Opinion
Civil Docket No.: CL16-3830
06-30-2016
Re: Brett Richard Sayre v. Ashlie Elizabeth Sayre
K. Page Kistler, Esq. K. Page Kistler, P.C. 909 First Colonial Road Suite 101 Virginia Beach, Virginia 23454 Sheera R. Herrell, Esq. Hofheimer Family Law Firm 1604 Hilltop West Executive Center Suite 300 Virginia Beach, Virginia 23451
K. Page Kistler, Esq.
K. Page Kistler, P.C.
909 First Colonial Road
Suite 101
Virginia Beach, Virginia 23454 Sheera R. Herrell, Esq.
Hofheimer Family Law Firm
1604 Hilltop West Executive Center
Suite 300
Virginia Beach, Virginia 23451 Dear Counsel:
Today the Court rules on the motion filed by Defendant Ashlie Elizabeth Sayre ("Ms. Sayre") to dismiss the complaint (the "Complaint") filed by Plaintiff Brett Richard Sayre ("Mr. Sayre") to grant him a divorce a vinculo matrimonii from Ms. Sayre for lack of personal jurisdiction—as prayed for in Ms. Sayre's Notice of Special Appearance (the "Notice")—and for improper venue—as Ms. Sayre requested at the June 2, 2016, hearing (the "Hearing"). The issues before the Court are (1) whether the Court can grant a divorce to Mr. Sayre, a Virginia resident, without personal jurisdiction over Ms. Sayre, a non-resident of the Commonwealth, (2) whether Ms. Sayre has presented to the Court a proper and timely objection to venue and, if so, whether the Complaint can be dismissed, and (3) whether Ms. Sayre demonstrated that the Complaint should be dismissed because Norfolk is an inconvenient forum. The Court finds that Virginia law does not require the Court to have personal jurisdiction over Ms. Sayre to grant Mr. Sayre an in rem divorce. The Court also finds that Ms. Sayre did not timely present an objection to venue and, even if she had, the applicable statute does not provide for dismissal of the Complaint. The Court further finds that Ms. Sayre failed to demonstrate that the Complaint should be dismissed because the City of Norfolk is an inconvenient forum.
The Court therefore DENIES Ms. Sayre's motion to dismiss for lack of personal jurisdiction and for improper venue.
Background
Mr. and Ms. Sayre were married in Las Vegas, Nevada, on December 17, 2009. (Compl. ¶ 3.) They last lived together as husband and wife in Carlsbad, California. (Id. ¶ 2.) They have "remained separate and apart, with no cohabitation, [and] without interruption and no probability of reconciliation[] since April 1, 2015." (Id. ¶ 4.) At the time the Complaint was filed, Mr. Sayre had been a resident and domiciliary of the Commonwealth of Virginia for more than six months (Id. ¶ 1) and Ms. Sayre was a resident of the State of California (Notice ¶ 3).
On April 6, 2016, Mr. Sayre filed the Complaint. Therein, he asserted the following: he was "a bona fide resident and domiciliary of the Commonwealth of Virginia at the time of filing the divorce and more than six (6) months immediately preceding filing"; he and Ms. Sayre had been separated without cohabitation or interruption since April 1, 2015; and both he and Ms. Sayre were over the age of eighteen and of sound mind. (Compl. ¶¶ 1, 4, 7.) Mr. Sayre requested the Court take the following actions: (1) grant him a divorce a vinculo matrimonii on the ground that he and Ms. Sayre had lived separate and apart for more than one year, (2) deny spousal support to both him and Ms. Sayre, and (3) determine the distribution of property between him and Ms. Sayre. (Id. at 2.) Ms. Sayre was served with the Complaint on April 18, 2016. (Proof of Serv. 1.)
Ms. Sayre filed the Notice, which requests that "Plaintiff's complaint be dismissed for lack of personal jurisdiction," on May 9, 2016—21 days after she was served with process of the Complaint. In the Notice, Ms. Sayre asserts the following: (1) she has never been a resident of the Virginia and has no connection with the Commonwealth, (2) she is a resident of the State of California, (3) Mr. Sayre and she last lived together in California, (4) the Complaint requests the Court decide spousal support and equitable distribution issues, (5) the Commonwealth does not have personal jurisdiction over Ms. Sayre, and (6) the Complaint fails to assert a connection between either Mr. or Ms. Sayre and the City of Norfolk. (Notice ¶¶ 2, 4, 6, 8-9.) On June 2, 2016, the Court held a hearing on the Notice, during which Ms. Sayre made a special appearance and argued that the Complaint should be dismissed because the Court lacks personal jurisdiction over her. She also argued—for the first time—that the Complaint alternatively should be dismissed because the City of Norfolk is an improper venue for this action and because Norfolk is an inconvenient forum. Ms. Sayre informed the Court at the Hearing that, after the Complaint was filed with this Court, she filed for divorce in the State of California.
After the June 2, 2016, hearing, the Court took the matter under advisement and granted leave for the parties to provide post-hearing submissions.
Positions of the Parties
Ms. Sayre's Position
Ms. Sayre asserts that she is not a resident of Virginia and does not have any connection to the Commonwealth. She contends that the Court does not have personal jurisdiction over her in this action and that it therefore does not have the authority to enter a divorce decree dissolving her marriage.
With respect to venue, Ms. Sayre argues in the Notice that "[f]rom the facts stated in the Complaint, neither party has a connection with the City of Norfolk." (Notice ¶ 9.) At the Hearing, she argued that, even if the issues of spousal support and equitable distribution were reserved for later resolution, she would still be prejudiced or otherwise inconvenienced by entry of a divorce decree in this Court in the following ways: (1) she would have to travel from the State of California to Norfolk to resolve spousal support and equitable distribution and (2) upon entry of the divorce decree, she would immediately lose health benefits provided by Mr. Sayre's employer during the pendency of resolution of spousal support and equitable distribution. In her post-hearing submission, she asserts that because venue in Norfolk is improper—and because a proper forum does not exist in Virginia—the suit must be dismissed.
Mr. Sayre's Position
Mr. Sayre asserts that he included in the Complaint the proper jurisdictional grounds for maintaining an action for divorce, i.e., that he had been a bona fide resident and domiciliary of the Commonwealth of Virginia for more than six months immediately prior to filing the Complaint. Further, at the Hearing and in response to Ms. Sayre's claim that the Court does not have personal jurisdiction over her, Mr. Sayre agreed to reserve determinations of spousal support and equitable distribution.
At the Hearing, Mr. Sayre responded to Ms. Sayre's argument alleging improper venue by stating that granting divorces between in-state plaintiffs and out-of-state defendants was a common practice of this Court, and that if this Court granted Ms. Sayre's motion and dismissed Mr. Sayre's Complaint, many of the divorces granted by this Court would be void. In a post-hearing submission, Mr. Sayre asserts that by arguing venue-related issues at the Hearing, Ms. Sayre converted her special appearance into a general appearance, thereby providing this Court with personal jurisdiction over Ms. Sayre.
At the Hearing, counsel for Ms. Sayre appeared to be using the terms jurisdiction and venue interchangeably.
Analysis
Legal Standard
To maintain an action for divorce, Virginia law requires that "one of the parties was at the time of filing the suit and had been for at least six months preceding the filing of the suit an actual bona fide resident and domiciliary of this Commonwealth." Va. Code § 20-97 (Repl. Vol. 2008 & Supp. 2015). For a Virginia court to enforce personal obligations such as spousal support and equitable distribution, the court must first have personal jurisdiction over the parties. Morris v. Morris, 4 Va. App. 539, 545, 359 S.E.2d 104, 108 (1987) (affirming an award of divorce but reversing an award of spousal support where the court did not have personal jurisdiction over the defendant). If a court lacks personal jurisdiction, however, it may still grant a divorce while reserving decisions that could affect the defendant's due process rights—such as spousal support—for another proceeding. Price v. Price, 17 Va. App. 105, 113-14, 435 S.E.2d 652, 658 (1993) (citing Estin v. Estin, 334 U.S. 541, 546-47 (1948)).
The purpose of Virginia's venue statutes is "that every action shall be commenced and tried in a forum convenient to the parties and witnesses, where justice can be administered without prejudice or delay." Va. Code §§ 8.01-257 (Repl. Vol. 2015). Virginia law enumerates several types of actions that have a preferred venue. See Va . Code § 8.01-261. The preferred venue for divorce actions is as follows: (1) "the county or city in which the parties last cohabitated," (2) "the county or city in which the defendant resides," or (3) "the county or city in which the plaintiff resides" if the plaintiff is a resident of the Commonwealth and "an order of publication may be issued against the defendant under [Virginia Code] § 8.01-316." Id. § 8.01-261(19). If an action has a preferred venue, the permissible venue statute does not apply. Id. § 8.01-262. Virginia's venue statutes enumerate where venue is granted, but because venue is no longer jurisdictional, improper venue will not invalidate a divorce decree. See Va . Code § 8.01-258.
Prior to 1991, venue was jurisdictional, although that no longer is the case. See Decker v. Decker, 12 Va. App. 536, 540, 405 S.E.2d 12, 14 (1991) (holding that "so long as a court has jurisdiction . . . to entertain a divorce suit, that court's judgment or decree will not be void or voidable for improper venue").
The plaintiff's choice of forum is entitled to a "presumption of correctness" that should not be lightly defeated. Norfolk & W. Ry. Co. v. Williams, 239 Va. 390, 394, 389 S.E.2d 714, 717 (1990) (citing Piper Aircraft v. Reyno, 454 U.S. 235 (1981)); accord Champigny v. Bayly, 55 Va. Cir. 381, 382 (Norfolk 2001). The plaintiff also is not required to explain his choice of forum. Kollman v. Jordan, 60 Va. Cir. 293, 294 (Chesterfield Cty. 2002). A defendant nevertheless may object to venue if not properly laid by the plaintiff according to the venue statutes. Va. Code § 8.01-264. To object to venue, the defendant must file a motion "within twenty-one days after service of process commencing the action," and the motion "shall set forth where [in the Commonwealth] the defendant believes venue to be proper." Id. Any objection to venue is waived if the defendant fails to file such motion, and despite the venue irregularity, "the action may nevertheless be tried where it is commenced." Id. Ultimately, "[a]n objection to venue is addressed to the sound discretion of the trial court." Meyer v. Brown, 256 Va. 53, 56, 500 S.E.2d 807, 809 (1998).
A court, upon motion by a party and for good cause shown, may transfer a proceeding to a more convenient forum either within Virginia or in a jurisdiction other than the Commonwealth via dismissal without prejudice "under such conditions as the court deems appropriate." Va. Code § 8.01-265. Various circuit courts have held that the associated burden to demonstrate good cause to transfer a matter to a more convenient forum rests on the moving party. See, e.g., Va. Elec. Power Co. v. Dungee, 258 Va. 235, 245, 520 S.E.2d 164 (1999) (affirming a decision denying defendant's motion to transfer venue for failure to demonstrate good cause); Littleton v. Norfolk S. Ry. Co., 87 Va. Cir. 333, 334-35 (Norfolk 2013) (denying defendant's motion to dismiss for improper venue based on a failure to demonstrate good cause); Birdsall v. Federated Dep't Stores, Inc., 70 Va. Cir. 290, 292 (Fairfax Cty. 2006) (same). Mere conclusory statements, unsupported by facts, are not sufficient to establish good cause. Birdsall, 70 Va. Cir. at 292-93. Good cause includes, but is not limited to, "the agreement of the parties or the avoidance of substantial inconvenience to the parties or the witnesses," Va. Code § 8.01-265, and whether there is a lack of a practical nexus between the action and the chosen forum, Williams, 239 Va. at 396, 389 S.E.2d at 717. Factors that speak to substantial inconvenience include:
ease of access to sources of proof; availability of compulsory process for attendance of unwilling [sic], and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.Id. at 393, 389 S.E.2d at 716 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). A court must balance the parties' competing interests regarding these factors and the existence of a practical nexus between the forum and the action when deciding to transfer a case for improper venue. Dungee, 258 Va. at 246, 520 S.E.2d at 170-71. An attenuated connection between the forum and action "does not alone provide the good cause required for transfer under the statute." Id. at 246, 520 S.E.2d at 170.
To dismiss an action in support of transfer to a forum outside the Commonwealth based on inconvenience, (1) the person bringing the suit must be a non-resident of Virginia, (2) the cause of action must have arisen outside of the Commonwealth, and (3) there must be "a more convenient forum which has jurisdiction over all parties . . . in a jurisdiction other than the Commonwealth." Va. Code § 8.01-265. Ultimately, any changes in venue by the court based on inconvenience "shall be within the sound discretion of the trial judge." Id. § 8.01-267.
Discussion
The Court has considered the pleadings, oral argument at the June 2, 2016, hearing, the post-hearing submissions, and applicable authorities. The Court now rules on the issues before it.
A. The Court does not require personal jurisdiction over Ms. Sayre to dissolve the parties' marriage.
It is uncontested that Mr. Sayre was a resident and domiciliary of Virginia for at least six months as of the date he filed this action for divorce. The Court therefore has statutory in rem jurisdiction over the divorce proceeding pursuant to Virginia law, which requires that at least one party be a resident of and domiciled in the Commonwealth for six months prior to filing. Va. Code § 20-97 (Repl. Vol. 2008 & Supp. 2015). Although Mr. Sayre prayed in the Complaint that the Court, inter alia, deny spousal support and determine the distribution of property between Mr. and Ms. Sayre—and the Court is precluded from ordering spousal support and equitable distribution absent personal jurisdiction over Ms. Sayre—this does not preclude the Court from presiding over an in rem divorce action.
Mr. Sayre has agreed to reserve spousal support and equitable distribution determinations for a future proceeding, so Ms. Sayre's due process concerns are not at issue. See Morris v. Morris, 4 Va. App. 539, 545, 359 S.E.2d 104, 108 (1987). The Virginia Court of Appeals has made it clear that personal jurisdiction is not required when entering a divorce decree in which spousal support and equitable distribution are reserved. See Price v. Price, 17 Va. App. 105, 113-14, 435 S.E.2d 652, 658 (1993) (citing Estin v. Estin, 334 U.S. 541, 546-47 (1948)) ("Although the circuit court did not obtain personal jurisdiction over the [defendant] in the divorce action, the allegations in the divorce pleadings sufficed to provide the trial court with in rem jurisdiction to dissolve the marriage."). Personal jurisdiction over Ms. Sayre therefore is not necessary to dissolve the marriage pursuant to the Complaint.
Because the Court has in rem jurisdiction and is not required to have personal jurisdiction over Ms. Sayre, Ms. Sayre's motion to dismiss the Complaint for lack of personal jurisdiction is DENIED.
B. Ms. Sayre failed to timely object to venue—thereby waiving such objection—and even if her objection was timely, the applicable statute does not provide for dismissal of the Complaint.
When venue is improperly laid, Virginia Code Section 8.01-264 permits a court to transfer a cause of action to another forum within Virginia, as "[t]ransfer provides a better remedy than dismissal for venue problems, decreasing the costs of litigation, since it is more efficient than instituting a second suit in the proper venue." Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 6.6 (5th ed. 2008).
Mr. Sayre's choice of venue—Norfolk, Virginia—is entitled to a "presumption of correctness" that should not be lightly defeated. See Norfolk & W. Ry. Co. v. Williams, 239 Va. 390, 394, 389 S.E.2d 714, 717 (1990) (citing Piper Aircraft v. Reyno, 454 U.S. 235 (1981)); accord Champigny v. Bayly, 55 Va. Cir. 381, 382 (Norfolk 2001). The burden therefore rests on Ms. Sayre to establish that the chosen venue is improper. Meyer v. Brown, 256 Va. 53, 57, 500 S.E.2d 807, 809 (1998). Mr. Sayre's failure to articulate in the Complaint his grounds for venue in Norfolk is irrelevant because—as one circuit court stated—a plaintiff "does not need to explain his reasons for placing venue in any particular forum that [the Code] allows." Kollman v. Jordan, 60 Va. Cir. 293, 294 (Chesterfield Cty. 2002).
Virginia law prescribes both preferred and permissible venue for various causes of action. See Va . Code §§ 8.01-261, -262. The possible fora for a divorce action are enumerated in the preferred venue statute; thus, the permissible venue statute does not apply to the case at bar. Id. § 8.01-262 (stating that the permissible venue chapter "applies except [for] those actions enumerated in [Code Section 8.01-261,] where preferred venue is specified"). Proper venue for this case therefore is dictated by Virginia Code Section 8.01-261(19), and an analysis pursuant to this statute reveals that the City of Norfolk is not a proper venue. Id. § 8.01-261(19). Mr. and Ms. Sayre did not last cohabitate as husband and wife in Norfolk; the defendant, Ms. Sayre, does not reside in Norfolk; and under Code Section 8.01-316, service by publication on Ms. Sayre would not have been proper in light of the facts present here.
Section 8.01-316 of the Code of Virginia does not apply because: (1) Ms. Sayre is not a foreign corporation or unincorporated association and she has not appointed a statutory agent; (2) Mr. Sayre was able to locate Ms. Sayre; (3) Ms. Sayre was not last domiciled in the City of Norfolk; (4) Ms. Sayre's name is known; and (5) service of process was only sought for Ms. Sayre. See Va . Code § 8.01-316 (Repl. Vol. 2015).
Because Norfolk is an improper forum for this case, Ms. Sayre was entitled to object to venue. Such an objection must have been presented to the court within twenty-one days after service of the Complaint; otherwise, the venue irregularity was waived, and the Court is free to try the case in Norfolk. Id. § 8.01-264. Ms. Sayre was served with process of the Complaint on April 18, 2016, and she filed her Notice of Special Appearance on May 9, 2016—twenty-one days after service of process. In the Notice, Ms. Sayre simply requests that "the Plaintiff's complaint be dismissed for lack of personal jurisdiction." No new arguments were presented to the Court prior to the June 2, 2016, hearing, and Ms. Sayre objected to venue for the first time at the Hearing. In ruling on Ms. Sayre's oral motion to dismiss the Complaint for lack of venue, the Court therefore can consider only the Notice of Special Appearance, as it was the only submission to the Court within the twenty-one-day objection period.
Ms. Sayre filed what can best be described as a notice of hearing on May 31, 2016. It is styled as a "Notice of Special Appearance," includes numbered paragraphs that are identical to those in the Notice, and notices the June 2, 2016, hearing date.
There is some question regarding whether a challenge to venue can be raised orally. Although Virginia Code section 8.01-264 requires that an objection to venue be made "by motion filed"—implying the need for a writing—it goes on to state that such motion "may be in writing"—implying that a writing is optional. Va. Code § 8.01-264 (emphasis added); see also id. § 8.01-276 (referring simply to a "motion" challenging venue while a separate provision regarding defenses refers to a "written motion").
Even if the Notice were interpreted to include an objection to venue, arguendo, Virginia Code Section 8.01-264 further requires that Ms. Sayre "set forth where [she] believes venue to be proper" in any objection to venue. Va. Code § 8.01-264. No such assertion exists in the Notice, and no alternative venue can be implied from the Notice.
Contrary to Mr. Sayre's argument in his post-hearing submission, even if the Notice were deemed to be a written motion objecting to venue as permitted by Section 8.01-264 of the Code of Virginia, Ms. Sayre's counsel's appearance would not be converted to a general appearance. See Va. Code § 8.01-277.1.B.5.
More importantly, although Ms. Sayre asserts in her post-hearing submission that—pursuant to Code Section 8.01-264—"there is no proper venue in the Commonwealth" and "the action must be dismissed if there is no forum in the Commonwealth where venue is proper," the Code section simply does not provide for such remedy. Although the Code provides that "no action shall be dismissed solely on the basis of venue if there be a forum in the Commonwealth where venue is proper"—which arguably implies that dismissal may be appropriate if there not be a forum in the Commonwealth where venue is proper—the section goes on to state that "[i]f [a motion objecting to venue] is sustained, the court shall order the venue transferred to a proper forum under the appropriate provisions of §§ 8.01-195.4, 8.01-260, 8.01-261, and 8.01-262," all of which relate only to Virginia fora. Va. Code 8.01-264. Dismissal for improper venue under Code Section 8.01-264 simply is not available, as the section only provides for a transfer of forum within the Commonwealth.
The Court finds that Ms. Sayre has waived any objection that Norfolk is an improper venue and that even if her objection were timely, dismissal of the case based on improper venue is not available under Code Section 8.01-264. Ms. Sayre's motion to dismiss for improper venue on the basis of Section 8.01-264 of the Code of Virginia therefore is DENIED.
C. Ms. Sayre failed to demonstrate that the action should be dismissed because the City of Norfolk is an inconvenient forum.
As pointed out in a well-recognized Virginia civil procedure treatise, the forum non conveniens provisions of Section 8.01-265 of the Code of Virginia "permit transfer of a lawsuit within Virginia to a bailiwick more convenient for the litigation to take place, and even permit dismissal of the action in deference to a forum outside the Commonwealth, with certain protections." Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 6.9 (5th ed. 2008) (emphasis added). Such a transfer is to be "upon motion and for good cause shown." Va. Code § 8.01-265 (Repl. Vol. 2015).
Although Ms. Sayre does not expressly allege that she is seeking relief under Section 8.01-265 of the Code of Virginia, she argued at the Hearing that proceeding with her divorce in California would be more convenient. Assuming she is claiming that Norfolk is an inconvenient forum to support her request for dismissal of the Complaint—as opposed to transfer of the proceeding to another venue within the Commonwealth—she is required to show that (1) Mr. Sayre is not a resident of the Commonwealth, (2) the cause of action arose outside of the Commonwealth, and (3) there is a more convenient forum outside the Commonwealth that has jurisdiction over all of the parties. Va. Code § 8.01-265. She also is required to demonstrate good cause for the dismissal, which the statute indicates includes, but is not limited to, agreement of the parties, avoidance of substantial inconvenience to the parties or the witnesses, or compliance with the law of any other state or the United States. Id. The burden rests on Ms. Sayre to prove that good cause exists to transfer this case to a more convenient forum or dismiss this case so that it can be tried in a forum outside the Commonwealth. See Va. Elec. Power Co. v. Dungee, 258 Va. 235, 245, 520 S.E.2d 164, 170 (1999).
It also is not clear whether Ms. Sayre can make a forum non conveniens argument under a general appearance, as such an argument presumes that jurisdiction and venue are proper. See Norfolk & W. Ry. Co. v. Williams, 239 Va. 390, 396 n.*, 389 S.E.2d 714, 718 (1990). To be clear, the Court finds that Ms. Sayre has not submitted to the jurisdiction of this Court.
Based on the evidence presented, the Court assumes that—under a forum non conveniens theory—Ms. Sayre seeks to dismiss the case so that it can be tried in California as opposed to transferring it to another Virginia venue.
Ms. Sayre has failed to carry her burden. Mr. Sayre asserted in the Complaint that he was a resident of Virginia at the time of filing, and Ms. Sayre presented nothing to refute this. Nor did she assert that Mr. Sayre's residency has changed since he filed the Complaint. The cause of action did not arise outside the Commonwealth, as divorce under Virginia law is statutory and therefore—as far as the Court understands—has no locus. Mr. and Ms. Sayre clearly are not in agreement regarding the issue of venue—and Ms. Sayre has not alleged that they are—and Ms. Sayre has not asserted any non-compliance with any non-Virginia laws.
As discussed supra, jurisdiction for divorce is statutory, and personal jurisdiction over the defendant is not required for an in rem proceeding. The Court need not definitively hold that a divorce proceeding has no location of origin, as a Virginia divorce decree, by definition, can only originate in Virginia.
Regarding the inconvenience of the current forum, the conclusory statements in the Notice are void of facts alleging that the City of Norfolk is an inconvenient forum. The Notice merely asserts that Ms. Sayre is a resident of California, that the parties last lived together in California, and that the Complaint fails to assert a connection between the parties and the City of Norfolk. Although Ms. Sayre claimed at the Hearing that she would be inconvenienced by having to travel from California to Norfolk to resolve spousal support and equitable distribution if this Court entered a divorce decree (as those matters would be reserved), Mr. Sayre would be equally inconvenienced if he had to travel to California to respond to the divorce action Ms. Sayre apparently has initiated there. The defendant in one circuit court case unsuccessfully made similarly bare assertions, and that court found that the defendant sufficiently proved only that there was an attenuated connection between the forum and the location giving rise to the cause of action. See Birdsall v. Federated Dep't Stores, Inc., 70 Va. Cir. 290, 292-93 (Fairfax Cty. 2006). Ms. Sayre also did not allege any facts indicating any of the following: (1) her access to proof would be hindered; (2) she would have difficulty compelling witnesses to appear; or (3) any other "practical problems" that would make a trial in the City of Norfolk any less "easy, expeditious, [or] inexpensive" than in any other forum. See Norfolk & W. Ry. Co. v. Williams, 239 Va. 390, 393, 389 S.E.2d 714, 716 (1990) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). The Court therefore finds that Ms. Sayre has, at best, only alleged that there is an attenuated connection—and not the lack of a practical nexus—between the action and Mr. Sayre's chosen forum. Because an attenuated connection between the forum and action "does not alone provide the good cause required for transfer under the statute," the Court finds that Ms. Sayre has failed to show good cause for dismissing this case pursuant to Code Section 8.01-265. Dungee, 258 Va. at 246, 520 S.E.2d at 170. Thus, the Court does not need to balance any factors that speak to substantial inconvenience. See id.
The Court finds that Ms. Sayre has failed to demonstrate that the action should be dismissed because the City of Norfolk is an inconvenient forum, so her motion to dismiss for improper venue on the basis of Section 8.01-265 of the Code of Virginia is DENIED.
Virginia's preferred and permissible venue statutes provide plaintiffs significant leeway in choosing a forum for litigation, and objections to venue are permitted in order to prevent plaintiffs from using these statutes to harass defendants. Williams, 239 Va. at 392, 389 S.E.2d at 715. No evidence has been presented that Mr. Sayre chose this venue based on an intent to harass Ms. Sayre, however. Mr. Sayre asserted that he was a bona fide resident and domiciliary of Virginia for the six months preceding filing of the Complaint, and there was no evidence presented that he relocated or otherwise traveled to Norfolk to file his divorce merely to inconvenience or harass Ms. Sayre. If Mr. Sayre had submitted to a divorce proceeding in California—a more convenient forum, according to Ms. Sayre—any inconvenience would simply shift from Ms. Sayre to him. Mr. Sayre apparently made the choice to file in Norfolk based on his own convenience or for other reasons he felt warranted the decision, as any plaintiff is entitled to do. See id. at 394, 389 S.E.2d at 717 (citing Piper Aircraft v. Reyno, 454 U.S. 235 (1981)).
Under Virginia's statutory scheme, a non-resident defendant in a divorce action cannot force dismissal of a properly filed complaint by objecting to venue or claiming that the forum in which the complaint was filed is inconvenient. The in rem proceeding may go forward, although the court cannot resolve spousal support or equitable distribution without personal jurisdiction over Ms. Sayre.
If the defendant is a non-resident and the Complaint is "properly filed," the plaintiff by definition must be a Virginia resident. Va. Code § 20-97 (Repl. Vol. 2008 & Supp. 2015) (requiring that "one of the parties was at the time of filing the suit and had been for at least six months preceding the filing of the suit an actual bona fide resident and domiciliary of this Commonwealth"). If the plaintiff is a Virginia resident, dismissal of the Complaint pursuant to Virginia Code Section 8.01-265 is unavailable. See id. § 8.01-265 (providing that in order "[t]o dismiss an action in support of transfer to a forum outside the Commonwealth based on inconvenience," inter alia, "the person bringing the suit must be a non-resident of Virginia"). --------
Conclusion
Because the Court has in rem jurisdiction over the proceeding and the Court is not required to have personal jurisdiction over Ms. Sayre to grant an in rem divorce, Ms. Sayre's motion to dismiss for lack of personal jurisdiction is DENIED.
The Court finds that Ms. Sayre's objection to venue, which was raised for the first time at the Hearing, is untimely; she therefore waived any objection that Norfolk is an improper venue. Even if her objection to venue were timely, the applicable statute does not provide for dismissal of the Complaint. The Court further finds, considering the facts and circumstances present here, that Ms. Sayre failed to demonstrate that the Complaint should be dismissed because the City of Norfolk is an inconvenient forum in order to allow the matter to be tried outside the Commonwealth. Ms. Sayre's motion to dismiss for improper venue therefore is DENIED.
The Court directs counsel for Mr. Sayre to prepare and circulate an Order consistent with the ruling in this Opinion and submit it to the Court for entry within fourteen days. Mr. Sayre also may take the appropriate actions to facilitate the Court entering a divorce decree for an in rem divorce.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/dyl