Goeman v. Goeman, WD

• Decision Date: 07 July 1992
• Docket Number: No. WD,WD
• Parties: Diane Ellen GOEMAN, Respondent, v. George Alan GOEMAN, Appellant. 45249.
• Court: Missouri Court of Appeals

Page 476

833 S.W.2d 476

Diane Ellen GOEMAN, Respondent, v. George Alan GOEMAN, Appellant.

No. WD 45249.

Missouri Court of Appeals Western District.

July 7, 1992.

William M. Quitmeier, Quitmeier & Ralls, P.C., Kansas City, for appellant.

David Sexton, Kansas City, for respondent.

Before SHANGLER, P.J., and KENNEDY and SMART, JJ.

SMART, Judge.

Diane Goeman appeals from a dissolution of marriage decree. The only issue presented on appeal is whether the trial court had jurisdiction over this divorce action. Mrs. Goeman argues that the trial court lacked subject matter jurisdiction because George Goeman did not reside in Missouri for ninety days prior to filing his petition as set forth in § 452.305, RSMo 1986. The judgment of dissolution is vacated.

Mr. and Mrs. Goeman were married on April 9, 1958, in New York City. They lived the last ten years of their marriage in California. The Goemans' date of separation is disputed. Mr. Goeman claims that they separated in July of 1987. Mrs. Goeman claims they lived in California as husband and wife until July 15, 1990.

Mr. Goeman worked for TWA and traveled to the Kansas City area on April 2, 1990. He stayed at a Holiday Inn in Kansas City for one week. On April 9, 1990, he was assigned to a project in California for one month. Mr. Goeman then was assigned to London from May 8 to June 1. He returned to California from London and drove with his wife to El Paso, Texas. On June 11, 1990, he returned to Platte City where he rented an apartment (paying his rent deposit out of a California account) and lived there for approximately two months before he filed this action for dissolution of marriage on August 20, 1990. Mrs. Goeman remained in California. On September 26, 1990, she filed an answer and cross petition. On March 4, 1991, Mrs. Goeman filed a motion to dismiss for lack of subject matter jurisdiction, which was denied.

Mrs. Goeman did not appear at the trial, which occurred in July, 1991. At the time of the trial, Mr. Goeman stated his address was an apartment in Colton, California. Mr. Goeman testified that he remained in Missouri for approximately four months after renting an apartment (about two of which would have been after the petition for dissolution was filed). At that time he returned to California. Mr. Goeman also stated that he paid Missouri income tax and Kansas City earnings tax in 1990. The trial court granted Mr. Goeman a dissolution of marriage on July 23, 1991.

Mrs. Goeman's sole contention on appeal is that the trial court lacked subject matter jurisdiction to dissolve the Goemans' marriage. Based on an extensive review of all the facts and circumstances involved in this case, this court holds that the trial court lacked subject matter jurisdiction to enter a decree of dissolution because the evidence does not show that Mr. Goeman "resided" in Missouri for ninety days prior to August 20, 1990, the date of the filing of his petition, as the term "resided" is defined through case law interpreting § 452.305, RSMo 1986.

This court has the duty to review both the law and the facts contained in this case and draw its own conclusions. Phelps v. Phelps, 241 Mo.App. 1202, 246 S.W.2d 838, 841 (1952). It is a well established principle that a dissolution of marriage decree is void for lack of subject matter jurisdiction if it is entered in a state in which neither of the parties to the action are domiciled at the commencement of the action. Trumbull v. Trumbull, 393 S.W.2d 82, 90 (Mo.App.1965). One court pronounced the importance of this principle by stating:

Dissolution of a marriage is a matter of such grave concern, not only to the parties directly involved but also to their children and the public generally, that no court should ever undertake to assume jurisdiction of a divorce case upon doubtful or uncertain evidence concerning the requirements necessary to give it such jurisdiction. Bryant v. Bryant, 232 S.W.2d 199, 205 (Mo.App.1950).

Section 452.305.1 states that a decree of dissolution shall be entered by the circuit court if "[t]he court finds that one of the parties has been a resident of this state ... for ninety days next proceeding the commencement of the proceeding...." The issue of residency in Missouri as set forth in § 452.305 is "a jurisdictional fact which must be pleaded and proved." Berry v. Berry, 620 S.W.2d 456, 457 (Mo.App.1981). Missouri cases generally hold that the term "residence" as used in § 452.305 is equivalent to "domicile." Scotton v. Scotton, 359 S.W.2d 501, 506 (Mo.App.1962). To establish residence in Missouri, a plaintiff must show "actual personal presence in the new place and the intention to remain there, either permanently or for an indefinite time, without any fixed or certain purpose to return to the former place of abode." Id. at 507 (emphasis added).

In determining whether a party has the requisite intent to remain either permanently or for an indefinite period of time, the court should consider the acts and utterances of the person, specifically, the "declarations of the person and the acts made before, at, and after the time the domicile is in dispute." Trumbull, 393 S.W.2d at 91. The required intent cannot be based upon a temporary purpose. Id. In Trumbull, the court stated:

'A person cannot live in one place and by force of imagination constitute some other his place of abode; ... the actual place of residence controls, and one cannot...