Hannibal v. Hannibal, WD 31382.
| Decision Date | 02 September 1980 |
| Docket Number | No. WD 31382.,WD 31382. |
| Citation | 604 S.W.2d 824 |
| Parties | Mildred Louise HANNIBAL, Petitioner-Appellant, v. Stanley Lee HANNIBAL, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
David V. Bear, Bear, Hines & Thomas, Columbia, for petitioner-appellant.
Craig A. Van Matre, Van Matre & Van Matre, Columbia, for respondent-respondent.
Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.
This is an appeal by the wife from a decree which dissolved the marriage and found that no children were born of the marriage. The issues are the propriety of the trial court proceeding to judgment after the wife dismissed her petition and the validity of the judgment on the issue of legitimacy of a minor child.
To properly address these issues, the pleadings and facts need statement in some detail. The parties were married January 20, 1973. Eleven days prior to this, the wife had given birth to a son. On December 26, 1976, the parties separated.
The wife initiated dissolution proceedings by filing a petition in which she alleged that the marriage had occurred January 6, 1971 and that her son was a child of the marriage. She stated the marriage was irretrievably broken.
In his answer to that petition, the husband denied that the child was his son and stated that he had never acknowledged the child as his own. He further denied that he had any legal obligations with respect to the child. The husband also asserted that the marriage was irretrievably broken and requested its dissolution but asked that all other relief sought by the wife be denied.
The husband later filed an amended answer stating the marriage had occurred in January of 1973. In support of this allegation, "Exhibit A," a certified copy of the marriage certificate, was filed. He again denied any relationship, physical or legal, to the child and repeated the request for dissolution.
The wife then filed a "Reply to Respondent's First Amended Answer." In this response, the wife admitted the marriage occurred in January, 1973. However, she stated that although the child was born prior to the marriage, the husband was the natural father and had recognized the child as his own. The wife alleged facts in support of this position, including an assertion that the parties were cohabitating at the time of the child's conception and that the husband unsuccessfully attempted to have his name included on the birth certificate.
On October 30, 1979, the wife filed a motion for continuance, stating that the husband had recently suffered a severe heart attack. She explained he was unable to pay child support, "but in the event of his disability or death, the minor children1 would be entitled to Social Security payments." This motion was overruled on November 13, 1979, and that same day the wife filed a "dismissal" stating that pursuant to Rule 67.01 she "dismisses this case."
The case was tried pursuant to a regular setting on November 14, 1979. Though the wife's counsel was present, he claimed that due to the dismissal the wife was not a party to the proceeding. The trial court took the position that the dismissal affected only the wife's petition and that since the husband's answer requested affirmative relief, the matter would be heard on that pleading.
The testimony of the husband was the only evidence presented. He stated that the child was born January 9, 1973 and that the marriage occurred January 20, 1973. He again denied being the child's father or ever recognizing the child as his son. He acknowledged that the marriage was irretrievably broken. He also testified concerning the marital property. The wife's counsel, though present, declined to cross-examine the husband.
At the close of the evidence, the court noted that the case was heard on the First Amended Answer as the petition and the case was at issue. The court found the marriage irretrievably broken and awarded each party certain property. The order, judgment and decree dissolving the marriage was entered that day. The court also found that no children were born of the marriage.
The only issue raised by the wife as to the decree of dissolution is that by the "dismissal" and the operation of Rule 67.01, the case was at an end, and the trial court erred in hearing the case on the husband's answer, as an affirmative pleading.
The wife does not complain that the answer did not contain the substantive basis for affirmative relief to the husband. The answer contained the necessary averments...
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