Denise K. Lynch v. Daniel G. Lynch

2017 ME 38

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 38 Docket: Sag-16-100 Argued: October 25, 2016 Decided: March 7, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

DENISE K. LYNCH

v.

DANIEL G. LYNCH

JABAR, J.

[¶1] Denise K. Lynch appeals from a judgment (West Bath, Dobson, J.)

dismissing her divorce complaint for lack of subject matter jurisdiction

because a Swedish judgment divorcing the parties precluded litigation of the

action in Maine. Because a review of the Swedish judgment, which is being

appealed in Sweden, is premature, we affirm in part, and vacate in part.

I. BACKGROUND

[¶2] The following facts are derived from Denise’s complaint, and the

documents submitted by the parties in conjunction with Daniel G. Lynch’s

motion to dismiss. See Davric Me. Corp. v. Bangor Historic Track, Inc., 2000 ME

102, ¶ 6, 751 A.2d 1024. In 1991, Denise and Daniel were married in Virginia

Beach, Virginia. At the time of their marriage, Daniel was an active member of 2

the United States Navy, and from 1992-1995, 1997-2000, and 2003-2005, he

served tours of duty in Brunswick, Maine. While on these tours of duty,

Denise and Daniel resided at a home in Brunswick they acquired

approximately one year after they were married. They own no other real

estate. After completing his final tour of duty in Maine in 2005, Daniel moved

with Denise and their two daughters to Belgium, where they remained until

2008, when they moved to Arlington, Virginia.

[¶3] A year after returning to the United States, Daniel, Denise, and

their children moved to Sweden when Daniel was assigned as the naval

attaché there. Daniel retired three years later, but remained in Sweden to

accept a teaching position with the Sweden National Defense College.

[¶4] In the fall of 2013 Denise and Daniel separated. Denise returned to

Maine in October 2013 to live in the Brunswick home that the couple had

maintained as a rental property while they were living abroad, and Daniel

remained in Sweden.

[¶5] Approximately three months after Denise’s return to Maine, on

January 27, 2014, Daniel initiated divorce proceedings in Sweden. He

executed service of process via mail, and Denise received the summons and

complaint on March 2, 2014. Denise responded to the complaint by objecting 3

to the proceedings and asserting that the Swedish court did not have personal

jurisdiction over her. As provided by Swedish law, the Swedish court stayed

the action for a six-month “reconsideration period,” which commenced on

March 14, 2014.

[¶6] On May 30, 2014, while the Swedish action was still in the

reconsideration period, Denise initiated an action for divorce in the District

Court. In her complaint, Denise sought: (1) dissolution of the parties’

marriage; (2) a court order distributing marital property; (3) spousal support;

and (4) an award of reasonable attorney fees.1 Denise listed as marital

property the Brunswick home, various investment and bank accounts, and

Daniel’s military pension.

[¶7] In response to the initiation of Denise’s divorce action in Maine,

Daniel moved to dismiss the complaint for forum non conveniens, arguing that

Sweden, and not Maine, was the more appropriate forum to decide the merits

of the case.2 The court (Ende, J.) denied Daniel’s motion to dismiss, noting

that, although the Swedish divorce action commenced first, the Swedish court

1 Denise’s complaint also sought a determination of “parental rights and responsibilities regarding the minor child(ren), including child support.” Since both of the parties’ children have reached the age of majority, child support is no longer an issue.

2 Daniel entered a special appearance for the sole purpose of seeking dismissal of Denise’s

complaint. 4

had not yet entered a final judgment and that Maine was the more convenient

forum to determine, inter alia, “whether and how to divide the real property

in Maine; and . . . how to divide the marital portion, if any, of [Daniel’s] military

pension.” Daniel subsequently filed an interlocutory appeal of the court’s

denial of his motion to dismiss.

[¶8] While Daniel’s appeal was pending before us, the Swedish court

entered an order divorcing the parties and appointing an administrator to

divide their assets. In its order, the Swedish court acknowledged Denise’s

claim that the court lacked personal jurisdiction over her, but it nonetheless

proceeded to adjudicate Daniel’s complaint, noting that because it had

jurisdiction over Daniel it was “competent to adjudicate . . . the divorce case,”

and that “[a]n issue concerning the spouses’ economic relationship may be

entertained by a Swedish court . . . if the issue is linked to a divorce case in

Sweden.” Following the entry of the Swedish divorce judgment, Denise sought

and obtained leave to appeal the portion of the judgment appointing an

administrator to divide the parties’ assets, but was denied leave to appeal the

portion of the judgment dissolving the marriage itself. We have no

information about the status of that appeal. 5

[¶9] After the Swedish court entered the divorce judgment, and while

Denise was seeking appellate review of that judgment in Sweden, Daniel

moved for us to dismiss his pending interlocutory appeal, arguing that the

Swedish court had entered a final judgment divorcing the parties, and

therefore Denise’s divorce action in the Maine court was moot. We granted

Daniel’s motion to dismiss his appeal, but denied his request that we

“instruct” the trial court to dismiss Denise’s complaint.

[¶10] On remand, Daniel again moved to dismiss Denise’s complaint,

and the court (Dobson, J.) granted that motion, concluding that “Denise had a

full and fair opportunity to present her contentions concerning spousal

support and enforceability of an earlier settlement agreement in [the

Swedish] forum,” the Swedish judgment was final, and recognition of its

validity was “warranted pursuant to the doctrine of comity.” In addition, the

court stated,

[F]urther litigation may be necessary either in Sweden or the US or both to fully divide [the parties’] property or at a minimum, that a Swedish court will need to apply Maine law to any further division of property . . . . It is unclear what route(s) would be available to accomplish this, [Denise] may be able to challenge any unfavorable property distribution order coming out of Sweden by challenging that court’s jurisdiction over her and the Maine property.

[¶11] Denise timely appealed from the Maine court’s judgment. See

M.R. App. P. 2(b)(3).

II. DISCUSSION

[¶12] Although Denise acknowledged at oral argument that the

Swedish court had sufficient jurisdiction to divorce the parties, she argues

nonetheless that the court erred in concluding that the Swedish judgment was

a complete bar to her divorce action.

[¶13] Because divorces are “divisible” judgments, and because there is

not yet a final Swedish judgment, our review of any portion of the judgment

that goes beyond the granting of the divorce itself, including whether the

Swedish court has competent jurisdiction3 to appoint an administrator to

divide the marital property, is premature.

[¶14] As mentioned previously, claims housed in a divorce complaint

are divisible. See Estin v. Estin, 334 U.S. 541, 549 (1948). First introduced in

Estin, the divisible divorce doctrine

simply recognizes the court’s limited power where the court has no personal jurisdiction over the absent spouse. In these circumstances the court has jurisdiction to grant a divorce to one domiciled in the state but no jurisdiction to adjudicate the incidents of the marriage, for example, alimony and property

3 If the Swedish appellate court determines that a Swedish trial court does not have jurisdiction

over the parties’ property, there will be no need for a Maine court to make this determination. 7

division. In short, the divisible divorce doctrine recognizes both the in rem and in personam nature of claims usually raised in dissolution of marriage proceedings.

In re Marriage of Kimura, 471 N.W.2d 869, 875 (Iowa 1991). In Maine, we

have applied similar principles to establish that a trial court having personal

jurisdiction over the plaintiff spouse but not over the defendant may enter a

judgment dissolving the marriage but leaving “all property, spousal support,

and parental issues to be litigated in a jurisdiction that might have personal

jurisdiction over both the parties.” Von Schack v. Von Schack, 2006 ME 30,

¶¶ 4, 25, 893 A.2d 1004 (quotation marks omitted).

[¶15] Because the discrete portions of a divorce action are divisible and

therefore the jurisdictional foundation of each claim may vary, to determine

whether the court erred in extending comity to the Swedish judgment in its

entirety, we would have to determine—for each element of its judgment—

whether the Swedish court was of competent jurisdiction to act. In

conducting this analysis, we would utilize the jurisdictional standards applied

in our courts. R.F. Chase, Annotation, Domestic Recognition of Divorce Decree

Obtained in Foreign Country and Attacked for Lack of Domicile or Jurisdiction of

Parties, 13 A.L.R. 3d 1419, 1424 (1967) (“[T]he tests of jurisdiction applied

are ordinarily those of the United States rather than the divorcing country”); 8

see also Roy v. Buckley, 1997 ME 155, ¶¶ 12-15, 698 A.2d 497 (analyzing the

method of process utilized in a Canadian proceeding under our established

principles of due process).

[¶16] The only aspect of the parties’ divorce proceedings that has been

adjudicated in Sweden is the dissolution of their marriage. Insofar as we can

discern, the disposition of marital property and the determination of whether

spousal support should be awarded have not yet been addressed. Whether

Sweden even has jurisdiction to divide the parties’ marital property has been

appealed and the judgment contains no reference to any claim for or decision

concerning spousal support. Therefore, although the District Court correctly

determined that the Swedish judgment was entitled to comity insofar as it

dissolved the parties’ marriage, it was premature for the court to address

issues of property distribution or spousal support.

[¶17] Accordingly, we affirm the Maine court’s judgment to the extent it

dismisses the portion of Denise’s complaint seeking dissolution of her

marriage. Because the claims set forth in her divorce complaint are divisible,

however, we vacate the judgment insofar as it dismisses Denise’s remaining

claims for spousal support, division of marital property, and reasonable 9

attorney fees. Upon conclusion of the appeal in Sweden, the Maine court will

make a determination of its authority to address those remaining claims.

The entry is:

Judgment vacated in part. Remanded for further proceedings consistent with this opinion.

Matthew C. Garascia, Esq. (orally), Auburn, for appellant Denise K. Lynch

Catherine C. Miller, Esq. (orally), Miller Law and Mediation, LLC, Portland, for appellee Daniel G. Lynch

West Bath District Court docket number FM-2014-180 FOR CLERK REFERENCE ONLY