Affidavits to Support Challenges to Jurisdiction in Florida Divorce

By Michael P. Sampson (part 8 of 8)

Black Labrador Taking Oath Raised Paw. Affidavits to Support Challenges to Jurisdiction in Florida Divorce. Image by Fabian Gieske (Unsplash)

Affidavits: Important to Be Prepared!

An entity drawn into a family law dispute typically must assemble sworn affidavits to support challenges to service of process or personal jurisdiction or both. See Fishman, Inc. v. Fishman, 657 So. 2d 44 (Fla. 4th DCA 1995).

Nonresident defendant corporations or trusts challenging long-arm jurisdiction in a Florida divorce must file affidavits. But, if the spouse attempting to establish jurisdiction over the nonresident fails to plead a legally sufficient basis for personal jurisdiction over it, the burden of refuting jurisdictional facts with affidavits doesn’t shift to the nonresident.  

Courts Derive Facts About Threshold Challenges to Service of Process or Jurisdiction from Affidavits

In reviewing a motion to quash service or dismiss for lack of personal jurisdiction, the court likely will derive facts from the affidavits to support challenges, transcripts, and other records. See Rollet v. de Bizemont, 159 So. 3d 351 (Fla. 3d DCA 2015) (reversing denial of nonresident husband’s motion to dismiss accompanied by his affidavit detailing reasons his wife could not plead sufficient allegations to establish personal jurisdiction over him).

Multiple Florida cases illustrate how important affidavits are. For example, in Hamilton v. Hamilton, 142 So. 3d 969 (Fla. 4th DCA 2014), a family stock purchase agreement provided for mandatory venue and consent to jurisdiction in Florida, but a Michigan stepson’s affidavit refuted many allegations regarding contacts with Florida, independent of the forum selection clause, that could establish the requisite minimum contacts. The plaintiff stepmother filed no response or affidavits refuting stepson’s statements.

Similarly, in Marina Dodge, Inc. v. Quinn, 134 So. 3d 1103 (Fla. 4th DCA 2014), affidavits before the trial court revealed few contacts between the defendant and Florida. The court in Extendicare, Inc. v. Estate of McGillen, 957 So. 2d 58 (Fla. 5th DCA 2007) relied on affidavits to support challenges to jurisdictional allegations in a complaint. The plaintiff failed to meet its burden to offer sworn proof to contradict the jurisdictional allegations in the affidavit, thus failed to establish a basis for jurisdiction.

See also Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla.1989), which sets forth the process for determining factual issues raised by a motion to dismiss for lack of personal jurisdiction and Bellairs v. Mohrmann, 716 So. 2d 320 (Fla. 2d DCA 1998) (following the Venetian Salami procedure regarding the alter ego theory for establishing jurisdiction). 

Explain Corporate Relationships with Affidavits

For jurisdiction, how do courts handle foreign entities affiliated with Florida companies? Affidavits and declarations can help judges figure out complex corporate structures. That way, the judges can determine if a spouse’s claims against a foreign entity within the structure is subject to personal jurisdiction.

Eight acts or contacts Florida’s long-arm statute lists can subject an entity to specific jurisdiction. The spouse’s action must also “arise from” one or more of the acts or contacts that give rise to specific jurisdiction. 

“Arise from” means a substantive connection between the basis of the cause of action and activity in Florida. There must be a direct affiliation, nexus, or substantial connection between the basis for the cause of action and the action that falls under the long-arm statute.

Schumacher – Merely Sharing Trademarks

In The Schumacher Group of Delaware, Inc. v. Dictan, Case No. 3D20-1571 (Fla. 3d DCA Sep 8, 2021), a Delaware holding company, principally doing business in Louisiana, supported its motion to dismiss with its vice president’s declaration. The medical malpractice plaintiff alleged insufficient jurisdictional facts to satisfy the long arm statute requirements.

The VP’s declaration stating the company was a holding company doing no business in Florida, had no office in Florida, had no employees in Florida, and owned or lease no property in Florida. Further, the VP explained the Delaware holding company did not control its Florida affiliates’ business operations. The entities maintained separate corporate books and records and separate boards of directors. 

Reversing the trial court, the appellate court accepted the declaration and other record evidence as sufficient to refute the plaintiff’s theories, and ordered the trial judge to dismiss the Delaware holding company. The court rejected that merely sharing trademarks, which aren’t legal entities through which a company could act, supported specific long-arm jurisdiction. Further, the plaintiff failed to overcome the declaration by presenting evidence to show such sharing met the “arising from” requirement for specific personal jurisdiction.

Affidavits to Support Challenges May Be Excused When Spouse Fails to Plead Jurisdictional Basis

A spouse who has sued a corporation or trust must plead a basis for jurisdiction before the burden shifts to the entity to file affidavits to support challenges to jurisdiction.  As noted above, however, when the spouse hasn’t sufficiently served the entity or pled a basis for jurisdiction, the court may excuse the entity from filing affidavits contesting service of process or jurisdiction. That is, the burden of establishing lack of jurisdiction never shifts to the entity. Fishman, Inc. v. Fishman, 657 So. 2d 44 (Fla. 4th DCA 1995)

In Fishman, the wife joined three out-of-state corporations in her petition for dissolution of marriage. The trial court denied the corporations’ motion to dismiss, apparently because they filed no affidavits to support their position they lacked the minimum contacts with Florida to satisfy due process. The appellate court reversed, because the wife failed to plead in the first place a legally sufficient basis for long arm jurisdiction, so the burden never shifted to the corporations to offer sworn affidavits to plead a negative—there was no jurisdiction. 

Conspiracy: Until the Spouse Sufficiently Alleges Conspiracy, Affidavits Aren’t Yet Relevant or Required

Likewise, in an ancillary proceeding alleging a nonresident, his Delaware limited liability company, and a Miami resident committed civil conspiracy, it was not enough for the personal representative plaintiff to stick specifics about the “conspiracy” in her declaration or affidavit.  Her operative pleading (petition or complaint) had to contain sufficient allegations of civil conspiracy. She alleged no facts in the four corners of her operative pleading evidencing how the nonresident conspired with the other defendants; therefore, she did not trigger the Venetian Salami two-step dance. The parties’ competing affidavits, supporting and contesting jurisdiction, do not become relevant until the plaintiff does that within the 4 corners of the complaint and a nonresident defendant has no obligation to file an affidavit, declaration, or to present other evidence to contest personal jurisdiction. Parisi v. Quadri de Kingston, 314 So. 3d 656 (Fla. 3d DCA January 13, 2021).

Form of Affidavits: Important!

An affidavit from a representative, officer, director, trustee, partner, records custodian or other representative of an entity should state the person’s capacity to swear or affirm to the matters in the affidavit. Further, the person should describe the duties with the entity and specify the basis for personal knowledge about facts, not legal opinions, in the affidavit. See Everett v. Avatar Property & Casualty Insurance Company, 310 So. 3d 536 (Fla. 2d DCA Jan 29 2021). Although a corporate officer’s knowledge is presumed, a corporate representative’s affidavit should reveal the person’s corporate position and duties and should attach supporting business records if necessary. Id.

Unsworn Declarations: Careful!

Unsworn “declarations” that fail to include the language, “I declare under penalty of perjury” are a legal nullity and have no probative value. See Intego Software, LLC v. Concept Development, Inc., 198 So. 3d 887 (Fla. 1st DCA 2016) (the right to amend pleadings extends to correcting defects in declarations and affidavits). See also; Arnold v. Arnold, 889 So. 2d 215 (Fla. 2d DCA 2004) (“Unsworn statements cannot serve as the basis for a trial court’s factual determinations.”)

Sections 92.50 and 92.525, Florida Statutes set forth how oaths and affidavits are made in Florida, in other states, and in foreign countries.

Be Prepared to Provide Facts for Affidavits Supporting Challenges Regarding:

  • The circumstances surrounding service of process
  • Facts to refute incorrect allegations in the spouse’s pleading that purport to allege a basis for jurisdiction
  • The nature and scope of the entity’s business and property
  • The extent of agents or contacts in Florida
  • Other facts directed to specific personal jurisdiction, general personal jurisdiction or the alter ego theory, if alleged.

Read More

1: Corporation and Trust Challenges to Service of Process and Jurisdiction

2: Challenge to Personal Jurisdiction: Service of Process

3: Family Law Pleadings Must Allege Basis for Personal Jurisdiction Over the Entity

4: Personal Jurisdiction – Long-Arm Statute or Alter-Ego Theory?

5: Long-Arm Jurisdiction: Specific or General?

6: Alter Ego Basis for Jurisdiction in Florida Family Law Action

7: Jurisdiction Over Property At Issue in Florida Divorce

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