Crouch v. Crouch

• Decision Date: 09 November 1982
• Docket Number: No. 63405,63405
• Citation: 641 S.W.2d 86
• Parties: Cheryl CROUCH, Respondent, v. Daniel CROUCH, Appellant.
• Court: Missouri Supreme Court

Page 86

641 S.W.2d 86

Cheryl CROUCH, Respondent, v. Daniel CROUCH, Appellant.

No. 63405.

Supreme Court of Missouri En Banc.

Nov. 9, 1982.

Randall R. Smith, Mountain Grove, John E. Price, Springfield, for appellant.

Michael Baker, Springfield, for respondent.

WELLIVER, Judge.

Appellant Daniel Crouch ¹ appeals a decision overruling his motion to quash execution and garnishment following a judgment rendered against him by default. The central issue is whether a defendant, by failing to appear before entry of a default judgment waives his right to contest the trial court's personal jurisdiction over him.

I

The Circuit Court of Howell County, Missouri, granted respondent Cheryl Crouch a default dissolution of marriage on January 28, 1975. Appellant had been duly served with the petition for dissolution in Fort Knox, Kentucky, but he had filed neither a motion contesting the trial court's personal jurisdiction over him nor any other responsive pleading. The decree dissolved the marriage, granted respondent custody of the parties' minor child, and, among other things, awarded respondent money judgments of $250 per month for child support, $150 per month for maintenance, $900 for her interest in jointly held real estate, and $250 for attorney's fees.

Appellant received a copy of the decree and notice of its entry, but he did not appeal. He did not pay the money judgments rendered against him. Respondent twice secured writs of execution and garnishments against appellant and received a total of $2089.03 from his military pay.

On December 29, 1978, appellant moved to vacate the portions of the decree granting respondent money judgments. He argued, among other things, that the trial court was without personal jurisdiction over him at the time it entered the decree because the parties had not lived in lawful marriage within Missouri as required by Rule 54.06(b), the long-arm provision. ² The trial court overruled the motion without explanation. Thereafter, on November 9, 1979, respondent secured a third writ of execution and garnishment, alleging that appellant owed her $5433.15 for back child support and maintenance.

Appellant then filed the present motion to quash execution, again raising the trial court's lack of personal jurisdiction. Appellant, without objection from respondent, presented the only testimony at the hearing on the motion to quash. He testified that he was in the United States Army when he and respondent were married in Miami, Oklahoma, on December 2, 1965. They spent three days of their honeymoon in Ft. Scott, Kansas, and then visited relatives in West Plains, Missouri, before spending four days in Springfield, Missouri, where respondent was attending college. Appellant at that time had been transferred from Fort Ord, California, to Germany, for which he left on December 21, 1965. Respondent joined appellant in Germany on May 3, 1966, and their son was born there in November 1968. They returned to Osawatomie, Kansas, in December 1968 and had their furniture and property shipped there. They visited in West Plains two days during the 1968 Christmas holidays before they moved to Tucson, Arizona, where appellant had been transferred, in January 1969. They purchased a house in Tucson, but they moved back to Germany when appellant was retransferred there in May 1971. In May 1974 they returned to Osawatomie and remained there three and one-half weeks before respondent and the parties' son went to West Plains for the summer. The parties purchased a house in Osawatomie, and respondent moved in despite marital dischord; the parties had decided to separate, but appellant had been transferred to Fort Knox and thus would not be in Osawatomie. The parties' son was enrolled in school in Osawatomie, and respondent intended to rejoin appellant at Fort Knox after school was out. Respondent returned to West Plains around Thanksgiving 1974, however, and on November 29, 1974, she filed her petition for dissolution of marriage. Appellant testified that he had never lived in Missouri; that he and respondent had never lived as husband and wife in Missouri; that he owned no property, paid no property taxes, and purchased no automobile license in Missouri; that he did not register to vote in Missouri; and that he had never claimed Missouri as his domicile on any of his papers. He testified that he had always claimed Osawatomie, Kansas, as his domicile.

The trial court overruled appellant's motion to quash execution. The Missouri Court of Appeals, Southern District, affirmed on the ground that appellant, by failing to appear at the dissolution proceeding, had waived his defense that the trial court had no personal jurisdiction to render the judgment against him. We ordered the case transferred, Rule 83.03, and review it as if it were on original appeal, Rule 83.09. We reverse.

II

We first address the question whether the trial court had personal jurisdiction, for if it did there is no need to consider whether nonappearance constitutes waiver.

In International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court held that in addition to notice,

due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

Id. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)). The inquiry focuses on whether the defendant has "such contacts ... with the state of the forum as to make it reasonable, in the context of our federal system of government, to require [him] to defend the particular suit which is brought there." International Shoe, 327 U.S. at 317, 66 S.Ct. at 158. See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); State ex rel. Sperandio v. Clymer, 581 S.W.2d 377 (Mo.banc 1979). Rule 54.06(b) mandates compliance with the minimum contacts test by requiring that one whom the state would subject to an in personam judgment for maintenance, support, attorney's fees, suit money, or disposition of marital property must have "lived in lawful marriage within this state." Nothing in the record suggests that that standard has been satisfied in this case. The most that can be said is that appellant visited Missouri on a number of occasions. Respondent argues that the four days that she and appellant spent in Springfield, where she was attending college, after their wedding are sufficient to allow the trial court to acquire personal jurisdiction over appellant. The record indicates, however, that at that time appellant had been transferred to Germany and could not have taken up residence in Missouri. His brief stay falls short of satisfying the jurisdictional prerequisite. ³

III

Respondent cannot prevail unless appellant waived his right to contest the trial court's personal jurisdiction by failing to appear at the dissolution proceeding. Rule 55.27(g)(1)(B) provides that the defense of lack of personal jurisdiction, among other things, "is waived ... if it is neither made by motion under this Rule nor included in a responsive pleading." The court of appeals concluded that appellant had waived the defense because he had filed neither a motion contesting jurisdiction nor a responsive pleading raising the issue. That conclusion, we believe, misconstrues the rule.

A

Absent contacts with Missouri that satisfy the long-arm provision of Rule 54.06(b), the due process limitations on state power to assert jurisdiction over nonresident defendants, see World-Wide Volkswagen, 444 U.S. at 291-94, 100 S.Ct. at 564-565, compel the conclusion that a defendant over whom the trial court could not otherwise constitutionally acquire jurisdiction does not waive the jurisdictional defense merely by his nonappearance. Two fundamental precepts must be borne in mind. First, a personal judgment rendered by a court without personal jurisdiction over the defendant is void and may be attacked collaterally. Ray v. Ray, 330 Mo. 530, 536, 50 S.W.2d 142, 143 (1932); Adams v. Cowles, 95 Mo. 501, 507, 8 S.W. 711, 714 (1888). See Gaffney v. Gaffney, 528 S.W.2d 738, 742 (Mo.banc 1975). Second, a defendant "is always free to ignore the judicial proceedings, risk a default judgment and then challenge that judgment on jurisdictional grounds in a collateral proceeding." Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 2106, 73 L.Ed.2d --- (1982). Appellant, who has never "lived in lawful marriage within this state" and thus lacks the minimum contacts with Missouri necessary to sustain the trial court's assertion of personal jurisdiction, had the right, as a matter of due process, to ignore the dissolution proceedings. Were we to hold that appellant waived the personal jurisdiction defense merely by failing to appear, it would produce the anomalous result that a defendant who has the right to ignore a judicial proceeding waives that right by asserting it. Nonappearance, therefore, cannot constitute waiver. Due process requires that, in the absence of minimum contacts to support personal jurisdiction, the rule effect a waiver of the jurisdictional defense only if the defendant has already appeared before the court and has neither timely raised nor otherwise waived jurisdiction. ⁴

B

Rule 55.27(g)(1) is identical in relevant respects to Rule 12(h)(1) of the Federal Rules of Civil Procedure, after which it was modeled. Our interpretation that Rule 55.27(g)(1) presupposes that the defendant is before the court and has not raised the jurisdictional defense comports with the interpretation federal courts...