Sola v. Bidwell

• Decision Date: 15 September 1998
• Docket Number: Nos. WD,s. WD
• Citation: 980 S.W.2d 60
• Parties: Joan Claire (Bidwell) SOLA, Appellant, v. Robert Loyd BIDWELL, Jr., Respondent. 54048, WD 54096.
• Court: Missouri Court of Appeals

Page 60

980 S.W.2d 60

Joan Claire (Bidwell) SOLA, Appellant, v. Robert Loyd BIDWELL, Jr., Respondent.

Nos. WD 54048, WD 54096.

Missouri Court of Appeals Western District.

Sept. 15, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 27, 1998.

As Modified Oct. 27, 1998.

Application for Transfer Denied Dec. 22, 1998.

Jack A. Cochran, Nancy A. Beardsley, Blue Springs, for Appellant.

Bruce A. Bailey, Warrensburg, for Respondent.

Before ULRICH, C.J., P.J., and LOWENSTEIN and HOWARD, JJ.

HOWARD, Judge.

This is an appeal from the dissolution of the marriage of Robert L. Bidwell, Jr. ("Bob") and Joan Sola (formerly Joan Bidwell) ("Joan"). Joan raises three points on appeal. First, she contends the trial court erred by awarding her only $1,000.00 per month maintenance because 1) her health status indicated need for continuing and accelerating medical treatment, the cost of which would have been provided at no charge for the rest of her life had Bob not voluntarily retired early from active duty; 2) her health status indicated her inability to maintain gainful employment and her monthly expenses exceeded $4,600.00; and 3) her current income of $500.00 per month from her employment was far short of her minimal monthly expenses. Second, Joan claims the trial court erred by not including in its division of assets all the funds that Bob had transferred to foreign banks and relatives and converted to cash because there was no evidence that controverted the sums transferred and converted. Third, she claims the trial court erred by not obligating Bob for payment of all of Joan's fees and costs associated with the entire proceeding because the evidence established Bob's continuous pattern of delay, avoidance of service, hindrance of discovery and economic blackmail which was intended to destroy Joan financially and resulted in Joan's enormous expenditure of funds for private investigators, attorney's fees, costs and loans from her mother.

Bob raises five points on cross-appeal. First, he contends the trial court did not have personal jurisdiction over him in order to enter its judgment for maintenance, attorney's fees, court costs, and division of marital property outside the State of Missouri because Bob's residence was in the State of Colorado and there were insufficient minimum contacts between Bob and the State of Missouri to establish personal jurisdiction. Second, Bob claims the trial court misapplied the law in dividing his military disposable retirement pay in that it lacked jurisdiction to do so because the jurisdictional prerequisites set forth in 10 U.S.C. § 1408(c)(4) were not met. Third, Bob contends the trial court erred, abused its discretion, and lacked sufficient evidence to support its judgment awarding Joan attorney's fees of $74,213.26 because such an award is so excessive, arbitrary and unreasonable that it is unconscionable and shocking to the sense of justice. Fourth, Bob claims the trial court's judgment assessing court costs against him was not supported by the evidence in that Bob did not receive credit for $2,000.00 pendente lite suit money previously paid to Joan's counsel because Bob was ordered to pay all court costs totaling $2,492.25 and after receiving proper credit for payment the judgment should only be for $492.25. Fifth, Bob claims the trial court erroneously applied the law and abused its discretion in that the judgment entry awards a judgment against Bob in the amount of $10,609.00 for support and maintenance arrearage and the trial court failed to set forth its financial calculations because the trial court is required to include in its findings or judgment the calculations used in arriving at the judgment amount.

Facts

Joan and Bob met in 1971 while Bob was stationed at Wentworth Military Academy in Lexington, Missouri. Bob was on active duty with the United States Army. Joan was teaching at Wentworth at the time. They married on December 18, 1973. The couple lived in Lexington, Missouri until Bob's next duty assignment. Throughout the next fifteen years of their marriage, the parties moved from duty station to duty station. They moved thirteen times in fifteen years. Joan and Bob last resided together at his duty station in Oslo, Norway. Bob's assignment after Norway was Somalia. Bob and Joan agreed that Joan would return to Concordia, Missouri, while Bob went on to Somalia. Joan returned to Missouri on or around July 1, 1988.

At the time of trial, Bob had been on active duty with the Army since September 16, 1963. He retired from the Army with the rank of colonel on June 1, 1992. When Bob retired from active military duty, he traveled around trying to find a place he wanted to live. Bob eventually moved to Lamar, Colorado, where his family had a ranching operation. He works as a general manager for his family's ranch at a net wage of $1,000.00 per month. His retirement pay from the Army is $48,528.00 annually. The amount is adjusted annually for cost of living. Bob also has a business, Lobo Enterprises. The two facets of the business are leatherworking and weapons consulting. The leatherworking generates approximately $1,239.00 per year. The amount generated by Bob's weapons consulting is unknown. Bob receives small yearly dividends from stock that he owns in the family business, Walker Land & Cattle Company.

Joan was certified to teach French when the couple met. During the marriage, she completed an art preparation course for commercial artists. She also passed a real estate license examination and completed a course as a taxpayers' assistant with H & R Block. Joan studied art and worked as an artist throughout most of their marriage. She also suffered from numerous chronic health problems. At the time of trial, she was working part time as a teacher.

Joan filed her petition for dissolution of marriage on February 28, 1989. However, despite repeated attempts, she was unable to obtain service of process on Bob until August 22, 1993. The marriage was dissolved on January 29, 1997.

Argument

We first address the jurisdiction issues, as our discussion of the other points on appeal is contingent on the outcome of these issues. For the sake of clarity, we will continue to discuss the other points on cross-appeal in order, and then address the points on direct appeal.

I. Cross-Appellant's Points

Personal Jurisdiction

The first point on cross-appeal is that the trial court did not have personal jurisdiction over Bob, and therefore the trial court erred in entering judgment for maintenance, attorney's fees, and court costs, and in dividing marital property outside the State of Missouri because Bob's residence was in the State of Colorado and there were insufficient minimum contacts between Bob and the State of Missouri to establish personal jurisdiction.

Joan contends that Bob waived any challenge to personal jurisdiction because he did not file his motion to strike, in which he raised the issue of lack of personal jurisdiction for the first time, within the time required by Rule 55.25. We agree. The defense of lack of personal jurisdiction may be raised either by motion or by including it in a responsive pleading. If the defense is made by motion, it "shall be made within the time allowed for responding to the opposing party's pleading...." Under Rule 55.25, a defendant "shall file an answer within thirty days after the service of the summons and petition...." Rule 44.01 provides that the time period for answering begins to run on the day after service of process. Bob was served with process on August 13, 1993. Under the provisions of Rule 44.01, Bob had until Monday, September 13, 1993 to respond to Joan's petition. Bob's counsel entered an appearance on August 17, 1993. Bob filed his motion to strike on September 15, 1993. Bob contends that because he filed his motion to strike within 30 days of his entry of appearance, his challenge to the trial court's personal jurisdiction was timely.

In Greenwood v. Schnake, 396 S.W.2d 723, 724 (Mo.1965), the Missouri Supreme Court found as follows:

[A] defendant objecting to lack of jurisdiction over his person should promptly file the motion raising the question. Such a motion must be made within the time allowed for responding to the opposing party's pleading ... and if not made within the time therein limited the party waives all objections to jurisdiction then available to him....

Bob argues that Greenwood should be ignored to the extent that it conflicts with that court's more recent holding in Crouch v. Crouch, 641 S.W.2d 86 (Mo. banc 1982). In Crouch, the court stated in a footnote that

[a]ny waiver of the jurisdictional defense occurs not because of the defendant's voluntary appearance but because of his failure to assert the defense within the time prescribed by the rules.... [W]ithin the time allowed for serving the answer the defendant may assert this defense unless he has waived it by some action other than his voluntary appearance. [Waiver] results from a "failure to assert the defense within the time prescribed by the rules" whenever the defendant appears and fails to raise the defense within the time allowed for pleading. Thus, if the court lacks personal jurisdiction, the defendant cannot waive the defense by nonappearance because, until he voluntarily appears, the time period allowed for serving the answer cannot begin to run.

Crouch, 641 S.W.2d at 90 n. 4. However, Crouch is a plurality opinion in which two judges concurred, one judge concurred in the result, and two judges concurred in part, not including the above footnote. Id. at 94. Where an opinion has only the full concurrence of its author and two other judges, with the other four judges concurring only in the result, it is "not authoritative except as to the result reached therein" and cannot overrule any prior decisions. Musgraves v. National Dairy Products Corp., 400 S.W.2d 93, 96 (Mo.1966); see also Hester by Scott v. Rymer, ...