Denise K. Lynch v. Daniel G. Lynch — 2017 ME 38

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2017 ME 38
Docket: 	Sag-16-100
Argued: 	October 25, 2016
Decided: 	March 7, 2017
Corrected: 	July 25, 2017
Panel: 	SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
DENISE K. LYNCH
v.
DANIEL G. LYNCH
JABAR, J.
[¶1] 	Denise K. Lynch appeals from a judgment (West Bath, Dobson, J.)
dismissing her divorce complaint 	for lack of 	subject 	matter jurisdiction
because a Swedish judgment divorcing the parties precluded litigation of the
action in Maine. 	Because a review of the Swedish judgment, which is being
appealed in Sweden, is premature, we affirm in part, and vacate in part.
I. BACKGROUND
[¶2] 	The following facts are derived from Denise’s complaint, and the
documents submitted by the parties in conjunction with Daniel G. Lynch’s
motion to dismiss. See Davric Me. Corp. v. Bangor Historic Track, Inc., 2000 ME
102, ¶ 6, 751 A.2d 1024. In 1991, Denise and Daniel were married in Virginia
Beach, Virginia. At the time of their marriage, Daniel was an active member of

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the United States Navy, and from 1992-1995, 1997-2000, and 2003-2005, he
served tours of duty in Brunswick, Maine. 	While on these tours of duty,
Denise 	and 	Daniel 	resided 	at 	a 	home 	in 	Brunswick 	they 	acquired
approximately one year after they were married. 	They own no other real
estate. After completing his final tour of duty in Maine in 2005, Daniel moved
with Denise and their two daughters to Belgium, where they remained until
2008, when they moved to Arlington, Virginia.
[¶3] 	A year after returning to the United States, Daniel, Denise, and
their children moved to Sweden when Daniel was assigned as the naval
attaché there. 	Daniel retired three years later, but remained in Sweden to
accept a teaching position with the Sweden National Defense College.
[¶4] In the fall of 2013 Denise and Daniel separated. Denise returned to
Maine in October 2013 to live in the Brunswick home that the couple had
maintained as a rental property while they were living abroad, and Daniel
remained in Sweden.
[¶5] 	Approximately three months after Denise’s return to Maine, on
January 	27, 	2014, 	Daniel 	initiated 	divorce 	proceedings 	in 	Sweden. 	He
executed service of process via mail, and Denise received the summons and
complaint on March 2, 2014. Denise responded to the complaint by objecting

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to the proceedings and asserting that the Swedish court did not have personal
jurisdiction over her. 	As provided by Swedish law, the Swedish court stayed
the action for a six-month “reconsideration period,” which commenced on
March 14, 2014.
[¶6] 	On May 30, 2014, while the Swedish action was still in the
reconsideration period, Denise initiated an action for divorce in the District
Court. 	In 	her complaint, 	Denise 	sought: (1) dissolution of the parties’
marriage; (2) a court order distributing marital property; (3) spousal support;
and (4) an award of reasonable attorney fees.1 	Denise listed as marital
property the Brunswick home, various investment and bank accounts, and
Daniel’s military pension.
[¶7] 	In response to the initiation of Denise’s divorce action in Maine,
Daniel moved to dismiss the complaint for forum non conveniens, arguing that
Sweden, and not Maine, was the more appropriate forum to decide the merits
of the case.2 	The court (Ende, J.) denied Daniel’s motion to dismiss, noting
that, although the Swedish divorce action commenced first, the Swedish court
1 	Denise’s complaint also sought a determination of “parental rights and responsibilities
regarding the minor child(ren), including child support.” Since both of the parties’ children have
reached the age of majority, child support is no longer an issue.
2 	Daniel entered a special appearance for the sole purpose of seeking dismissal of Denise’s
complaint.

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had not yet entered a final judgment and that Maine was the more convenient
forum to determine, inter alia, “whether and how to divide the real property
in Maine; and . . . how to divide the marital portion, if any, of [Daniel’s] military
pension.” 	Daniel subsequently filed an interlocutory appeal of the court’s
denial of his motion to dismiss.
[¶8] 	While Daniel’s appeal was pending before us, the Swedish court
entered an order divorcing the parties and appointing an administrator to
divide their assets. 	In its order, the Swedish court acknowledged Denise’s
claim that the court lacked personal jurisdiction over her, but it nonetheless
proceeded 	to 	adjudicate 	Daniel’s 	complaint, 	noting 	that 	because 	it 	had
jurisdiction over Daniel it was “competent to adjudicate . . . the divorce case,”
and that “[a]n issue concerning the spouses’ economic relationship may be
entertained by a Swedish court . . . if the issue is linked to a divorce case in
Sweden.” Following the entry of the Swedish divorce judgment, Denise sought
and obtained leave to appeal the portion of the judgment appointing an
administrator to divide the parties’ assets, but was denied leave to appeal the
portion 	of 	the 	judgment 	dissolving 	the 	marriage 	itself. 	We 	have 	no
information about the status of that appeal.

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[¶9] 	After the Swedish court entered the divorce judgment, and while
Denise was seeking appellate review of that judgment in Sweden, Daniel
moved for us to dismiss his pending interlocutory appeal, arguing that the
Swedish 	court 	had 	entered 	a 	final 	judgment 	divorcing 	the 	parties, 	and
therefore Denise’s divorce action in the Maine court was moot. 	We granted
Daniel’s 	motion 	to 	dismiss 	his 	appeal, 	but 	denied 	his 	request 	that 	we
“instruct” the trial court to dismiss Denise’s complaint.
[¶10] 	On remand, Daniel again moved to dismiss Denise’s complaint,
and the court (Dobson, J.) granted that motion, concluding that “Denise had a
full and fair opportunity to present her contentions concerning spousal
support 	and 	enforceability 	of 	an 	earlier 	settlement 	agreement 	in 	[the
Swedish] forum,” the Swedish judgment was final, and recognition of its
validity was “warranted pursuant to the doctrine of comity.” 	In addition, the
court stated,
[F]urther litigation may be necessary either in Sweden or the US
or both to fully divide [the parties’] property or at a minimum,
that a Swedish court will need to apply Maine law to any further
division of property . . . . 	It is unclear what route(s) would be
available to accomplish this, [Denise] may be able to challenge any
unfavorable property distribution order coming out of Sweden by
challenging 	that 	court’s 	jurisdiction 	over 	her 	and 	the 	Maine
property.

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[¶11] 	Denise timely appealed from the Maine court’s judgment. 	See
M.R. App. P. 2(b)(3).
II. DISCUSSION
[¶12] 	Although 	Denise 	acknowledged 	at 	oral 	argument 	that 	the
Swedish court had sufficient jurisdiction to divorce the parties, she argues
nonetheless that the court erred in concluding that the Swedish judgment was
a complete bar to her divorce action.
[¶13] 	Because divorces are “divisible” judgments, and because there is
not yet a final Swedish judgment, our review of any portion of the judgment
that goes beyond the granting of the divorce itself, including whether the
Swedish court has competent jurisdiction3 to appoint an administrator to
divide the marital property, is premature.
[¶14] 	As mentioned previously, claims housed in a divorce complaint
are divisible. 	See Estin v. Estin, 334 U.S. 541, 549 (1948). 	First introduced in
Estin, the divisible divorce doctrine
simply recognizes the court’s limited power where the court has
no 	personal 	jurisdiction 	over 	the 	absent 	spouse. 	In 	these
circumstances the court has jurisdiction to grant a divorce to one
domiciled 	in 	the 	state 	but 	no 	jurisdiction 	to 	adjudicate 	the
incidents of the marriage, for example, alimony and property
3 If the Swedish appellate court determines that a Swedish trial court does not have jurisdiction
over the parties’ property, there will be no need for a Maine court to make this determination.

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division. 	In short, the divisible divorce doctrine recognizes both
the in rem and in personam nature of claims usually raised in
dissolution of marriage proceedings.
In re Marriage of Kimura, 471 N.W.2d 869, 875 (Iowa 1991). 	In Maine, we
have applied similar principles to establish that a trial court having personal
jurisdiction over the plaintiff spouse but not over the defendant may enter a
judgment dissolving the marriage but leaving “all property, spousal support,
and parental issues to be litigated in a jurisdiction that might have personal
jurisdiction over both the parties.” 	Von Schack v. Von Schack, 2006 ME 30,
¶¶ 4, 25, 893 A.2d 1004 (quotation marks omitted).
[¶15] Because the discrete portions of a divorce action are divisible and
therefore the jurisdictional foundation of each claim may vary, to determine
whether the court erred in extending comity to the Swedish judgment in its
entirety, we would have to determine—for each element of its judgment—
whether 	the 	Swedish 	court 	was 	of 	competent 	jurisdiction 	to 	act. 	In
conducting this analysis, we would utilize the jurisdictional standards applied
in our courts. R.F. Chase, Annotation, Domestic Recognition of Divorce Decree
Obtained in Foreign Country and Attacked for Lack of Domicil or Jurisdiction of
Parties, 13 A.L.R. 3d 1419, 1424 (1967) (“[T]he tests of jurisdiction applied
are ordinarily those of the United States rather than the divorcing country”);

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see also Roy v. Buckley, 1997 ME 155, ¶¶ 12-15, 698 A.2d 497 (analyzing the
method of process utilized in a Canadian proceeding under our established
principles of due process).
[¶16] The only aspect of the parties’ divorce proceedings that has been
adjudicated in Sweden is the dissolution of their marriage. 	Insofar as we can
discern, the disposition of marital property and the determination of whether
spousal support should be awarded have not yet been addressed. 	Whether
Sweden even has jurisdiction to divide the parties’ marital property has been
appealed and the judgment contains no reference to any claim for or decision
concerning spousal support. 	Therefore, although the District Court correctly
determined that the Swedish judgment was entitled to comity insofar as it
dissolved the parties’ marriage, it was premature for the court to address
issues of property distribution or spousal support.
[¶17] Accordingly, we affirm the Maine court’s judgment to the extent it
dismisses 	the 	portion 	of 	Denise’s 	complaint 	seeking 	dissolution 	of 	her
marriage. Because the claims set forth in her divorce complaint are divisible,
however, we vacate the judgment insofar as it dismisses Denise’s remaining
claims for 	spousal support, 	division of marital property, 	and reasonable

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attorney fees. 	Upon conclusion of the appeal in Sweden, the Maine court will
make a determination of its authority to address those remaining claims.
The entry is:
Judgment 	vacated 	in 	part. 	Remanded 	for
further 	proceedings 	consistent 	with 	this
opinion.
Matthew C. Garascia, Esq. (orally), Auburn, for appellant Denise K. Lynch
Catherine C. Miller, Esq. (orally), Miller Law and Mediation, LLC, Portland, for
appellee Daniel G. Lynch
West Bath District Court docket number FM-2014-180
FOR CLERK REFERENCE ONLY