Must wife’s divorce complaint based on husband’s desertion allege a marital domicile in Virginia to satisfy long-arm jurisdiction?
Not necessarily, if the allegations support the requisite inferences for personal jurisdiction, the Court of Appeals of Virginia ruled in the case of Cabaniss v. Cabaniss, 46 Va.App. 595, 620 S.E.2d 559 (Va.App., 2005).
The wife filed a divorce in Virginia against the nonresident husband alleging willful desertion and abandonment and requesting divorce, spousal support and equitable distribution. The husband was served in Canada after residing in the West Indies. Husband’s argued that the complaint did not sufficiently state that the parties had been maintaining a matrimonial domicile at the time they separated, as required by the long-arm statute, Virginia Code Section 8.01-328.1(A)(9), and therefore the court did not have personal jurisdiction over him. He entered a special appearance objecting to the exercise of long-arm jurisdiction over him. The Virginia divorce court judge overruled husband’s objection and husband did not participate further in the case, other than to note his objection to the order. The wife obtained a divorce, equitable distribution of marital property, spousal support and her legal fees and costs. Husband appealed.
In Cabaniss, the Virginia Court of Appeals held that personal jurisdiction could be exercised over the non-resident husband based on the allegations in wife’s complaint for divorce. The court noted that a divorce could be entered based on in rem jurisdiction alone, but an order affecting a party’s property interest, such as support or equitable distribution, required in personam jurisdiction. In this case, the divorce judge did not err in finding personal jurisdiction over husband pursuant to the long-arm statute based on allegations in wife’s complaint that i) husband deserted her on specific date; ii) husband’s desertion had continued since that date without interruption and husband has not returned to the matrimonial domicile iii) wife was domiciled in and a bonafide resident of Virginia; iv) husband lived abroad; v) the parties last cohabitated in Lexington, Virginia; and v) husband, while abroad, called wife and informed her that marriage was over and he wanted a divorce.
It is true that the long-arm statute requires the complaint to allege that Virginia was the matrimonial domicile at the time of separation “or other relevant time under the statute.” Although the wife’s complaint did not use precise wording, the Virginia Court of Appeals held that the husband could not mistake the true nature of the claim, which could be drawn from the requisite inferences of the allegations. The appellate court reasoned that when the allegations of the complaint are read together they add up to sufficient allegations that the parties were maintaining a Virginia domicile at both time of separation and time cause of action for desertion arose. Because of his conduct and connections with the Commonwealth of Virginia, the husband could reasonably anticipate being subject to the jurisdiction of the court.
As an aside, the Court of Appeals noted that a demurrer is the more appropriate defensive pleading for a jurisdictional challenge that is limited to the face of the complaint. A demurrer reaches defects as appear on the face of the pleading demurred to, i.e. failure to state a cause of action. Since the Husband had failed to file a demurrer to the complaint for divorce, the court was charitable to even to consider his case.
You should consult with your Virginia divorce lawyer concerning whether the court can exercise long-arm jurisdiction over your non-resident spouse.