State ex rel. Kittrell v. Carr

• Decision Date: 28 June 1994
• Docket Number: No. 64715,64715
• Citation: 878 S.W.2d 859
• Parties: STATE of Missouri ex rel. Danny Ray KITTRELL, Relator, v. The Honorable Robert L. CARR, Associate Circuit Judge, 24th Judicial Circuit, Washington County, Missouri, and The Honorable Gary P. Kramer, Circuit Judge, 23rd Judicial Circuit, Jefferson County, Missouri, Respondents.
• Court: Missouri Court of Appeals

Page 859

878 S.W.2d 859

STATE of Missouri ex rel. Danny Ray KITTRELL, Relator, v. The Honorable Robert L. CARR, Associate Circuit Judge, 24th Judicial Circuit, Washington County, Missouri and The Honorable Gary P. Kramer, Circuit Judge, 23rd Judicial Circuit, Jefferson County, Missouri, Respondents.

No. 64715.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 28, 1994.

Danny Ray Kittrell, Mineral Point, for relator.

Jeremiah Willson Nixon, Jefferson City, Gary P. Kramer, Hillsboro, for respondents.

CRAHAN, Judge.

Relator, Danny Ray Kittrell, a prisoner at the Potosi Correctional Center situated in Washington County, filed this original proceeding in mandamus seeking alternative relief against the respondent judges, alleging that, individually or in combination, they are exceeding their lawful authority and denying him meaningful access to the courts in his effort to obtain a dissolution of his marriage. Specifically, Relator seeks an order requiring respondent Judge Kramer to rescind his dismissal of Relator's petition for dissolution of marriage, after Relator's wife had defaulted. The action was dismissed due to Relator's failure to appear in person at the default hearing in Jefferson County. It is undisputed that Relator failed to appear at the default hearing because he was incarcerated and his request for a writ of habeas corpus ad testificandum had been denied by Judge Kramer pursuant to § 491.230 RSMo Cum.Supp.1993. ¹ Alternatively, Relator seeks an order directing respondent Judge Carr to rescind his sua sponte dismissal of Relator's subsequent petition for dissolution of marriage filed in Washington County for lack of proper venue. We issued our preliminary writ of mandamus directed to both respondents. We now order that our preliminary writ be made absolute as to Judge Kramer and quash the writ as to Judge Carr.

The undisputed facts are as follows:

On November 12, 1992, Relator filed a verified petition for dissolution of marriage and motion for leave to proceed in forma pauperis in the Circuit Court of Jefferson County. Relator was granted leave to proceed in forma pauperis and process was issued. On December 22, 1992, the sheriff filed his return reflecting service on Relator's wife on December 14, 1992.

On January 19, 1993, Relator filed his pre-trial compliance pursuant to local rules.

On February 25, 1993, Relator moved for a default judgment based on his wife's failure to file an answer or otherwise defend.

On March 3, 1993, Judge Kramer entered an order granting "default and inquiry," further stating that Relator should contact the court clerk for a default hearing date.

On March 7, 1993, Relator wrote to the clerk to request that the default hearing be docketed. Relator also asked the clerk to advise whether it was necessary for him to appear in person at the default hearing, stating that he would file a petition for writ of habeas corpus ad testificandum if his appearance was required. A copy of the letter was returned to Relator with a handwritten "yes" after the question concerning the need for Relator to appear personally at the hearing.

On March 12, 1993, the court scheduled the matter for a "Non-Contest/Default setting" on May 13, 1993.

On March 29, 1993, Relator filed a writ of habeas corpus ad testificandum, which was denied by Judge Kramer.

On April 8, 1993, Judge Kramer wrote to Relator to explain that he had denied the petition for writ of habeas corpus ad testificandum because the Missouri statutes had recently been amended to prohibit such writs for ordinary civil cases, such as Relator's dissolution of marriage case, and thus he could not grant Relator's request to appear to testify.

On June 29, 1993, Judge Kramer filed a Memorandum stating that the cause had been called for mandatory pre-trial conference, that neither party had appeared either in person or by attorney, and that the action was therefore dismissed without prejudice for failure to prosecute.

On July 19, 1993, Relator filed a letter seeking reconsideration and pointing out that his wife remained in total default and that it was impossible for him to appear either personally, due to the court's denial of his petition for writ of habeas corpus ad testificandum, or by counsel, due to his lack of funds. Relator again moved for a default judgment. The motion for reconsideration was denied.

Thereafter, on August 4, 1993, Relator filed an identical petition for dissolution of marriage in the Circuit Court of Washington County and again sought leave to proceed in forma pauperis.

On August 16, 1993, respondent Judge Carr filed a letter addressed to Relator raising, sua sponte, the issue of venue. Judge Carr informed Relator that a petitioner for dissolution of marriage is not a resident of the county of his incarceration for venue purposes and that the county where the prisoner last resided before incarceration is the proper county in which to commence an action for dissolution of marriage, citing State ex rel. Henderson v. Blaeuer, 723 S.W.2d 589, 590 (Mo.App.1987). Noting that Relator's affidavit disclosed that he was a resident of Jefferson County at the time of his incarceration, Judge Carr advised Relator that his action should be filed in Jefferson County and that he had ordered the action dismissed without prejudice.

On August 23, 1993, Relator filed a "Waiver of Venue" and a letter addressed to Judge Carr seeking reconsideration and reinstatement of the petition. Relator cited case authorities for the proposition that venue is ordinarily a personal privilege and can be waived by the parties. Relator took the position that proper venue was not in issue unless raised as a defense by motion or by the respondent's answer and stated that it was unlikely that the matter would be contested. On August 26, 1993, Judge Carr denied the motion for reconsideration.

Relator then filed the instant petition for writ of mandamus in this court seeking, alternatively, an order directing Judge Kramer to rescind his dismissal of the action filed in Jefferson County or an order directing Judge Carr to reinstate the action filed in Washington County.

In support of his petition, Relator claims that § 491.230.2 RSMo Cum.Supp.1993, as interpreted and applied by respondent Judge Kramer, has created a situation in which any inmate not incarcerated within the county in which he resided prior to his incarceration is effectively denied his constitutional right of access to the courts. Relator concedes that under State ex rel. Henderson v. Blaeuer, supra, the proper venue for his action seeking dissolution of marriage lies in his county of residence at the time of his incarceration, which in his case is Jefferson County. However, § 491.230 deprives him of the only possible means of appearing in person in Jefferson County and he has no funds with which to retain counsel to appear for him. Thus, Relator maintains that either Judge Kramer abused his discretion by refusing to enter judgment by default without requiring his personal appearance or § 491.230.2 is unconstitutional as applied in this case. ² Further, although the dismissal of the petition was without prejudice, Relator maintains that it is effectively with prejudice and operates to permanently deprive him of access to the court because there is no genuine prospect that his place of incarceration will be changed to a county of proper venue.

Alternatively, Relator maintains that Judge Carr abused his discretion by prematurely dismissing his petition for improper venue before any responsive pleading was due. Relator argues that parties to a dissolution proceeding may waive venue and that Judge Carr's action in examining venue sua sponte deprived him of the opportunity to determine if his wife would have waived improper venue by failing to raise it in her answer. Further, Relator claims that Judge Carr's actions deprived him of equal protection, alleging that the Circuit Court of Washington County had previously entertained a dissolution action for another prisoner who was similarly situated.

In his answer to our preliminary writ of mandamus, Judge Kramer admits all of Relator's factual allegations as to the course of proceedings in Jefferson County. Judge Kramer acknowledges Relator's dilemma and Relator's right to have his Petition for Dissolution of Marriage heard. However, Judge Kramer submits that "[i]t is long standing and well settled law that no divorce or dissolution of marriage can be granted, even in a default situation, without testimony to support the allegations of the petition." Further, in view of the 1990 amendments to § 491.230.2, the court cannot issue a writ of habeas corpus ad testificandum to permit Relator to testify because a dissolution action is purely a civil proceeding. Relator is a poor person and presumably has no means to obtain the services of counsel to take his deposition in lieu of live testimony. Accordingly, Judge Kramer submits the court has no alternative but to dismiss the petition for failure to prosecute. Judge Kramer candidly concedes that this is not a satisfactory outcome because it effectively denies Relator of his constitutional right of access to the courts.

Starting in the early 1800s and continuing until 1976, the civil rights of persons incarcerated in Missouri were deemed suspended by the operation of the so-called "civil death" statute, § 222.010 RSMo 1969. That statute was held unconstitutional in Thompson v. Bond, 421 F.Supp. 878 (W.D.Mo.1976). Thompson held, inter alia, that Missouri could not, consistent with due process, preclude inmates from instituting divorce proceedings. 421 F.Supp. at 882, n. 5. Further, in cases predating and following Thompson, it has been widely recognized that "absent a countervailing state interest of overriding significance, prisoners must be afforded meaningful access to the courts and an opportunity to be heard." Strube v. Strube, 158 Ariz. 602, 764 P.2d...