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TMac506 · Jul 10, 2011, 04:30 AM

2 American citizens "domiciled" full time in Germany and divorced in a German court that exercised proper jurisdiction. There was no property distribution and mediation has failed. I've offered a fair and equitable distribution,but I have also "scorned" this woman and we know how that goes. Ex has filed complaint in Tennessee Court for dividing assets. She last lived in USA at Colorado 2001. I last lived in Missouri 2006. I have a Florida drivers license and voter registration... she works as a DOD employee overseas and somehow got TN on her W-4 to avoid state income tax. We did live from 1993-1998 in Tennessee but 3 hours away from where shefiled complaint. The address she has listed for me in the complaint is my sisters house, and I never lived there. She also improperly served me. I do not want to give consent to the court. How can I motion to dismiss lack of jurisdiction? Thanks.. T

JudyKayTee · Jul 10, 2011, 04:37 AM

Here is some very solid information -

"EXAMPLE - MOTION TO DISMISS

Attorney
123 Main Street
Anytown, US 12345

DISTRICT COURT OF ___________________

Joe Smith,
Plaintiff,
vs.
ABC Plumbing, Inc,
Defendant
Case No.: 123456-123

MOTION TO DISMISS

Pursuant to ________ Rules, Defendant hereby moves the Court to dismiss Plaintiff's Complaint with prejudice. The bases for this Motion are set forth in the accompanying Memorandum. Language will vary, but typically states something similar – a Memorandum is always accompanied giving the grounds for why you feel it should be dismissed.

Dated this 1st day of January, 2010

Attorney
Address
Address

Motion to Dismiss - 1

EXAMPLE - MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Attorney
123 Main Street
Anytown, US 12345

DISTRICT COURT OF ___________________

Joe Smith,
Plaintiff,
vs.
ABC Plumbing, Inc,
Defendant
Case No.: 123456-123

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

FACTS

Plaintiff Joe Smith contracted with Defendant ABC Plumbing Inc to do basic plumbing repair at his residence at 100 Main Street on July 1, 2009. A written contract stating the terms of the agreement was agreed to and signed by both parties on the same day. On July 5, 2009, Defendant arrived at the Defendant's residence and performed all necessary work on the Plaintiff's bathroom and kitchen. On August 5, 2009, Plaintiff alleged that he was taken to County hospital to be treated for 3rd degree burns sustained from a fire in his bathroom. On September 1, 2009, Plaintiff filed a complaint stating he sustained the injuries from a faulty repair job performed by Defendant. This section will continue until all facts are stated.

ARGUMENT

I. Plaintiff's Complaint Fails To State a Claim Upon which Relief May Be Granted Plaintiff's claim must be dismissed because his legal claims are without merit. The injuries the Plaintiff sustained were a result of faulty wiring performed by himself or another company, and the plumbing work performed by the Defendant is in no way connected to the injuries. Procedural laws and statutes are typically stated in this section helping to support why the Plaintiff has no claim. Other arguments can be made such as lack of standing, lack of jurisdiction and other specific arguments tailored to the case.

CONCLUSION

For the reason stated above, Defendant's Motion to Dismiss should be granted.

Dated this 1st day of January, 2010

Attorney
Address
Address"

MOTION TO DISMISS Free template form

You didn't ask for my advice but I'm going to throw it in here. I would NOT attempt this by myself.

How were you improperly served? The papers did get to you. That may very well void your service argument. I would have an Attorney take a very close look at that aspect BECAUSE I've seen people come into Court holding the papers and arguing improper service - and be told it was valid service, the proof being - they were holding the papers!

joypulv · Jul 10, 2011, 05:13 AM

Kudos to JudyKayTee, who does her homework AND has experience in this.

AK lawyer · Jul 10, 2011, 05:18 AM

This should get OP on the right track, JudyKayTee. I'd give you a "greenie" but I'm out of them.

You know me: I'm a stickler for grammar. It always annoys me when people (attorneys as well) write "moves the Court". Do they really think they can re-locate the physical position of the court? What they mean to say, of course, is "moves, in the court", or simply "moves". Oh well, that's one of those things that I guess I wll gripe about to my last breath. :(

A couple of constructive things I would add: OP should back up the motion and memorandum with an affidavit (written statement under oath sworn to before a notary public or other officer authorized to administer oaths) stating all of the facts supporting his motion. Since he is in Europe, an apostille is needed as well.

OP should also lodge an order with his motion, for the judge to sign.

And, of course, copies of everything should be mailed to the opposing party and an affidavit of mailing (a/k/a proof of service) should be filed with the motion. Mail it to the clerk of court with a cover letter (requesting that file-stamped copies be returned), together with copies for OP's file and a SASE.

With respect to the substance of OP's proposed motion to dismiss, I am not sure that it would be well-founded (except of course for the issue of proper service of process).

Originally Posted by TMac506

2 American citizens "domiciled" full time in Germany and divorced in a German court that exercised proper jurisdiction. There was no property distribution ...

If there was no property distribution, and plaintiff claims to be a resident of Tennessee, it does appear that the Tennessee court may well have jurisdiction to adjudicate the property issues.

JudyKayTee · Jul 10, 2011, 06:08 AM

Originally Posted by AK lawyer

This should get OP on the right track, JudyKayTee. I'd give you a "greenie" but I'm out of them.

You know me: I'm a stickler for grammar. It always annoys me when people (attorneys as well) write "moves the Court". Do they really think they can re-locate the physical position of the court? What they mean to say, of course, is "moves to the court", or simply "moves". Oh well, that's one of those things that I guess I wll gripe about to my last breath. :(

A couple of constructive things I would add: OP should back up the motion and memorandum with an affidavit (written statement under oath sworn to before a notary public or other officer authorized to administer oaths) stating all of the facts supporting his motion. Since he is in Europe, an apostille is needed as well.

OP should also lodge an order with his motion, for the judge to sign.

And, of course, copies of everything should be mailed to the opposing party and an affidavit of mailing (a/k/a proof of service) should be filed with the motion. Mail it to the clerk of court with a cover letter (requesting that file-stamped copies be returned), together with copies for OP's file and a SASE.

With respect to the substance of OP's proposed motion to dismiss, I am not sure that it would be well-founded (except of course for the issue of proper service of process).

If there was no property distribution, and plaintiff claims to be a resident of Tennessee, it does appear that the Tennessee court may well have jurisdiction to adjudicate the property issues.

Thanks for the compliment - means a lot. I was pretty much "filling in" until you got here.

TMac506 · Jul 10, 2011, 09:58 AM

First of all thanks for the quick and helpful advice.. here's some further info that might help
USA and Germany both signed the Hague Convention and there are specific requirements a US court must follow to properly serve me under this agreement. One is for the summons to be sent to a central office here in Germany translated into German. This did not happen. I was handed the papers by a friend of my ex.
The jurisdiction issue is more complicated. One item of marital property is a military pension/retirement income. Under USFSPA (Uniformed Services Former Spouse Protection Act) a state court must have jurisdiction over me by either 1. Domiciled in the state. 2. Be a resident of the state other than on military assignment. Or 3. I give consent. To me Tennessee doesn't fit under this rule. I am already retired living and working in Germany with no intent to return to USA. I've also found that typical long arm jurisdiction / indicia of residence / minimum contacts is not sufficient.
Thanks again= T

AK lawyer · Jul 10, 2011, 10:22 AM

I wonder if the traanslation requirement would apply since English is presumably your mother tongue.
If Tenn. Doesn't have jurisdiction, which state does? What was your last state of residence?

TMac506 · Jul 10, 2011, 11:01 AM

Yes under Hague treaty the translation is required not for me, but for the German Land (State) government officials.. they want to be aware when someone within their boundaries is served and want to be able to read the complaint in their mother tongue...
My last state of residence.. Hmm... that gets very interesting.
I last lived and maintained a residence in Missouri until Apr 2006. However I was active military at the time and covered under the SCRA (service members relief act) which precludes a service member from moving his residency for tax purposes when he moves on military orders.. so I had Tennessee listed as that tax state until 2006 when I retired. Now that I am retired this SCRA does not apply to me. Since my 3 months prior to military retirement I've lived here in Germany continuously. However in Jan 2010 I considered moving back to US. My intention was moving to Florida. So,I went there lived with my daughter in Florida for 2 weeks, moved my drivers license and voters reg. there, and looked for employment there. I still have this DL/VR etc.. My job here in Germany made me an offer to stay on so I came back and resumed work. I am in a relationship now with a German citizen. She and I intend to stay together. I have no immediate plans to return to US.
EX residency - Her last physical residence was Colorado in 2001. This was our last mutual cohabitation state in US as well. She paid taxes there and moved from there directly to Germany. She moved her DL and Voter Reg to TN one summer on vacation by using my sisters address but never returned there other than on vacation.
So as of today she has a TN DL / VR. I have FL. Both are current/ not expired
Question is is there some federal statue that allows a US state court to divide my retirement since it has very strict jurisdictional requirements which I don't meet.. Definitely not in TN.. maybe in FL, but I doubt it.. I'm basically an ex=patriot US citizen living by choice outside the USA. I have no US state of residence or own any property there.. I use an overseas PO Box as my mailing address with the IRS for my federal tax return. I can exempt foreign earned income to IRS because I pass the physical presence test of being outside the USA at least 330 days per calendar year.. I receive no mail at any US address. My bank is in Germany.
I know it's complicated.. gets you thinking at least.. again thanks for any input.. T

Fr_Chuck · Jul 10, 2011, 11:18 AM

The TN court may not rule to follow Hauge treaty while though case law the rule to follow it.

Next the court will decide if you both parties meet the needed requirements, and the other party having that as their residence may determine is all that is needed.

It is common and again, case law, in cases where one party lives in a state and the other does not, that they file and the divorce is granted .

So it may be very easy to the TN court, their person shows residence in the state and has for a number of years. After that, they allow the filing normally.

AK lawyer · Jul 10, 2011, 12:51 PM

I believe domicile is the issue. You appear to be domiciled in Florida, although I can see her possible argument that you didn't have sufficient intent when in Florida to make that your permant home -- therefore if she were right you would remain a Tennessee domiciliary.

Fr_Chuck · Jul 10, 2011, 12:54 PM

And I am sorry you don't want to hear the truth, but the judge can and judges do rule against the treaty at times, and view other service is all that is required.

Please understand that just not understanding that case law has weakened a old treaty and that state rights have been upheld previously does not make you have the right to abuse the reporting system.

TMac506 · Jul 10, 2011, 02:25 PM

Thanks AK Lawyer..
I thought to establish domicile you must be physically present in that location with the intent to remain. It's where your "center of life" is. Job, Relationships, dwelling etc.. It's where you go back to when you're away from there.. Where you are and where you want to stay.. The German court said clearly in plain language and even used the word that I am domiciled in Germany. It's what they had to do to exercise jurisdiction over the divorce complaint. The German decree goes on to say I am not in the military, lives in Germany and intends to do so indefinetly. It goes on to comment that I am in a new relationship here and Germany is my center of life. So to me it comes to Residencey,not Domicile since that's been established in the divorce decree. Ex is also domiciled in Germany.
So do I have a state of Residency? Can TN really say that I am a resident even though I haven't lived there since 1998? Is it required a US citizen passport holder maintain a state of residence no matter how distant or lack of contact to any state? So what you're saying is there is always a US state that will adjudicate a decision over a US citizen. Are you knowledgeable of jurisdiction as it applies to USFSPA and division of a military members retired pay? Again it requires more that minimal contact to astate.

JudyKayTee · Jul 10, 2011, 04:04 PM

Let's start with this - what do you want to happen? Where would you like this to be heard?

I truly have no idea.

And I'll say it again - I own a process service company. You have been served. I don't care if one of my employees hands it to your cat. If it gets to you - you're served!

My suggestion? Retain an Attorney.

AK lawyer · Jul 10, 2011, 06:18 PM

Originally Posted by TMac506

Thanks AK Lawyer..
I thought to establish domicile you must be physically present in that location with the intent to remain. ...

That's how domicile is defined. And it stays that way for the rest of your life until the moment when you combine physical presence and simultaneous intent at a different domicile. And although the German court may have found that you are domiciled there (Let me guess. It used the terms "Hauptwohnsitz" and "lebensmittelpunkt", right? Slightly different concept than the U.S. common law idea of domicile.), for the purposes of the state law on jurisdiction involving U.S. citizens, it has to be a U.S. state, I believe.

Your position, that no U.S. state court has jurisdicition would result in a clearly intenable paradox: that no court anywhere can resolve the issue; and the law despises paradoxes.

Originally Posted by TMac506

So do I have a state of Residency? Can TN really say that I am a resident even tho I haven't lived there since 1998? Is it required a US citizen passport holder maintain a state of residence no matter how distant or lack of contact to any state? So what you're saying is there is always a US state that will adjudicate a decision over a US citizen.

Yes, I believe so, unless you changed your domicile to another U.S. state, such as Missouri or Florida.

Originally Posted by TMac506

... Are you knowledgable of jurisdiction as it applies to USFSPA and division of a military members retired pay? Again it requires more that minimal contact to astate.

The Uniformed Services Former Spouse Protection Act is 10 USC section 1408. I don't see anything in it about state court jurisdiction.

cdad · Jul 10, 2011, 07:01 PM

What state were you married in? Did you register your divorce after you received one? Was there property distribution at that time? Are you aware that an American State Court can ignore the foreign divorce if it chooses to?

Ref:

STATE v. FEDERAL JURISDICTION: Marriage and divorce generally are considered matters reserved to the states rather than to the federal government. See, Sosna v. Iowa, 419 U.S. 393, 404 (1975) and Armstrong v. Armstrong, 508 F. 2d 348 (1st Cir. 1974 ). There is no treaty in force between the United States and any country on enforcement of judgments, including recognition of foreign divorces.

TMac506 · Jul 11, 2011, 03:55 AM

This is taken directly from USFSPA regarding jurisdiction (see below)

(4) A court may not treat the disposable retired pay of a member

In the manner described in paragraph (1) unless the court has

Jurisdiction over the member by reason of

(A) his residence, other

Than because of military assignment, in the territorial

Jurisdiction of the court,

(B) his domicile in the territorial

Jurisdiction of the court, or

(C) his consent to the jurisdiction

Of the court.

We were married in Texas. I have not filed the divorce in any US state. She has obviously done so in Tennessee. She participated fully in the German divorce and has done nothing to suggest trying to get a US court not to recognize it. German court clearly established we were and still are both "domiciled" in Germany. This was not a quickie mexican/ dominican divorce.. we both live and work in the territorial jurisdiction of the German court..

cdad · Jul 11, 2011, 04:28 AM

I hope you have a lawyer for this mess because what Im reading arount the net if anything was inconsistent with what American courts do at the time of the divorce there may be legal problems and it may be revisited by a U.S. State court.

Here are a few refferences where I have been to.

Divorce Abroad

International Family Law News & Analysis: Foreign divorce recognition cases 1999-2000

JudyKayTee · Jul 11, 2011, 04:47 AM

Out of greenies but absolutely. Service is the least of the problems.

AK lawyer · Jul 11, 2011, 05:42 AM

Originally Posted by TMac506

This is taken directly from USFSPA regarding jurisdiction (see below)

(4) A court may not treat the disposable retired pay of a member

in the manner described in paragraph (1) unless the court has

jurisdiction over the member by reason of

(A) his residence, other

than because of military assignment, in the territorial

jurisdiction of the court,

(B) his domicile in the territorial

jurisdiction of the court, or

(C) his consent to the jurisdiction

of the court.

we were married in Texas. I have not filed the divorce in any US state. She has obviously done so in Tennessee. She participated fully in the German divorce and has done nothing to suggest trying to get a US court not to recognize it. German court clearly established we were and still are both "domiciled" in Germany. This was not a quickie mexican/ dominican divorce..we both live and work in the territorial jurisdiction of the German court..

OK. Paragraph (c)(4) of the USFSPA, thanks. As you see, it allows a court to "treat the disposable retired pay of a member in the manner described in paragraph (1)" if the member is domiciled in the territorial jurisdiction of that court. Paragraph (c)(1) says "... a court may treat disposable retired pay payable to a member... either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court". I don't believe a U.S. citizen can establish domicile in a foreign country so as to terminate a U.S. state domicile. I believe this is supported by the reasoning in Sun Printing & Publishing Association v. Edwards, 194 U.S. 377 (1904).

But, to those who seem to be under the belief that the German divorce was somehow defective, I disagree. OP is divorced. The problem is, however, that the German court failed to adjudicate (or "treat") his retirement.

JudyKayTee · Jul 21, 2011, 12:47 PM

TMac506 does not find this helpful : It's bravado and factless

So all this time I've made a living serving papers I've been wrong? Amazing! I even testified in Court (many times) and convinced the Judge I had a clue. Amazing!

If I'm wrong, you post the section that proves me wrong.

And I don't care about the rest of your problems - I'm talking about whether service will be found to be legal or not.

I find it interesting that people experienced in the legal profession (including Attorneys) understand what I am saying but the OP, who is up to his hips in legal problems, does not - and criticizes me, knowing FAR better than I do. Wonder why he's here?