In Re The Marriage of: Christy Lynn Dooley
Decision Date | 29 March 2000 |
Parties | (Mo.App. S.D. 2000) In Re The Marriage of: Christy Lynn Dooley, and Timothy Lee Dooley, Christy Lynn Dooley, Respondent, v. Timothy Lee Dooley, Appellant. 23074 0 |
Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Wayne County, Hon. William Camm Seay
Counsel for Appellant: Robert M. Ramshur & Michael B. Dudley
Counsel for Respondent: John M. Albright
Opinion Summary: None
Timothy Lee Dooley ("Husband") appeals from the overruling and denial of his Rule 74.06(b) "Motion to Vacate or Set Aside Judgment for Dissolution of Marriage." The record shows that Husband and Christy Lynn Dooley ("Wife") were married on May 8, 1993, in Fort Bragg, North Carolina. On November 13, 1996, Wife filed a Petition for Dissolution of Marriage in the Circuit Court of Wayne County, Missouri, in which she alleged that she was and had been a resident of the State of Missouri "for more than ninety (90) days next preceding the filing of [the] petition" and was "now residing at Rt. #4, Box 4049, Piedmont, Wayne County, Missouri 63957." The petition further alleged that the couple had one child, Charles Franklin Dooley ("Charlie"), born February 10, 1994, and that Wife had "no information of any custody proceedings regarding the child in this or any other state." Wife further alleged in her petition that Husband "is a resident of the State of Hawaii, presently residing at Alpha Co., 1st 1/21st Light Infantry Division, Schoffield Barracks, Island of Oahu, Hawaii" and that she and Husband "separated on or about the 25th day of September, 1996."
On January 7, 1997, the cause came on for a hearing on Wife's motion for custody and child support of Charlie "during the pendency of this case or until further order of [the] court." The court noted that there was no pleading in the file on behalf of Husband, to which Wife's attorney replied, The court then suggested, "[r]ather than take up your motion for temporary custody and child support pendente lite, why not take up the entire case since he's in default." Wife's attorney agreed and, in response to questioning from the court, stated that there had been personal service on Husband in Wayne County by the Sheriff of Wayne County. Wife's attorney went on to inform the court that subsequent to the suit being filed by Wife, Husband filed a similar suit in Hawaii. The Missouri court observed that the petition for dissolution was a "verified petition" and that the court record contained "personal service signed by the deputy sheriff of this county" and stated that "[f]or the record, this court has examined the pleadings and the contents of the file and this court is assuming jurisdiction of this case."
The court heard testimony from Wife, more fully discussed, infra. Following Wife's testimony, the court noted for the record that Husband had not requested any relief "under the Soldiers and Sailors Civil Relief Act," nor were any pleadings filed on behalf of Husband and, therefore, "[Husband] has been in default since approximately December 24th of 1996." In the formal judgment of dissolution, filed January 14, 1997, the court again found that Husband, having been "personally served on November 23, 1996, in Wayne County, Missouri, and having entered no responsive pleadings nor requested relief under the Soldier's and Sailor's Relief Act, therefore being in default, appears not." The court ordered, inter alia, that Wife should have "primary legal and physical care, custody and control of [Charlie]," subject to restricted and supervised visitation by Husband upon forty-eight hours prior notice to Wife of the intention to visit. The court also ordered Husband to pay fifty dollars per week in support of Charlie; awarded Husband the parties' automobile of which he was in possession subject to debt; ordered that all personal property and items were to be awarded to whomever presently possessed the item of personal property and ordered that Wife be restored to her maiden name.
On February 2, 1999, a little over two years after the Judgment of Dissolution was filed, Husband filed a non-verified, Rule 74.06(b) "Motion to Vacate or Set Aside Judgement for Dissolution of Marriage" ("motion to vacate") in the Wayne County Circuit Court.1 In his motion to vacate, Husband made no challenge to the Missouri court's assumption of personal jurisdiction over him. He alleged, instead, that the "Judgment Decree of Dissolution of Marriage . . . was void on grounds that [the circuit court of Wayne County] lacked subject matter jurisdiction over issues of the custody and support for [Charlie]."2 (emphasis added). Husband further moved to vacate the judgment of dissolution on the ground "that the Judgment was irregular in that [Husband] was not notified of [Wife's] intent to call for hearing the issues of the petition." In support of his motion, Husband alleged, inter alia, the following:
2. Up until September 1996, [Wife], [Husband], and [Charlie] lived in the State of Hawaii. In September 1996, [Wife] moved to the State of Missouri. On November 24, 1996, [Husband] traveled from Fort Polk Louisiana Military Base to Piedmont, Missouri, stayed approximately 15 minutes, picked up [Charlie] and traveled to Tennessee, the residence of his parents. On December 3, 1996, [Husband] and [Charlie] returned to Hawaii.
3. On December 9, 1996, [Husband] filed for the Dissolution of Marriage in the State of Hawaii. Said complaint for Dissolution of Marriage and summons was served by certified mail upon [Wife] on December 17, 1996.
4. On December 13, 1996, the attorney for [Wife] herein mailed her notice to take up for hearing before this court, [Wife's] Motion for Temporary Custody and Child Support Pendente Lite, for Tuesday, January 7, 1997, at 9:00 a.m., by mailing same to Alpha Company, First 121st Light Infantry Division, Schoffield Barracks, Island of Oahu, Hawaii.
From our examination of the docket sheets, it does not appear that a hearing was held on Husband's motion to vacate. It appears that the motion court had each counsel provide the motion court pertinent case law and then made its decision. It further appears that Husband's motion counsel also provided the court with an "Order Granting [Husband's] Motion for Post-Decree Relief Filed May 13, 1997[,]" authored by the "Family Court of the First Circuit, State of Hawaii," and signed by the Honorable Robert M. Browning, Judge of that court. In this Hawaiian court order, Judge Browning noted that Wife had filed a "Motion to Dismiss, Either in Toto, or as to Child Related Issues, For Lack of Jurisdiction or, in the Alternative, For Inconvenient Forum" on January 27, 1997. This Hawaiian court order further set out that a hearing had been held in Hawaii on Wife's motion to dismiss on February 5, 1997, and that the motion court (Judge Bode Uale presiding) denied the motion, finding that Hawaii and not Missouri was Charlie's "home state." Judge Uale determined that he would not give the Missouri Judgment of Dissolution "full faith and credit" as to the custody of Charlie, as it appeared "that [Husband] . . . was not properly served and did not have notice of the Missouri Divorce proceedings . . . ."
With these findings at hand, Judge Browning determined, inter alia, that Hawaii had jurisdiction over Charlie, that Husband was granted sole legal and physical care, custody and control of Charlie "[u]ntil further order of the Court," and that Wife was "[e]njoined and [r]estrained" from removing Charlie from the city of Honolulu.
The docket sheets from the Circuit Court of Wayne County, Missouri, reflect that Husband's motion to vacate was called on May 18, 1999, and that it was taken under submission for ruling by the motion court. The following entry appears in the docket sheets on June 2, 1999:
Court in chambers takes up motion to vacate or set aside judgment. The Court finds that the child as well as his mother have a significant connection with the state of Missouri and Missouri is the child's home state accordingly the court has jurisdiction herein over said child. It is the judgment and order of this Court that the motion to vacate or set aside judgment is overruled and denied. So ordered. Order Final. Time is of the essence.
This docket entry is signed "W.C. Seay." It is from this order that Husband appeals.
Husband's appeal posits six points of motion court error. In his first point, he claims the trial court erred in overruling his motion to vacate or set aside the judgment of dissolution because it was without subject matter jurisdiction in that Wife's petition "failed to plead the jurisdictional fact of Missouri residency for either of the parties." In his second claim of error, Husband claims the trial court lacked subject matter jurisdiction in that Wife's petition "failed to plead the jurisdictional facts required under the Uniform Child Custody Jurisdiction Act." In his third point, Husband claims the motion court erred in its denial because "the trial court did not make express findings of jurisdictional facts prior to entering judgment" thus depriving Husband of due process of law. In his fourth point, Husband claims the motion court erred in its denial of his motion because the trial court "being advised of a simultaneous child custody proceeding in . . . Hawaii[,] failed to stay the proceedings in Missouri . . . ." In his fifth point, Husband claims that the motion court erred in denying his motion to vacate or set aside because the default judgment "was entered without personal jurisdiction over [Husband] because service of process was had by leaving a copy of the summons and petition at the residence of [Wife] . . . ." In his sixth and final point, Husband claims motion court error in denying his...
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