James v. James
| Decision Date | 12 March 2001 |
| Docket Number | No. 23360,23360 |
| Citation | 45 S.W.3d 458 |
| Parties | (Mo.App. S.D. 2001) Sondra Jean James, Respondent v. Jack J. James, Appellant 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Stone County, Hon. Scott S. Sifferman, Judge
Counsel for Appellant: Richard L. Schnake, Andrew J. Hager, Jr.
Counsel for Respondent: Robert S. Wiley
Opinion Summary: None
Jack J. James (husband) appeals the judgment in an action for dissolution of marriage brought by Sondra Jean James (wife). Husband contends the trial court erred in finding that the parties had entered into a valid marriage; that, therefore, the trial court had no jurisdiction to enter judgment.
Wife filed a petition for dissolution of marriage in the Circuit Court of Stone County, Missouri, alleging that she and husband were married on or about December 28, 1980, in Matamoros, Mexico. The petition sought judgment dissolving the marriage, setting aside the separate property of the respective parties and distributing marital property. It requested the trial court to award wife reasonable attorney fees and to allocate marital debts. It sought restoration of wife's former married name. Husband's answer denied that the parties were married and requested that the petition be dismissed.
The trial court found that the parties were married; that they cohabited as husband and wife and held themselves out as husband and wife from December 28, 1980, until they separated in the summer of 1996. It found there was no reasonable likelihood that the marriage could be preserved, that the marriage was irretrievably broken, and ordered the marriage dissolved. The trial court made no determination of the other issues presented in wife's petition ordering "that the issues of property division and allocation of debts will be set for hearing upon the request of either party."
Wife filed a motion to dismiss this appeal on the basis that the judgment was "not a final, appealable judgment, . . . that it [did] not dispose of all the issues in the action." Wife's motion would be well taken in view of Rule 74.01(b) but for section 452.360.1, RSMo Cum. Supp. 1999, that states:
A judgment of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal. An appeal from a judgment of dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the judgment which dissolves the marriage beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal.
This issue was addressed by the Western District of this court in Dunafon v. Dunafon, 800 S.W.2d 483 (Mo.App. 1990). In Dunafon, the trial court entered judgment dissolving the marriage but provided, "All other matters, including child custody and support, maintenance, and division of property and debts, are taken under advisement pending further hearing of this court." Id. at 484. A motion for new trial was filed. The trial court entered an order purporting to grant the motion more than 90 days after it was filed. The order was appealed. The issue on appeal was whether the trial court's judgment was interlocutory because not all issues in the case had been determined. If the judgment were interlocutory, the trial court would have had jurisdiction until such time as all issues were determined and, hence, the order granting a new trial would have been proper. If not, the trial court would have lost jurisdiction upon expiration of 90 days next following the filing of the motion for new trial. See Rule 78.06.1
Dunafon held the judgment granting the dissolution was final when entered, explaining:
If the decree of dissolution was interlocutory when entered, and would not become final because there remained other issues to be disposed of, then the court retained jurisdiction of the decree purporting to dissolve the marriage and did not lose power to set the same aside when the 90 days passed after the filing of wife's "Motion to Vacate Order or for New Trial." See Joy v. Safeway Stores, Inc., 755 S.W.2d 13, 14 (Mo.App. 1988); Thompson v. Hodge, 348 S.W.2d 11, 13 (Mo.App. 1961).
The decree of dissolution, however, was not interlocutory, and became final on August 13, 1990, when wife's "Motion to Vacate or for New Trial" was overruled by operation of law 90 days after filing. Supreme Court Rule 78.06; State ex rel. Division of Family Services v. Duncan, 782 S.W.2d 457, 461 (Mo.App. 1990); Southwestern Bell Telephone Co. V. Buie, 758 S.W.2d 157, 162-63 (Mo.App. 1988). Cases of [the Western] [D]istrict hold on the basis of section 452.360.1, RSMo 1986,[2] that the judgment of marriage dissolution is separate from the judgment disposing of the other issues of the dissolution case, such as child custody and support, maintenance, and division of property and debts. Fischer v. Seibel, 733 S.W.2d 469, 471-73 (Mo.App. 1987); In re Marriage of Jamison, 592 S.W.2d 181, 183-84 (Mo.App. 1979); Fields v. Fields, 584 S.W.2d 163 (Mo.App. 1979); State ex rel. Horridge v. Pratt, 563 S.W.2d 168, 170-71 (Mo.App. 1978).
This court agrees with the Western District's declarations in Dunafon. Wife's Motion to Dismiss Appeal is denied.
Husband asserts one point on appeal. He contends the trial court erred in finding the parties were married in Matamoros, Mexico, because as a matter of law, no marriage existed in Mexico and, therefore, could not exist in Missouri. Husband asserts that the parties did not comply with requirements of Mexican law requisite for a valid marriage. He argues that even based on wife's testimony, there was no basis for the trial court's finding that the parties were married.
Husband and wife began living together in 1979. Wife's son from a prior marriage and husband's son from a prior marriage lived with them. In December 1980, husband, wife and the two boys went to Mexico. On December 27 they were at the border town of Matamoros where they saw a wedding chapel. The next day husband asked wife if she would marry him. She told him, "Probably." Wife told the trial court she wondered how long it would take; that they "checked it out to see." They decided to get married.
The chapel was a little room with a desk. A man there performed the marriage. Wife explained, She was asked the following questions and gave the following answers:
Q. Did you take vows, though --
A. Yes.
Q. -- saying that you agreed to marry each other?
A. We -- Yes.
Q. That much you could understand?
A. Yes.
Q. And it was very brief, you say?
A. Very brief.
Q. Did you have to sign any papers?
A. Yes, sir.
Q. What did you sign?
A. Signed a certificate.
Q. And did anybody else sign?
A. Yes, sir. There were -- The gentleman got two ladies. He went outside and got two ladies, and she [sic] came in and signed along with him.
Q. The two ladies?
A. Yes.
Q. And did you and Jack sign?
A. Yes, sir.
Q. And did the gentleman who performed the marriage sign?
A. Yes, sir.
Wife testified that she and husband also signed a large book at the chapel.
Husband paid the man who performed the service ten dollars. They were given a certificate that had the word "matrimony" at the top. They could not read the rest of it. Later, on their return trip through Texas, they had an argument over missing a turn-off from the road they were traveling. Husband pulled over at a bar. Husband went inside, leaving wife and the boys in the car. Wife and the boys waited for more than an hour for him to come out. Wife finally went inside to talk to him. She told the trial court,
After their return from Mexico, husband told wife he did not want anyone to know they were married. He did not want his ex-wife or his children to find out. Wife began using "James" as her last name, however, and told her son and her sister about the marriage. Husband and wife told their attorney about the marriage. Thereafter, the attorney dealt with them as husband and wife in legal matters.
Husband referred to wife as "his wife" in social settings. Friends introduced them as husband and wife. They filed joint income tax returns from 1980 to 1990. They operated businesses together and had a joint checking account as "Jack or Sandy James."
Requirements of Mexican law were not addressed during the course of the trial. At the conclusion of wife's rebuttal evidence, the trial judge inquired, "All rest?" One of husband's trial attorneys advised the trial court that he and wife's attorney wanted a conference to "decide how we're going to keep this record open and that kind of thing." The trial court acceded. Husband's trial attorney added, "But we don't need to be on the record." The trial transcript ends with that statement. It includes no explanation of the purpose of the request to "keep this record open."
However, a docket entry on the last day of trial, May 14, 1999, notes that the parties rested then adds, "Court at request of counsel will allow record to remain open until 6/11/99 for Mexican Law." A docket entry dated "6-25-99" extended time "for counsel to provide Mexican law until July 9." The docket sheet reflects an entry dated "8-13-99" that states, "[Wife] files Exhibit 29 pertaining to Mexican Law and [wife's] brief filed." An "8-16-99" docket entry states, "[Husband's] Suggestions in Support of [Husband's] Motion to Dismiss filed." On "10-14-99" the trial court declared the cause was "taken from advisement after reviewing legal briefs filed by attorneys for both parties." The trial court entered "findings of fact" that included, "[Wife] and [husband] were married to each other on or about December 28, 1980...
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