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Vanvelzor v. Vanvelzor

Supreme Court of Alaska

November 13, 2009

Mark A. VANVELZOR, Appellant,
v.
Jessica A. VANVELZOR, Appellee.

Page 185

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.

OPINION

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 wife's motion and dismissed the case on the grounds that Alaska lacked personal jurisdiction over her.

Page 186

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 son's 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 Attorney's 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 Jessica's 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 Jessica's mail."

The superior court granted Jessica's 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 ...


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