COURT OF APPEALS DECISION DATED AND RELEASED August 7, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0710
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In re the Marriage of:
GREGORY J. KASUBASKI,
Petitioner-Appellant,
v.
MAUREEN DESMOND
KASUBASKI,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Green Lake County:
WILLIAM M. MC MONIGAL, Judge. Reversed
and cause remanded.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER
CURIAM. Gregory J. Kasubaski appeals from a judgment
dismissing his petition for a divorce for lack of personal jurisdiction over Maureen Desmond Kasubaski. The issue on appeal is whether Maureen
waived jurisdictional objections when she sought a postponement of the action
under the Soldiers' and Sailors' Civil Relief Act of 1940 (SSCRA), 50 App.
U.S.C.A. §§ 501-591 (West 1990). We
conclude that under Artis-Wergin v. Artis-Wergin, 151 Wis.2d 445,
444 N.W.2d 750 (Ct. App. 1989), Maureen waived jurisdictional objections. We reverse the judgment and remand the
action for further proceedings.
The parties were married
in 1989 while both were in active military service in South Carolina. They then served four years in Turkey. Upon his military discharge in January 1994,
Gregory returned to Berlin, Wisconsin from Turkey. In July 1994, Maureen was served in Turkey with the divorce
petition. She sent the clerk of the
circuit court a "memorandum" asking for the postponement of a hearing
set for July 25, 1994, based on the SSCRA.
She requested that the motion be moved to October 31, 1994, "to
allow for my overseas travel and to obtain counsel."
A temporary order was
entered appointing counsel for Maureen.
On October 18, 1994, Maureen moved for dismissal contending that the
requirement of § 801.05(11), Stats.,[1]
was not satisfied. The trial court
concluded that Maureen had not waived her rights under the SSCRA and that she
timely objected to personal jurisdiction.
It dismissed the action based on lack of personal jurisdiction over
Maureen.
Gregory argues that when
Maureen responded to the clerk of court asking for affirmative relief in the
form of a postponement without reserving a jurisdictional objection, she
submitted to the jurisdiction of the circuit court. The circumstances are similar to the facts in Artis-Wergin. There a Wisconsin divorce proceeding was
commenced while the husband was on military duty in Paris. At the husband's request, a legal services
officer wrote the clerk of court indicating that the husband did not waive his
rights under the SSCRA and that the husband requested a delay of six months
before a response was due. The holding
is:
We
conclude that a party cannot enter an appearance, request affirmative relief
from the court, and then later argue that the court was without personal
jurisdiction. Therefore [the letter on
behalf of the husband] to the trial court requesting a stay of proceedings
under the SSCRA and failing to reserve a jurisdictional objection served as an
appearance and gave the court personal jurisdiction.
Artis-Wergin, 151
Wis.2d at 453, 444 N.W.2d at 753-54.
Maureen did the same
thing here. She wrote a letter asking
for a postponement to a definite date.
She sought relief from the court and did not reserve a jurisdictional
objection. We are bound by Artis-Wergin.[2] Therefore, we conclude that Maureen waived
any objection to personal jurisdiction.
In her pro se response
before this court, Maureen argues that the trial court lacks jurisdiction
because Gregory did not reside in this state for six months prior to filing for
divorce. We assume Maureen's argument
refers to § 801.05(11), Stats.,
which gives the court personal jurisdiction in an action for divorce when the
married couple has lived at least six months in the last six years in this
state. This is an alternative method of
acquiring personal jurisdiction and not an absolute requisite. See McAleavy v. McAleavy,
150 Wis.2d 26, 33, 440 N.W.2d 566, 569 (1989).
Here, both parties waived the requirement of personal jurisdiction by
submitting to the jurisdiction of the court.
See §§ 801.06 and 802.06(8), Stats., 1993‑94.
Gregory suggests that we
need to determine whether the SSCRA prevents the Wisconsin court from obtaining
jurisdiction over Maureen because the trial court's reasons for dismissing the
action were not clear. We deem it
sufficient to point out that the SSCRA is not a jurisdictional shield in and of
itself. The SSCRA provides for the
appointment of counsel before entry of a default judgment or a stay of
proceedings when warranted by the nature of military service. See Artis-Wergin, 151
Wis.2d at 453-54, 444 N.W.2d at 754.
By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Section 801.05(11), Stats., provides that a court acquires personal jurisdiction over a respondent "in any action affecting the family ... when the respondent resided in this state in marital relationship with the petitioner for not less than 6 consecutive months within the 6 years next preceding the commencement of the action and the respondent is served personally ...."
[2] This case illustrates the harshness of the Artis-Wergin v. Artis-Wergin, 151 Wis.2d 445, 444 N.W.2d 750 (Ct. App. 1989), decision. Here, Maureen proceeded without counsel and asked for the relief the SSCRA provides—that is, a postponement until the rigors of military service no longer interfere with the serviceperson's ability to give attention to the matter. In our opinion, Artis-Wergin is wrongly decided. However, we are bound by the published decisions of this court. See Ranft v. Lyons, 163 Wis.2d 282, 299-300 n.7, 471 N.W.2d 254, 261 (Ct. App. 1991); In re Court of Appeals, 82 Wis.2d 369, 371, 263 N.W.2d 149, 149-50 (1978).