Jurisprudencia del Tribunal Supremo de P.R. 2002

Certiorari Radicado ante el Tribunal Supremo de EUA (USA)

No. 02-

==================================

IN THE SUPREME COURT OF THE UNITED STATES

____________

LEONE M. SHULER, PETITIONER

JAMES D. SHULER, RESPONDENT

____________

On Petition for a Writ of Certiorari

to the Supreme Court of Puerto Rico

___________

PETITION FOR A WRIT OF CERTIORARI

____________

Enrique Silva-Avilés

Counsel of Record

P.O. Box 363507

San Juan, P.R. 00936-3507

(787) 759-3153

Larissa Torres del Campillo

Capital Center Building

South Tower, Office 204

239 Arterial Hostos Avenue

San Juan, P.R. 00918

Luis A. Oliver

P.O. Box 363507

San Juan, P.R. 00936-3507

(787) 759-3163

QUESTION PRESENTED

Whether the exercise of in personam jurisdiction by the Puerto Rico courts violates the Due Process Clause of the United States Constitution’s Fourteenth Amendment since the petitioner—a defendant in a divorce petition—admittedly has no minimum contacts whatsoever with Puerto Rico and even continues to live in the State of Virginia, where the couple married, lived and had their daughter.

LIST OF PARTIES

The names of all the parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

Opinions Below............................................................................................................................. 2

Jurisdiction..................................................................................................................................... 2

Constitutional and Statutory Provisions Involved....................................................................... 2

Statement of the Case.................................................................................................................... 2

Reasons for Granting the Petition................................................................................................ 5

Conclusion................................................................................................................................... 17

INDEX TO THE APPENDIX

Judgment of the Supreme Court of Puerto Rico in the English Language.............. Appendix A

Judgment of the Supreme Court of Puerto Rico in the Spanish Language............. Appendix B

Supreme Court of Puerto Rico’s Spanish written Order denying rehearing

on September 24^th, 2002............................................................................................. Appendix C

Judgment of the Puerto Rico Court of Appeals in the Spanish Language............... Appendix D

Judgment of the Puerto Rico Trial Court................................................................... Appendix E

TABLE OF AUTHORITIES

Page

I. FEDERAL JURISPRUDENCE

Burnham v. California Superior Court, 495 U.S.604 (1990)...................................... 11

Hanson v. Denckla, 357 U.S. 235 (1958).................................................................... 14

International Shoe Co. v. Washington, 326 U.S. 310 (1945)................................. 6, 14

Kulko v. California Superior Court, 436 U.S. 84 (1978)........................................... 16

Williams v. North Carolina, 317 U.S. 287 (1942) .................................................... 13

Pennoyer v. Neff, 95 U.S. 714 (1878), and................................................................. 13

Shaffer v. Heitner, 433 U.S. 186 (1977)...................................................................... 14

II. STATE COURTS CASELAW

Bartsch v. Bartsch, 636 N.W.2d 3 (S.Ct. Iowa 2001)..................................................... 7

Fliter v. Fliter, 383 So.2d 1084 (S.Ct. Mississippi 1980)............................................. 7

Garrett v. Garrett, 668 So.2d 991 (S.Ct. Florida 1996)................................................. 7

Hines v. Clendenning, 465 P.2d 460 (S.Ct. Oklahoma 1979)....................................... 7

Shuler v. Shuler, 2002 T.S.P.R. 109................................................................................. 2

Marriage of Kimura , 471 N.W.2d 869 (S.Ct. Iowa 1991). ........................................ 15

III. FEDERAL LEGISLATION

28 U.S.C.A. § 1258............................................................................................................ 3

IV. CONSTITUTIONAL PROVISIONS

Due Process Clause of the Fourteenth Amendment of the United States Constitution …… 5

V. COMMENTATORS AND TREATISES

Brett R. Turner, Pursuing the Divisible Divorce: Recent

Case Law on State Court Jurisdiction in Divorce Cases, Divorce Litigation, July 2000, 12

No. 7 Divorce Litig. 125 .......................................................................................................... 12

David E. Seidelson, Jurisdictional Reach and Choice

of Law Determinations in Divorce Actions and Preceedings

Incidents Thereto: The Illusion of Tradition and the Significance

of Finality and Efficacy, 6 Widener J. Pub. L. 423, 423-431 (1997)................. 10-12

Rhonda Wasserman, Parents, Partners and Personal

Jurisdiction, 1995 U. Ill. L. Rev. 813, 824-854............................................... 9, 10, 12, 15, 16

Sheila Jordan Cunningham, Jurisdiction in the Ex-parte

Divorce: Do Absent Spouses Have a Protected Due Process

Interest in their Marital Status, 13 Mem. St. U.L. Rev. 205, 245-247 (1983)........... 9, 12,15

VI. RULES AND REGULATIONS

The present case involves a divorce proceeding commenced in the local courts of Puerto Rico by the respondent, who had moved to Puerto Rico a little over a year before filing such proceedings. Legal actions in the Puerto Rico local courts are conducted in Spanish.

The petitioner, Mrs. Shuler, is the defendant in the aforementioned divorce proceedings. She does not reside in Puerto Rico, nor has she had any contacts with that forum. Moreover, petitioner married respondent in Virginia, lived with him in Virginia for over two years, both parties entered a separation agreement in Virginia, they had their only daughter in Virginia, and petitioner, Mrs. Shuler, still lives in Virginia with her daughter.

Plaintiff left Virginia sometime in 1991 and has been living in Puerto Rico since February 2000. On June 6, 2001, he filed in the Puerto Rico local courts the divorce complaint which form the basis of this writ of certiorari. He sought a divorce decree and adjustments to the amount of child support he currently pays to his daughter.

Mrs. Shuler’s responsive pleading to respondent’s divorce complaint was a Motion to Dismiss pursuant to the Rule 10.2(2) of the Puerto Rico Rules of Civil Procedure—equivalent to Federal Rule 12(b)(2)—arguing that she had no contacts with Puerto Rico and that based on the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the Puerto Rico courts had no in personam jurisdiction over her. Motion to Dismiss, paragraphs 18, 26 and 31, among others. Mrs. Shuler’s absence of contacts with Puerto Rico was, and still is, undisputed.

The trial court denied Mrs. Shuler’s Motion to Dismiss. She then filed an appeal before the Puerto Rico court of appeals again arguing that exercising jurisdiction over her would violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Pages 9-13 of the writ of certiorari before the Puerto Rico court of appeals. Such intermediate appellate court affirmed the trial court’s ruling denying the motion to dismiss.

The petitioner timely presented, on the same federal constitutional grounds, a writ of certiorari before the Puerto Rico Supreme Court, which granted certiorari. On August 2002, the Puerto Rico Supreme Court issued the Opinion subject of this writ of certiorari, wherein it held that the constitutional doctrine of minimum contacts does not apply at all to divorce proceedings to the extent such proceedings affect the civil status of the spouses. The court simply adjudged that a plaintiff that is domiciled in Puerto Rico, assuming he or she complies with the applicable residency requirement, can seek and obtain a divorce decree regardless of whether the court has no in personam jurisdiction over the defendant. See pages 7 -14 of App. A (the English version of the Puerto Rico Supreme Court’s Opinion). In other words, it held that, as a matter of federal constitutional law, insofar as the issue involved is the “status” of a person domiciled in the forum, any state court can entertain any lawsuit without violating the federal Due Process Clause, even if the defendant spouse has no contacts with the forum.

As we will turn to explain in the section below, the issue presented in this certiorari requires this Court’s intervention for several reasons, including that the Judgment of Puerto Rico Supreme Court and other similar ones, have no basis in and directly conflicts, with this Court’s relevant constitutional caselaw since International Shoe Co. v. Washington, 326 U.S. 310 (1945).¹

REASONS FOR GRANTING THE PETITION

-I-

The case at bar presents a constitutional issue of the utmost theoretical and practical importance: the right not to be deprived of a property or liberty interest without due process of law. The issue herein arose when a trial state court (affirmed by all state appellate courts) exercised jurisdiction over a defendant in a divorce petition, even though the defendant had no contacts whatsoever with the forum. Such a judicial course of action, at the very least, clearly contradicts this Court’s case law issued during the last fifty (50) years, as fully explained in part II of this section of the petition.

Our review of relevant state of the law revealed that not only are most of the state courts (now including Puerto Rico) issuing similar rulings incompatible with this Court’s clear Due Process Clause jurisprudence, but some state courts hold otherwise, creating a conflict among themselves. Hence, this situation requires the exercise of this Court’s supervisory powers.²

The importance of this constitutional issue cannot be taken lightly. Its resolution affects many people in every jurisdiction of the United States. This Court can take judicial notice that, unfortunately, divorce rates are alarmingly on the rise, and that the spouses frequently move from one jurisdiction to the other after their separation. It is in this context that a spouse leaves the forum where the marriage developed and then conveniently files a divorce action in his/her new (and sometimes a far and inconvenient) domicile where the other spouse has no contacts whatsoever. The state courts, misconstruing or ignoring this Court’s due process case law (discussed further below), simply exercise jurisdiction over the divorce petition regardless of whether the other spouse has never had contacts with the forum. This result is unfair, inconsistent with federal constitutional law, lends itself to abuse by the plaintiff spouse and allows strategic forum shopping across the country, not to mention that it may allow conflicting decisions within the same divorce proceedings or the need to bifurcate the divorce proceedings (e.g. status vis a vis other divorce matters conducted in proceedings in different forums). Let’s briefly discuss each of those consequences.

The abuse and/or unfairness we mention are patently present in the case at bar. The plaintiff left Virginia (where he married, lived with his wife, where he had his daughter and where said daughter still lives with the petitioner) and moved to Puerto Rico. After purportedly meeting the Puerto Rico residency requirement, he filed for divorce there, in a jurisdiction where his spouse has no contacts; moreover, in a forum not even within the continental United Sates and where the proceedings are conducted in Spanish. The constitutional “minimum contacts” doctrine—precisely the doctrine the courts are not applying to cases like this one—was ironically created to avoid this type of unfair situation for a defendant.

Nevertheless, most of the state courts simply do not apply this constitutional doctrine to divorce petitions, just like the Puerto Rico courts did. If the minimum contacts doctrine is ignored, defendants will have to defend basically in any forum around the country selected by the other spouse, and will also be subjected to the family law of that jurisdiction; a law that by definition is totally unrelated to his or her person. See Sheila Jordan Cunningham, Jurisdiction in the Ex-parte Divorce: Do Absent Spouses Have a Protected Due Process Interest in their Marital Status, 13 Mem. St. U.L. Rev. 205, 245-247 (1983).

The irony is that allowing ex-parte divorces in forums where the defendant has no contacts had a reasonable and understandable justification in the past. See Rhonda Wasserman, Parents, Partners and Personal Jurisdiction, 1995 U. Ill. L. Rev. 813, 824-854, thoroughly explaining that the rational that purportedly supports the divorce exception may have been justified in early America, when and where it was first advanced, but it is no longer supported by reason or doctrine. In this respect, the author explains, inter alia, that at that time wives were totally dependent upon their husbands for support (her legal rights were substantially and unfairly limited at that time) and, therefore, abandoned women would have been left destitute without ex-parte divorces. Wasserman, supra, page 832. This rationale is not currently justified since a divorce per se is no longer necessary to avoid poverty. Id. at page 833.

The same author also argues that the ex-parte divorce exception to the minimum contacts doctrine only makes sense when one of the spouses is not otherwise subject to suit in this country. Wasserman, supra, page 835. Furthermore, she suggests that a case specific jurisdiction “by necessity” should be created because it is preferable to the blanket ex-parte divorce exception currently recognized by most of the state courts. Lastly, the author indicates that even in early America (and we add, before the development of the minimum contacts doctrine) the divorce exception was not available to cases like the present one, where the husband abandons his wife and sues from another jurisdiction where the wife does not live and with which she has no contact. Id. at 836.

As mentioned above, the current state of the law in most jurisdictions allow multiple divorce proceedings at the same time and frequently forces the divorce proceedings to be bifurcated among different forums. For instance, the result of the ruling subject of this petition is that a divorce decree may be entered in Puerto Rico, but any other order related to such divorce (e.g., alimony or child support orders) has to be pursued in another forum (e.g., Virginia). See App. A, pages 13 -14 . Hence, the same divorce proceedings in the case at bar will involve at least two courts in two different jurisdictions.

Similarly, allowing a plaintiff (such as respondent) to sue for divorce in any forum where he meets the (sometimes very flexible) domicile requirement, opens the door to simultaneous proceedings; one in that forum and another in the forum where the other spouse still lives; not to mention the issues that arise concerning legal disputes about the efficacy of the rulings from one jurisdiction to the other, regardless of the existence of the Full Faith and Credit of the United States Constitution. See David E. Seidelson, Jurisdictional Reach and Choice of Law Determinations in Divorce Actions and Preceedings Incidents Thereto: The Illusion of Tradition and the Significance of Finality and Efficacy, 6 Widener J. Pub. L. 423, 423-431 (1997), recognizing that, under the current state of the law, divorce decrees and its attendant consequences would lack finality and efficacy because such judicial rulings remain uncertain as to extraterritorial effect.

This author goes a step further and openly invites this Court to fashion new rules that would afford state courts the power to adjudicate divorce and related proceedings in a way that such decrees have the necessary finality and efficacy they deserve. Seidelson, supra, page 456. Again, those consequences (the lack of finality and efficacy) are a direct result of the state courts’ unconstitutional disregard for the doctrine of minimum contracts in divorce cases, as explained in this petition.

Only this Court can attend, at a national level, to the problems and the continuous disregard of the Due Process Clause, as described in this petition. Only this Court can authoritatively indicate to state courts that a determination of one’s marital status in a forum without in personam jurisdiction offends traditional notions of fair play and substantial justice, and deprives the absent spouse of due process. That is a legitimate issue that has not been directly addressed by this Court. Cunningham, supra, page 207. The time has come to do so. Around twelve (12) years have passed since the last opinion indirectly dealing with the subject. Burnham v. California Superior Court, 495 U.S.604 (1990) (discussed further below).

Lower courts are not applying minimum contacts to status determinations (such as divorce) apparently on the flexible premise that “some” American jurisdiction “must have” personal jurisdiction over the parties to a marriage involving an American citizen, so the courts “might as well” exercise jurisdiction wherever the plaintiff chooses to file the lawsuit. The correctness of such a premise is questionable and, again, this Court has never addressed it. See Brett R. Turner, Pursuing the Divisible Divorce: Recent Case Law on State Court Jurisdiction in Divorce Cases, Divorce Litigation, July 2000, 12 No. 7 Divorce Litig. 125. This is the Court’s opportunity to do so.

Another important (and we believe incorrect) premise of the lower courts issuing holdings such as the one reviewed herein is that no “liberty” or “property” interests are at stake in divorce litigation, so no due process has to be afforded. Again, that is a questionable legal premise bringing about unfortunate consequences around the country, as explained herein. Such legal premise is questionable because if it is well established that the right to marry (affecting status), and the right to bear and raise children, are “liberty” interests which are afforded substantive and procedural due process protection, the interests at stake in divorce litigation (likewise affecting status) should be also protected by the Due Process Clause. See Wasserman, supra, pages 819-820, and Cunningham, supra, pages 243-246.

The consequences and abuse derived from permitting the state courts, at all levels, to ignore the minimum contacts doctrine are felt throughout the country every day, and amply justify this Court’s intervention. If it is true that the Due Process Clause should not apply to divorce proceedings at the present time, it is this Court the one called upon to announce it. After all, it is this Court the one that announced that the minimum contacts doctrine, as explained below, applies to all actions.

In sum, state courts are treating the Due Process Clause as non-existent in judicial divorce proceedings. That is a judicial determination of such constitutional significance that it should be permitted only if this Court has expressly allowed it under the current construction of the federal Due Process Clause. As explained in the next pages of the petition, this Court has not allowed it, and its case law strongly suggests that failing to apply the minimum contacts doctrine to divorce proceedings is unconstitutional.

Now that we have explained why this Court should exercise its supervisory powers, we will briefly explain why a holding (such as the one reviewed herein), that the constitutional doctrine of minimum contacts is immaterial when entertaining a divorce petition, clashes with this Court’s due process case law.

In Pennoyer v. Neff, 95 U.S. 714 (1878), and Williams v. North Carolina, 317 U.S. 287 (1942) this Court made expressions suggesting that state courts could exercise jurisdiction over a nonresident defendant in a divorce petition. See Pennoyer, 95 U.S. at 73 (in dictum) and Williams v. North Carolina, 317 U.S. at 298-299.

The cases cited above were issued before 1945. In other words, they were issued prior to International Shoe v. Washington, 326 U.S. 310 (1945), and its relevant progeny, such as Hanson v. Denckla, 357 U.S. 235 (1958) and Shaffer v. Heitner, 433 U.S. 186 (1977). The latter three cases cast serious doubts on the current validity of the expressions of Pennoyer and Williams with respect to the issue presented in this petition.

In International Shoe this Court held that personal jurisdiction could be asserted over a non-resident by constructive service of process without violating due process if the defendant had “minimum contacts” with the forum, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe, 326 U.S. at 316. The minimum contacts doctrine was born in that case.

In Hanson v. Denckla this Court held that for a court to exercise jurisdiction, it is essential that there be some act by which the non-resident defendant purposefully avails itself of the privilege of conducting activities within the forum state, enjoying the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. at 253. That is another key component of the doctrine originally announced in International Shoe.

Then, in 1977, in Shaffer, this Court expressly held that in all actions, the state courts must evaluate the jurisdiction according to the standards set forth in International Shoe and its progeny. Shaffer, 433 U.S. at 212. That means, that the minimum contacts doctrine applies equally to in personam or to in rem actions. This distinction is important because historically, divorce jurisdiction was based on the fiction that the appearance of the plaintiff spouse before the court represented the presence of the marriage itself before the court. Cunningham, supra, page 205. Hence, the fiction serving as the basis for divorce jurisdiction was squarely rejected by this Court.

However, we acknowledge that in footnote 30 of Shaffer, this Court indicated that its analysis therein should not be read as a suggestion that jurisdictional doctrines, other than those in the text, such as the particularized rules governing the adjudications of status, were inconsistent with the standard of fairness. Id. at 308, n. 30. It is this footnote that numerous state courts use as a basis to hold (like the Puerto Rico Supreme Court did here, although it did not cite Shaffer) that an adjudication of marital status is totally exempt from application of the minimum contacts standard. See Cunningham, supra, page 234. Notwithstanding the way some courts have construed the footnote, it is clear that this Court has never held that the minimum contacts standard is not applicable to divorce jurisdiction. Id.³

We seriously doubt that this Court in footnote 30 of Shaffer was creating a simplistic blanket ban to disregard the constitutional doctrine of minimum contacts in all divorce petitions. In fact, commentators indicate that it is unclear at best whether this Court meant to suggest in footnote 30, either that in status cases minimum contacts typically would exist, or that minimum contacts would not be required at all. Wasserman, supra, page 842. The text to which the footnote was appended, which noted that many types of in rem actions would not be affected by the holding, supports the former interpretation. Id.

Moreover, as suggested by this same author, assuming the footnote clearly stated that minimum contacts would not be required in status cases, it would have to be considered in light of the reasoning that bolstered Shaffer’s holding, which supports the application of minimum contacts tests also to divorce litigation. In other words, that divorce actions, like the seizures of stock at issue in Shaffer, affect the interest of people who are entitled to due process protections. Wasserman, supra, page 842. Not to mention that it would have been very easy for this Court to cite Williams in Shaffer’s footnote 30, and clarify that it was not overruling Williams. The Court chose not to do it.

In any event, if there is ambiguity remaining with regards to the correct interpretation of Shaffer’s footnote 30, it should be dispelled by subsequent case law of this Court. For instance, in Kulko v. California Superior Court, 436 U.S. 84 (1978), in the context of a petition for divorce, see Kulko, 436 U.S. at 88 (plaintiff sought to establish a Haitian divorce decree as a California judgment), this Court held that the respondent had no relevant contacts with California and had derived no personal or commercial benefit from his children’s presence in California, and hence, he was not subject to the jurisdiction of the California courts. This Court reached that conclusion applying the familiar minimum contacts standard, but also looking at the forum’s interest in asserting jurisdiction. In the end, although this Court agreed that California had substantial interest in protecting resident children and in facilitating child support actions on behalf of those children, this Court indicated that even these unquestionably important interests did not justify the assertion of jurisdiction over a non-resident defendant with no minimum contacts with the forum.⁴

Kulko is clearly incompatible with the way the lower courts are construing footnote 30 of Shaffer. If when Kulko was issued it was so clear that no minimum contacts were required for divorce decree claims, this Court would not have discussed the minimum contacts doctrine for purposes of such particular claim, nor would it have dismissed the entire case, including the divorce decree claim, for lack of in personam jurisdiction.

As if Kulko’s analysis and result was not enough to substantiate the state courts misconstruction of Shaffer’s footnote 30, this Court issued Burnham v. California Superior Court, supra, in 1990. That case also included a divorce petition. Burnham, 495 U.S. at 608. This Court held, in a plurality opinion announced by Justice Scalia, that jurisdiction over a non-resident defendant, who was personally served with process while temporarily in the state, was proper. The Court explained that jurisdiction based on a physical presence constitutes due process because the standard of fairness and substantial justice was developed by “analogy” to the physical presence. Burnham, 495 U.S. at 619.

The Burnham plurality’s legal analysis, even if combined with the other three opinions rendered in the case, supports our contention that this Court’s precedents (including this one) negate the existence of a divorce exception to the constitutional doctrine of minimum contacts. If there was such an exception as a matter of federal constitutional law, the application thereof to the Burnham’s facts would have been reason enough to justify the California courts’ exercise of jurisdiction over the defendant in that case, instead of exhaustively discussing (in several opinions) whether personal service in the forum constituted due process even though the defendant had no contacts with the forum. Moreover, the plurality’s discussion of Shaffer, see Burnham, 495 U.S. at 620-22, reaffirms and explains Shaffer’s holding without even mentioning its footnote 30 (the footnote purportedly supporting the divorce exception), even though Burnham precisely involved a divorce petition.

Therefore, Burnham undisputably confirms that as a matter of federal constitutional law, even in divorce cases, the state courts have to engage in the analysis of whether the defendant has minimum contacts with the forum, contrary to what numerous state courts, at all levels, are doing. It is time this Court intervenes, explains to the state courts what the Due Process Clause stands for and that such constitutional clause is still a part of the United States Constitution even in divorce cases.

CONCLUSION

The Petition for a writ of certiorari should be granted.

RESPECTFULLY SUBMITTED in San Juan, Puerto Rico, on this 23^rd day of December, 2002.

Enrique Silva-Avilés

Counsel of Record

P.O. Box 363507 San Juan, P.R. 00936-3507 Tel. (787) 759-3153

Fax: (787) 759-3109

390623

CERTIFICATE OF SERVICE

The undersigned counsel, certifies that this Petition for Writ of Certiorari has been served on the Respondent, Mr. James D. Shuler, on December 23^rd, 2002, in compliance with Rules 29.2 and 29.4(a) of the Rules of the Supreme Court of the United States. Thus, a copy of this Petition was served, through the United States Postal Service by First Class Mail, postage prepaid, on Respondent’s attorney, Ms. Sigrid López González at P.O. Box 195233, San Juan, P.R. 00919-5323.

Enrique Silva-Avilés Counsel of Record P.O. Box 363507 San Juan, P.R. 00936-3507 Tel. (787) 759-3153 Fax: (787) 759-3109

Presione Aquí para regresar al Menú anterior y seleccionar otro caso.

LexJuris de Puerto Rico siempre está bajo construcción.

La información, las imágenes, gráficas u otro contenido en todos los documentos preparados por LexJuris son propiedad de LexJuris. Otros documentos disponibles en nuestras conexiones son propiedad de sus respectivos dueños. Derechos Reservados. Copyright (c) 1995-2002 LexJuris de Puerto Rico y Publicaciones CD, Inc.