*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

ROBERT N. DAVIS, APPELLANT,
v.
LINDA MARGARETTE WILLIAMS DAVIS, APPELLEE.



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.

I.

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.

II.

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 ยง 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 ...


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