Personal Jurisdiction Required for Family Lawsuits

In all cases, including divorce, a court does not have the authority to adjudicate the case solely because YOU live in the state. The court hearing your case must have subject matter jurisdiction over the issue and personal jurisdiction over the defendant. Personal jurisdiction only applies to the defendant because the defendant is the party being “dragged” into the forum to defend himself. Personal jurisdiction inquiries really only come into play when the defendant is not a resident of the state in which you filed your lawsuit. If the court finds that it can’t assert jurisdiction over the defendant, your case will be dismissed. Unlike subject matter jurisdiction, however, personal jurisdiction is waivable. This means that if the defendant appears in court to defend himself without arguing the court has no jurisdiction over him, the court will likely find that the defendant has waived the ability to raise the issue of personal jurisdiction and will have to continue to appear for the rest of the case.

When a defendant believes the court has no personal jurisdiction over him, he may file what’s called a 12(b)(2) motion to dismiss for lack of personal jurisdiction. When this motion is filed, the court will have to determine whether they do or do not have the authority to assert jurisdiction over the defendant. This inquiry involves a series of steps.

International Shoe

The baseline requirements for personal jurisdiction were laid out in International Shoe Company v. Washington. In that case, the United States Supreme Court held that constitutional due process requires a defendant to have “minimum contacts” with the forum state in order for the defendant to be subjected to litigation in that state. These minimum contacts must be enough “that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’” 326 U.S. 310, 315 (1945). When a defendant challenges personal jurisdiction, the court must determine two things: (1) whether a statutory basis for personal jurisdiction exists, and if it does, (2) whether the exercise of personal jurisdiction over the defendant would violate due process. In this case, the statutory basis is found under N.C. Gen. Stat. § 1.75.4. This statute applies to the Defendant based on the fact that the parties were married in North Carolina, the Plaintiff continues to reside in the state, and the action arises under Chapter 50, “Divorce and Alimony.” Additionally, the Defendant’s due process rights would not be violated by the court’s exercise of personal jurisdiction over him based on his “minimum contacts” with the state. The Defendant must have a relationship with the state such that he “availed himself of the privilege of conducting activities within North Carolina, thus invoking the benefits and protections of its laws.”

Sherlock v. Sherlock

In the 2001 case Sherlock v. Sherlock, the North Carolina Court of Appeals tackled the issue of personal jurisdiction, setting a low bar for the State. Roger and Lela Sherlock were married in Durham, North Carolina in December 1983 before separating in June 1999. Roger Sherlock was living in Thailand when Lela filed suit seeking post-separation support, equitable distribution, attorney’s fees, alimony, and a restraining order barring Roger from disposing of marital assets; Roger was properly served in Bangkok, Thailand in July 1999. The following month, Roger filed a motion to dismiss for lack of personal jurisdiction. The trial court denied the motion and ruled that defendant’s due process rights were not violated and grounds for jurisdiction were found in N.C. Gen. Stat. § 1-75.4. Roger appealed.

Several factors are considered by the court in evaluating the Defendant’s contacts with North Carolina: (1) the quantity of the contacts, (2) the nature and quality of the contacts, (3) the source and connection of the cause of action to the contacts, (4) the interest of the forum state, and (5) the convenience of the parties. Though the parties in Sherlock never purchased a home or established a permanent residence in the United States, the court determined that the Defendant established minimum contacts with the state of North Carolina through several actions he either participated in or initiated. These actions included the marriage in Durham, the marriage license and other legal paperwork regarding their marriage was filed there, Defendant forwarded important mail to his father-in-law’s house in Durham, Defendant’s salary was deposited into a bank account in Durham, Defendant had a North Carolina driver’s license, among other things. These actions were sufficient to show that the Defendant intentionally developed several beneficial connections with the state which continued over time.

The court in Sherlock made a point to say that in a typical divorce case, “it might be improper to assert jurisdiction over a defendant who has spent so little time in the forum state.” However, the facts of this case are not typical. The parties have an unusual history and have moved around frequently enough that the case required the court to look at it through a different lens, focusing on its own merits. In closing, the court affirmed the decision of the trial court, stating that North Carolina served as the “home” of the Defendant’s legal and financial interests, North Carolina has an interest in resolving the action, and the quantity and quality of the contacts exceed the “minimum contacts” requirement for jurisdiction.

Bradley v. Bradley

In the 2017 case Bradley v. Bradley, the facts are all but typical of a divorce case.  The parties were married in North Carolina in 2011.  The husband was employed at a New York law firm that required him to travel for work often. At the time of their marriage, he was living in Australia and returned to North Carolina twice for two separate wedding ceremonies. Following their wedding, the wife joined her husband in Australia, where they remained until July 2013. At that time, the parties returned to the United States and established residence in New Jersey while the husband was working in New York. This is the only period of time the parties lived together in the United States during their four-year marriage, a total of 11 months. In June 2014, the husband received another temporary assignment in London. The parties relocated the following month, remaining there until deciding to part ways for a while in May 2015.  The wife then moved from London to her husband’s parent’s home in Virginia. Upon their official separation in June, the wife and the couple’s four-month-old daughter moved to her parent’s home in North Carolina.  The husband remained in London. In 2016, the wife filed an action for post-separation support, child custody, and child support, among other things.

When the husband challenged the court’s personal jurisdiction, the trial court began its inquiry and found it had jurisdictional authority based on his minimum contacts with the state of North Carolina. On appeal, the North Carolina Court of Appeals came to the same conclusion stating that the Bradley case was analogous to Sherlock. It is not an ordinary divorce case; the couple never established a permanent marital residence. The court considered the following factors to be of utmost importance: (1) the parties had two separate wedding ceremonies in North Carolina, (2) the parties stored various personal and marital property in Fayetteville, North Carolina storage unit for which the husband made specific arrangements and continued payments for 23 months, (3) the husband chose to have his mail, in part, forwarded to a North Carolina residence, and (4) though not dispositive, the forum state is clearly the most convenient for the parties involved. Husband was not required to appear for the custody portion of the suit because personal jurisdiction is not required for custody cases.

While the husband in Bradley argued Sherlock acted as a “floor” for establishing requirements for minimum contacts, the court stated that this wasn’t the case. The court in Sherlock expressed that the minimum contacts found there “far exceed the ‘minimum contacts’ required for jurisdiction . . . .” Sherlock, 143 N.C. App. at 306, 545 S.E.2d 762. Therefore, the court’s decision in Bradley sets a new “floor” for personal jurisdiction.

Contributed by Sydney Reynolds, Legal Intern

Note: Rice Law has extensive experience with issues involving personal jurisdiction.  We have represented individuals living all over the world who have been sued in a North Carolina court and we have represented Plaintiff’s bringing lawsuits against others living abroad and in other states.  Call us for help with your multi-state or international family law issue.