Marriage of Breen, In re

• Citation: 560 S.W.2d 358
• Decision Date: 27 December 1977
• Docket Number: No. KCD,KCD
• Parties: In re the MARRIAGE OF James M. BREEN, Petitioner-Appellant, and Sandra K. Breen, Respondent-Respondent. 29035.
• Court: Missouri Court of Appeals

Page 358

560 S.W.2d 358

In re the MARRIAGE OF James M. BREEN, Petitioner-Appellant,

and

Sandra K. Breen, Respondent-Respondent.

No. KCD 29035.

Missouri Court of Appeals, Kansas City District.

Dec. 27, 1977.

P. Wayne Kuhlman, Liberty, for petitioner-appellant.

No respondent's brief filed.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

SHANGLER, Presiding Judge.

The plaintiff husband commenced an action by publication in Clay County against the wife for dissolution of marriage, disposition of the marital property and for custody of the infant daughter. The affidavit for service by publication alleged that the wife left the residence some months before and that her present address was unknown.

The petition alleged domicile in Clay County and described the marital real estate held by the entireties in that county. The defendant wife made no answer and the cause went by default. The evidence proved these allegations of the petition and that the wife had deliberately abandoned the marriage domicile with the intention not to return.

The court found the marriage irretrievably broken and ordered dissolution and custody of the infant to the father but considered that, in the absence of personal service on the defendant, he was without jurisdiction to divide the marital property. The husband appeals from that latter determination.

The Dissolution of Marriage Act provides (§ 452.330) that in a proceeding for dissolution a court with jurisdiction to dispose of the property shall divide the marital property fairly between the spouses. The law does not in terms say how judicial jurisdiction over the parties and the marital property shall be obtained but specifies (§ 452.310) that all proceedings under the Act are commenced in the manner provided by the rules of the Supreme Court. Rule 54.12 provides that in civil actions which affect specific property, or any res or status within the jurisdiction of the court, service of process may be made as allowed by Rule 54.13 for personal service within the state, by Rule 54.14 for personal service outside the state, by Rule 54.15 for service upon certain state officers, by Rule 54.16 for service by mail, and by Rule 54.17 for service by publication.

A proceeding for dissolution of marriage as was the predecessor suit for divorce is a statutory action sui generis, a remedy at law determined on principles of equity. Allen v. Allen, 433 S.W.2d 580, 584(8-11) (Mo.App.1968). The traditional law created marriage as the consent between a man and woman to discharge those duties the law imposed on the relation of husband and wife. Banks v. Galbraith, 149 Mo. 529, 51 S.W. 105, 106 (1899); 55 C.J.S. Marriage § 1. Thus, by that view marriage was a contract, but pre-eminently a special status beyond mere contract. The more contemporary Dissolution of Marriage Act treats the marriage as a shared economic enterprise as well as a special status, and so gives a nearer parity to both incidents of that unique relation. Corder v. Corder, 546 S.W.2d 798, 803(3) (Mo.App.1977); Krauskopf, Division of Property, 41 Mo.L.R. 165, 171 (1976). An action for dissolution of marriage (or for absolute divorce under the earlier practice), therefore, does not present an ordinary adversary proceeding but an amalgam of contractual right and status.

Insofar as such a proceeding affects certain contract aspects of the marriage (such as the right to money alimony under the former practice or maintenance under the present procedure) the action is in personam and requires personal service or presence of the other spouse for valid judgment. State ex rel. Miller v. Jones, 349 S.W.2d 534, 537(5-9) (Mo.App.1961); Ellison v. Martin, 53 Mo. 575, 578 (1873); § 452.335; Ruhland, Maintenance and Support, 29 Journal of Missouri Bar 516 (1973). Insofar as such a proceeding affects status only (such as the marriage itself or custody of children of the marriage), the action is in rem or at least quasi in rem and requires for valid judgment only that the res be before the court on proper notice. Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, 569(1-5) (banc 1949); Coffey v. Coffey, 71 S.W.2d 141, 142(6) (Mo.App.1934). That is merely to say that the tribunal 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 the defendant in that thing. Restatement of Conflict of Laws 2d, § 27 et seq. and § 56 et seq.

A court had no power by the former practice in divorce proceedings to adjudicate the property rights of the parties. Nor could a court get such a power until so endowed by law. Bishop v. Bishop, 151 S.W.2d 553, 556(2-4) (Mo.App.1941). This authority was granted Missouri tribunals for the first time by the enactment of § 452.330 of the Dissolution of Marriage Act. The adjudication of that new remedy on conventional principles depends upon the situs and nature of the property to be divided. It is a virtually universal rule that immovable property such as real estate is subject exclusively to the laws of the government within whose territory the property is located. It is an equally firm rule that the law of the situs determines the acquisition, disposition and devolution of the real property. Wass v. Hammontree, 77 S.W.2d 1006, 1009 (Mo.1934); 15A C.J.S. Conflict of Laws § 19(1). And this power of a state to adjudicate interests in land within the territory may be validly exercised even though (contrary to the determination by the circuit court) the person who claims these interests is not personally before the court. Restatement of Conflict of Laws 2d § 59. That is because for a valid judgment in rem traditional due process requires only that the sovereignty which adjudicates have physical power over the res directed against and that the law of the sovereignty provide a mode of service to notify persons whose interests are to be affected by the proceedings and to allow opportunity to be heard. Leflar, American Conflicts Law § 20 (3d edition 1977).

The authority of the circuit court to proceed in rem to act upon the title to the real estate of the husband and wife in a dissolution proceeding, therefore, derives as it must from the sovereign lawmaker. ¹ § 452.330. And the means to subject the res to the control of the court for that purpose by proper process also derives from the law, in this case, Rules 54.12 and 54.17.

On these principles the circuit court of Clay County had competent judicial jurisdiction to affect the title of the absent wife to the marital property on the petition for dissolution by the husband once that res was brought within the control of the court by lawful process. Rule 54.12. This the husband accomplished by compliance with the terms of Rule 54.17 for service by publication any notice which informed of: the commencement of the action, the object and nature of the proceeding, a description of the property to be affected, the name of the court and the names of the parties to the action, the name and address of the attorney, the advice that judgment by default would be taken against the wife unless the defendant wife filed an answer within forty-five days of publication, and the date of the first publication. This procedure, according to conventional due process, allows rendition of a valid judgment in rem as to the title of real estate, marital status, or any other thing authorized by law (Rule 54.12) to be brought before the court by that method. Stone v. Stone, 134 Mo.App. 242, 113 S.W. 1157 (1908); State ex rel. Bensberg v. Bensberg, 323 Mo. 171, 19 S.W.2d 637 (banc 1929).

These perennial rules of due process for judgments in rem and quasi in rem have been reordered by the United States Supreme Court very recently in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). ² The long history of jurisdiction in rem based solely on the presence of property within a sovereign territory (Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877) and Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023 (1905)) has given place to the principle of International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) that the power to adjudicate, whether in personam or in rem, depends upon the contacts among the defendant, the forum and the litigation. Shaffer v. Heitner, 432 U.S. 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683, l. c. 698, 699. This view rejects the traditional distinction between a judgment in personam and a judgment in rem which rests upon the fiction that a proceeding against the property is not a proceeding against the owners of that property. Shaffer v. Heitner, 432 U.S. 205, 97 S.Ct. 2569, 2581, 53 L.Ed.2d 683, l. c. 698. It acknowledges, rather that property is a legal relationship between a person and a thing. "It is an ownership which a person has in a thing. Whether a judgment operates in rem or in personam, it operates upon the rights (or claims) and obligations of persons." Leflar, American Conflicts Law § 19 (3d edition 1972). ³ Shaffer v. Heitner expounds the integral rule, therefore, that the jurisdiction of a state to adjudicate rests not on the dogma of power derived from presence alone whether of the person or property but from (432 U.S. 204, 97 S.Ct. 2580, l. c. L.Ed. 698) "the relationship among the defendant, the forum, and the litigation." Thus, fair play and substantial justice require that the property be related somehow to the cause of action in litigation whether for a judgment in personam or a judgment in rem in each case a question of fact.

These announced principles make it altogether plain that the seizure of property alone will not support a valid judgment in rem. However fallible the procedures of Rules 54.12 and 54.17 have now otherwise become, when they are used as has this plaintiff not merely to compel the presence of the defendant or other purpose...