Lochhaas v. Burnett

Decision Date21 May 2002
Docket NumberNo. ED 79888.,ED 79888.
Citation77 S.W.3d 12
PartiesTheresa M. LOCHHAAS, et al., Respondents, v. Joseph W. BURNETT, Appellant.
CourtMissouri Court of Appeals

Timothy A. Graham, Edwardsville, IL, for Appellant.

Jody H. Wolff, St. Louis, MO, for Respondent.

WILLIAM H. CRANDALL, JR., Presiding Judge.

Appellant, Joseph W. Burnett, appeals from the judgment of the trial court in an action for paternity, child custody, and partition brought by respondents, Theresa M. Lochhaas, et al. We affirm.

The evidence established that Joseph W. Burnett (hereinafter Burnett) lived with respondent, Susan Lochhaas (hereinafter Lochhaas), without benefit of marriage from 1986 until they separated in July 1998. Three children were born during that time. Lochhaas stopped working when the first child was born and stayed at home to care for the children. Burnett agreed that she should not be employed outside of the home, partly because he did not want to help with the children. Lochhaas was very active in the children's lives; Burnett was not.

Lochhaas also was in charge of the family finances and paid the bills. Prior to separating, Lochhaas divided the bank accounts between her and Burnett and put money into three certificates of deposit, one in each of the children's names. Lochhaas returned to work when the youngest child started school in September 1998.

Burnett was employed as a carpenter and performed jobs on the side as well. He owned real estate, titled in his own name, when the parties began cohabiting. Throughout the course of their relationship, he sold that real estate and purchased other property. In 1983, he purchased in his own name real estate located on Old Lemay Ferry Road, in Jefferson County, Missouri (hereinafter Jefferson County property). In 1989, Burnett paid off the loan on that property. In 1990, he conveyed the Jefferson County property into his and Lochhaas's joint names. In May 1991, he purchased property located on W. Pottle in St. Louis County, Missouri (hereinafter St. Louis County property) for $52,000.00. The down payment of $26,000.00 on that property came from a bank account in his and Lochhaas's joint names, although the source of the down payment was the proceeds from the sale of another property he owned in his name exclusively. From the time of purchase, the St. Louis County property was titled in his and Lochhaas's joint names. The note and deed of trust of $26,000.00 was paid off in 1997. After the separation, Lochhaas remained in the St. Louis County property with the three children and Burnett resided in the Jefferson County property.

The court entered judgment, inter alia, finding that Burnett was the father of the three children; awarding Lochhaas sole legal and physical custody of the children; ordering Burnett to pay child support of $930.00 per month; and awarding Lochhaas attorney's fees of $2,000.00. It also ordered the parcels of real estate in St. Louis County and in Jefferson County to be sold and the net proceeds of the sales divided equally between Burnett and Lochhaas. Burnett appeals from that judgment.

In his first point, Burnett challenges the court's jurisdiction to act in the partition action under section 210.817 et seq., the Uniform Parentage Act. He alleges that under section 528.040 RSMo 2000, venue for actions relating to real estate is in the county where such real estate is located; or if there are two parcels, where the larger is located, which Burnett alleges is in Jefferson County.

A proceeding in partition is strictly statutory. Hughes v. Wilson, 733 S.W.2d 36, 37 (Mo.App.1987). Chapter 528 deals with partition suits. Section 528.030 RSMo 2000 reads:

In all cases where lands, tenements or hereditaments are held in joint tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for years, tenancy by the curtesy and in dower, it shall be lawful for any one or more of the parties interested therein, whether adults or minors, to file a petition in the circuit court of the proper county, asking for the admeasurement and setting off of any dower interest therein, if any, and for the partition of the remainder, if the same can be done without great prejudice to the parties in interest; and if not, then for a sale of the premises, and a division of the proceeds thereof among all of the parties, according to their respective rights and interests.

Section 528.040 requires a partition suit to be brought in the circuit court of the county where the land is located and reads in pertinent part:

Such petition shall be filed in the circuit court of the county in which such lands, ... lie; but if the same shall lie in two or more counties, whether in detached parcels or otherwise, said petition shall be filed in the circuit court of the county in which any portion of such premises are situate, and a majority of the parties entitled thereto reside; and in case a majority of said parties do not reside in any such county, or all of them are nonresidents of the state, the proceedings for the partition shall be had in the circuit court of that county in which an equal or greater part of such premises may be.

Venue and jurisdiction are independent terms, having separate and distinct meanings. State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 197 (Mo. banc 1991). Venue means the place where the case is to be tried, and jurisdiction relates to the power of the court to hear and determine the case. Id. A defendant may waive improper venue by failing to object thereto. Rule 55.27(g)(1). If he does not object to improper venue, or if he consents thereto, the court where the case is pending is not without power to act therein. Subject matter jurisdiction, on the other hand, may not be waived or agreed to. Rule 55.27(g)(3).

Section 528.040 is a venue statute. Assuming, without deciding, that venue for the case was properly in Jefferson County because the larger of the two properties was situated there, Burnett nevertheless waived improper venue. He did not raise the issue of improper venue in the court below on the basis of the size and location of the respective pieces of property. In his amended answer and counterclaim, he only challenged the court's authority to address the partition in a paternity action. In addition, in his counterclaim, he specifically sought partition of both parcels of property. Neither parties' pleadings contained a legal description or identified the size of the respective parcels of real estate. If venue was improper, Burnett waived it.

Relying on Gorman v. State Highway Comm'n, 552 S.W.2d 335 (Mo.App.1977), Burnett contends that he cannot waive venue in this type of action. In Gorman, the plaintiffs sought to quiet title to an abandoned strip of land located in St. Louis County. Id. at 336. They brought the action in Cole County. Id. The appellate court found that the action should have been brought in St. Louis County, where the land was situated. Id. The court considered section 508.030 RSMo 1969, which stated that "[s]uits for the possession of real estate, or whereby title thereto may be affected, ... shall be brought in the county where such real estate, or some part thereof, is situated." Id. The court concluded that section 508.030 not only precluded other venue for such actions, but vested jurisdiction of the subject matter in that venue alone. Id. The court also said that the venue defined by the statute affected title to real estate and was mandatory and could not be waived. Id. The court noted that...

To continue reading

Request your trial
3 cases
  • Duncan v. American Commercial Barge Line
    • United States
    • Missouri Supreme Court
    • July 27, 2004
    ...basis of its alleged status as a limited liability company. The defendant has therefore waived this argument. See Lochhaas v. Burnett, 77 S.W.3d 12, 15 (Mo.App. E.D.2002) (defendant did not raise the issue of improper venue in the court below on the basis of the size and location of certain......
  • K.M.J. ex rel. I.G.M. v. M.A.J.
    • United States
    • Missouri Court of Appeals
    • January 31, 2012
    ...have been or could be commenced.” Subject matter jurisdiction concerns a court's power to hear and determine cases. Lochhaas v. Burnett, 77 S.W.3d 12, 15 (Mo.App. E.D.2002). Venue refers to the place of trial or the locality where an action may be properly brought. Id. Section 210.829.4 spe......
  • Steinmann v. Davenport
    • United States
    • Missouri Court of Appeals
    • January 8, 2008
    ...The venue would have been improper, although it would not have divested the Warren County court of jurisdiction, See Lochhaas v. Burnett, 77 S.W.3d 12, 16 (Mo.App.E.D.2002). Thus, we cannot say that this statutory dissolution action would have been a compulsory counterclaim in this case. Ac......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT