Donovan v. Donovan

O’Hara, J.

Plaintiff appeals from an order dismissing her complaint for separate maintenance, alimony, support, and a division of property which she alleges is, in fact, located in this state and owned by the defendant though held in the name of a Michigan corporation.

At the time of filing her complaint, plaintiff also obtained a temporary injunction which was served personally on certain of the corporate officers and extended to any other agents or servants of the corporation and persons acting in concert with them. The defendant husband was not personally served with process in this state.

Prior to filing of the wife’s complaint defendant husband had obtained a divorce in Arkansas. No challenge is made to its validity.

In that proceeding the wife was not personally served and made no appearance. The Arkansas divorce made no property settlement, and awarded no alimony or support. In the Michigan proceeding the husband was not served personally, as above noted, and entered a "special appearance”¹ for the sole purpose of moving to dismiss. Additionally, the husband filed an affidavit, uncontroverted (except for the allegations in the wife’s complaint), which alleged he was a bona fide resident of Arkansas; that he had no property or property rights in Michigan; that he was not the husband of plaintiff-appellant; and that the court had no jurisdiction over the subject matter of the complaint and no personal jurisdiction over the defendant.

The trial court agreed with these contentions and favored us with a full opinion supporting his order of dismissal. He held that:

"This court does not have the power to adjudicate that the defendant * * * is liable for support of the plaintiff * * * . To enter a judgment for alimony or to deal with other assets not subject to the jurisdiction of the court, personal jurisdiction of the defendant must be obtained.”

We are compelled to disagree. The court had jurisdiction of the subject matter because the statutes in force at the time of the institution of the Michigan proceedings vested it with subject matter jurisdiction. MCLA 552.6; MSA 25.86; MCLA 552.301; MSA 25.211. These statutes were expressly excepted from the effect of 1971 PA 75, the Michigan so-called "no fault” divorce act, if the action brought pursuant to those statutes were commenced before the effective date of the act. Plaintiff’s action here was pending as of the effective date of the act.

One of the grounds of divorce specified in the prior státute was that any party who is a resident of this state and whose husband or wife has obtained a divorce in any other state may be awarded a decree of divorce in this state. MCLA 552.6, supra. The same is true in an action for separate maintenance. MCLA 552.301, supra.

We think the learned trial judge failed to distinguish sufficiently between subject matter jurisdiction and the nature and the extent of relief which a court could grant. It may very well be that because of lack of personal service on the defendant and the absence of any assets over which the trial court could exercise in rem jurisdiction plaintiff could be without relief from the Michigan court. We do not know and don’t presume to decide.

We do hold, however, that plaintiff had and has a right to a judicial determination of her complaint on the merits.

The parties hereto were married in this state in 1937. Two children were born of the marriage. They lived together here for some 30-odd years before the husband established his Arkansas residence and obtained a divorce in that state.

Under the authority of Reinink v Reinink, 24 Mich App 202 (1970), we hold that the Arkansas divorce did not terminate the wife’s right to support.

We vacate the order dismissing the complaint and remand for a determination on the merits consistent with the limitations on the court’s ability to grant relief when the facts as to the court’s in rem jurisdiction are judicially established. Costs to appellant.

All concurred.

1 GCR 1963, 735.10.