Burchett v. Burchett

Decision Date02 October 1978
Docket NumberNos. KCD,s. KCD
Citation572 S.W.2d 494
PartiesLeeta Ruth BURCHETT (Huisenga), Appellant-Respondent, v. Billie Gene BURCHETT, Respondent-Appellant. Billie Gene BURCHETT, Respondent-Appellant, v. Leeta Ruth BURCHETT (Huisenga), Appellant-Respondent. 29509, 29526.
CourtMissouri Court of Appeals

Alvin D. Shapiro, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for respondent-appellant.

Jack A. Lewis, Chancellor & Lewis, North Kansas City, for appellant-respondent.


SHANGLER, Presiding Judge.

These appeals are from a judgment which vacated a prior default judgment to modify a custody award. The order of modification rested on service by publication which issued on the affidavit of the husband that the wife was not amenable to personal service within the state because she had absented herself from her usual place of abode and her address was otherwise unknown to him. The judgment by default was vacated on the motion of the wife, understood by the court as a writ of coram nobis, and rests on the determination that the husband made no such diligent effort to locate and notify the wife of the pending action. The judgment also awards temporary custody of the children to the father pending adjudication of a separate motion to change custody and also orders the husband to pay the wife attorney fees and suit money incidental to the proceeding to vacate the default judgment.

The wife appeals from the judgment which grants the husband temporary custody of the children. The husband cross-appeals from the vacation of the prior judgment and from the order for payment of attorney fees.

The husband contests the vacation of the default judgment on the premise that a proceeding to modify custody merely exercises the continued jurisdiction the court acquired over the parties and the res by virtue of the original decree. He argues that the wife engaged that jurisdiction by her petition for divorce some years earlier and, by his perceptions, "the court has at all times had personal jurisdiction over her." This contention suggests that the formal statutory mode of service of process was superfluous to submit the wife to the judgment of the court and so, in any event, whatever insufficiency attended the publication notice could not affect the validity of the adjudication entered.

It is properly stated that a final judgment in divorce or dissolution of marriage does not divest a court of continued jurisdiction to modify that decree as to maintenance, support or custody. Sections 452.370 and 452.410, RSMo Supp. 1974; Greene v. Greene, 368 S.W.2d 426, 428(1) (Mo.1963). The jurisdiction retained by the court which renders a domestic relations decree, however, although exclusive as to such matters, operates only on changed circumstances. Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 328(4) (1952). A motion to modify a decree of custody, therefore, adjudicates new rights on new evidence and results in a new judgment from which a party aggrieved may appeal. Olson v. Olson, 184 S.W.2d 768, 772(4, 5) (Mo.App.1945); North v. North, 339 Mo. 1226, 100 S.W.2d 582, 587(13-15) (1936). Thus, although a motion to modify a decree of custody continues from the original action, such a petition constitutes an independent proceeding so that notice to the party to be adversely affected is indispensible to valid judgment. Greene v. Greene, supra, l.c. 428(1-7); Williamson v. Williamson, 331 S.W.2d 140, 142(1-2) (Mo.App.1960); In re Lipschitz, 466 S.W.2d 183, 185(1-3) (Mo.App.1971); Burgess v. Burgess, 239 Mo.App. 390, 190 S.W.2d 282, 284(1, 2) (1945).

The husband contends that only two days before the action was brought he personally told the wife he intended then to initiate proceedings to modify the custody award as to the children (whom he had taken into possession) so there was no duty for him to give further notice of what she already knew. Legal notice of the commencement of suit, however, means more than actual notice of the event. In re Marriage of Bradford, 557 S.W.2d 720, 729(16) (Mo.App.1977). Rather, the law requires that a party subject to adverse judgment shall be formally served by an officer of the court with process and statement of the claim (except for in cases of publication) and that formal proof of service be made part of the record of the proceedings. Rule 54. This ceremony accomplishes the purposes both of due process for notice and of the statute that the fact of notice shall not be subject to dispute. Williamson v. Williamson, 331 S.W.2d 140, 144(6) (Mo.App.1960); Miners' Bank v. Kingston, 204 Mo. 687, 103 S.W. 27, 31 (1907).

The law treats a motion to modify a domestic relations decree not as an original action, however, but as a subsequent pleading within the terms of Rule 43.01(a) and predecessor § 506.100 so that summons in the usual form need not issue or be served. In re Lipschitz, 466 S.W.2d 183, 185(1-3) (Mo.App.1971). 1 A reasonable notice sufficient to meet the requirements of due process nevertheless must be given to the party adversely affected and on this issue the proponent of the motion has the burden to prove that the pleading and the time for hearing were imparted to the adversary. Greene v. Greene, 368 S.W.2d 426, 428(8, 9) (Mo.1963). And where the notice is attempted upon an attorney in the cause, the burden falls on the proponent to show that the relationship of attorney and client subsisted at the time of service. Burgess v. Burgess, Supra, 190 S.W.2d, l.c. 284(3-4). In this case, one notice was attempted by service of the motion papers upon Hammett, counsel for the wife at the original proceedings, but his affidavit disclaimed that he still represented her. The subsequent word of mouth that the father would seek modification of the custody award imparted to the wife some two days before institution of proceedings was equally ineffective as the legal notice expected by due process. Burgess v. Burgess, Supra, l.c. 284(3-4); Greene v. Greene, Supra, l.c. 428; In re Marriage of Bradford, Supra, l.c. 729(16). The validity of the judgment rests, if at all, on the notice imparted by the service by publication ordered by the court under Rule 54.17 on the affidavit of the husband that the wife was not amenable to service within the state.

A judgment for the custody of children acts in rem, or at least quasi in rem, and may issue on service of process by publication. Rules 54.12 and 54.17; In re Marriage of Breen, 560 S.W.2d 358, 361(1, 2) (Mo.App.1977). Where the children are physically before the forum their custody status is a res within the power of the court to adjudicate. Kennedy v. Carman, 471 S.W.2d 275, 288(4) (Mo.App.1971). The judgment by default which modified the custody of the children to the father, therefore, was presumptively valid. The action by the wife to set aside that judgment treated by the court as a proceeding in coram nobis contends however, that the representations by the husband to induce service by publication that the wife could not be personally served within Missouri and that her address was unknown to him were untrue. The pleading contends, rather, that the husband was well aware of her presence or could have readily determined it for purpose of service.

The writ of error coram nobis was a remedy at common law to vacate a judgment which rested on a fact material to a valid adjudication, but erroneously assumed, and which if known, would have prevented jurisdiction to render the judgment. The formal writ has given way in our procedure to a simple motion to examine and correct, by evidence dehors the record, some error of fact upon which the adjudication rests. Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672, 676 (1908); Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 111 S.W.2d 103, 106(1-4) (1937). The remedy redresses a defect of jurisdiction, either from improper service or notice not of record, or from other "want of adherence to some prescribed rule or mode of proceeding" which denies a party a right. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 138 (Banc 1952); In re Jackson's Will, 291 S.W.2d 214, 222(9-12) (Mo.App.1956). Accordingly, coram nobis will vacate a judgment on service by publication where the nonresidency of the defendant was proved by a false return that "defendant cannot be found in the city" when in fact he was resident there. State ex rel. Hudson v. Heinrich, 14 Mo.App. 146 (1883).

The motion of the wife asserts a composite question of fact unknown to the court at rendition of judgment which, if proven, defeated the power of the court to proceed: that the actual knowledge of the husband of her address or his failure at honest effort to determine it bely the affidavit upon which the service by publication issued and resulted in failure of the process indispensible to valid judgment. The motion to set aside the judgment was sustained on the determination by the court that the husband was not diligent to find the wife as to justify publication or satisfy due process. The husband on this appeal contends the evidence shows his diligence sufficient to sustain the default judgment and shows also the lack of diligence of the wife to act on her actual knowledge of the impending proceeding so as to defeat her motion to vacate that judgment.

The evidence shows that in March of 1973, the marriage between them was dissolved and the custody of the two children, one boy and one girl, was awarded to the wife. The wife and children removed from Kansas City to Springfield, Missouri. During the next two years they used ten different residences and the children attended seven different schools. On March 20, 1975, the husband brought the action to modify custody which was eventually rendered by default. The events which preceded that litigation as well as the ambulations of the wife as they bear on the issue of known presence within Missouri for the purpose of service are best...

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