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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

Case of the Day: Nasr v. El-Harke

The case of the day, Nasr v. El-Harke (Minn. Ct. App. 2011), involves recognition and enforcement of a Lebanese child custody order. Ordinarily I do not cover the child custody cases my Westlaw query captures, which generally arise under the Hague Convention on the Civil Aspects of International Child Abduction. For one thing, there are a lot of them—on many that they might overwhelm the blog if I tried to keep up. For another thing, the Convention is more or less sui generis, and cases arising under it may not be of much interest to folks who don’t handle family law cases. But Nasr is interesting to me for two reasons. First, Lebanon is not a party to the Convention, and the case arises instead under the Uniform Child Custody and Jurisdiction Act. Second, most of the cases that get caught by my Letters Blogatory Westlaw query  are applying the Convention in the first instance. In Nasr, the issue is whether the US court should recognize and enforce the foreign court’s custody decision. So without any promise that I’ll be covering this area going forward: the Nasr case!

Marcelle El-Harke, the mother, married Khaled Nasr, the father, in Lebanon under the auspices of the Greek Orthodox Church. They had a child. The father was a Lebanese citizen. The mother and the child were citizens of both Lebanon and the US. Until 2009, the family resided in Lebanon and Kuwait.

In 2009, the mother took the child to the US without the father’s permission and sought a restraining order against the father, alleging that he was guilty of domestic abuse. The court issued the order, but the father sought to dismiss it on the grounds that the Minnesota court lacked personal jurisdiction over him. The court agreed and dismissed the order. The father then sought and obtained an order from the Greek Orthodox Holy Church in Lebanon compelling the mother to return the child to Lebanon and providing for shared custody of the child. After obtaining the order, the father sought recognition and enforcement in the Hennepin County (Minnesota) District Court. The District Court refused to recognize or enforce the order because the mother had not had notice of the Lebanese proceeding.

The father then sought a divorce in Lebanon, and this time the mother had notice and participated in the proceedings. The Lebanese court granted the divorce and reaffirmed its earlier order regarding return of the child to Lebanon and shared custody. The father again sought recognition and enforcement in the Minnesota court. This time, the Minnesota court ruled in favor of the father. The mother then appealed.

By way of background Section 105 of the Act provides that the court must recognize and enforce “a child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards” unless “the child custody law of a foreign country violates fundamental principles of human rights.” Under Section 201 of the Act, a court has jurisdiction of a child custody matter if several factors are present. The only factor at issue in Nasr is that the state where the court is located is the home State of the child on the date of the commencement of the proceeding, or was the home State of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State.” There was no question that Lebanon was the child’s home state within six months before the commencement of the proceeding in Lebanon. The mother, however, challenged the lower court’s finding that the father had continued to live in Lebanon. The mother had submitted an affidavit in the Lebanese proceeding stating that the father lived 70% of the time in Kuwait and 30% of the time in Lebanon. On the other hand, the Lebanese court had found that the father “reside[d]” in Kuwait. Given the mixed evidence, the court found that the lower court had not erred in finding that the father had continued to live in Lebanon, noting that “living” did not have the connotation of “residing” or “domiciled”, which require an intent to stay.

The mother also argued that the lower court had improperly excluded as hearsay evidence showing that “Lebanese law violates fundamental principles of human rights.” But the court pointed out that this evidence did not pertain to the Lebanese child custody laws, which must be the focus of the inquiry. The mother argued that the burden of explaining the Lebanese child custody laws should have been on the father for practical reasons, but she offered no authority for her assertion, and the court rejected it.

Last, the mother argued that the Lebanese order should not be recognized and enforced because Lebanon was not a party to the Hague Convention, but again, the court noted that the mother had offered no authority for that proposition.