Groh v. Groh, s. WD

• Decision Date: 24 October 1995
• Docket Number: Nos. WD,s. WD
• Parties: Sharon Louise GROH, Respondent, v. Donald Albert GROH, Appellant. 50106, WD 50711.
• Court: Missouri Court of Appeals

Page 747

910 S.W.2d 747

Sharon Louise GROH, Respondent, v. Donald Albert GROH, Appellant.

Nos. WD 50106, WD 50711.

Missouri Court of Appeals,

Western District.

Oct. 24, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 5, 1995.

Ronald R. Holliday, Thomas, Burns & Holliday, St. Joseph, for appellant.

Craig D. Ritchie, Watkins, Boulware, Lucas, Miner, Murphy and Taylor, St. Joseph, for respondent.

Before BERREY, P.J., and ULRICH and ELLIS, JJ.

ELLIS, Judge.

Donald Albert Groh appeals the Decree of Dissolution of his marriage to Sharon Louise Groh entered by the Buchanan County Circuit Court on September 1, 1994.

Donald raises seven points on appeal. However, we need not address most of those points because we find the trial court lacked subject matter jurisdiction, as asserted in Donald's first point. He contends that neither party had been a resident of Missouri for ninety days next preceding the commencement of the dissolution proceeding as required under § 452.305, RSMo 1994. ¹ We reluctantly agree, despite a strong feeling that the parties have misused the judicial processes of the State of Missouri.

Because of our disposition, a detailed recitation of the facts is unwarranted. However, a brief summary of the relevant information is essential. Donald and Sharon were married on August 26, 1962. Prior to their separation on March 16, 1993, the Grohs were lifetime residents of Wathena, Kansas. Donald is president and chief executive officer of Groh Orchards, Inc., an apple orchard in Wathena, Kansas. Groh Orchards is a fifth generation, family owned and operated business which has been passed down from generation to generation by Donald's family. The primary business of Groh Orchards is the growing, packing and selling of apples. Donald has been involved with the orchard for over thirty years and still works there. The Grohs' marital residence is located on the orchard grounds.

After the parties separated on March 16, 1993, Sharon continued to live in the marital home in Wathena, Kansas, ² and Donald moved into an apartment in St. Joseph, Missouri. On April 2, 1993, seventeen days after the separation, Sharon filed a Petition for Dissolution of Marriage in Buchanan County, Missouri. In that petition, Sharon stated, "Petitioner has been a resident of Wathena, Doniphan County, Kansas for at least ninety (90) days immediately preceding the filing of this Petition. Respondent presently resides in St. Joseph, Missouri." She did not allege that either of them had been a resident of Missouri for the ninety days preceding the filing of the petition.

On April 24, 1993, Donald filed a motion to dismiss asserting lack of subject matter jurisdiction. In that motion, Donald stated he had resided in St. Joseph, Missouri only since the parties' separation on March 16, 1993, and that neither party was a resident of Missouri. On April 30, 1993, Sharon filed a First Amended Petition for Dissolution of Marriage, in which she specifically alleged Donald had been a resident of St. Joseph, Missouri for at least ninety days preceding the filing of the petition. On May 12, 1993, Donald filed an Answer to First Amended Petition for Dissolution of Marriage, in which he admitted he had been a resident of Missouri for the requisite time.

At trial, Donald's counsel stipulated to the jurisdiction of the Buchanan County Circuit Court, and after Sharon's attorney questioned Donald about the possible jurisdictional problem, he responded that he was not contesting the jurisdiction of the court to hear the evidence. After hearing the evidence and receiving proposed decrees from the parties, the trial court issued a Decree of Dissolution of Marriage in which it ordered the dissolution and divided the parties' property. In the decree, the trial court specifically found Donald was a resident of Missouri for ninety days next preceding the commencement of the proceeding. He now asserts it was error for the trial court to make that finding.

In a dissolution action, the issue of residency in Missouri is a jurisdictional fact which must be pleaded and proved. Berry v. Berry, 620 S.W.2d 456, 457 (Mo.App.1981). Subject matter jurisdiction cannot be waived by the parties, Davis v. Davis, 799 S.W.2d 127, 130 (Mo.App.1990), nor does the parties' stipulation as to jurisdiction confer jurisdiction on the trial court. Berry, 620 S.W.2d at 458.

While allegations in a petition, admitted in an answer, are judicial admissions, a party's appearance or answer does not confer subject matter jurisdiction, nor may a party waive the defense of lack of subject matter jurisdiction.

Wambugu v. Wambugu, 896 S.W.2d 756, 757 (Mo.App.1995) (quoting Davis, 799 S.W.2d at 130). Furthermore, a party may raise the issue of lack of subject matter jurisdiction at any time, and it may be raised for the first time on appeal. Davis, 799 S.W.2d at 130. Consequently, Donald's admission and stipulation to the trial court's jurisdiction did not confer jurisdiction on the court, nor does it affect his ability to raise the issue on appeal.

Our standard of review on appeal from a decree of dissolution of marriage is the same as in other court tried cases. We will affirm the trial court unless it erroneously declares or applies the law, unless no substantial evidence supports the judgment, or unless the weight of the evidence compels another result. Davis, 799 S.W.2d at 127 (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). In addition, we view the evidence in the light most favorable to the party prevailing at trial and draw only those inferences favorable to that party. Id. at 130. When a trial court exercises jurisdiction, an appellate court must accept as true any facts which would support the conferring of jurisdiction. Id. at 131. In the case at bar, the trial court specifically found that Donald had been a resident of St. Joseph, Missouri for the ninety days next preceding the commencement of the action.

The entirety of the evidence in the record supporting a finding of Donald's residency came through direct examination of Sharon and Donald. During direct examination of Sharon by her attorney, the following exchange took place:

Q. Mrs. Groh, are you aware that your husband initially took the position that you could not file in Buchanan County since you do not reside in Missouri?

A. Right.

Q. Okay. And filed some sort of pleading to that effect?

A. Yes.

Q. Can you tell the Court why you believe, in fact, your husband did reside here prior to you filing your petition?

A. For one thing, he registered his pickup truck in Missouri back in December of 1992.

MR. BIGGS [Donald's attorney]: Your Honor, we're not objecting to jurisdiction of the Court.

THE COURT: So, it's a relevancy objection?

MR. BIGGS: Yes, Your Honor.

THE COURT: Okay. Mr. Ritchie [Sharon's attorney], what's the relevancy?

MR. RITCHIE: It simply goes to attorney fees, Your Honor, and filing of pleadings on motion to dismiss.

THE COURT: All right. It's probably relevant on that issue. Overruled.

Then, on direct examination of Donald by Mr. Ritchie, the following exchange took place:

Q. Earlier Mrs. Groh, Sharon, testified about filing the petition alleging that you were a resident of the state of Missouri. Do you remember her testifying about that?

A. Yes.

Q. Initially, you and Ms. Day ³ contested jurisdiction of this court, suggesting that, in fact, you were not a resident of the state of Missouri?

A. We questioned it. I don't know if we contested it. We questioned it briefly.

Q. In fact, you had registered an automobile in the state of Missouri as a resident of the state of Missouri as early as December of 1992, isn't that correct?

A. No, I believe it was in January.

Q. January of 1992?

A. Three.

Q. Which was ninety days--at least ninety days before your wife filed for divorce?

MR. BIGGS: January of '93?

MR. RITCHIE: Yes.

A. I believe it was January of '93 is when I registered the vehicle at 1900 Lovers Lane, my house, which we owned then.

Q. (By Mr. Ritchie) Just to make sure the record is clear, you're not contesting the jurisdiction of this court to hear your divorce, are you?

A. No, I'm not.

No other evidence of Donald's residency was presented.

In Goeman v. Goeman, 833 S.W.2d 476 (Mo.App.1992), the court stated:

Missouri cases generally hold that the term "residence" as used in § 452.305 is equivalent to "domicile." 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 478 (quotation and emphasis omitted). In Goeman, we reversed the trial court and held that Mr. Goeman failed to prove residency, despite his assertion that he had been a resident of Missouri for ninety days preceding the filing of the petition. Id. at 479. In so holding, we pointed out that the record was silent as to many facts which might have shed more light on Mr. Goeman's intent to establish residency in Missouri, including an explanation of the nature of his intermittent presence in Missouri as well as facts such as whether he opened any bank accounts in Missouri, whether he registered a car or registered to vote in Missouri, whether Missouri income tax and Kansas City earnings tax were withheld from his income, and whether he filed a Missouri tax return. Id. at 479 n. 1. We found that "[g]iven the bareness of the record supporting the proposition that Mr. Goeman intended to make Missouri his domicile, the lack of specific testimony of intent, and the motive for forum shopping, this court holds that the trial court lacked subject matter jurisdiction over this action." Id.; See also Klindt v. Klindt, 888 S.W.2d 424 (Mo.App.1994) (holding that although husband had been out of Missouri to work in other states for nine months preceding the filing of the petition, the evidence,...