In re Marriage of Berry

• Decision Date: 16 February 2005
• Docket Number: No. 26130.,26130.
• Citation: 155 S.W.3d 838
• Parties: In re the MARRIAGE OF Richard Darwin BERRY and Maureen Smith Berry. Richard Darwin Berry, Petitioner-Respondent, and Maureen Smith Berry, Respondent-Appellant.
• Court: Missouri Court of Appeals

155 S.W.3d 838

In re the MARRIAGE OF Richard Darwin BERRY and Maureen Smith Berry Richard Darwin Berry, Petitioner-Respondent, and Maureen Smith Berry, Respondent-Appellant.

No. 26130.

Missouri Court of Appeals, Southern District, Division One.

February 16, 2005.

Devon F. Sherwood, Springfield, MO, for appellant.

Dennis P. Wilson, Parsons & Wilson, P.C., Dexter, MO, for respondent.

JAMES K. PREWITT, Judge.

Richard Darwin Berry ("Husband") and Maureen Smith Berry ("Wife") were married on May 29, 2000, in Warren County, New York. There were no children born to the marriage. On February 3, 2003, Husband petitioned for dissolution of marriage in Stoddard County, Missouri. Wife was personally served with process on February 14, 2003, in West Point, New York. Wife contested the Missouri court's jurisdiction.

At the time of trial, Husband was stationed at West Point, New York, and Wife lived in the Albany, New York area. Following a hearing at which both parties were present and represented, the trial court entered its judgment and decree of dissolution on January 26, 2004, finding that it had both personal and subject matter jurisdiction. The circuit court ordered that the marriage be dissolved, awarded wife attorney's fees plus reimbursement for travel expenses, divided marital property, allocated marital debts, and denied Wife's request for maintenance. Wife appeals.

In his petition for dissolution, Husband alleged that he was a resident of Stoddard County, Missouri, serving in the United States Army on active duty and stationed at West Point, New York. Husband conceded that Wife was a resident of the State of New York. Husband at that time requested only that the marriage "be dissolved, and for such other and further relief as to the Court may seem just and proper."

Wife filed a pro se"Answer and Response," in which she objected to jurisdiction. Therein, Wife stated that she did not consent to service and rejected "any previously and illegally served papers." She requested "to have the complaint dismissed."

On April 16, 2003, Husband filed a "First Amended Petition for Dissolution of Marriage," in which he amended his original petition by adding a request for division of marital property and debts.

Wife obtained counsel and filed her "Answer to First Amended Petition for Dissolution of Marriage" and "Counter Petition for Dissolution of Marriage" on May 23, 2003.

Preliminary to a hearing held June 23, 2003, Wife's counsel requested that the trial court dismiss the action for "lack of jurisdiction by the Court [,]" contending that neither party was a resident of Missouri. The trial court denied Wife's motion and proceeded to hear the cause.

A "Judgment and Decree of Dissolution of Marriage" was filed January 26, 2004, in which the trial court found that it had "personal jurisdiction over the parties and subject matter jurisdiction in this case[.]" The trial court apportioned the marital debt, divided the marital property, awarded Wife $500.00 for attorney fees, and ordered Husband to pay Wife's medical insurance premiums and travel expenses. Wife's request for maintenance was denied upon the trial court's finding that Wife "has sufficient property and income to provide for her reasonable needs." The trial court made the order denying maintenance "not modifiable."

In her appeal, Wife presents two points relied on. Point I challenges the trial court's judgment denying maintenance to Wife on the basis that the trial court did not have either personal jurisdiction or subject matter jurisdiction. In her second point, Wife contends that the trial court's denial of maintenance was error in that "the evidence demonstrated that [Wife] was disabled from employment and lacked sufficient income and assets to provide for her reasonable needs[.]" We find Point I to be dispositive and need not address Wife's second point.

In Missouri, to obtain personal jurisdiction over a non-resident defendant, "the plaintiff must make a prima facie showing that 1) the cause of action arose out of an activity covered by Missouri's long-arm statute, ... and 2) the defendant had sufficient minimum contacts with Missouri to satisfy the requirements of due process." Wray v. Wray, 73 S.W.3d 646, 649 (Mo.App.2002).

"An action for dissolution of marriage involves an amalgam of contractual right and status." Ferrari v. Ferrari, 585 S.W.2d 546, 547 (Mo.App.1979). "Insofar as the proceeding affects certain contractual aspects of the marriage (such as maintenance) the action is in personam and requires personal service or presence of the other spouse for valid judgment." Id."Insofar as such a proceeding affects status only, the action is in rem or quasi-in-rem and requires only that the res be before the court upon proper notice." Id."The tribunal must have jurisdiction over the person of the defendant to adjudicate a personal liability against him and must have jurisdiction over the thing, be it status or specific property, to affect the interest of defendant in that thing." Id.

"[L]ack of personal jurisdiction forestalls consideration of orders pertaining to maintenance ... and attorney's fees." Thompson v. Thompson, 657 S.W.2d 629, 631 (Mo.banc 1983). "This is not to say that a court in a proper case is precluded from acquiring jurisdiction over the status of the marriage." Id.

Husband contends that Wife's failure to assert the defense of lack of jurisdiction "either by motion or in her answer ... constitutes a waiver of such defenses." "`Rule 55.27(g)(1)(B) provides that the defense of lack of personal jurisdiction, among other things, is waived ... if it is neither made by motion under this Rule [55.27] nor included in a responsive pleading.'" Crouch v. Crouch, 641 S.W.2d 86, 90 (Mo.banc 1982). "Due process requires that, in the absence of minimum contacts to support personal jurisdiction, the rule effect a waiver of the jurisdictional defense only if the defendant has already appeared before the court and has neither timely raised nor otherwise waived jurisdiction." Id.

Wife raised the issue of jurisdiction in her original pro se"Answer and Response," in which she stated "[t]hat I am unfamiliar with the residency requirements for this Court, however,...