Beckmann v. Beckmann

• Citation: 218 S.W.2d 566,358 Mo. 1029
• Decision Date: 14 March 1949
• Docket Number: 41126
• Parties: N. Jean Beckmann, Plaintiff-Respondent, v. Edward A. Beckmann, Defendant-Appellant
• Court: United States State Supreme Court of Missouri

218 S.W.2d 566

358 Mo. 1029

N. Jean Beckmann, Plaintiff-Respondent, v. Edward A. Beckmann, Defendant-Appellant

No. 41126

Supreme Court of Missouri

March 14, 1949

Appeal from Circuit Court of St. Louis County; Hon. Fred E Mueller, Judge.

Affirmed as to custody of the children and reversed as to maintenance and alimony.

Claude W. McElwee and Lawrence Presley for appellant.

(1) The court erred in including, in the final judgment and decree of absolute divorce, a personal judgment against the defendant for $ 30 a month for the support of each of the children of the parties, $ 40 a month alimony, $ 250 attorney's fees and costs, because there was no general appearance to the suit by the defendant, and personal service of summons was not had upon the defendant within the State of Missouri, and service of process on the defendant was by publication, only and, therefore, the Court was without jurisdiction of the person of the defendant, and was without jurisdiction to award plaintiff a personal judgment against the defendant for alimony, support for the children, attorney's fees and costs, and the Court's action in so doing was without due process of law. Sec 10, Art. 1, Const. of Mo. of 1945; Chapman v. Chapman, 185 S.W. 221, 194 Mo.App. 483; Elvins v. Elvins, 176 Mo.App. 645; Hedrix v Hedrix, 103 Mo.App. 40. (2) The court erred in including in the final judgment and decree of absolute divorce, a judgment and decree awarding the custody of the minor children, Edward Randolph Beckmann and Berry Philip Beckmann, to the plaintiff, because service of process was obtained upon the defendant by publication, and the said minor children were in the actual custody of the defendant in the State of California, and, therefore, the court was without jurisdiction to award the custody of said minor children to plaintiff, and, in so doing, deprived the defendant of his legal right to the custody of said children without due process of law. Sanders v. Sanders, 14 S.W.2d 458, 223 Mo.App. 834; Elvins v. Elvins, 176 Mo.App. 645; 27 C.J.S., p. 1163, sec. 303 (b); De La Montanya v. De La Montanya, 44 P. 345; Sec. 10 of Art. I, Const. of Mo. 1945; Sec. 28, Laws of 1943, p. 353; Sec. 1526, R.S. 1939. (3) An "adjudication" involves the exercise of judicial power in rendering a judgment by a court having jurisdiction not only of the subject matter, but also of the parties whose rights are being adjudicated. State v. Huhn, 142 S.W.2d 1064; Dickey v. Dickey, 132 S.W.2d 1026. (4) The special appearance and motion of the defendant, challenging the jurisdiction of the trial court, and his appeal from the order overruling it, did not constitute a general apearance to the divorce suit by the defendant. State ex rel. Rakowski v. Bates, 286 S.W. 420; Elvins v. Elvins, 176 Mo.App. 645; Huff v. Shepard, 58 Mo. 242. (5) Hearsay evidence to the effect that the plaintiff had been informed by others that the defendant had returned to the State of Missouri with the children for a four-day period, did not confer jurisdiction upon the court to award a judgment against the defendant, either for alimony, attorney's fees, support for the children, and costs, or for the custody of said children, because (1) parol evidence is inadmissible to confer jurisdiction where the return of process shows the lack of jurisdiction, and (2) hearsay evidence of facts is not competent evidence to prove them. Madison County Bank v. Susman's Administrator, 79 Mo. 527; Taylor v. Helter, 201 S.W. 618, 198 Mo.App. 643; State ex rel. Metropolitan Life Ins. Co. v. Shain, 121 S.W.2d 789.

Philip A. Foley for respondent.

(1) The Court did not exceed its jurisdiction in awarding plaintiff the custody of the minor children born of the union, judgment for their support, alimony, attorneys' fees and costs of the proceeding, because defendant, by filing what he termed "special motion to the jurisdiction," entered his appearance generally so as to give the court jurisdiction of his person. General Code for Civil Procedure, Secs. 61, 93; State ex rel. v. Grimm, 239 Mo. 135.

OPINION

Douglas, J.

Plaintiff sued her husband for divorce. She asked for custody of their two minor children, maintenance for the children and alimony for herself. Defendant was served by publication but did not appear at the trial. He and the children were in California when the trial was had. Plaintiff was granted a divorce, custody of the children, an allowance for their support and alimony. Defendant appealed to the St. Louis Court of Appeals from the orders awarding maintenance and custody of the children and awarding alimony. He did not appeal from the judgment of divorce. He contended the trial court on constructive service had no jurisdiction either to enter a personal judgment against him for maintenance and alimony or to adjudge the custody of the children. As an additional ground for his latter contention he relied on the fact that during the pendency of the case the children were physically outside the jurisdiction of the court and in another state. The court of appeals in a well reasoned opinion held the award of custody was proper but the judgment for maintenance and alimony was void.

The case was transferred here because the question as to the right to award the custody of children under the circumstances of this case was a novel one in this state. We are in accord with the court of appeals' opinion and confirm its conclusions. Since the case is here as if on original appeal we dispose of it by an opinion of this court. However, for a more complete discussion of the facts and the authorities from this and other jurisdictions consult the court of appeals' opinion in 211 S.W.2d 536.

Briefly, the facts show plaintiff and defendant were married in St. Louis in 1935 where defendant was employed by the telephone company. They later bought a home on Litzsinger Road in St. Louis County which stands in both their names. Their two boys were born while they were living there. That continued to be the family home where all lived together until September, 1946. One day while plaintiff was out of her home doing errands defendant took the two children, aged 4 and 5 years, and flew with them to California. His leaving was sudden, unexpected and a surprise to plaintiff. He had not previously told her of any intention to take the children and leave.

Defendant's mother lived in California and his brother, an officer in the Navy, was stationed there. Plaintiff located defendant and the children at his brother's station at a United States Naval Ordnance Test Station with the postoffice address at Inyokern, California. They exchanged some correspondence with each other at that address. She testified her husband told her over the telephone the Naval Base was highly restricted and she would not be granted admission so it would be useless for her to attempt to visit her children there. Later on, and while this suit was pending, she said her husband returned to St. Louis and communicated with her by telephone.

Defendant's sudden flight precipitated the filing of this suit. The suit was based on indignities. Plaintiff attempted to obtain service on defendant by registered mail using the same address she had used in writing him at his brother's station but the summons was returned "unclaimed". Then she obtained an order of publication on the ground her husband had left his usual place of abode in this state. Service by publication was had but defendant did not answer. However, he filed a special appearance for the purpose of objecting to the court's jurisdiction to proceed with the case. The ground of his objection was, "defendant is temporarily in the State of California and is detained there on account of ill health." When his motion to the jurisdiction was overruled he appealed. The court of appeals dismissed that appeal. Thereafter a trial was held. Defendant was not present and was not represented. Plaintiff was granted a divorce, custody of the children, maintenance and alimony. Again appearing specially defendant filed a motion for a new trial as to the award of custody of the children, and as to the maintenance and alimony. After his motion was overruled he appealed.

So under these facts we have as the first question for decision: Did the court have jurisdiction to award the custody of the children inasmuch as the children were physically outside the state with their father, and their father was served only by publication?

The rule has been announced with good authority that a court may not award custody of a child where it has no jurisdiction of the person of the defendant and the child is not within the state. 27 CJS., Divorce, § 303 b. In the cases supporting this rule there was no jurisdiction of the person of the defendant because only constructive service was had. In Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458 we had that situation. The plaintiff husband filed suit in this state and obtained service by publication on his wife who was domiciled in Maryland and was living there with their two children. The defendant was a nonresident of Missouri and the children had never been within the state. The court held the trial court to be "without jurisdiction to fix the custody of the minor children who at the time are living with the nonresident defendant and are not domiciled in the state where the decrees rendered." The decisions in De la Montanya v. De la Montanya, 112 Cal. 101, 44 P. 345, and Boens v. Bennett, 20 Cal.App. (2d) 477, 67 P.2d 715 are to the same effect. And see Drew v. Drew (Mo. App.) 186 S.W. 858. In our opinion such rule is sound, but we find it is not applicable under the facts here.

The custody of minor children is comprehended under the term status because it involves "a legal personal...