McCammon v. McCammon, WD

• Decision Date: 04 September 1984
• Docket Number: No. WD,WD
• Parties: Robert E. McCAMMON, Petitioner, Respondent, v. Gail McCAMMON, Respondent, Appellant. 35560.
• Court: Missouri Court of Appeals

Page 196

680 S.W.2d 196

Robert E. McCAMMON, Petitioner, Respondent, v. Gail McCAMMON, Respondent, Appellant.

No. WD 35560.

Missouri Court of Appeals,

Western District.

Sept. 4, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Oct. 30, 1984.

Daniel D. Lane, Kansas City, for respondent, appellant.

H.H. McNabb, Jr., Butler, for petitioner, respondent.

Before KENNEDY, P.J., and NUGENT and BERREY, JJ.

NUGENT, Judge.

Gail McCammon appeals from the judgment of the lower court modifying a decree of dissolution with respect to the parties' two minor children, respectively aged twelve and nine at the time of the September 19, 1983, hearing. We affirm the judgment.

On January 16, 1981, custody of the two children was awarded to Mrs. McCammon in the decree of dissolution. On August 9, 1983, Mr. McCammon filed a motion for contempt and on that day an order to show cause and summons was issued, both of which were served upon Mrs. McCammon on August 12. The record is silent as to any other proceedings until August 22, when the judge's docket shows the notation, "Continued by agreement of the parties to September 19, 1983, 10:00 a.m." On August 23, petitioner's attorney filed the instant motion to modify the decree as to custody of the two children.

The motion to modify alleged a change of circumstances since the dissolution decree and requested that the children be placed in petitioner McCammon's custody. It was signed by H.H. McNabb, Jr., attorney for Mr. McCammon, and bears attorney McNabb's verification that "he is attorney for petitioner herein and that the facts in the above motion are true and correct to the best of his information and belief" subscribed before a notary public.

The alleged changes in circumstances are, first, that Mrs. McCammon had wilfully failed and refused to permit the childrens' father to visit them in his home, depriving them of the benefits of both parents, and, second, that the Mr. McCammon has remarried and can now provide the children with a suitable home and that the transfer of custody would provide the children with a normal family environment. Nothing in the motion indicates any urgency or undue stress imposed upon the children.

The motion and a notice calling it up for hearing on September 19 were served on Mrs. McCammon on August 25. On September 14, she filed her "counter-petition" for modification of child support and for specification of visitation. The record shows that on September 20, Mrs. McCammon filed a request for continuance, said by her attorney to have been mailed on September 16. The request for continuance states that Mrs. McCammon's attorney had been retained on September 12, that he had not had sufficient time to prepare for a hearing, that he had conflicting engagements in a Kansas City court on September 19, and indicated that additional time was needed to contact witnesses and complete discovery to prepare a proper defense.

Nevertheless, on September 19, the parties appeared in person and by counsel. At that time Mrs. McCammon's attorney advised the court of the request for continuance based upon the need for discovery and time to prepare for trial. The court denied the request because the matter had been pending for some time and involved the welfare of minor children and needed to be resolved as soon as possible. At the hearing, Mrs. McCammon's counsel asserted that Mr. McCammon had not himself verified the petition as the statute requires. The court ruled that it was properly verified. On the same day, the court sustained Mr. McCammon's motion to modify in that the court ordered that Mr. McCammon should have custody of the children during the summer and during the Christmas vacation at specified times and that, upon specified notice to Mrs. McCammon, he would be entitled to visit the children outside Mrs. McCammon's presence on any weekend during which he was in the vicinity of their home.

On this appeal, Mrs. McCammon presents for review seven assignments of error.

I.

First, we address the question of the trial court's jurisdiction to entertain a motion to modify a decree of dissolution with respect to the custody of children raised in appellant's Point III on appeal. She contends, citing In re Marriage of Dunn, 650 S.W.2d 638 (Mo.App.1983); Hibdon v. Hibdon, 589 S.W.2d 646 (Mo.App.1979); and Higginbotham v. Higginbotham, 146 S.W.2d 856 (Mo.App.1940), that Mr. McCammon's motion for modification was deficient because it was not personally signed or verified by him. At the hearing, the wife orally moved for dismissal, but the trial court denied the motion.

In 1907, the Missouri Supreme Court decided Hinkle v. Lovelace, 204 Mo. 208, 102 S.W. 1015, 11 L.R.A. (N.S.) 730, 120 Am.St.Rep. 698, 11 Ann.Cas. 794. In that case, the court held that, because of the personal character of the suit, the divorce statute in effect in 1867 ¹ required that only the person who was the plaintiff could make the affidavit required to be annexed to the petition. The court also held that the affidavit averring good faith and the absence of collusion, fear, or restraint is jurisdictional and that a petition filed without such an affidavit of the plaintiff was fatally defective. 102 S.W. 1018-19. The court reiterated its holding in Robertson v. Robertson, 270 Mo. 137, 192 S.W. 988 (1917). The courts of appeal have followed suit. Higginbotham v. Higginbotham, 146 S.W.2d 856, 857 (Mo.App.1940); State ex rel. Knapp v. Cowan, 230 Mo.App. 226, 88 S.W.2d 424, 425 (1935); State ex rel. Sappington v. American Surety Co., 41 S.W.2d 966, 968 (Mo.App.1931); and Stevens v. Stevens, 170 Mo.App. 322, 156 S.W. 68, 69 (1913).

The Supreme Court's rationale in the Hinkle and the Robertson cases was that the plaintiff in a divorce action should, in person, swear to the petition and to the things to be stated in such an affidavit, matters which would rest peculiarly and exclusively within the plaintiff's knowledge and which, in the very nature of things, no one else could know to be true or false. For example, the court reasoned, no one but the plaintiff could know whether the complaint was made out of levity, by collusion, by reason of fear or restraint, whether the suit was brought for the mere purpose of being separated from each other, or whether the plaintiff was sincere in prosecuting the suit. For that reason, the court concluded that authority for an agent of the plaintiff to make an affidavit for the plaintiff could not be inferred from anything in the statute. (In the Hinkle case, the petition had been verified by the affidavit of the plaintiff's next friend.)

The Dissolution of Marriage Act of 1973 abandoned the requirement for the old form of affidavit. The new act requires only that "[t]he petition in a proceeding for dissolution of marriage or legal separation shall be verified and shall allege the marriage is irretrievably broken ...." § 452.310. ² As did the old divorce law, the 1973 Act omits any specific requirement that the petition be verified only by the person who is the plaintiff, but the new act also omits a requirement for any particular form of verification. In an action for dissolution, the petition need only set forth the residence of the parties, the length of residence in this state, the date and place of the marriage, the date of the separation, identities of the children, if any, whether the wife is pregnant, which party has actual custody of any minor children, any arrangements as to custody, support or maintenance, and the relief sought, that is, dissolution or legal separation.

Since the adoption of the Dissolution of Marriage Act of 1973, only one case has held that under that act verification of the plaintiff's petition by the plaintiff is jurisdictional: In re Marriage of Dunn, 650 S.W.2d 638, 639 (Mo.App.1983). The court there relied on Hibdon v. Hibdon, 589 S.W.2d 646, 647 (Mo.App.1979), and referred also to McCarty v. McCarty, 300 S.W.2d 394, 400 (Mo.1957). Although the Hibdon case was decided after the adoption of the Dissolution of Marriage Act, the court there did not address the question of the necessity for plaintiff's affidavit in support of a dissolution petition, and the McCarty case and State ex rel. Knapp v. Cowan, 88 S.W.2d at 425, upon which it relied, were cases dealing with the necessity for an affidavit under the old divorce statute.

If, as Mrs. McCammon asserts on this appeal, her former husband's motion for modification was deficient because it was signed and verified only by his attorney, the only authority supporting that proposition is the tenuous line extending from In re Marriage of Dunn back through the repeal of the old divorce laws to Hinkle v. Lovelace. In all of those cases, the issue was the validity of a petition for dissolution or divorce unsupported by the affidavit of the plaintiff and, therefore, the issue of the jurisdiction of the court.

In this case we are not dealing with a petition for dissolution or for divorce but with an entirely new and different statute, § 452.455, ³ which requires verified petitions in child custody modification proceedings. The language in both § 452.310 and § 452.455 to the effect that the petition shall be verified is the same, but neither statute specifically requires that the plaintiff shall furnish the verification or that the verification shall be as to anything which only the plaintiff could know. Thus, both new sections, omit the requirement with respect to averments about collusion, fear, restraint, good faith, and the lack of levity which the old divorce statute imposed. Those were the specific requirements which led the court in Hinkle v. Lovelace and Robertson v. Robertson to believe that the legislature intended that only the plaintiff could execute the required affidavit and that the proper execution of the affidavit was jurisdictional.

Whatever the law may be at this time with respect to the necessity for a petition for dissolution...