Lillis v. Lillis, 48200

• Decision Date: 08 April 1977
• Docket Number: No. 48200,48200
• Citation: 1 Kan.App.2d 164,563 P.2d 492
• Parties: , 97 A.L.R.3d 981 Anna Lee LILLIS, Appellee, v. James F. LILLIS, Appellant.
• Court: Kansas Court of Appeals

Page 492

563 P.2d 492

1 Kan.App.2d 164, 97 A.L.R.3d 981

Anna Lee LILLIS, Appellee, v. James F. LILLIS, Appellant.

No. 48200.

Court of Appeals of Kansas.

April 8, 1977.

Syllabus by the Court

1. In a divorce action brought against a non-resident where service of process is made by mailing pursuant to K.S.A. 60-307, jurisdiction acquired is in rem only and not in personam.

2. Incompatibility involves the personalities or temperaments of the parties. (Following Berry v. Berry, 215 Kan. 47, 523 P.2d 342; North v. North, 217 Kan. 213, 535 P.2d 914.)

Marion W. Chipman, Olathe, and Terence M. O'Brien, Kansas City, No., for appellant.

Thad E. Nugent, Overland Park, for appellee.

Before HARMAN, C. J., and REES and SPENCER, JJ.

REES, Judge:

This is an appeal by defendant husband from a divorce decree entered upon a finding of incompatibility.

The parties were married in 1955. They are the parents of eight children, seven of whom were minors at the time of trial. The family residence was in Kansas City, Missouri. The wife left the family home in July, 1974, when she moved to the home of a friend, also in Kansas City. The husband and the children at all times have continued to reside in the family home. On August 8, 1974, the wife commenced a divorce action in Missouri under Mo.Ann.Stat. Sec. 452.305 (Vernon), which provides for the dissolution of marriage where 'the marriage is irretrievably broken.' The wife moved to and established residence in Johnson County in October, 1974. The Missouri action was tried on January 7, 1975. Dissolution of the marriage was denied and the action was dismissed. The court order recited neither that the dismissal was with prejudice nor that it was without prejudice. A motion for new trial filed by the wife was overruled by the court on February 5, 1975.

On February 18, 1975, the wife commenced this action in Johnson County. Her petition and amended petition rely upon incompatibility as the ground for divorce. Service of process upon the husband in Missouri was made by mail under K.S.A. 60-307. The husband entered his appearance and filed a request for bill of particulars and an answer. Trial on July 1, 1975, resulted in a divorce decree, but no other relief was then granted. The husband did not counterclaim for divorce in either action. He denied in the Missouri action that the marriage was irretrievably broken and in this action he denied that the parties were incompatiable. The husband's answer in this action contains denials of both subject matter jurisdiction and personal jurisdiction. These defenses were reasserted by the husband at every stage of the proceedings. He personally appeared and testified at trial. After filing the notice of this appeal and upon motion of the wife, the trial court entered orders directing the husband to make the parties' children available for visitation with the wife at specified times in Missouri and requiring the husband to pay $2,000 to plainiff for her expenses for the defense of this appeal.

A recital of the partially conflicting testimony of the parties concerning their differences would serve no useful purpose. It is sufficient to say that the wife's position at both trials was that the husband's religious convictions and practices were disruptive of the marital relationship.

The wife having been a Kansas resident for the requisite time and prescribed service of process having been made, there was compliance with K.S.A. 60- 1603(a) and K.S.A. 60-307. The trial court had jurisdiction which the parties, the trial court, and we will describe as in rem jurisdiction. However, the trial court held that it also had personal jurisdiction of the husband. It stated that:

'. . . any technical objections which the defendant has had to the exercise by the Court of in personam jurisdiction over him have been waived by conduct inconsistent with his position, specifically that conduct is the request for a bill of particulars, the filing of an answer and the personal presence in the courtroom at the trial of the matter and upon prior hearings.'

The trial court erred in its ruling that it had personal jurisdiction of the husband. The husband did not waive this defense by his appearances. (Haley v. Hershberger, 207 Kan. 459, 485 P.2d 1321.)

Absent personal jurisdiction, service upon the husband under K.S.A. 60-307 conferred upon the court jurisdiction limited to the power to render judgment affecting the status of the parties within the court's jurisdiction. K.S.A. 60-307(b). In this action, that status of the parties is their marital status. This in rem jurisdiction is the extent of jurisdiction in this action.

By her amended petition the wife asked that:

'. . . the Court grant to her a decree of divorce from the defendant on the grounds of incompatibility, custody of the minor children, both temporary and permanent, child support and alimony, both temporary and permanent, and equitable division of the property, attorneys' fees, costs of this action, and such other relief as to the Court may seem just.'

In line with what we have held, the court was without jurisdiction to afford any relief beyond the granting of a decree of divorce.

The trial court's order directing the husband to make the parties' children available for visitation with the wife was beyond its jurisdiction for an additional reason. In Donaldson v. Donaldson, 198 Kan. 111, 422 P.2d 871, after setting forth the pertinent language of K.S.A. 60-1610(a), it is stated:

'The broad authorization given to the court by the statute to make any order to advance the welfare of a minor child certainly entails, within discretion, the authority to limit or deny visitation privileges where the child's welfare is concerned.' (p. 113, 422 P.2d p. 873.)

The foregoing holding implicilty determines that the power to order and provide for visitation arises out of the authorization to make orders to advance the welfare of minor children given by K.S.A. 60-1610(a). Thus, jurisdiction to grant to and withhold from a non-custodial parent visitation rights as to his or her minor children is bottomed upon jurisdiction to provide for custody, support and education under K.S.A. 60-1610(a). The trial court did not have jurisdiction to provide for the custody, support and education of the minor children for the reason that they were neither physically present in Johnson County nor domiciled in Kansas, and they had not been the subject of previous exercise by the court of its jurisdiction to determine their custody or care when domiciled in Kansas.

The trial court's order directing the husband to pay $2,000 to the wife for her appeal expenses likewise was beyond its jurisdiction. That order is a personal judgment against the husband that is not to be satisfied by distribution of property, a res, situated in Kansas and subject to the court's jurisdiction. The order is not within the in rem jurisdiction existent in this action.

The husband asserts that the order entered by the Missouri court in the prior action was an adjudication on the merits as to all factual matters existing prior to February 5, 1975. The wife argues that the Missouri action was disposed of by dismissal and did not result in an adjudication upon the merits.

It is clear from an examination of the Missouri journal entry that if it does not clearly recite an adjudication on the merits, the order of that court at least is one of involuntary dismissal. An involuntary dismissal that is not stated to be without prejudice and that is other than for lack of jurisdiction or improper venue operates as an adjudication upon the merits under Missouri law. (Mo.Ann.Stat. Sec. 510.150 (Vernon).) It is also the law of Missouri that when a motion for new trial is filed, the judgment becomes final at the time of disposition of the motion. (Mo.Ann.Stat. Sec. 510.340 (Vernon).) Thus, the Missouri action resulted in an adjudication upon the merits effective February 5, 1975.

The principal remaining issue is the sufficiency of evidence to support the trial court's divorce decree. The husband's continued argument is that the wife's cause of action is barred by res judicata. His contention is that the Missouri judgment is entitled to full faith and credit and that it, being an adjudication on the merits, denies the wife the ability to rely upon any facts existing prior to February 5, 1975, to prove...