Bridges v. Bridges, 38477

• Decision Date: 18 October 1977
• Docket Number: No. 38477,38477
• Citation: 559 S.W.2d 753
• Parties: James G. BRIDGES, Respondent, v. Olandrea S. BRIDGES, Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 753

559 S.W.2d 753

James G. BRIDGES, Respondent, v. Olandrea S. BRIDGES, Appellant.

No. 38477.

Missouri Court of Appeals, St. Louis District, Division One.

Oct. 18, 1977 Appellant's Motion for Rehearing or for Transfer to Court En Banc or Transfer to Supreme Court Denied Dec. 16, 1977.

Armstrong, Teasdale, Kramer & Vaughan, Justin C. Cordonnier, St. Louis, for appellant.

Wasinger & Parham, Marion F. Wasinger, Hannibal, for respondent.

McMILLIAN, Judge.

Appellant Olandrea S. Bridges appeals from a judgment of the Hannibal Court of Common Pleas, dissolving the marriage of appellant and respondent, James G. Bridges, § 452.305 RSMo Supp.1975, and granting custody of the couple's daughter to respondent, § 452.375, RSMo Supp.1975. Appellant attacks only the award of custody on the ground that the trial court did not have personal jurisdiction over her at the time the petition was filed. We hold the court of common pleas had the necessary jurisdiction and, accordingly, affirm.

James and Olandrea Bridges were married on December 2, 1973, while Mr. Bridges was a member of the Armed Services. One child, Lisa, was born on May 28, 1974. Mr. Bridges was discharged in November of 1974 and he, Olandrea, and Lisa returned to his permanent address in Hannibal, Missouri. On January 9, 1975, Mrs. Bridges took Lisa, without telling her husband, and went to her aunt's home in St. Louis, Missouri. Later, on the night of January 9, she and Lisa flew to her parent's home in Delaware, where Mrs. Bridges has remained.

On January 9, after his wife had left, James Bridges met with his attorney and prepared a petition for dissolution of marriage. This petition was filed on January 15, 1975, and, after hearings, the Hannibal Court of Common Pleas in Missouri, rendered a decree on June 2, 1975, granting a dissolution of marriage and awarding custody of Lisa to Mr. Bridges. Mrs. Bridges filed a petition in the Family Court of Delaware seeking custody of Lisa on January 10, 1975. That court rendered a judgment on March 10, 1975, granting Mrs. Bridges custody of Lisa. In a habeas corpus proceeding brought by Mrs. Bridges in the Circuit Court of the Tenth Judicial Circuit of Illinois, ¹ however, the Delaware court order was held to be defective because of improper service on Mr. Bridges. The Illinois court denied Mrs. Bridges relief on the ground that the Missouri order of custody was valid and entitled to full faith and credit.

In this appeal Mrs. Bridges questions only the award of custody by the Hannibal court of common pleas. Her sole argument is that because the trial court did not have personal jurisdiction over her when the petition was filed, the custody award to Mr. Bridges is invalid.

We must sustain the trial court's judgment "unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law," Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976) and Civil Rule 73.01, V.A.M.R. Keeping this in mind, we turn to the merits of the appellant's argument.

A court may adjudicate the custody of a child " '. . . (a) who is domiciled in the state, or (b) who is present in the state, or (c) . . . if the controversy is between two or more persons who are personally subject to the jurisdiction of the state.' " Kennedy v. Carman, 471 S.W.2d 275, 282 (Mo.App.1971); Morgan v. Morgan, 542 S.W.2d 617, 618 (Mo.App.1976). There are two possible theories to sustain the trial court's determination of custody, both of which depend upon a finding that Olandrea Bridges was domiciled in Missouri when the petition was filed with the court of common pleas. A child's domicile is presumed to be the same as that of her custodial parent. Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, 569 (1949). At the time the action was filed, January 15, 1975, Lisa was in the custody of her mother. Therefore, if Mrs. Bridges was a domiciliary of Missouri, so was Lisa and the court had jurisdiction under the first instance listed above. In addition, if Mrs. Bridges is a domiciliary of Missouri, the court would have had personal jurisdiction over both parties to the controversy as stated in the third circumstance listed above. Because Mr. Bridges is undisputably domiciled in Missouri, the trial court has jurisdiction over him; and if Mrs. Bridges was a domiciliary of Missouri at the time the petition was filed, the court had jurisdiction over her pursuant to Civil Rule 54.07, V.A.M.R. Rule 54.07 provides that service outside the state is sufficient to authorize a general judgment in personam upon any person who was domiciled in the state at the time of the commencement of the civil action, which in this case is January 15, 1975, the date the petition was filed.

We find that on January 15, 1975, when the cause of action commenced, appellant was a domiciliary of Missouri. It is clear that she was a domiciliary on January 9 for her husband had been a domiciliary of Missouri throughout and after his service in the Army, and a woman's domiciliary is the same as her husband's. Cox v. Cox, 488 S.W.2d 275, 277 (Mo.App.1972). We do not find that the evidence was sufficient as of January 15, 1975, to show that she abandoned this domicile and established a new one.

Two things are necessary to establish a new domicile:...