Patel v. Patel

• Court: Missouri Court of Appeals
• Writing for the Court: JAMES EDWARD WELSH
• Citation: Patel v. Patel, 380 S.W.3d 625 (Mo. App. 2012)
• Decision Date: 02 October 2012
• Docket Number: No. WD 74450.,WD 74450.
• Parties: Urvashiben Nimeshbhai PATEL, Respondent, v. Nimeshbhai R. PATEL, Appellant.

380 S.W.3d 625

Urvashiben Nimeshbhai PATEL, Respondent,

v.Nimeshbhai R. PATEL, Appellant.

No. WD 74450.

Missouri Court of Appeals, Western District.

Oct. 2, 2012.

Donald Lock, Gladstone, MO, for Appellant.

Michele Puckett–Burkhead, Cameron, MO, for Respondent.

Before JAMES EDWARD WELSH, C.J., THOMAS H. NEWTON, J., and FREDERICK P. TUCKER, Sp. J.

JAMES EDWARD WELSH, Chief Judge.

Nimeshbhai Patel (Husband) appeals the circuit court's denial of his motion to set aside a default dissolution of marriage judgment. First, he asserts that the court erred in failing to set aside the default judgment because the court lacked in personam jurisdiction, pursuant to section 506.500, RSMo 2000, and Rule 54.06(b), to assess child support, divide property not located in Missouri, and render money judgments against him. Second, Husband contends that the court erred in failing to set aside the default judgment because Husband established good cause for his failure to appear at the dissolution hearing. Third, Husband asserts that the court erred in failing to set aside the default judgment, which restricted Husband's visitation with his child and ordered supervised visitation, because there was no evidence to support such restriction under section 452.400, RSMo Cum.Supp.2011, and the court made no such findings. Fourth, Husband contends that the court erred in failing to set aside the default judgment and awarding sole custody of the minor child to Wife because the court failed to consider the requisite statutory factors for awarding custody, as set forth in section 452.375, RSMo Cum.Supp.2011, and, Missouri was not the home state of the child. Finally, Husband contends that the court erred in failing to set aside the default judgment because the judgment failed to properly dispose of all issues, particularly the division of marital and non-marital property. We affirm in part and reverse in part, finding the court erred in failing to set aside the default judgment in all respects except the dissolution of the marriage.

The facts and procedural history of this case, as relevant to our decision, are as follows: Husband and Urvashiben Nimeshbhai Patel (Wife) were married on January 16, 2006 in Anand, India. Thereafter, Husband and Wife resided in the state of Maryland and separated on or about October 6, 2009. After separation, Husband remained in Maryland, and Wife moved to the state of Missouri. One child was born of the marriage on February 22, 2008, and, when Husband and Wife separated, the child moved to Missouri with Wife. On March 26, 2010, Wife petitioned the court for dissolution of the marriage. Husband was personally served notice of the proceeding in the state of Maryland on March 31, 2010. On July 7, 2010, Wife sent Husband notice of a default hearing scheduled for August 13, 2010. After the default hearing, the court made a docket entry finding the jurisdictional allegations to be true,¹ dissolving the marriage and awarding sole legal and physical custody of the minor child to Wife, subject to Husband's reasonable visitation to be supervised by Wife. The court awarded, among other things, prospective child support to Wife in the amount of $360 per month and $1,800 in retroactive support. The court found that Husband and Wife's oral property settlement, as described by Wife, was not unconscionable and awarded Wife $25,000 for equity in a home located in India and $7,500 for equity in a van located in Maryland. The court awarded both the home and van to Husband. The court's judgment was filed on August 30, 2010.

On September 30, 2010, Husband moved to set aside the judgment pursuant to Rule 74.05(d). Husband's motion, among other things, argued that the court lacked personal jurisdiction because Husband had never been a resident of the state of Missouri. Husband contended that he had exercised reasonable diligence and had an excuse for his failure to appear at the dissolution hearing. On September 12, 2011, evidence was heard on the matter after proper notice to both parties. Although Wife alleged in her petition for dissolution that Husband was a resident of Missouri, she conceded at the hearing on Husband's motion to set aside the default judgment that Husband never lived in Missouri. It was also stipulated at the hearing that Wife, with the child, resided in Missouri for less than six months prior to petitioning the court for dissolution.² On September 20, 2011, the court denied Husband's motion without comment. Husband appeals.

Husband raises five points on appeal. Finding his first and fourth points dispositive, we need not address his second, third, and fifth points. In Husband's first point on appeal, he argues that the circuit court erred in failing to set aside the default judgment because the court lacked in personam jurisdiction, pursuant to section 506.500 and Rule 54.06(b), to assess child support, divide property not located in Missouri, and render money judgments against him. We agree.

We review the circuit court's denial of a motion to set aside a default judgment under an abuse of discretion standard. Brungard v. Risky's Inc., 240 S.W.3d 685, 687 (Mo. banc 2007). We will reverse the circuit court's judgment only when the ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable that it shocks our sense of justice and indicates a lack of careful consideration. Beeman v. Beeman, 296 S.W.3d 514, 517 (Mo.App.2009). We, however, disfavor default judgments and prefer trials on the merits. Id. “We are more likely to reverse the trial court's judgment when it denies the motion to set aside a default judgment as opposed to when it grants it.” Id.

We first note that a dissolution of marriage action involves “ ‘an amalgam of contractual right and status.’ ” In re Marriage of Berry, 155 S.W.3d 838, 840 (Mo.App.2005) (quoting Ferrari v. Ferrari, 585 S.W.2d 546, 547 (Mo.App.1979)). “ ‘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. (citations omitted). Here, Husband concedes that the court had jurisdiction to dissolve the marriage based on the court's in rem jurisdiction.

“ ‘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). Lack of personal jurisdiction precludes consideration of orders pertaining to maintenance, child support, attorney's fees, and division of property (not within the State). Thompson v. Thompson, 657 S.W.2d 629, 631 (Mo. banc 1983); Berry, 155 S.W.3d at 842. 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.’ ” Berry, 155 S.W.3d at 840 (citation omitted). 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 the children of the marriage and is a resident of this state.

See also § 506.500.2. 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 ‘sufficiency of the evidence to make a prima facie showing that the trial court may exercise personal jurisdiction is a question of law,’ which, on appeal, this Court reviews de novo.” Bryant v. Smith Interior Design Group, Inc., 310 S.W.3d 227, 231 (Mo. banc 2010) (internal citations omitted).

Because Husband never lived in lawful marriage within this state, he lacked “the minimum contacts with Missouri necessary to sustain the trial court's assertion of personal jurisdiction....” Crouch, 641 S.W.2d at 90.³ Therefore, with regard to all matters for which personal jurisdiction was required for a valid judgment, Husband merely needed to prove lack of personal jurisdiction for the court to have set aside the judgment with regard to those matters. Here, those matters included the court's child support order, division of property not within the state, and all monetary judgments against Husband. Ketteman v. Ketteman, 347 S.W.3d 647, 651 (Mo.App.2011). We find after de novo review of the jurisdictional issue that the court lacked personal jurisdiction over those matters and, therefore, the court abused its discretion in failing to set aside the default judgment regarding those issues.

Wife contends that although Husband never lived in lawful marriage in Missouri, the court may yet have personal jurisdiction pursuant to Rule 54.06(b). Wife argues that Rule 54.06(b) not only confers jurisdiction for living in lawful marriage within the state, but also if a third party has provided support to the spouse or to the children of the marriage and is a resident of the state. Wife claims that the court gained personal jurisdiction over Husband because Wife's Missouri family members provided employment for her and daycare for the minor child. We disagree. Wife's petition alleged that her “cause of action” was “for the dissolution of her marriage.”...