Gooding v. Gooding

• Citation: 197 S.W.2d 984,239 Mo.App. 1000
• Parties: Julia Marie Gooding, Respondent v. Leslie A. Gooding, Appellant
• Decision Date: 18 November 1946
• Court: Court of Appeals of Kansas

197 S.W.2d 984

239 Mo.App. 1000

Julia Marie Gooding, Respondent v. Leslie A. Gooding, Appellant

Court of Appeals of Missouri, Kansas City

November 18, 1946

Appeal from Jackson County Circuit Court; Hon. John F. Cook, Judge.

Reversed & remanded with directions.

C O. French, for appellant.

(1) The judgment is void and should be reversed because the trial court was without jurisdiction over the subject matter of the action for the reason that the petition contained no averment that the plaintiff had resided within this state one whole year next before the filing thereof, or that the offenses complained of were committed within this state while one or both of the parties resided therein. Sec. 1517, R. S. Mo 1939, as amended by Laws of 1943; Amerland v Amerland, 188 Mo.App. 50, 173 S.W. 104; Stansbury v. Stansbury, 118 Mo.App. 427, 94 S.W. 566; Coulter v. Coulter, 124 Mo.App. 149, 100 S.W. 1134; Keller v. Keller, 144 Mo.App. 98, 129 S.W. 492; Robinson v. Robinson, 149 Mo.App. 733, 129 S.W. 725; Barricelli v. Barricelli (Mo. App.), 300 S.W. 1023; Johnson v. Johnson (Mo. App.), 141 S.W.2d 229; Barth v. Barth (Mo. App.), 189 S.W.2d 451; American Constitution Fire Assurance Co. v. O'Malley, 342 Mo. 139, 113 S.W.2d 795; United Cemeteries Co. v. Strother, 342 Mo. 1155, 119 S.W.2d 792; Hauser v. Burge (Mo. App.), 121 S.W.2d 314; Bash v. Truman, 335 Mo. 1077, 75 S.W.2d 840. (2) Upon reversal of the judgment the action should be dismissed, because: The trial court had no jurisdiction. Kansas City Sanitary Co. v. Laclede County, 307 Mo. 10, 296 S.W. 395. (3) The plaintiff was not the innocent and injured party: (a) Because the evidence does not support the ground of abandonment. Nolker v. Nolker, (Mo.), 257 S.W. 798; Plymate v. Plymate (Mo. App.), 180 S.W. 29. (b) The ground of non-support was not sustained. Hess v. Hess (Mo. App.), 113 S.W.2d 139; Gallemore v. Gallemore, 115 Mo.App. 179, 91 S.W. 406; Gruner v. Gruner, 183 Mo.App. 157, 165 S.W. 865; England v. England (Mo. App.), 39 S.W.2d 429. (c) The evidence failed to support the ground of meretricious relations. City of St. Louis v. Green, 190 S.W.2d 634. (d) Plaintiff's suit was not in good faith. Ream v. Ream (Mo. App.), 246 S.W. 611; Redford v. Redford, 162 Mo.App. 127, 144 S.W. 125. (e) Plaintiff, in her petition, without just cause, falsely charged defendant with having "derived his livelihood from sexual commerce with lewd women." Tuttle v. Tuttle (Mo. App.), 240 S.W. 509; Rose v. Rose, 129 Mo.App. 175, 107 S.W. 1089.

Marion D. Waltner and Clarence C. Chilcott for respondent.

(1) The court had jurisdiction of the subject matter of the action; the evidence showed that every jurisdictional requirement had been fulfilled; the parties appeared, hotly contested every issue and thereby subjected themselves and their litigation to the jurisdiction of the court and the judgment of the court should be affirmed. Johnson v. Johnson, 141 S.W.2d 229; Pike v. Pike, 193 S.W.2d 637; Kennedy v. Kennedy, 223 Mo.App. 1116, 23 S.W.2d 1089; R. S. Mo., 1939, Sec. 1517, as amended by the Laws of Mo., 1943, p. 398, Secs. 1524, 1525; General Code of Civil Procedure, 1943, Laws of Missouri, 1943, page 353; Johnson v. Frank, 191 S.W.2d 618; Coulter v. Coulter, 124 Mo.App. 149, 100 S.W. 1134; Barry v. Bannerman, 175 Mo.App. 142, 157 S.W. 853; Young Women's Christian Assoc. v. LaPresto (Mo. App.), 169 S.W.2d 78. (2) The evidence amply supported the ground of abandonment. Redford v. Redford, 162 Mo.App. 127, 144 S.W. 125. (3) There was no evidence that respondent sued appellant for divorce because she was actuated by a desire for alimony. Ream v. Ream, 246 S.W. 611.

Sperry, J. Sperry, C., concurs.

OPINION

SPERRY

Respondent was plaintiff and the appellant was defendant in a divorce proceeding instituted by respondent by filing her petition in the circuit court of Jackson County March 29, 1945. The petition alleged the marriage of the parties on May 20, 1907. The decree was sought on the ground of numerous specified indignities consisting of cruel treatment of the plaintiff, willful neglect and desertion, and the refusal to provide for plaintiff and their eight children born of the marriage. Plaintiff sought the allowance of alimony in gross and attorney fees.

On August 4, 1945 the defendant, by leave of court, filed his amended answer and cross petition in which he admitted the marriage as alleged and denied every other allegation in the petition. And further answering by way of cross petition, defendant alleged various acts and conduct on the part of plaintiff in which he characterized the plaintiff as treating him "with such harshness and contempt and subjecting him to such indignities as to render his condition in life with plaintiff intolerable and impossible." Various recitals are then made of what is claimed to have been disrespect and misconduct on the part of plaintiff towards defendant, for all of which the defendant prayed the court to dismiss plaintiff's petition and to decree that he was the innocent and injured party and to grant him a decree from the bonds of matrimony. The case was tried upon the petition and crossbill above described.

After an extended hearing the trial judge took the case under advisement and on December 11, 1945, entered a decree in favor of the plaintiff and against defendant in which it was recited that "the court finds the allegations in plaintiff's petition are true; that plaintiff is the injured and innocent party and entitled to the relief prayed." A decree was therefore entered dissolving the bonds of matrimony and plaintiff was awarded alimony in gross in the sum of $ 4500, and an attorney's fee in the sum of $ 300.

Defendant in due time filed a motion for new trial, one ground of which was alleged to be that the court was without jurisdiction to render and enter judgment in the case. The motion was overruled, defendant filed due notice of appeal, and filed a transcript of the record here as required by law.

Appellant presents the point and seeks reversal of the judgment on the ground that the judgment is void because the trial court was without jurisdiction over the subjectmatter of the action. Lack of jurisdiction is claimed because the petition does not contain any averment that the plaintiff had resided within this state one whole year next before the filing thereof, or that the offenses complained of were committed within this state while one or both of the parties resided therein as required by Sec. 1517, Revised Statutes Missouri 1939, as amended by the Laws of Missouri 1943, page 398.

The alleged defect of the petition is disclosed by an examination of a copy thereof as shown in the abstract. The petition does not allege that plaintiff had resided within this state one whole year next before the filing of the petition, nor is there any statement that the offenses complained of were committed within this state or while one or both the parties resided within the state, and there is no statement which could be said to be in substantial compliance with the requirements of the statute. The section of the statute above referred to and as amended in 1943, 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. Provided, however, that when the plaintiff shall have resided within this state one whole year next before the filing of petition and the defendant shall plead and prove sufficient facts as provided in this article, which shall entitle such defendant to a divorce, the same shall be granted although the defendant may not be a resident of this state prior to or at the time such divorce be granted."

A similar statute, with the exception of the proviso added in 1943, has been in effect in this state many decades. Under numerous adjudications beginning with Cheatham v. Cheatham, 10 Mo. 296, it has been determined that in order to confer jurisdiction upon the trial court in a divorce case the petition must allege one or the other of the statements contained in the statute. No later Supreme Court case upon the point has been cited by either party, and it does not appear that the ruling in the Cheatham case has ever been questioned as the settled law of this state to the effect that a petition in a divorce case which fails to state one or the other of the jurisdictional facts as required by the statute is insufficient to support a judgment against a direct attack by appeal.

Appellant cites many cases determined in this court and in the St Louis Court of Appeals which fully sustain his contention. Among them are Amerland v. Amerland, 188 Mo.App. 50, 173 S.W. 104; Stansbury v. Stansbury, 118 Mo.App. 427, 94 S.W. 566; Robinson v. Robinson, 149 Mo.App. 733, 129 S.W. 725; Barricelli v. Barricelli, 300 S.W. 1032. The opinion in the Amerland case is particularly interesting and instructive in that it contains a review of many cases and clearly determines the prevailing law in this state according to the adjudged cases and in accordance with appellant's contention. The Stansbury case, supra, is to the same effect. In a consideration of that case the court states, l. c. 430: "It is not denied that the existence of one of the facts mentioned in the statute is an indispensable element constitutive of the right to maintain an action for divorce and that without it the whole proceeding is coram non judice for lack of jurisdiction over the subject-matter." The opinion then proceeds to point out the distinction and the different rules applicable to the determination of a case when the judgment is...