Opinion
No. 94-2068.
May 31, 1996. Rehearing Denied July 16, 1996.
Appeal from the Circuit Court for St. Johns County, Peggy E. Ready, J.
Suzanne M. Judas and Christine S. Mayo of Gabel Hair, Jacksonville, for Appellant.
Geoffrey B. Dobson of Dobson, Christensen Brown, P.A., St. Augustine, for Appellee.
Sheila Mabel Johnson appeals an order granting Karyl Goode Johnson's motion for an order dismissing Sheila Johnson's amended complaint seeking enforcement of a foreign judgment and, in the second count, an independent action for alimony and equitable distribution. We conclude that dismissal of the second count was error and reverse in respect thereto.
The record reflects that the Johnsons were married in England in March, 1960. During the marriage they developed a successful pig farm equipment business. Sheila Johnson petitioned for divorce on grounds of adultery in 1978; at that time, Karyl Johnson had already left Great Britain. In the proceeding, Sheila Johnson requested that the court dissolve her marriage and requested other ancillary relief including a lump sum award of alimony. On June 9, 1978, Karyl Johnson, who was then a resident of Wisconsin, received from the court a copy of the divorce petition and he signed an "Acknowledgment of Service." On or about January 4, 1980, a Decree Nisi ordering dissolution of the marriage of the Johnsons was entered at the Royal Courts of Justice, London, England. On or about February 18, 1980, the Decree Nisi was ordered final and absolute.
This is based on the allegations in the body of the amended complaint. We note, however, an exhibit attached to the complaint raises some doubt as to the inclusion of the request for lump sum alimony in the original action.
In April, 1993, Sheila Johnson filed an application in the High Court for ancillary relief seeking a lump sum payment of alimony. Service on Karyl Johnson was allegedly made by mail and personal service in Florida. He did not appear. A judgment on the application was issued on May 27, 1993, granting her a lump sum award of 250,000. The record next reflects that Karyl Johnson was served a copy of the High Court's order by the St. Johns County Sheriff on August 31, 1993, in St. Augustine, Florida.
On January 21, 1994, Sheila Johnson filed her complaint for enforcement and for alimony in the Circuit Court of St. Johns County, Florida. The complaint alleged that both the dissolution of marriage and the alimony proceedings in England were in accordance with English law and were not in conflict with the laws of Florida; that Karyl Johnson was originally served with notice of the 1978 "matrimonial cause" against him and that a certified copy of his acknowledgment of service was attached to the complaint; and that he was personally served on August 31, 1993 with a copy of the May 27, 1993 order and judgment for alimony. The complaint requested that the St. Johns Circuit Court enforce all of the terms of the High Court Order and establish the foreign judgment's validity in Florida.
After dismissal of the original complaint, Sheila Johnson filed an amended complaint and added an additional count for alimony and equitable distribution in the event of the lower court's refusal to enforce the foreign judgment. Again, Karyl Johnson moved to dismiss, urging that comity should not be granted the English judgment because of due process criteria, and contending that the alternative count for an alimony award was barred by the statute of limitations. Sheila Johnson filed a memorandum in opposition to the motion to dismiss as well as the affidavit of one Timothy Scott, her English barrister, who opined, inter alia, that an English court would recognize a Florida court order issued under similar circumstances. Karyl Johnson responded by filing his own memorandum of law. The trial judge granted the motion to dismiss setting forth her analysis in a detailed and well-drafted order, which is the subject of the instant appeal.
If Barrister Scott's opinion of English law pertaining to notice and jurisdiction is correct, which we doubt, it would provide additional cause to celebrate the Declaration of Independence.
We affirm the trial court's action in dismissing Count I of the plaintiff's amended complaint seeking comity for the English money judgment. We do not believe the English court acquired in personam jurisdiction of Karyl Johnson in 1978 in a manner that comports with American standards of due process. That jurisdiction was purportedly based upon a voluntary appearance by Karyl Johnson because he executed a form acknowledgment of service sent to him by mail by the English court. A copy of that form has been presented to this court as Exhibit B in an Appendix attached to Sheila Johnson's Reply Brief. The questions on that form, and the answers thereto, are as follows: READ CAREFULLY THE NOTICE OF PROCEEDINGS BEFORE ANSWERING THE FOLLOWING QUESTIONS In the case of proceedings relating to a polygamous marriage If a solicitor is instructed, he will sign opposite on your behalf.
____________________________________________________________________________ 1. Have you received the ____ petition | for divorce delivered with this form? | YES — ----------------------------------------|--------------------------------- 2. On what date and at what address | On the 9th day of June 1978 did you receive it? | at 665 PINE ACRES DRIVE, BARABOO | WISCONSIN, USA — ----------------------------------------|--------------------------------- 3. Are you the person named as the | Respondent in the petition? | YES — ----------------------------------------|--------------------------------- 4. Do you intend to defend the case? | NO — ----------------------------------------|--------------------------------- 5. Even if you do not intend to defend | the case, do you object to paying the | costs of the proceedings? | NO — ----------------------------------------|--------------------------------- 6. Even if you do not intend to defend | the case, do you object to the claim | in the petition for custody of the | NO children? | — ----------------------------------------|--------------------------------- 7. Do you wish to make any application | on your own account for: | | (a) custody of the children? | (a) NO | (b) access to the children? | (b) NO — ----------------------------------------|--------------------------------- 8. [ | ] If you | have any wife/husband in addition to | the petitioner who is not mentioned | in the petition, what is the name and | address of each such wife/husband and | the date and place of your marriage | to her/him? | NOT APPLICABLE — ----------------------------------------|--------------------------------- Dated this 9th day of June 1978 | | | I am/We are acting for the | Respondent in this matter. | Signed K G Johnson | Signed _____________________ Address for service | Address for service ________ c/o BUDD MARTIN | __________________________ HARBOR HOUSE, 2 TINDAL ST. | __________________________ CHELMSFORD CM1 1 EX ESSEX | ATT M. McKINNEN | | | Unless you intend to instruct a | solicitor, give your place of | residence, or if you do not reside | in England or Wales, the address of | a place in England or Wales to which | documents may be sent to you. If | you subsequently wish to change your | address for service, you must notify | the Court. | __________________________________________|_________________________________ At the bottom of the form on the left is a space for the recipient's signature and the direction that, in the event he does not intend to employ a solicitor, to supply the address of a place in England or Wales to which documents may be sent to him. The form also directs that if a solicitor is retained, he should sign on the opposite side of the form. The lower right-hand portion of the form is blank clearly showing that no solicitor was retained to represent Karyl Johnson in the cause. Despite this, Sheila Johnson's second amended complaint filed below alleges that Johnson designated on the form "a firm of solicitors in England to accept further service on his behalf." This spurious allegation probably contributed to the lower court's dismissal.We also note that the form directed to Karyl Johnson by the English court did not apprise him that his candid answers thereto would subject him to any alimony judgment at any time, much less one entered after the divorce some fifteen years later. The form is entitled only as an acknowledgment of service, not as an appearance or a pleading. The appellant in this cause does not contend that the 1978 "service" on Karyl Johnson was in compliance with any longarm statute, either in Florida or in England, and there was no compliance with the Florida statute. It should also be pointed out that, in granting or denying comity to a foreign judgment, there is an element of discretion afforded to the trial court. Maraj v. Maraj, 642 So.2d 1103 (Fla. 4th DCA 1994).
In response to the hyperbolic dissent, it should be noted that there is no Florida court, much less ten out of ten, that mails out questionnaire forms along with constructive service of process in order to convert in rem jurisdiction into in personam jurisdiction.
We cannot agree, however, with the action of the trial court in dismissing Count II of the amended complaint, which seeks to initiate a fresh action in Florida for alimony and equitable distribution in the event that the English money judgment is not entitled to comity. The trial court set forth two reasons for dismissal of Count II:
(7) As to Count II, there is no provision for alimony or an adjudication of property rights under Florida law independent of a divorce proceeding. Even if such an action would lie, it is barred by the applicable statute of limitations.
The trial court erred in this finding because, in the absence of any in personam jurisdiction to determine the respective financial rights and obligations of the parties, the doctrine of res judicata does not preclude a post-dissolution action seeking adjudication of these matters. Davis v. Dieujuste, 496 So.2d 806, 809 (Fla. 1986); Pawley v. Pawley, 46 So.2d 464 (Fla. 1950), cert. denied, 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632 (1950).
Nor can we agree that Sheila Johnson's claim is barred by any statute of limitations. This is so because the claim is equitable, not legal, and therefore not subject to any statute of limitations. See Popper v. Popper, 595 So.2d 100, 103 (Fla. 5th DCA 1992), rev. denied, 602 So.2d 942 (Fla. 1992). Any affirmative defenses of laches or estoppel have not been considered by the trial court at this time, and are not before us on this appeal.
Accordingly, we affirm the trial court's dismissal of Count I of the amended complaint and reverse its dismissal of Count II, and we remand for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HARRIS, J., concurs.
GRIFFIN, J., concurs in part, dissents in part, with opinion.
As ultimately decided by the majority of the panel assigned to this case, the judgment of the High Court of England, which appellant seeks to enforce, is not entitled to comity in the courts of the State of Florida because the English court did not acquire in personam jurisdiction over appellee "in a manner that comports with American standards of due process." I think that conclusion is clearly wrong.
As recounted in the majority opinion, appellant alleges that appellee was served with a copy of the English divorce petition and that the divorce petition contained a request for ancillary relief including a lump sum financial award. As to this latter point, the panel is somewhat in the dark since the original petition is not a part of the record, but appellee does not contest that the request is contained in the original petition and, pursuant to Florida Rule of Civil Procedure 1.120, the allegation of jurisdiction is sufficient.
For purposes of the issue at hand, therefore, we know that on June 9, 1978 at 665 Pine Acres Drive, Baraboo, Wisconsin, U.S.A., appellant actually received (because he acknowledges receipt on the "Acknowledgment of Service — Recipient Spouse" form partially reproduced in the majority opinion) the petition for divorce allegedly containing the application for financial relief. In the "acknowledgment of service" form, which appellee completed and returned to the English court, appellee further admits he (the person served) is the person named in the petition, informs the court he does not intend to appear to defend the petition, agrees to pay the costs of the dissolution proceeding, informs the court he does not object to the claim for child custody and does not wish to apply for custody himself. He also informs the court as requested, since he does not reside in England, of an address in England where documents may be sent to him. As for the brouhaha about the solicitors, all appellant alleged was that appellee designated "a firm of solicitors in England to accept further service on his behalf." Appellee filled out the form as follows:
Address for Service c/o Budd Martin ------------------------- Harbor House, 2 Tindal St ------------------------- Chelmsford CM1 1EX Essex ------------------------- Att M. McKinnen
Unless you intend to instruct a solicitor, give your place of residence, or if you do not reside in England or Wales, the address of a place in England or Wales to which documents may be sent to you. If you subsequently wish to change your address for service, you must notify the court.
This address certainly could be the address of a firm of solicitors named Budd Martin where M. McKinnen is employed, but whether it is a firm of solicitors, a brokerage house or a pig feed store doesn't matter. What is important is that appellee informed the court of this address in the United Kingdom as the place for him to receive any further service of documents. A law firm can certainly serve as a place for service even if it does not "act for" i.e. "appear in the proceeding to represent" a litigant, somewhat in the same manner that an attorney often acts as resident agent. Why would counsel "appear" to "act for" Mr. Johnson since he already informed the court in lines 6 and 7 that he did not intend to defend the dissolution and did not object to paying the costs of the proceeding.
The question whether the service in this case met the requirements of English law is not even disputed. As explained by appellant's expert:
By signing the acknowledgment of service, and by failing thereafter to take any other step to dispute the jurisdiction, the Respondent submitted to the jurisdiction. It is my firm opinion that at all times thereafter the English court has had personal jurisdiction over the Respondent for the purposes of the financial provision application.
The majority's conclusion that Mr. Johnson was deprived of an American standard of due process when he was served in 1978 is astonishing. Here the problem is not with extra territorial jurisdiction. Florida has long recognized the Florida courts' jurisdiction to make such awards providing personal service is made. See § 48.193(1)(e), Fla.Stat. (1993). The majority's complaint is that the service did not meet due process requirements even though there is no question that appellee was served and acknowledged service without complaint.
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.
§ 48.193(1)(e), Fla.Stat. (1993).
As is discussed in the briefs, what occurred in this case was indistinguishable from the procedure long employed by our federal courts.
After receiving the petition and returning the form acknowledgment, even though he had in hand a petition containing an application for a lump sum financial award, appellee never contested service or the court's jurisdiction over him for any purpose. It is manifest from the record that, in England, as in Florida, any defect in the 1978 service that may have existed could be and was waived. Mr. Johnson never contested the English court's authority over him and accepted the benefits of its power by promptly marrying the co-respondent named in the petition after the English court dissolved his English marriage. While I recognize that there is a distinction for jurisdictional purposes in Florida between the kind of service allowable to obtain jurisdiction over the res of the marriage and for obtaining jurisdiction to make support awards, this is not a case of constructive versus personal service, rather, it is a question of whether the actual personal service was legally adequate.
If service of a summons and complaint comes to you by mail in Florida, you may choose to proceed in the litigation or you may object and demand the summons and complaint be handed to you by a sheriff or other live process server. Though it appears the service in Wisconsin may not have been by a live process server, it does not matter if, as occurred here, the appellee elected to proceed rather than raise the issue of sufficiency of service. Certainly, due process wasn't violated because the form acknowledgment of service failed to contain an explanation of the consequences of appearing. If a document like the acknowledgement in this case had been filed in a Florida court, with no objection, after defective service of process, Florida courts would, ten times out of ten, hold the Florida court had acquired jurisdiction both to dissolve the marriage and to make financial and support awards.