*fn1,The opinion of the court was delivered by: Thompson, Associate Judge,Alan B. Soschin for appellant.,ROBERT N. DAVIS, APPELLANT, v. LINDA MARGARETTE WILLIAMS DAVIS, APPELLEE." />

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Davis v. Davis


May 29, 2008; as amended September 18, 2008 *fn1


Appeal from the Superior Court of the District of Columbia (FM-07-418) (Hon. Jerry S. Byrd, Trial Judge).

The opinion of the court was delivered by: Thompson, Associate Judge

Argued April 22, 2008

Before WASHINGTON, Chief Judge, and REID and THOMPSON, Associate Judges.

Appellant Robert N. Davis filed in the Superior Court Family Division a complaint in which he sought a divorce from appellee Linda Margarette Williams Davis without an adjudication of property rights. He now challenges the March 19, 2007 ruling of the Superior Court granting appellee's motion to dismiss the complaint on the ground that the District is an inconvenient forum. We vacate the order of dismissal and remand for further consideration by the trial court.


The parties were married on August 28, 1982, and have one child, born July 18, 1991. They resided for many years in Oxford, Mississippi, where appellee and the minor child still live in the family home.

In 2003, the parties filed cross-petitions for divorce in Mississippi. On July 19, 2004, the Chancery Court of Lafayette County, Mississippi, denied the petitions for failure of proof of the alleged grounds, but the court issued an order governing custody, visitation, and child support. Thereafter, appellant sought a divorce in Florida, where he (or, he and appellee) owned property. That divorce complaint was dismissed pursuant to a joint stipulation of the parties on September 19, 2005.

Appellant filed his "Complaint for Absolute Divorce (One-year Separation)" in the Superior Court on December 23, 2005, stating in the complaint that he had resided in the District for more than six months prior to filing,*fn2 that he and appellee had lived separately for a period of over one year,*fn3 and that "[t]here are no real or personal property or support issues that need to be adjudicated by this Court." The court issued an order permitting defendant/appellee Mrs. Davis to be served by publication.

On October 3, 2006, Mrs. Davis filed her motion to dismiss the divorce complaint, citing several grounds. In addition to asserting that she had not been served personally, she argued, in summary, that she has no ties to the District and the court therefore lacked personal jurisdiction over her, that Mr. Davis was not a bona fide resident of the District for the requisite period before filing his complaint, and that the District is an inconvenient forum in which to maintain the divorce action. Mrs. Davis also stated in her motion that she "was compelled to respond to this court because of notice from the court. Nevertheless, this is not a waiver, submission and/or appearance to be utilized to acquire jurisdiction over me, or our child or any property located in Mississippi, Florida and Virginia."

The court granted Mrs. Davis's motion to dismiss the complaint, stating that "a divorce in D.C. without the adjudication of property rights . . . is not an option available under D.C. Code § 16-910," and finding that the District is a forum non conveniens for resolution of the parties' property rights.*fn4 The court cited the fact that "the parties' marriage, property, and time together were all in other locations" and also gave weight to appellee's claim that witnesses with relevant testimony regarding property issues all reside in Florida or Mississippi. The court did not address the issue of the duration of Mr. Davis's residence in the District or resolve the issue of whether it had personal jurisdiction over Mrs. Davis.*fn5

In this appeal, Mr. Davis argues, as he did before the trial court, that because the only issue his complaint put before the court was whether he is entitled to a divorce on the ground of having lived separate from appellee for over a year and, more specifically, because he did not seek an adjudication of property rights, the court had no need to hear witnesses from outside the District, apply foreign law, or devote substantial resources to resolving the complaint. Therefore, he contends, the District is not a "seriously inconvenient forum" and the court should not have dismissed the complaint.


We turn first to Mr. Davis's challenge to the trial court's assumption that "a divorce in D.C. without the adjudication of property rights . . . is not an option available under D.C. Code § 16-910." D.C. Code § 16-910 states, in pertinent part, that "[u]pon entry of a final decree of . . . divorce . . . in the absence of a valid . . . agreement resolving all issues related to the property of all parties, the Court shall: (a) assign to each party his or her sole and separate property . . .; and (b) value and distribute all other property. . . ." Id.,§§ 16-910 (a) and (b) (2007 Supp.). In Argent v. Argent, 130 U.S. App. D.C. 46, 396 F.2d 695 (1968), the United States Court of Appeals for the District of Columbia Circuit, construing the then-current version of section 16-910, explained that "the District of Columbia courts are authorized to adjust and apportion property rights in [jointly held] property and, in fact, must do so in the same proceedings in which the divorce decree is entered."*fn6 130 U.S. App. D.C. at 49, 396 F.2d at 698 (italics added).*fn7 But, as the Argent court also explained, section 16-910 "applies only to property located in the District of Columbia," 130 U.S. App. D.C. at 48, 396 F.2d at 697, reflecting the principle that "the power to affect directly title to land resides solely in the courts of the state of the situs of the land." Id.

As to marital property located outside the District, the Superior Court Family Division has "jurisdiction of . . . determinations and adjudications of property rights, both real and personal, in any action referred to in this section [including 'actions for divorce'], irrespective of any jurisdictional limitation imposed on the Superior Court." D.C. Code § 11-1101 (8) (2001). Accordingly, in a divorce action, the court may adjudicate the rights to marital property located outside the District, and may issue orders requiring the parties to make transfers implementing the court's ruling, even though the court cannot directly award and apportion the foreign property. In light of the trial court's authority under section 11-1101 (8) (previously codified as section 11-1141 (1967)), the Argent court concluded that although section 16-910 "does not apply per se to land situated outside the District of Columbia . . ., with respect to such land the substance of [§16-910] is applicable." 130 U.S. App. D.C. at 49 n.2, 396 F.2d at 698 n.2.*fn8

As the Argent court recognized, however, the Superior Court may adjudicate rights with respect to property only if the court has personal jurisdiction over the parties.*fn9 See 130 U.S. App. D.C. at 48, 396 F.2d at 697 ("the court having in personam jurisdiction over the parties must determine which party owns each bit of property, and upon that determination can direct the parties to execute such instruments as are necessary to effectuate that adjudication").

In short, the holding in Argent is that, by virtue of the interplay of sections 16-910 and 11-1101, in a divorce proceeding where the Superior Court has personal jurisdiction over both parties, the court must in the same proceeding value and distribute marital property located in the District and determine and adjudicate rights in marital property located elsewhere.

In the present case, as noted supra, Mrs. Davis asserted that the court lacked personal jurisdiction over her. Without the trial court having found that it did have personal jurisdiction over her, we cannot conclude that District law required the Superior Court to address property issues in order to entertain the divorce proceeding initiated by Mr. Davis. On this point, therefore, we agree with Mr. Davis.


That does not end the matter, however, because the trial court went on to dismiss the complaint on the ground that the District is an inconvenient forum. It may appear that the court had a duty to decide the issue of personal jurisdiction before going on to consider the issue of forum non conveniens, which involves considerations of fairness, convenience and judicial economy rather than jurisdiction. Our case law, however, is to the contrary. As we recognized in our recent decision in Yazdani v. Access ATM, 941 A.2d 429, 433 (D.C. 2008), "[a] determination on '[j]urisdiction is vital only if the court proposes to issue a judgment on the merits.'" Id. at 433 (quoting Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 127 S.Ct. 1184, 1191-92, 167 L.Ed. 2d 15, 25-26 (2007) (quoting Intec USA, LLC v. Engle, 467 F.3d 1038, 1041 (7th Cir. 2006) (internal quotation marks omitted)); see also Sinochem, 127 S.Ct. at 1188 (the trial court "has discretion to respond at once to a defendant's forum non conveniens plea, and need not take up first any other threshold objection. In particular, a court need not resolve whether it has . . . personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the merits of the case"). "Where no judgment on the merits will issue, such as in a dismissal on forum non conveniens grounds, '[a] district court . . . may . . . bypass[] questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant.'" Yazdani, 941 A.2d at 433, quoting Sinochem, 127 S.Ct. at 1192. In short, the trial court "has the discretion to dismiss on the basis of improper venue before reaching the issue of personal jurisdiction." Sucampo Pharm., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550 n.3 (4th Cir. 2006).

Exercising its discretion, the trial court might have chosen to address the issue of personal jurisdiction and -- if it found that it lacked personal jurisdiction over Mrs. Davis, but that Mr. Davis satisfied the statutory residency requirement and that a statutory ground for divorce was met -- could have entertained the divorce complaint and entered a decree of divorce without an adjudication of property rights. The court did not do that, however, and we are left with the possibility that the court exercised its discretion in the manner that it did only because of its error in thinking that section 16-910 would require it to adjudicate the parties' property rights if it exercised jurisdiction.*fn10 Yet, as our case law establishes, "[f]ailure to exercise choice in a situation calling for choice is an abuse of discretion," even where the cause is "ignorance of the right to exercise choice . . . ." Johnson v. United States, 398 A.2d 354, 363 (D.C. 1979) (citing, inter alia, Grow v. Wolcott, 123 Vt. 490, 492, 194 A.2d 403, 404 (1963) ("Purporting to be bound to rule as a matter of law will not satisfy the moving party's claim on the court's discretion")). We have held that "reversal should follow if it is discerned that the trial court did not recognize its capacity to exercise discretion or did not purport to exercise it." Johnson, 398 A.2d at 367. We conclude that reversal and remand is appropriate here, so that the trial court, instructed by our conclusion in Part II of this opinion, may properly exercise discretion in deciding whether to retain jurisdiction over the divorce action or to dismiss the action, relying on its forum non conveniens analysis.*fn11

Because, on remand, the trial court may elect again to bypass the issue of personal jurisdiction and to rely on its forum non conveniens analysis, we go on to consider Mr. Davis's claim that the court abused its discretion in holding that the District is an inconvenient forum for the divorce action. We are satisfied that, on the record before it, the court did not abuse its discretion.

As the trial court recognized, "a defendant claiming the benefit of the doctrine of forum non conveniens bears the burden of establishing that the balance of equitable considerations is strongly in his favor, and unless he does so, the plaintiff's choice of forum will not be disturbed." Dorati v. Dorati, 342 A.2d 18, 20 (D.C. 1975)(stating also that the "standard for the application of the doctrine of forum non conveniens . . . is whether the forum chosen by the plaintiff is so completely inappropriate . . . that it is better to stop the litigation in the place where it is brought and let it start all over again somewhere else," id. at 23) (citation and internal quotation marks omitted). Yet, "[w]hen a plaintiff ignores a jurisdiction having substantial contacts with his case and which is not inconvenient for him, his choice of a forum elsewhere is outweighed by the forum court's interest in clearing its calendar of foreign actions."*fn12 Id.

Not surprisingly in light of the delicate balancing that these considerations require, the trial court has "broad discretion" in ruling on forum non conveniens motions. See DeGroot v. DeGroot, 939 A.2d 664, 675 (D.C. 2008). We will reverse a decision to dismiss for forum non conveniens "only upon a clear showing of an abuse of discretion." Arthur v. Arthur, 452 A.2d 160, 161 (D.C. 1982).

Here, the trial court appropriately considered relevant factors identified in Gulf Oil v. Gilbert, 330 U.S. 501, 508 (1947), and Dorati, 342 A.2d at 20-21.*fn13 In doing so, the trial court noted that the many factors that would make it inefficient, costly, and burdensome to maintain the divorce action in the District and that weighed against appellant's choice of forum: (1) Mrs. Davis's continued residence in Mississippi (2) the parties' property located in Mississippi; (3) Mrs. Davis's medical conditions and health-monitoring needs; (4) witnesses, with relevant testimony regarding domestic relations, property, tax, financial and medical issues, who reside in Mississippi or Florida and who would need to travel to the District; (5) a current Mississippi custody and support order that the trial court lacked jurisdiction to modify; (6) Mrs. Davis's financial constraints and her commitment to home-schooling the minor child and supervising his significant extracurricular activities; and (7) the crowded docket in the District.*fn14 Additionally, the trial court noted that although the Mississippi court denied the parties' cross-petitions for divorce, the denial is now three years old and the parties may now be able to prove grounds for divorce in that more appropriate forum. We note also that appellant's counsel confirmed at oral argument that he knows of no reason why Mississippi would not be an available forum. See Dorati, 342 A.2d at 22 ("An essential premise of any application of the doctrine of forum non conveniens is the availability of an alternative forum"). Absent a change in the foregoing factors or additional, countervailing factors that the parties may bring to the court's attention, the court would not abuse its discretion in determining (again) to dismiss the divorce action on forum non-conveniens grounds.

For the foregoing reasons, we vacate the order of dismissal and remand to the trial court for further proceedings consistent with this opinion.

So ordered.

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