Gomez v. Gomez

• Decision Date: 13 June 1960
• Docket Number: No. 47401,47401
• Citation: 336 S.W.2d 656
• Parties: Connie GOMEZ, Appellant, v. Henry L. GOMEZ, Respondent.
• Court: Missouri Supreme Court

Page 656

336 S.W.2d 656

Connie GOMEZ, Appellant, v. Henry L. GOMEZ, Respondent.

No. 47401.

Supreme Court of Missouri, En Banc.

June 13, 1960.

Haskell Imes, Roy W. Brown, Blackford, Imes, Compton & Brown, Kansas City, for appellant.

Kenneth L. Gottschall, Kansas City, for respondent.

HOLMAN, Commissioner.

Plaintiff has appealed from an order and judgment of the circuit court wherein, upon motion of defendant, the court set aside a decree of divorce previously granted to plaintiff. As a part of the divorce decree the court had entered judgment for plaintiff for $10 per week as child support and $8,000 alimony in gross. Since the judgment appealed from set aside a judgment for plaintiff against defendant in the sum of $8,000, we have appellate jurisdiction because the amount in dispute exceeds the sum of $7,500. Article V, Sec. 3, Constitution of Missouri 1945, V.A.M.S.

On February 16, 1957, plaintiff filed her petition for divorce in the Circuit Court of Jackson County, Missouri. Defendant was personally served with a summons and copy of the petition in Jackson County on February 25, 1957, but failed to file any pleading within the time provided therefor. On April 30, 1957, plaintiff appeared in Division 2 of the Jackson County Circuit Court and, after hearing the testimony of plaintiff and her character witnesses, the court entered the judgment and decree heretofore described.

The motion to set aside the aforementioned judgment was filed by defendant on August 14, 1958. The grounds specified in the motion involved two separate theories as a basis for the relief sought. The first is contained in paragraph one which reads as follows: 'That the court had no jurisdiction of this divorce action inasmuch as plaintiff did not prove she had been a resident of the State of Missouri one whole year next before the filing of plaintiff's petition for divorce.' The second theory sought relief in the nature of writ of error coram nobis and is based upon the allegations (in paragraph two of the motion) that at the time the judgment was entered defendant was 'a totally paralyzed person without funds and without financial ability to employ counsel to represent him, and without the physical ability to attend court * * * and plaintiff knew of defendant's condition and financial circumstances at the time of trial when said decree was rendered and did not advise the court of defendant's condition, and which facts, if the court knew, would not have rendered such judgment.' At the time of the oral argument of this appeal defendant's counsel conceded that defendant was not entitled to any relief on the basis of the allegations in the second paragraph of his motion. In that connection, it should be stated that the action of the trial court in setting aside the judgment was based upon the ground 'that there was no showing that the plaintiff had resided in the State of Missouri for more than one whole year next before the filing of the petition and that the petition fails to allege that the acts complained of were committed in the State of Missouri. Under these circumstances, the court was without jurisdiction to render judgment.' In view of the foregoing, we will make no further reference to paragraph two of defendant's motion.

The applicable portion of Section 452.050 (all statutory references are to RSMo 1949, V.A.M.S.) reads as follows: 'No person shall be entitled to a divorce from the bonds of matrimony who has not resided within the state one whole year next before filing of the petition, unless the offense or injury complained of was committed within this state, or while one or both of the parties resided within this state. * * *' There was no allegation or proof that the offense complained of was committed within this state and we will therefore consider only the statutory requirement concerning residence. In accordance with the quoted statutory provision, it is well settled that 'Residence within the state for a year next preceding the institution of the suit, is in all but the excepted cases a jurisdictional fact which must be averred and proved * * *.' Hansford v. Hansford, 34 Mo.App. 262, 270.

Plaintiff's verified petition for divorce alleged 'that she is a resident of Jackson County, Missouri, and has resided in said county and state continuously for one whole year next preceding the date of the filing of this petition.' The divorce decree contained the following recital: '* * * and after having heard the evidence the court finds that the allegations in plaintiff's petition are true; that plaintiff is the injured and innocent party and entitled to the relief prayed.' However, the transcript of the evidence adduced at the divorce hearing does not contain any testimony to the effect that plaintiff had resided within the State of Missouri one whole year next before the filing of her petition. The only testimony appearing in the transcript which relates to plaintiff's residence is the following: 'Q. Have you been a resident of Jackson County, Missouri, and have resided in said county and state continuously since the filing of this proceeding? A. Yes, sir.' The defendant contended in the trial court, and contends here, that plaintiff failed to prove the jurisdictional fact of residence as required by the statute and hence the judgment in question was wholly void.

At the outset it should be made clear that plaintiff was, in fact, a resident of Jackson County, Missouri for several years prior to filing her petition for divorce. Upon the hearing of defendant's motion plaintiff testified that she had lived in Kansas City, Missouri, continuously since August 1951. She also testified that she had remarried after the divorce decree had been granted and was pregnant at the time of the hearing. Defendant, at that hearing, testified as follows: 'Q. Mr. Gomez, isn't it true that your wife, that is, your exwife, Connie, was a resident of the State of Missouri one whole year before, next before, the filing of her divorce petition in this case? A. Yes.' The case before us, therefore, is not one in which there is any contention that plaintiff committed any fraud upon the court but is one where it is said that the decree is void because the transcript of the testimony fails to disclose proof of the fact of plaintiff's residence for the required period preceding the filing of her petition, it being admitted that she had, in fact, complied with said residential requirement.

It is plaintiff's position that since her petition specifically alleged the fact that she had resided in Jackson County, Missouri for one whole year next preceding the filing of her petition, and since the judgment recited that 'after having heard the evidence the court finds the allegations in plaintiff's petition are true,' that recital and finding 'is presumed to be true and correct and imports absolute verity unless contradicted by other parts of the record, 49 C.J.S. Judgments Sec. 437, p. 869, of equal dignity and importing equal verity as the judgment.' Wenzel v. Wenzel, Mo.App., 283 S.W.2d 882, 888. In that connection she has taken the position that the transcript of the testimony taken at the divorce hearing is not a complete and accurate transcript of the testimony adduced at that time. At the hearing of defendant's motion she presented a number of witnesses in support of that contention. Roy W. Brown, plaintiff's attorney in the divorce hearing, testified that he followed the wording of the allegations in the petition in phrasing the question relating to her residence. Upon that issue plaintiff testified as follows: 'Q. Did you, and were you asked at the time of the original trial if you had been a resident of the State of Missouri one whole year next preceding the filing of your divorce decree? A. I think that I was.' The court reporter who reported the testimony at the divorce hearing was called as a witness. She testified that she had had six years' experience 'all told' and had been the official reporter of Division 2 for three years. She admitted that she had trouble taking down the testimony 'when someone talks very rapidly' and 'when two people may be talking at once' but in this instance her 'notes are very clear, and I don't think that I failed to transcribe correctly your question of the...