Beckmann v. Beckmann

• Decision Date: 18 May 1948
• Docket Number: No. 27440.,27440.
• Parties: BECKMANN v. BECKMANN.
• Court: Missouri Court of Appeals

211 S.W.2d 536

BECKMANN v. BECKMANN.

No. 27440.

St. Louis Court of Appeals. Missouri.

May 18, 1948.

Motion for Rehearing and to Transfer to Supreme Court Denied June 18, 1948.

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

Divorce action by N. Jean Beckmann against Edward A. Beckmann. From the decree, the defendant appeals.

Reversed and remanded with directions.

Claude W. McElwee and Lawrence Presley, both of St. Louis, for appellant.

Philip A. Foley, of Clayton, for respondent.

ANDERSON, Judge.

This is an appeal from a decree of the Circuit Court of the County of St. Louis, under which N. Jean Beckmann, the plaintiff, was awarded a divorce from Edward A. Beckmann, the defendant. The decree also awarded to the plaintiff the custody of the two minor children born of the marriage, the sum of Thirty Dollars ($30) a month for the support of each of the two children, Forty Dollars ($40) a month as alimony, and Two Hundred Fifty Dollars ($250) as and for an attorney's fee.

The petition alleged that the parties were married at St. Louis, Missouri, on June 26, 1936, and separated on or about June 3, 1946. General indignities were alleged as grounds for the relief sought. The petition then alleged that plaintiff was a resident of St. Louis County, Missouri, and had resided in said county and state for more than one whole year next prior to the filing of the petition. The petition further alleged that the defendant had absented himself from his usual place of abode in this state so that the ordinary process of law could not be served upon him, and that the present known address of defendant was: C/o Commander A. G. Beckmann, U. S. Naval Ordnance Test Station, No. 2 Enterprise Rd., Inyokern, California. The petition requested service upon the defendant by mail, as provided by law. The prayer of the petition was that plaintiff be divorced from the bonds of matrimony; that she be granted the custody of the two minor children born of the marriage; that she be allowed sufficient support for herself and said minor children, and the payment of attorney's fees and costs.

On this petition summons was issued, and a copy thereof sent by the clerk of the court by registered mail to the defendant at the address given in said petition, with a request for a return receipt signed by the addressee only. The envelope containing this summons was thereafter returned to the clerk of court, with the post office stamp "Unclaimed" appearing on the envelope.

Thereafter, on November 26, 1946, plaintiff made application to the court for an order of publication. This application was sworn to by plaintiff's attorney, and stated that to the best of his information and belief, the defendant could not be personally served in this state in the manner prescribed by law for personal service, because defendant had absented himself from his usual place of abode in this state, so that the ordinary process of law could not be served upon him, and that the then present address of the defendant was: C/o Commander A. G. Beckmann, U. S. Naval Ordnance Test Station, No. 2 Enterprise Rd., Inyokern, Calif.

Upon this application an order of publication was granted. Thereafter, and on January 2, 1947, proof of publication was filed in the cause, showing that the notice of publication had been duly published in the Watchman-Advocate, a weekly newspaper of general circulation printed and published in St. Louis County, Missouri, for four consecutive issues, the first being on November 29, 1946, the second on December 6, 1946, the third on December 13, 1946, and the fourth on December 20, 1946.

On January 13, 1947, plaintiff was granted a default and inquiry, and the cause on said day was set for trial on January 17, 1947.

On January 14, 1947, defendant filed a special motion to the jurisdiction, reciting that defendant appeared specially and solely for the purpose of objecting to the jurisdiction of the court, and averring that the court had no jurisdiction for the reason that defendant was temporarily in the state of California, and detained there on account of ill health. This motion was on February 4, 1947, overruled.

Thereafter, on February 14, 1947, defendant appealed from said order to this court. On May 27, 1947, this court dismissed said appeal because taken from a non-appealable order.

Thereafter, on June 27, 1947, the cause was tried in the Circuit Court. Defendant did not appear at said trial either in person or by attorney. The judgment appealed from was thereafter rendered on July 28, 1947.

At the trial, plaintiff appeared and testified as a witness in her own behalf. The greater part of her testimony was directed to the case on the merits. This testimony will not be reviewed. It is sufficient to state that it supported the allegations of the petition and was sufficient to support the decree of divorce.

Plaintiff further testified that on September 21, 1946, she went shopping for three or four hours, and when she returned home learned that defendant had taken her children away. She presumed he had taken them to the home of his mother and brother, who lived in California. She afterwards learned that that was where he had taken the children. In March, 1947, defendant was in St. Louis for four days. He called plaintiff on the telephone at that time, but told plaintiff that he did not have the children with him. Later, however, defendant's lawyer told plaintiff that the defendant did have the children with him on that trip.

On August 7, 1947, the defendant filed a motion for new trial. By this motion defendant appeared specially, and, limiting his appearance for the purpose of the motion, moved the court to set aside and vacate that portion of the judgment whereby plaintiff was awarded the custody of the children; that portion of the judgment providing for alimony and suit money for the wife; and that portion making allowance for the support of said children.

As grounds for said motion it was alleged, (a) that the court was without jurisdiction over the person of defendant, and therefore was without jurisdiction to render a money judgment against him; (b) that service of process was had upon defendant by publication, and that the defendant was not served personally, or otherwise, with summons in the state of Missouri, so as to confer jurisdiction upon the court to render a money judgment in the case; (c) that said minor children were not, and had not been, within the jurisdiction of the court during the pendency of the case, and that defendant, in whose custody said children had been during the pendency of the case had not been served with summons within the state of Missouri; and, by reason thereof, the court was without jurisdiction to make and enter a judgment or decree awarding the custody of the said minor children to the plaintiff; and (d) that the court was without jurisdiction over the person of both and each of said minor children, and was without jurisdiction to render a judgment and decree granting their custody to the plaintiff.

The court overruled this motion, and defendant has appealed from the judgment.

Appellant's first point is that the court erred in rendering judgment in plaintiff's favor for alimony and for an attorney's fee because there was no personal service upon the defendant, nor was there a general appearance to the suit by the defendant. The only service had upon defendant was by publication. In this manner the court acquired jurisdiction to adjudicate the merits of the cause of action for divorce, but did not acquire jurisdiction to render a personal judgment for alimony and suit money against defendant. Elvins v. Elvins, 176 Mo.App. 645, 159 S.W. 746; Hedrix v. Hedrix, 103 Mo.App. 40, 77 S.W. 495; Moss v. Fitch, 212 Mo 484, 111 S.W. 475, 126 Am.St.Rep. 568; Ellison v. Martin, 53 Mo. 575. Therefore, unless there was a general entry of appearance by defendant, the appellant's contention must be sustained.

Respondent urges that defendant entered his appearance in said cause by filing his motion to the jurisdiction. But, by this motion defendant limited his appearance for the purpose of the motion which attacked the jurisdiction of the court. It was not a motion like that filed in State ex rel. Pacific Mutual Life Insurance Co. v. Grimm, 239 Mo. 135, 143 S.W. 483, relied on by respondent. In that case, the movant pleaded matters going to the merits, along with its plea to the jurisdiction, and the court held that by so doing said defendant had entered its general appearance in the case. In the instant case, no matters in defense to the merits were pleaded by defendant so as to give the court jurisdiction to render a personal money judgment against him. A special appearance, properly interposed and limited, does not confer on the court jurisdiction of the person or waive jurisdictional defects. State ex rel. Federal Reserve Life Ins. Co. of Kansas City, Kansas, v. Wright, Mo. App., 88 S.W.2d 427; State ex rel. Sharp v. Knight, 224 Mo.App. 761, 26 S.W.2d 1011; State ex rel. Rakowsky v. Bates, Mo.App., 286 S.W. 420; State ex rel. Deems v. Holtcamp, 245 Mo. 655, 151 S.W. 153; Evansville Grain Co. v. Mackler, 88 Mo.App. 186; Huttig-McDermid Pearl Button Co. v. Springfield Shirt Co., 140 Mo.App. 374, 124 S.W. 1094; 4 C.J. page 1368; 6 C.J.S., Appearances, § 22, page 65.

Although no valid objection to the jurisdiction was stated in the motion, that fact does not convert the special appearance into a general one. State ex rel. Rakowsky v. Bates, Mo.App., 286 S.W. 420. Nor can we hold that the motion was not a plea to the jurisdiction, but an application for a continuance, as urged by respondent. By its plain terms it attacked what respondent considered the basis of the order of publication.

The court, therefore, erred in rendering a personal money judgment against defendant. Elvins v. Elvins, 176 Mo.App. 645, 159 S.W. 746; Hedrix v. Hedrix, 103 Mo. App. 40, 77 S.W....