Ketteman v. Ketteman

• Decision Date: 23 August 2011
• Docket Number: No. WD 73205.,WD 73205.
• Citation: 347 S.W.3d 647
• Parties: Michael KETTEMAN, Respondent,v.Rachel KETTEMAN, Appellant.
• Court: Missouri Court of Appeals

347 S.W.3d 647

Michael KETTEMAN, Respondent,

v.Rachel KETTEMAN, Appellant.

No. WD 73205.

Missouri Court of Appeals, Western District.

Aug. 23, 2011.

Warren P. Wade, Kansas City, MO, for Appellant.Heather R. Smith, Liberty, MO, for Respondent.Before JAMES EDWARD WELSH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.JAMES EDWARD WELSH, Presiding Judge.

Rachel Ketteman appeals from the circuit court's judgment dissolving her marriage to Michael Ketteman. In its judgment, the circuit court ordered Rachel Ketteman to pay child support of $278.00 per month and to pay certain marital debts. The circuit court also awarded the parties joint legal and joint physical custody of their son. Rachel Ketteman contends that the circuit court erred in asserting personal jurisdiction over her because the requirements of Missouri's long-arm statute were not satisfied and she lacked sufficient minimum contacts with the State of Missouri. Further, she asserts that the circuit court erred in entering an order of child custody because the Uniform Child Custody Jurisdiction Act (UCCJA) required that custody be determined by a court in Texas. Finally, Rachel Ketteman contends that the circuit court erred in failing to make findings of fact to support the determination that it had personal jurisdiction over her and that it had the authority to make a child custody determination under the UCCJA. We affirm in part and reverse in part.

Rachel Ketteman and Michael Ketteman were married in Texas on December 6, 2004. The parties' only child, a son, was born in Texas on June 9, 2005. The parties separated on April 8, 2007. In June 2007, Michael Ketteman moved from Texas to Missouri with his son. On September 6, 2007, Michael Ketteman filed a Petition for Dissolution of Marriage in the Circuit Court of Clay County.

On September 30, 2008, Clay County Family Court Commissioner Sherrill Roberts entered her Findings and Recommendations of Judgment of Dissolution of Marriage dissolving the marriage, granting Michael Ketteman sole legal and sole physical custody of his son, and ordering Rachel Ketteman to pay child support and a portion of the marital debts. Rachel Ketteman did not appear at the hearing, the Commissioner found her in default. On October 15, 2008, Rachel Ketteman's attorney filed a Special Entry of Appearance for the purposes of challenging subject matter jurisdiction and personal jurisdiction. On that same day, Rachel Ketteman filed a Motion for Rehearing pursuant to Rule 129.13 asserting that the court lacked subject matter jurisdiction under the UCCJA to enter a child custody order and that the court lacked personal jurisdiction over her and could not, therefore, enter any monetary judgment against her. On October 17, 2008, the Commissioner set aside her Findings and Recommendations of Judgment of Dissolution of Marriage.

On June 22, 2009, Rachel Ketteman filed her motion to dismiss for lack of jurisdiction and for forum non conveniens with the Clay County Circuit Court. Further, on July 30, 2009, Rachel Ketteman filed a petition for divorce in the District Court of Tarrant County, Texas. The Texas court, on July 31, 2009, issued a temporary restraining order against Michael Ketteman and appointed Rachel Ketteman “temporary sole conservator” of the minor child. On August 5, 2009, Rachel Ketteman registered the Texas order with the Clay County Circuit Court. On August 6, 2009, the minor child was returned to Rachel Ketteman's custody.

Thereafter, on August 17, 2009, the District Court of Tarrant County, Texas, denied Rachel Ketteman's petition for divorce finding that neither the petition nor any of the attachments provided the court with adequate facts to support the requirements to exercise jurisdiction over the matter. The Texas court also dissolved the temporary restraining order on August 17, 2009.

On August 18, 2009, the Clay County Family Court Commissioner held a hearing on Rachel Ketteman's motion to dismiss for lack of jurisdiction. The Commissioner denied the motion to dismiss and appointed a guardian ad litem. The docket sheet reflects this entry regarding the denial of the motion to dismiss:

Court conducts communication with Judge Catterton in Tarrant County, Texas. Based upon this communication, as well as all other relevant factors and law, [Rachel Ketteman's] Motion to Dismiss is denied. Missouri is determined to be the appropriate jurisdiction for determination of all matters presented by the pleadings[.]

On March 30, 2010, the Commissioner held a trial on the petition for dissolution. On June 22, 2010, the Commissioner entered her Findings and Recommendations of Judgment of Dissolution of Marriage. Thereafter, on August 12, 2010, Clay County Circuit Judge K. Elizabeth Davis, Administrative Judge of the Family Court, entered her judgment adopting and confirming the Commissioner's findings and recommendations. The circuit court also denied Rachel Ketteman's motion for rehearing on August 11, 2010. On August 30, 2010, Rachel Ketteman filed a motion to amend the judgment,¹ but the circuit court never expressly ruled on the Rule 78.07(c) motion.

In the judgment of dissolution of marriage, the circuit court awarded the parties joint legal and joint physical custody of their minor son. Further, the circuit court ordered Rachel Ketteman to pay child support of $278.00 per month and to pay a portion of the marital debts. Rachel Ketteman appeals.

In her first point on appeal, Rachel Ketteman asserts that the circuit court erred in asserting personal jurisdiction over her because the requirements of Missouri's long-arm statute were not satisfied and she lacked sufficient minimum contacts with the State of Missouri. In particular she asserts that, because she and Michael Ketteman never lived in lawful marriage in the State of Missouri, the circuit court lacked jurisdiction to subject her to an in personam judgment for child support and for payment of certain marital debts. We agree.

To obtain personal jurisdiction over a non-resident defendant, a 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.’ ” In re the Marriage of Berry, 155 S.W.3d 838, 840 (Mo.App.2005) (citation omitted).

A dissolution of marriage action involves “ ‘an amalgam of contractual right and status.’ ” Id. (citation omitted). “ ‘Insofar as the proceeding affects certain contractual aspects of the marriage ... the action is in personam and requires personal service or presence of the other spouse for valid judgment.’ ” Id. (citation omitted). “ ‘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. (citation omitted). The court “ ‘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. (citation omitted).

Therefore, a court “must have jurisdiction over the person of the defendant in dissolution of marriage proceedings to impose a general judgment in personam [.]” Thompson v. Thompson, 657 S.W.2d 629, 630–631 (Mo. banc 1983). Lack of personal jurisdiction precludes consideration of orders pertaining to maintenance, child support, attorney's fees, and division of property (not within the State). Id. at 631; Berry, 155 S.W.3d at 842.

Rule 54.06(b) sets forth the long-arm jurisdiction for dissolution of marriage actions. Rule 54.06(b) authorizes in personam jurisdiction over a person:

[W]hether or not a citizen or resident of the state, who has lived in lawful marriage within this state, as to all civil actions for dissolution of marriage or for legal separation and all obligations arising for maintenance of a spouse, support of any child of the marriage, attorney fees, suit money or disposition of marital property, if the other party to the lawful marriage lives in this state or if a third party has provided support to the spouse or to the children of the marriage and is a resident of this state.

See also § 506.500.2, RSMo 2000. This rule “mandates compliance with the minimum contacts test by requiring that one whom the state would subject to an in personam judgment for maintenance, support, attorney's fees, suit money, or disposition of marital property must have ‘lived in lawful marriage within this state.’ ” Crouch v. Crouch, 641 S.W.2d 86, 89 (Mo. banc 1982).

The parties in this case never lived in lawful marriage within the State of Missouri. Although the record established that Rachel Ketteman had passed through Missouri on trips to Indiana and Illinois, she never lived in Missouri. Her only other contacts with the State of Missouri were trips she made to Missouri to enforce the Texas court order. Such contacts were not sufficient minimum contacts to satisfy due process requirements. No evidence was presented establishing that Rachel Ketteman had sought employment in Missouri, that she had the intent to change her domicile to the State of Missouri, that the parties held themselves out to be husband and wife in Missouri, that they attempted to establish a home together in Missouri, or that they intended to re-establish their marriage relationship in Missouri. See State ex rel. Phelan v. Davis, 965 S.W.2d 886, 889 (Mo.App.1998). Thus, although the circuit court had jurisdiction over the status of the marriage and could dissolve it, it did not have personal jurisdiction over Rachel Ketteman to adjudicate and subject her to an in personam judgment for child support and division of marital property (not within the State). Berry, 155 S.W.3d at 842; Thompson, 657 S.W.2d at 631.

Michael Ketteman contends, however, that Rachel Ketteman waived her...