Chamberlain v. Chamberlain
| Decision Date | 09 January 2002 |
| Docket Number | SD24095 |
| Citation | 63 S.W.3d 326 |
| Parties | Dorothy Chamberlain, Petitioner-Respondent, v. Steve Chamberlain, Respondent-Appellant 24095 Missouri Court of Appeals Southern District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of New Madrid County, Hon. Fred W. Copeland, Judge
Counsel for Appellant: Heath H. Hooks
Counsel for Respondent: Lynn N. Bock
Opinion Summary: None
Dorothy J. Chamberlain ("Wife") and Steve Chamberlain ("Husband") were divorced by the New Madrid Circuit Court on December 14, 1993. Husband filed a Petition to Vacate Decree of Dissolution on May 22, 2000. The trial court overruled the petition1 and Husband appeals from that judgment. We reverse and remand the case to the trial court for further proceedings consistent with this opinion.
Wife filed her Petition for Dissolution of Marriage on July 19, 1993. She alleged that Husband "cannot be served in [Missouri] with process in the manner prescribed by law for personal service of process in this state, and his present address is Rt. 3, Box 237, Golconda, Illinois, 63938." Wife provided Husband's social security number and stated that he was unemployed.
On July 19, 1993, the New Madrid County Circuit Clerk ("the clerk") sent a letter to the sheriff of Pope County in Golconda, Illinois requesting the sheriff serve an enclosed summons on Steve Chamberlain. The letter was returned to the clerk's office with a notation dated September 21, 1993, which stated that the summons was being returned because it was outdated. The clerk sent another letter and summons to the Pope County sheriff dated September 23, 1993, again asking that the sheriff serve Steve Chamberlain. No record of service of the summons exists and there is no further explanation as to why he was not personally served.
On October 18, 1993, the Circuit Court of New Madrid County issued an Order of Publication of Notice to Steve Chamberlain ("publication order") concerning the dissolution action. In the "Affidavit of Publication," Clement Cravens, "Publisher of The Weekly Record" swore that notice was published concerning the Chamberlain divorce petition from October 22, 1993 through November 12, 1993 in "The Weekly Record," "a weekly newspaper of general circulation in the County of New Madrid." The court heard evidence on the divorce petition on December 14, 1993 and found Husband in default. The marriage was dissolved and marital property and debts were divided pursuant to the petition for dissolution and decree. On May 22, 2000, Husband filed his verified "Petition to Vacate Decree of Dissolution Entered On December 15, 1993." The petition alleges the decree of dissolution should be set aside for lack of personal jurisdiction over Husband. Husband admits that publication was made in New Madrid County, but alleges a copy of the summons and petition was not mailed to him. Husband also alleges that Wife "grossly misrepresented to the Court the marital assets of the parties." Husband claims that, as a result, the property distribution was "grossly inequitable."
The court held a hearing on Husband's petition to vacate on November 14, 2000, but no evidence was taken. The attorneys made oral arguments and Husband requested leave to file an amended petition. The court, indicating it would go through the pleadings and examine what led to the default decree, took the entire matter under advisement. The court overruled Husband's petition and never made a ruling on Husband's request to file an amended petition.
Husband appeals the court's denial of his petition to vacate on two grounds. First, Husband contends the court erred in overruling his petition because the court had no jurisdiction to enter the decree of dissolution of marriage. Husband's second contention is that the court erred in overruling his petition to vacate because the allegations were sufficient to warrant an evidentiary hearing on Husband's allegation that the division of marital assets was procured by fraud.
Husband argues the court did not have jurisdiction to enter the decree of dissolution because the rules regarding service were not followed and the court did not have personal jurisdiction over Husband. The crux of Husband's argument is that he received no notice, constructive or otherwise, of the dissolution proceeding. Specifically, Husband cites to Rule 54.17(e), Missouri Rules of Civil Procedure (1993) and § 506.160.3.2 Rule 54.17 was repealed in 1993, effective January 1, 1994, but it was in effect at the time the petition for dissolution was filed and the decree of dissolution was entered. Rule 54.17(e) read as follows:
If the address of any of the parties to be served by publication is given in the verified statement the clerk shall (1) within ten days after such order of publication mail a copy of the order of publication of notice and a copy of the petition to each such defendant and (2) file a certificate that such copies have been mailed.
The applicable portion of § 506.160.3 states as follows:
If the plaintiff . . . shall allege in his verified petition . . . that part or all of the defendants are nonresidents of the state . . . and cannot be personally served in this state in the manner prescribed by law for personal service, . . . and the affidavit or the verified petition shall state the present known address of the defendant, if known, . . . the court or judge or clerk thereof shall issue an order of publication of notice to such defendant or defendants, notifying such defendant or defendants of the commencement of the action, and stating briefly the object and general nature thereof, and describing the property, if any, to be affected. . . . If the present known address of the defendant is given, the clerk shall within ten days after said order of publication mail a copy of the notice to each defendant whose address has been stated in the affidavit or verified petition. The clerk shall file a certificate certifying that copies of the notice have been mailed as required by this section, in all cases where the present known address has been given, and such certificates shall be conclusive and binding upon the parties.
(Emphasis added.)
Husband contends that because the clerk failed to mail Husband a copy of the publication order and the petition and failed to file a certificate that such mailing occurred, both of which are required by the rule and statute quoted above, the trial court lacked personal jurisdiction over Husband and had no jurisdiction to enter the Decree of Dissolution. Husband does not dispute that the publication order was issued, nor does he contend that the publication order itself and its publication did not comply with the requirements of § 506.160.3. He claims the clerk did not comply with the statute in two ways: the clerk did not mail Husband the publication order and petition and the clerk did not file a certificate that those documents had been mailed to Husband.
Initially, we note in personam jurisdiction is not necessary to the dissolution of a marriage because such a proceeding affects status only and the action is in rem, or at least quasi in rem, and requires for a valid judgment only that the res be before the court on proper notice. Southard v. Southard, 733 S.W.2d 867, 868 (Mo.App. S.D. 1987). However, "[d]ue process requires that the notice must be reasonably calculated to afford notice of the pendency of the action." Williams v. Williams, 950 S.W.2d 919, 923 (Mo.App. W.D. 1997). When a party is absent from the state a court does not acquire jurisdiction to dissolve a marriage or dispose of the property of the parties unless there is proper notice to the out-of-state party. In re Marriage of Breen, 560 S.W.2d 358, 362 (Mo.App. 1977). Following the rules for service by publication "according to conventional due process, allows rendition of a valid judgment in rem as to the title of real estate, marital status, or any other thing authorized by law . . . to be brought before the court by that method." Id. When...
To continue reading
Request your trial