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| Right Venue? |
By Elizabeth Kruska
It’s been about two years since this opinion was published, and because we here at the SCOV Law are a little bit behind, we’re just getting to this one. You get what you pay for around here.
This is a divorce case. From what I can tell, Wife didn’t want to get divorced. Husband and Wife are both from India. Husband went from India to Montreal in 2009 to earn a degree at McGill University. In 2011 he got a job in Vermont with Keurig. I don’t remember what the company’s name was in 2011; I don’t know what it was in 2018 when the opinion was published. If you live in Vermont you know which company I mean. If you don’t live in Vermont, I hope you get Google at your house, because you could use that splendid tool and figure out the name of the company if it means that much to you.
Anyway, Husband had an H-1B visa for his job in the U.S. And it appears he renewed it and had the intention to stay at his job and stay in Vermont. He went to India three times between 2011 and 2017. Twice were for his own engagement and wedding, and once was for his sister’s wedding.
One of the India trips was in 2012, when Husband and Wife got married. Wife got a 4-H spouse-dependent visa and moved to Vermont. In December 2015, Wife took a trip to India. While she was gone, Husband filed a no-fault divorce in Washington County. Wife got back in early 2016, and filed a complaint against Husband for spousal maintenance. It appears there were some issues with service, and Husband’s initial complaint got dismissed. But he re-filed it in the summer of 2016 and the case proceeded.
Wife filed a motion to dismiss for four separate reasons. Spoiler alert: the trial court denied the motions, and SCOV affirmed when wife appealed. Long story short—Husband and Wife are now divorced.
Wife appeals, and SCOV addresses each of Wife’s bases.
First, Wife triea to argue that there was no jurisdiction because Husband wasn’t really a Vermont resident. She bases this on the fact that Husband was in the United States (and thus, in Vermont) on a temporary work visa.
If you know anything about appellate courts, you know they’re not joking around when it comes to jurisdiction. They give zero deference to the trial court in motions to dismiss for lack of subject matter jurisdiction.
SCOV says the trial court was entirely correct in determining there was jurisdiction. For people to get divorced in Vermont, at least one of them has to be a Vermont resident for at least six months. There can’t be a final order until that party has been a Vermont resident for a year. Temporary absences from Vermont—trips, hospitalizations, deployments, etc.—those don’t count against establishing residence. Heavens. Could you imagine if the court said jurisdiction could only be established if a party slept every single consecutive night in Vermont for a full year? It’s jurisdiction, not a hostage situation.
To prove that someone is a resident, there’s got to be some showing that he or she has a domicile in Vermont and an intent to remain in Vermont indefinitely. They don’t have to plan to stay forever, they just have to have the plan to stick around 'til, you know, whenever. Husband appears to have had a home in Vermont, he paid state and federal taxes, he had a Vermont driver’s license, has a car titled in Vermont, has a bank account in Vermont, and he had a job in Vermont. He didn’t seem to have a plan to move or get a different job. These are all the characteristics of a Vermont resident.
Wife tries to argue that he couldn’t be a Vermont resident because of his visa. Her argument is that he was in the United States on an H-1B visa, which isn’t a permanent status. And, if something happened to his job, or if the government felt like it, they could yank the visa and send him back to India.
On the flip side, though, Husband had actually renewed his visa, and was in the process of becoming a lawful permanent resident. He didn’t seem to have any plans to move back to India. He visited India three times. Twice was for his own wedding and once was to see his sister. Each time he returned to Vermont. It’s entirely reasonable that someone whose family is in India might (a) go there to visit and (b) might not do it very often. I can find India on a map and I know it’s, like, 9000 miles away. You might not make that trip very often. And if you’ve got a good job and a house and a car and all your stuff in Vermont, you probably want to be in Vermont, and you’ll go back to Vermont after a trip away.
SCOV is unpersuaded by Wife’s argument that Husband’s visa status somehow makes it so there’s no jurisdiction. All the other factors made it clear that Husband had established domicile in Vermont. Let’s move on.
Wife also argues that the court needed to exercise comity to the Indian legal system, which does not permit a no-fault divorce. Her argument was that the couple had married in India, so Indian law should apply.
The trial court said no. SCOV also says no. Having found that Vermont has jurisdiction due to Husband’s domicile, SCOV says there’s jurisdiction (see above), Vermont law applies, and there’s no reason it shouldn’t. I could say more but I see no reason why I should.
Wife also raises a lex loci argument. Lex loci is a legal doctrine that states a contract should be construed by the law of the jurisdiction where the contract was entered. I think lex loci sounds like a perfectly good superhero villain name. Maybe his villainous deeds involve using the wrong law for contracts. That is the most boring villain ever. But hey, if Marvel wants to make this into one of those really long movies, they’re certainly welcome to pay me for my idea.
There have been times when lex loci has been used in divorce cases, like to validate a foreign divorce decree. But there doesn’t seem to be any support to say that lex loci is usable to dismiss a divorce complaint. Wife appears to have tied this to an argument that a no-fault divorce is contrary to India’s Hindu Marriage Act, and that to force her to get a divorce contrary to this religious act impinges in her right to exercise her religion. SCOV says “ALL THE NOPE” to this because it’s a constitutional problem to deny a party a divorce based on the religious convictions of the other party.
SCOV is concerned that if it had to start applying other jurisdictions’ divorce law because the marriage occurred in another jurisdiction, some people might be denied the right to get divorced.
Last, there’s an equitable estoppel argument. I think we’ve covered equitable estoppel a few times, and I’m not entirely clear about how this argument works in this context. The elements of equitable estoppel, essentially, are that one party held out some offer or information. The other party relied on that information, but it was incorrect, and in relying on the incorrect information, somehow suffered a detriment. I think a crude analogy I’ve made before was a merchant displaying a barrel of snow shovels near a sign that says, “SNOW SHOVELS: $5.” Someone wants to buy the $5 shovel, only to learn the $5 shovels are different shovels than the nice ones displayed in the shovel barrel. Kind of a bait-and-switch sitch.
It appears that Wife tried to argue that she moved to the United States with a dependent spouse visa. But Husband deceived her by filing for divorce when she got here, and by doing so, it would terminate her legal status in the U.S. with her dependent-spouse visa. She also argued that when she got back from her trip in 2015, he withheld documents from her, which prevented her from getting a work permit and getting a job to be able to support herself. Her argument is that the equitable response is to prevent him from getting a divorce so that she could continue to reside in the country and work to support herself.
SCOV disagrees and essentially says that it’s not going to refuse a divorce to a qualified party. And since SCOV decided there was jurisdiction and that Vermont law applies, the trial court’s order divorcing these parties is affirmed.
First, Wife triea to argue that there was no jurisdiction because Husband wasn’t really a Vermont resident. She bases this on the fact that Husband was in the United States (and thus, in Vermont) on a temporary work visa.
If you know anything about appellate courts, you know they’re not joking around when it comes to jurisdiction. They give zero deference to the trial court in motions to dismiss for lack of subject matter jurisdiction.
SCOV says the trial court was entirely correct in determining there was jurisdiction. For people to get divorced in Vermont, at least one of them has to be a Vermont resident for at least six months. There can’t be a final order until that party has been a Vermont resident for a year. Temporary absences from Vermont—trips, hospitalizations, deployments, etc.—those don’t count against establishing residence. Heavens. Could you imagine if the court said jurisdiction could only be established if a party slept every single consecutive night in Vermont for a full year? It’s jurisdiction, not a hostage situation.
To prove that someone is a resident, there’s got to be some showing that he or she has a domicile in Vermont and an intent to remain in Vermont indefinitely. They don’t have to plan to stay forever, they just have to have the plan to stick around 'til, you know, whenever. Husband appears to have had a home in Vermont, he paid state and federal taxes, he had a Vermont driver’s license, has a car titled in Vermont, has a bank account in Vermont, and he had a job in Vermont. He didn’t seem to have a plan to move or get a different job. These are all the characteristics of a Vermont resident.
Wife tries to argue that he couldn’t be a Vermont resident because of his visa. Her argument is that he was in the United States on an H-1B visa, which isn’t a permanent status. And, if something happened to his job, or if the government felt like it, they could yank the visa and send him back to India.
On the flip side, though, Husband had actually renewed his visa, and was in the process of becoming a lawful permanent resident. He didn’t seem to have any plans to move back to India. He visited India three times. Twice was for his own wedding and once was to see his sister. Each time he returned to Vermont. It’s entirely reasonable that someone whose family is in India might (a) go there to visit and (b) might not do it very often. I can find India on a map and I know it’s, like, 9000 miles away. You might not make that trip very often. And if you’ve got a good job and a house and a car and all your stuff in Vermont, you probably want to be in Vermont, and you’ll go back to Vermont after a trip away.
SCOV is unpersuaded by Wife’s argument that Husband’s visa status somehow makes it so there’s no jurisdiction. All the other factors made it clear that Husband had established domicile in Vermont. Let’s move on.
Wife also argues that the court needed to exercise comity to the Indian legal system, which does not permit a no-fault divorce. Her argument was that the couple had married in India, so Indian law should apply.
The trial court said no. SCOV also says no. Having found that Vermont has jurisdiction due to Husband’s domicile, SCOV says there’s jurisdiction (see above), Vermont law applies, and there’s no reason it shouldn’t. I could say more but I see no reason why I should.
Wife also raises a lex loci argument. Lex loci is a legal doctrine that states a contract should be construed by the law of the jurisdiction where the contract was entered. I think lex loci sounds like a perfectly good superhero villain name. Maybe his villainous deeds involve using the wrong law for contracts. That is the most boring villain ever. But hey, if Marvel wants to make this into one of those really long movies, they’re certainly welcome to pay me for my idea.
There have been times when lex loci has been used in divorce cases, like to validate a foreign divorce decree. But there doesn’t seem to be any support to say that lex loci is usable to dismiss a divorce complaint. Wife appears to have tied this to an argument that a no-fault divorce is contrary to India’s Hindu Marriage Act, and that to force her to get a divorce contrary to this religious act impinges in her right to exercise her religion. SCOV says “ALL THE NOPE” to this because it’s a constitutional problem to deny a party a divorce based on the religious convictions of the other party.
SCOV is concerned that if it had to start applying other jurisdictions’ divorce law because the marriage occurred in another jurisdiction, some people might be denied the right to get divorced.
Last, there’s an equitable estoppel argument. I think we’ve covered equitable estoppel a few times, and I’m not entirely clear about how this argument works in this context. The elements of equitable estoppel, essentially, are that one party held out some offer or information. The other party relied on that information, but it was incorrect, and in relying on the incorrect information, somehow suffered a detriment. I think a crude analogy I’ve made before was a merchant displaying a barrel of snow shovels near a sign that says, “SNOW SHOVELS: $5.” Someone wants to buy the $5 shovel, only to learn the $5 shovels are different shovels than the nice ones displayed in the shovel barrel. Kind of a bait-and-switch sitch.
It appears that Wife tried to argue that she moved to the United States with a dependent spouse visa. But Husband deceived her by filing for divorce when she got here, and by doing so, it would terminate her legal status in the U.S. with her dependent-spouse visa. She also argued that when she got back from her trip in 2015, he withheld documents from her, which prevented her from getting a work permit and getting a job to be able to support herself. Her argument is that the equitable response is to prevent him from getting a divorce so that she could continue to reside in the country and work to support herself.
SCOV disagrees and essentially says that it’s not going to refuse a divorce to a qualified party. And since SCOV decided there was jurisdiction and that Vermont law applies, the trial court’s order divorcing these parties is affirmed.
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