heckler, 719 F.2d 788, 795-96 (5th Cir. 1983);
 1 H. Clark, The Law of Domestic Relations in the United States { 13.4 (2d
 ed. 1987); see also Vanderbilt v. Vanderbilt, 354 U.S. 416, 418-19 (1957)
 (where wife not subject to Nevada jurisdiction, Nevada court could not
 extinguish right to support in another state even though not reduced to
 judgment in the other state); Estin v. Estin, 334 U.S. 541, 549 (1948)
 (Nevada court lacking personal jurisdiction over wife could not terminate
 husband's preexisting obligation for support ordered in another state).   We
 find the divisible-divorce concept applicable here; accordingly, if the
 Texas court was without personal jurisdiction over JoAnne, we need not give
 its judgment, other than that ending the parties' marital status, binding
 effect in Vermont.
      In International Shoe Co. v. Washington, 326 U.S. 310 (1945), the
 United States Supreme Court set out the constitutional test for a court to
 acquire personal jurisdiction over a nonresident defendant. In addition to
 an enabling law conferring personal jurisdiction (commonly called a "long-
 arm" statute), the defendant must "have certain minimum contacts with [the
 forum state] such that the maintenance of the suit does not offend
 'traditional notions of fair play and substantial justice.'"  Id. at 316
 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).  A determination
 whether "minimum contacts" exist rests on a number of factors: the interests
 of the plaintiff and the forum State in proceeding with the action there;
 the nature and quality of the defendant's activity within that state; and
 whether it is fair and reasonable to require the defendant to conduct a
 defense within the plaintiff's choice of forum.  Kulko v. California
 Superior Court, 436 U.S. 84, 92 (1978).
      The Texas long-arm statute, 1 Tex. Fam. Code Ann. { 3.26(a)(2),
 provides that the Texas divorce court may exercise personal jurisdiction
 over a nonresident if "there is any basis consistent with the constitutions
 of this state and the United States."  Thus, the Texas court could exercise
 personal jurisdiction over JoAnne to the fullest extent due process will
 allow.  Hoffman v. Hoffman, 821 S.W.2d 3, 4-5 (Tex. Ct. App. 1992); Kramer
 v. Kramer, 668 S.W.2d 457, 458 (Tex. Ct. App. 1984).
      On the facts of this case, we conclude that JoAnne Poston's contacts
 with Texas are so minimal as to fail the due process test.  Although JoAnne
 resided in Texas for three years during the early 1970's and bore her first
 child there, at the time of separation in 1987, Vermont was the parties'
 domicile.  There is nothing in the record showing that JoAnne has had any
 other ties to Texas, and James has not contended otherwise.  Subjecting her
 to personal jurisdiction in Texas under these circumstances was not
 reasonable, and Texas decisional law supports our conclusion.  See, e.g.,
 Cunningham v. Cunningham, 719 S.W.2d 224, 228-29 (Tex. Ct. App. 1986) (no
 personal jurisdiction where former Texas resident moved from state, severed
 all ties with state, and only contact was one attempted visit with his child
 approximately one year after move and shortly before Texas' attempt to
 establish jurisdiction over him);  Ford v. Durham, 624 S.W.2d 737, 739-40
 (Tex. Ct. App. 1981) (several visits over eight-year period to child in
 Texas and at least twelve business trips insufficient to subject father to
 personal jurisdiction in Texas for purposes of modification of New Mexico
 child support order). (FN1) Thus, despite the local Texas court's assertion
 otherwise, it lacked jurisdiction to conclusively determine JoAnne's rights
 and we need not give its judgment binding effect, beyond the dissolution of
 the parties' marriage.
                                     II.
      James further submits that in Vermont, apart from due process concerns,
 the family court could not award JoAnne maintenance because, as he reads 15
 V.S.A. { 752, the court may make orders for maintenance only to a "spouse."
 Because James and JoAnne were no longer married at the time the Vermont
 court ordered maintenance, James argues, its award was barred by the
 statute.
      Section 752 of Title 15 grants the court the power to order "either
 spouse" to make maintenance payments to the other spouse under certain
 conditions.  This Court has recognized that the purpose of spousal
 maintenance is to rectify "'inequality between the parties' financial
 positions.'"  Klein v. Klein, 150 Vt. 466, 473, 555 A.2d 382, 386 (1988)
 (quoting Buttura v. Buttura, 143 Vt. 95, 99, 463 A.2d 229, 231 (1983)).
 Although the statutory language specifically refers to "spouse," we must
 construe the statute reasonably in context and in light of its purposes.
 Here, we do not believe the legislature intended "spouse" to mean anything
 more than a party to the marriage.  The Vermont court, not the Texas court,
 had jurisdiction to decide the issue of maintenance.  Further, this Court is
 not prohibited from remanding to the trial court an issue of maintenance,
 even though the parties remain divorced.  See Semprebon v. Semprebon, 157
 Vt. 209, 216, 596 A.2d 361, 365 (1991) (issue of maintenance remanded after
 marriage ended where family court made no ruling on plaintiff's request for
 maintenance); Klein, 150 Vt. at 472, 555 A.2d  at 386 (cause remanded to
 award maintenance, although divorce undisturbed).
      James directs our attention to Grant v. Grant, 136 Vt. 9, 383 A.2d 627
 (1978), and Loeb v. Loeb, 118 Vt. 472, 114 A.2d 518 (1955), in support of
 the proposition that a Vermont court cannot award maintenance in a separate
 action, except by way of modification, once the marriage has been
 dissolved.  The Grant court considered whether alimony could be awarded in
 Vermont where the parties were divorced in the Virgin Islands and both
 parties had appeared personally in the Virgin Islands court.  The foreign
 court's failure to award alimony was not the result of its lack of power to
 do so.  Because the issue of alimony was considered by the foreign court,
 this Court concluded that the divorce decree was res judicata and
 reconsideration of alimony in Vermont was precluded.  136 Vt. at 13, 383 A.2d  at 629.  Here, in contrast, the Texas court did not acquire personal
 jurisdiction over JoAnne. Thus, the Texas action is not subject to the
 doctrine of res judicata.
      Although the Loeb court stated that an order ending the marriage
 "terminates the wife's right to an award of separate maintenance,"  118 Vt.
 at 483, 114 A.2d  at 526, we cannot agree that once a marriage is validly
 ended, maintenance or support may not be ordered in a separate action
 thereafter.  We note that the law concerning the award of maintenance has
 not remained stagnant since the Loeb decision.  At present, a majority of
 states recognize that a suit for maintenance may be brought after termina-
 tion of the marriage.  1 H. Clark, supra, { 13.4.  Further, this Court has
 implicitly recognized that a Vermont court might have ancillary jurisdiction
 to decide issues of property division, maintenance, and child support even
 though a foreign divorce judgment may be entitled to full faith and credit.
 See Driver v. Driver, 148 Vt. 560, 562-63, 536 A.2d 557, 559 (1987) ("other
 issues concerning property division, maintenance, and child support remained
 over which the Vermont court might have ancillary jurisdiction even if the
 Massachusetts judgment is entitled to full faith and credit").  Therefore,
 we hold that the termination of a marriage does not automatically bar a
 later separate maintenance award. (FN2)
      Affirmed.

                                    FOR THE COURT:



                                    __________________________________
                                    Associate Justice



FN1.       Nor do we find personal jurisdiction over JoAnne under { 11.051 of
 the Texas Family Code, which is applicable in those suits affecting the
 parent-child relationship.  Although a literal reading appears to confer
 jurisdiction, "it must also be determined that such jurisdictional facts are
 constitutionally sufficient to meet basic requirements of due process."
 Dillon v. Medellin, 627 S.W.2d 737, 740 (Tex. Ct. App. 1981).

FN2.   Following the court's decision, James was found twice in contempt
 for failure to pay child support, the child support maintenance supplement,
 and maintenance in accordance with the terms of the judgment.  James also
 appealed these orders.  We find no error in the trial court's contempt
 orders because James' attack on the orders depended entirely on his
 challenge to the underlying judgment for maintenance and child support.