Case of the Day: In re Marriage of Shults

GeirangerfjordThe case of the day, In re Marriage of Shults (Minn. Ct. App. 2012), is the rare family law case (aside from international child abduction cases) that raises judicial assistance issues. Mr. and Mrs. Shults were married in 1984. In 2006, the family moved from Minnesota to Norway. In 2009, the wife and the couple’s minor child (two other children were grown) returned to Minnesota, and the couple decided to divorce. They were legally separated in Norway—a prerequisite to divorce there—and then the husband applied for a divorce license. No hearing was held, and there was a dispute about the wife was ever served with the application for the divorce license. In Norway, the sole purpose of the divorce license proceeding was dissolution of the marriage, not adjudication of child custody, division of property, or alimony.

In 2010, the wife sued for divorce in Minnesota. She submitted an affidavit of service stating that the summons and petition had been placed in her husband’s mailbox in Norway, according to Norwegian law. Shortly thereafter, the Norwegian court granted the husband’s request for a divorce license, and the husband notified the Minnesota court of that fact. The wife then submitted a second affidavit of service stating that the process server personally handed the documents to the husband in Norway.

The Ramsey County District Court held that under Minnesota law, the wife was required to serve the documents personally on the husband, so the first attempt at service in his mailbox was ineffective. Under Minnesota law, then, the wife’s divorce case was not commenced until the date of the second service, after the date of the Norwegian divorce decree. Therefore, the court held that the parties were already divorced, and it dismissed the wife’s petition:

Minnesota law, not the Hague Convention, controls commencement of a dissolution proceeding. Personal service—that is, service in hand delivered to the person of the Respondent (not substituted service, not abode service, not service by mail or service by publication)—is necessary wherever in the world that person may be found, unless that person is in a war zone, failed state, or in some other manner beyond personal service. In such case, upon proper application the Court approves service by alternate means.

The Court of Appeals reversed and remanded. It recognized that the statute required personal service, but it noted that the statute did not define personal service, and that under Rule 4.04(c) of the Minnesota Rules of Civil Procedure, personal service may be made “by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” The Convention applies in this case, and so the court held that the lower court should have determined whether the mailbox service comported with the requirements of the Convention. If it did, then the Minnesota case would have been commenced before the Norwegian case went to judgment, and that simple difference in timing would have had jurisdictional implications.

With the caveat that I can’t comment on the correctness of the court’s holding that “personal service” can include service by leaving the document at the defendant’s place of abode, this decision seems entirely correct.

Photo credit: Frédéric de Goldschmidt

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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