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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vanvelzor v. Vanvelzor (11/13/2009) sp-6435
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MARK A. VANVELZOR, | ) |
| ) Supreme Court No. S- 13272 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-08-05253 CI |
| ) | |
| JESSICA A. VANVELZOR, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6435 - November 13, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Stephanie E. Joannides, Judge.
Appearances: Kenneth M. Wasche, Kenneth M.
Wasche, P.C., Anchorage, for Appellant. No
appearance by Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
CARPENETI, Justice.
I. INTRODUCTION
A husband moved to Alaska and filed for annulment of
his marriage or divorce from his wife, who lives in Ohio, and
alleged a number of personal claims against her. Acting without
a lawyer, she responded that the superior court had no
jurisdiction over her. She also filed a motion to change venue,
which in substance argued that Alaska lacked jurisdiction. The
wife also counterclaimed for spousal support. The superior court
granted the wifes motion and dismissed the case on the grounds
that Alaska lacked personal jurisdiction over her.
The husband appeals on the grounds that (1) the court
erred in treating the venue motion as a jurisdiction motion
without giving him the opportunity to brief jurisdiction; (2)
Alaska had jurisdiction because the wife requested spousal
support; (3) the wife waived her jurisdictional defense by not
raising it with her motion to change venue; and (4) even if the
court had no jurisdiction over the wife, it erred in dismissing
the action to terminate the marriage. We agree only with his
final argument, and remand for the superior court to adjudicate
the annulment or divorce claim alone.
II. FACTS AND PROCEEDINGS
A. Facts
Mark and Jessica Vanvelzor married in 2004 in New York.
They made their marital home in Mount Vernon, Ohio. The
Vanvelzors separated sometime in 2007. Mark moved to Anchorage
where he took a job, and Jessica remained in Ohio.
B. Proceedings
In early 2008 Mark filed a complaint for annulment or
divorce in Alaska. He was represented by counsel. The couple
has no real property, but he requested division of personal
property. He demanded Jessica return some of his sons personal
property that he alleged was in her possession.
Jessica answered the complaint pro se by filling out a
form provided by the court. In the section entitled Affirmative
Defenses, Jessica checked the box reading: I have never resided
or been present in the State of Alaska. This Court lacks
personal jurisdiction over me. She also checked the box in the
same section reading The venue of this action is improper. This
case should have been filed at the Courthouse in (City or Town)
and in the blank space she handwrote Mount Vernon, Ohio.
At the end of the form, Jessica had the option to check
five boxes which read: I have attached the following documents:
Property and Debt Worksheet Motion for Attorneys Fees Motion to
Change Venue Motion for Spousal Support Other _______. Jessica
checked Motion to Change Venue and Motion for Spousal Support.
On the same day, Jessica filed her motions for spousal
support and change of venue, both handwritten on forms provided
by the court. In her motion for change of venue, she requested
that the venue to hear this divorce case be moved to the State of
Ohio, because I do not believe the Plaintiff has the intent to
stay in Alaska . . . . She said that Mark still rented a house,
a storage unit, and a P.O. Box in Ohio.
Mark responded to Jessicas motion for change of venue.
He asserted that he resides in Alaska and intends to remain. He
then thoroughly discussed the substantive law of venue, but did
not mention jurisdiction. With the response he filed an
affidavit stating that he works and rents his home in Anchorage,
but that he still rents some property in Ohio as storage. He
also explained that he rents a post office box in Anchorage and
has informed important correspondents of his change in address,
but that he did not put a change of address on his Ohio post
office box because he did not want to receive Jessicas mail.
The superior court granted Jessicas motion for change
of venue on the grounds that it did not have personal
jurisdiction over her. The court noted that Alaska has
jurisdiction to dissolve a marriage if at least one spouse is in
Alaska and intends to remain. The court wrote:
Although the court does have subject matter
jurisdiction to grant a dissolution in this
case, it has no personal jurisdiction to
adjudicate the distribution of the parties
marital property. Because distribution of
marital property appears to be a substantial
issue in this case, the court would be
limited in its ability to grant the relief
requested by Plaintiff.
The court dismissed all of Marks claims. Mark promptly
moved for reconsideration on the grounds that he did not get a
chance to brief jurisdiction, and that, even if the court did not
have personal jurisdiction over Jessica, it should still give him
an annulment or divorce. The superior court denied this motion.
Mark appeals.
III. STANDARD OF REVIEW
We review the granting of a motion to change venue for
abuse of discretion.1 We review a determination of personal
jurisdiction de novo.2 Although the court purported to grant
change of venue, in substance it dismissed for lack of personal
jurisdiction over Jessica. Therefore, we review this appeal de
novo. When a superior court resolves a matter under different
substantive law than that argued by the parties, the action
raises due process concerns, which we review de novo.3
IV. DISCUSSION
A. Any Due Process Violation in Granting Jessicas Motion
for Change of Venue on Lack of Jurisdiction Grounds
Without Briefing on Jurisdiction from Mark Has Been
Cured in this Court.
Mark argues that the superior court should not have
dismissed for lack of jurisdiction without giving him an
opportunity to brief jurisdiction. He also argues that he did
not have notice that jurisdiction would be an issue. Mark
compares this case to cases in which the superior court erred by
converting motions to dismiss on the pleadings to motions for
summary judgment.4 In those cases, the superior court looked at
one partys evidence or argument without giving the other party
the opportunity to present evidence or argument.5
But Mark does not argue that he did not get sufficient
opportunity to present evidence. In fact, Mark argues that he
presented sufficient facts for the court to decide in his favor,
but that he did not get the opportunity to present the
substantive law. He does not point to any additional evidence he
would have presented to the superior court, nor do his legal
arguments rely on any facts not already part of the record before
this court.
Both the United States and Alaska Constitutions provide
that no person shall be deprived of life, liberty, or property
without due process of law.6 Due process of law requires that a
party have notice of the nature of a proceeding and a reasonable
opportunity to be heard.7 We have, on occasion, found this right
violated when a superior court disposed of a case on grounds that
the parties reasonably did not expect to be at issue.8 But in
those cases, the parties demonstrated they would have presented
their evidence differently had they known what law the court
would use in deciding those matters.9
Here, Mark does not request further evidentiary
development. His sole argument is that he should have had an
opportunity to present the substantive law of jurisdiction to the
superior court. He makes his jurisdictional arguments now before
this court, and we review the superior courts ruling de novo.
Therefore, we find any error at the superior court level cured by
the proceedings in this court. Whether or not Mark had sufficient
opportunity to be heard on the law of jurisdiction before the
superior court, he has that opportunity now.
B. It Was Error To Dismiss Marks Claims for Termination of
the Marriage.
Mark advances three arguments to support his claim that
Alaska has jurisdiction in this case. First, he argues that
Alaska has jurisdiction over Jessica because she filed a
counterclaim for spousal support. Second, Mark argues that
Jessica waived her personal jurisdiction defense by not
mentioning it in her motion for change of venue. Third, Mark
argues that, even if the superior court did not have jurisdiction
over his personal claims against Jessica, it should have retained
jurisdiction over his annulment and divorce claims. We disagree
with Mark that Jessicas actions, as a pro se litigant, waived her
jurisdictional defense, but we agree that the superior court did
not need personal jurisdiction over Jessica to terminate Marks
marriage to her.
1. Jessica did not waive her personal jurisdiction
defense by filing a counterclaim for spousal
support.
Mark argues that Alaska acquired personal jurisdiction
over Jessica when she filed her counterclaim for spousal support.
Mark argues that Alaskas jurisdictional statute allows Alaska
courts to exercise jurisdiction in every situation in which it
would be constitutional to do so, and that Jessicas act of filing
her counterclaim was sufficient minimum contacts10 with Alaska to
make personal jurisdiction over her constitutional.
But we disagree with Mark that the constitutional
inquiry is relevant. The only grounds for jurisdiction over
personal claims in divorce and annulment actions are statutory.
Alaska Statute 09.05.015 (Alaskas long arm statute) states:
A court of this state having jurisdiction
over the subject matter has jurisdiction over
a person served in an action according to the
rules of civil procedure . . . (12) in an
action for annulment [or] divorce . . . when
a personal claim is asserted against the
nonresident party if (A) the parties resided
in this state in a marital relationship for
not less than six consecutive months within
the six years preceding the commencement of
the action; (B) the party asserting the
personal claim has continued to reside in
this state; and (C) the nonresident party
receives notice as required by law.
The grounds for jurisdiction listed in AS
09.05.015(a)(12) are not met. Mark does not argue that they are
met, and the record does not suggest that he and Jessica have
ever resided together in a marital relationship in Alaska.
Mark attempts to avoid the conclusion that the
jurisdictional grounds set out in subsection .015(a)(12) are not
met by arguing that section .015 is not exclusive. In many
situations, AS 09.05.015 allows courts to exercise personal
jurisdiction whenever constitutional to do so by virtue of its
catch-all provision.11 But that catch-all provision does not to
apply to subsection (a)(12). The catch-all provision states:
The jurisdictional grounds stated in (a)(2)-(10) of this section
are cumulative and in addition to any other grounds provided by
the common law.12 The catch-all provision does not include
subsection (a)(12), leading us to conclude that section is not
cumulative and in addition to any other grounds.
We follow the doctrine of statutory construction that
when the legislature expressly enumerates included terms, all
others are impliedly excluded.13 We sometimes refer to this in
the Latin, expressio unius est exclusio alterius.14 Using this
canon of construction, we conclude that by expressly including
subsections (a)(2)-(10) in its catch-all provision, the
legislature did not intend to include subsection (a)(12). Thus,
the statutory grounds for jurisdiction over personal claims
against a nonresident party in a divorce or annulment are
exclusive, and Marks constitutional law argument is irrelevant.
Although Mark does not raise the issue of waiver, we
generally frame similar questions in terms of waiver.15 Thus, we
consider whether, by counterclaiming for spousal support, Jessica
waived her objection to the courts jurisdiction over her.
We have not before addressed whether filing a
counterclaim for spousal support in a divorce action waives the
defense of lack of personal jurisdiction, and there is no
consensus among other jurisdictions on the law governing this
question.16 But Jessica acted pro se, made her objections to
personal jurisdiction promptly, and acted according to
instructions provided by the Alaska Court System. We hold the
pleadings of pro se litigants to less stringent standards, and
this reflects a policy against finding unintended waiver of
claims in technically defective pleadings filed by pro se
litigants.17 Therefore, we hold that Jessica did not waive her
defense.
Jessica answered using a pre-printed form provided by
the court system.18 The form had a box she could check saying:
This Court lacks personal jurisdiction over me, and another one
saying: I have attached the following documents: Motion for
Spousal Support. A pro se litigant reading the form could easily
assume that it is proper to file a motion for spousal support
with the answer without realizing that by doing so she might be
giving up her earlier statement that the court lacks
jurisdiction. Jessica followed the forms instructions carefully,
and stated her arguments clearly and promptly.19 We view pro se
litigants filings leniently, and hold that Jessica did not waive
her personal jurisdiction defense by also requesting spousal
support.
2. Jessica did not waive her personal jurisdiction
defense by not mentioning jurisdiction in her
motion for change of venue.
Mark argues that Jessica waived her objection to
personal jurisdiction by failing to assert it in her motion for
change of venue, which the civil rules required her to do. Mark
also notes that Jessica did not expressly request that the
superior court dismiss the case.
Civil Rule 12(h) states:
A defense of lack of jurisdiction over the
person [or] improper venue . . . is waived
(A) if omitted from a motion in the
circumstances described in subdivision (g),
or (B) if it is neither made by motion under
this rule nor included in a responsive
pleading or an amendment thereof permitted by
Rule 15(a) to be made as a matter of course.
Civil Rule 12(g) states:
A party who makes a motion under the rule may
join with it any other motions herein
provided for and then available to the party.
If a party makes a motion under this rule,
but omits therefrom any defense or objection
then available to the party which this rule
permits to be raised by motion, the party
shall not thereafter make a motion based on
the defense or objection so omitted . . . .
We have held that when a party appears and defends an
action, the party cannot later argue lack of personal
jurisdiction.20 But we have also substantially relaxed these
rules for pro se litigants. For example, in S.B. v. State,21 we
held that a pro se party did not waive her personal jurisdiction
defense because she stated at a status conference I dont even
think Alaska has jurisdiction because . . . California does and a
few months later argued that her child should not be in the
custody of Alaska because the child has no family ties up there
and that she the mother lived in California.22
We hold that Jessica did not waive her objection to
personal jurisdiction. She objected to jurisdiction immediately
in her answer, and her motion for change of venue recited facts
relevant to jurisdiction.23 The distinction between venue and
jurisdiction is not apparent to a lay person from the normal
usage of those words, and was not explained on the pre-printed
form provided by the court system. The form did not indicate
that a pro se party would waive objections to jurisdiction if she
did not move to dismiss on those grounds when she filed her
motion to change venue. Jessica did her best to respond
according to the Alaska Court Systems form, and communicated the
substance of her argument promptly and clearly. We decline to
find her defense waived.
3. Although the superior court did not have personal
jurisdiction over Jessica, it had jurisdiction to
grant annulment or divorce.
Finally, Mark argues that even if the superior court
properly found that it did not have personal jurisdiction over
Jessica, it still had jurisdiction to terminate their marriage,
and should have exercised it. He argues that an Alaska court has
jurisdiction over a marriage if at least one of the parties is in
Alaska with the intent to remain. Mark swore in his affidavit
that he lives in Alaska and intends to remain. We agree with
Mark.
We have held that Alaska courts have jurisdiction over
the termination of a marriage if one of the parties is in Alaska
and intends to remain, even if the court does not have personal
jurisdiction over the other party.24 In that situation, the
Alaska court has jurisdiction only over the marriage; Alaska does
not have jurisdiction over spousal support, child custody or
support, property division issues, or other personal claims
between the parties.25
And we have held that divorce or annulment may remain
before an Alaska court even if personal claims must be dismissed
for lack of personal jurisdiction.26 In Crews v. Crews27 we held
that the superior court erred in dismissing an Alaska residents
divorce action against her nonresident husband when it dismissed
her personal claims against him for lack of jurisdiction.28
Although the Alaska court could not adjudicate the child support
and division of property issues, it could still grant her a
divorce.29
As in Crews, the superior court in this case should not
have dismissed the annulment and divorce claims when it dismissed
Marks personal claims against Jessica.30 If Mark wanted an Alaska
annulment or divorce, even if he would have to adjudicate his
other claims in Ohio, there is no reason that the Alaska court
should refuse to hear it. Therefore, we hold that it was error
to dismiss Marks claim for annulment or divorce.
V. CONCLUSION
We AFFIRM the dismissal of Marks personal claims
against Jessica, and REVERSE the dismissal of his
annulment/divorce claim. We REMAND for the court to consider the
annulment/divorce claim.
_______________________________
1 Sever v. Alaska Pulp Corp., 931 P.2d 354, 360 n.7
(Alaska 1996).
2 S.B. v. State, Dept of Health & Soc. Servs. Div. of
Family & Youth Servs., 61 P.3d 6, 10 (Alaska 2002).
3 See Price v. Eastham, 75 P.3d 1051, 1055-57 (Alaska
2003).
4 See Alaska R. Civ. P. 12(b)(6); Alaska R. Civ. P. 56.
5 See Demmert v. Kootznoowoo Inc., 960 P.2d 606, 611
(Alaska 1998); Shooshanian v. Wagner, 672 P.2d 455, 460-61
(Alaska 1983).
6 U.S. Const. amend. XIV, 1; Alaska Const. art. I, 7.
7 Price, 75 P.3d at 1056.
8 Id. (holding due process violation where court found
easement based on statute that parties reasonably believed was
not at issue); Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska
1983) (holding due process denial where mother would have
prepared case and evidence differently had she known that court
would determine permanent custody of child at interim custody
hearing).
9 Price, 75 P.3d at 1056 (parties not given opportunity
to present evidence on relevant statutory factors); Cushing, 666
P.2d at 1046.
10 See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474
(1985); Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
11 Parker v. State, Dept of Revenue, Child Support
Enforcement Div., ex. rel. R.A.W., 960 P.2d 586, 587-88 (Alaska
1998); Alaska Telecom, Inc. v. Schafer, 888 P.2d 1296, 1299
(Alaska 1995).
12 AS 09.05.015(c).
13 Ranney v. Whitewater Engg, 122 P.3d 214, 218-19 (Alaska
2005).
14 Id.
15 Heppinstall v. Darnall Kemna & Co., 851 P.2d 78, 79 n.2
(Alaska 1993) (Because [the defendant] answered and
counterclaimed without objecting to the courts jurisdiction, it
waived any challenge to personal jurisdiction.); see also Strong
v. Castellanos, Mem. Op. & J., No. S-9174, 2000 WL 34545814, at
*1 (Alaska July 26, 2000) ([A] nonresident who appears in an
Alaska court asking for relief waives any claim that the court
lacks personal jurisdiction.).
16 Most courts hold that a defendant does not waive an
objection to personal jurisdiction if the counterclaim is
compulsory. See, e.g., Gates Learjet Corp. v. Jensen, 743 F.2d
1325, 1330 n.1 (9th Cir. 1984). This is sensible, considering
that the civil rules require filing both the counterclaim and the
objection to personal jurisdiction at the outset of the
litigation. See Alaska R. Civ. P. 12(h)(1); Alaska R. Civ. P.
13(a). Some courts also hold that a defendant does not waive the
objection even when the counterclaim is permissive, but other
courts disagree. See Gates Learjet Corp., 743 F.2d at 1330
(recognizing federal court disagreement over whether permissive
counterclaim waives personal jurisdiction defense, and holding
that it does not). A compulsory counterclaim is one that arises
out of the transaction or occurrence that is the subject matter
of the opposing partys claim and does not require for its
adjudication the presence of third parties of whom the court
cannot acquire jurisdiction. Alaska R. Civ. P. 13(a). A
permissive counterclaim is any other claim the defendant has
against the plaintiff. Alaska R. Civ. P. 13(b). We have never
addressed whether a counterclaim for spousal support is
permissive or compulsory; the question is not settled. Compare
Walker v. Walker, 695 So. 2d 58 (Ala. App. 1997) (counterclaim
for alimony in divorce action compulsory) with Newsome v.
Newsome, 259 S.E.2d 577, 583 (N.C. App. 1979) (counterclaim for
alimony in divorce action permissive).
17 See DeNardo v. Calista Corp., 111 P.3d 326, 330 (Alaska
2005).
18 See Answer and Counterclaim to Divorce Without Children
(Jan. 2008), http://www.state.ak.us/courts/shc/shc-107n.pdf (last
visited June 25, 2009).
19 In an unpublished case, we held that a pro se litigant
did not waive his right to request an evidentiary hearing where
the litigant used a pre-printed form provided by the court that
did not provide for such a request. Davidson v. Lafferty, Mem.
Op. & J, No. S-10013, 2002 WL 1943661, at *2 (Alaska Aug. 21,
2002); see also D.L.C. v. C.A.H., 764 So. 2d 562 (Ala. App. 1999)
(pro se litigant did not waive objection to personal jurisdiction
when he followed judges instruction to enter general denial if he
did not agree with complaint).
20 Matthews v. Matthews, 739 P.2d 1298, 1299 n.1 (Alaska
1987) (Jack opposed the motion [for reimbursement of past child
support] on the ground that the superior court lacked personal
jurisdiction over him when it entered the divorce decree. The
court entered the decree by default while Jack was living in
Singapore. However, whether or not the court had jurisdiction at
the time of the divorce, it obtained jurisdiction in 1986 when
Jack appeared to defend the present action.)
21 S.B. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 61 P.3d 6 (Alaska 2002).
22 Id. at 14. See also Internet Archive v. Shell, No. C
06-00397 JSW, 2006 WL 1348559, at *1 (N.D. Cal. May 17, 2006)
(holding pro se litigant did not waive objection to personal
jurisdiction when she only objected to venue: It is clear that
[this pro se litigant] does not recognize the legal distinction
between an objection to personal jurisdiction and an objection to
venue . . . . [B]ut she has consistently maintained her objection
to this Court exercising personal jurisdiction over her.).
23 Jessicas motion addressed whether Mark is a resident of
Alaska, which goes to the question of jurisdiction. See Crews v.
Crews, 769 P.2d 433, 435-36 (Alaska 1989) (holding that Alaska
courts have jurisdiction to grant divorce or annulment if at
least one party lives in Alaska and intends to remain). Jessica
did not discuss facts relevant to venue. See AS 22.10.040.
24 Crews, 769 P.2d at 435-36 (holding that Alaska court
had jurisdiction to issue divorce to wife who left husband (who
had never been to Alaska), moved to Alaska, and intended to
remain, although Alaska court did not have jurisdiction over her
personal claims against husband for property division and child
support). This is true of annulment as well as divorce. See AS
25.24.080 (residence requirement for plaintiff in action to
declare marriage void). See also Restatement (Second) of
Conflict of Laws 76 (A state has power to exercise judicial
jurisdiction to nullify a marriage from its beginning (a) under
the circumstances which would give the state jurisdiction to
dissolve the marriage by divorce . . . .).
25 Crews, 769 P.2d at 435-36.
26 See id. (affirming superior court dismissal of
personal claims, but reversing superior court dismissal of
divorce claim).
27 Id.
28 Id.
29 Id.
30 In fact, the court recognized that it had jurisdiction
over termination of the marriage, but dismissed on the grounds
that it could not grant the full relief, including property
division, requested by the plaintiff. But, as noted, Alaska law
does not require that full relief can be granted before
jurisdiction to grant a divorce will be found.
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