State ex rel. Westmoreland v. O'Bannon, WD 61279.

• Decision Date: 22 October 2002
• Docket Number: No. WD 61279.,WD 61279.
• Citation: 87 S.W.3d 31
• Parties: STATE of Missouri ex rel., Charles D. WESTMORELAND, Relator, v. The Honorable John M. O'BANNON, Respondent.
• Court: Missouri Court of Appeals

87 S.W.3d 31

STATE of Missouri ex rel., Charles D. WESTMORELAND, Relator, v. The Honorable John M. O'BANNON, Respondent.

No. WD 61279.

Missouri Court of Appeals, Western District.

October 22, 2002.

Richard A. Koehler, Butler, MO, for relator[s].

Diana D. Thomas, Butler, MO, for respondent[s].

Before NEWTON, P.J., BRECKENRIDGE and SMART, JJ.

PATRICIA BRECKENRIDGE, Judge.

Relator Charles D. Westmoreland filed a petition for a writ of prohibition in this court, seeking to prohibit Respondent, the Honorable John M. O'Bannon, from enforcing the provisions of the judgment in the dissolution proceedings of Mr. Westmoreland and Susan Marie Westmoreland. Mr. Westmoreland claims that the dissolution judgment is void because the court lacked personal jurisdiction over him since he was improperly served with process. Specifically, Mr. Westmoreland asserts that there was no request in writing by Susan Westmoreland to receive the summons and to be responsible for its prompt service, as required by the version of Rule 54.01 in effect in 1999 when service was made,¹ and, as a result, the judgment is void for lack of jurisdiction under the holding of Worley v. Worley, 19 S.W.3d 127, 129-30 (Mo. banc 2000). The issue of the validity of the judgment of dissolution, raised by Mr. Westmoreland in his petition for writ of prohibition, was adjudicated by Judge O'Bannon when he denied Mr. Westmoreland's motion to set aside the dissolution judgment. Because Judge O'Bannon's order refusing to set aside the dissolution judgment is a special order entered after final judgment in the cause and, as such, is appealable, adequate relief could be afforded to Mr. Westmoreland by an appeal, and an original remedial writ should not issue. This court's preliminary writ of prohibition, dated May 2, 2002, was improvidently granted, and the preliminary writ is ordered quashed and the request for a permanent writ of prohibition is denied.

Factual and Procedural Background

Mr. Westmoreland and Susan Marie Westmoreland were married in 1990. Susan Westmoreland filed a petition for the dissolution of this marriage in the Circuit Court of Bates County, on January 12, 1999. On the first page of the petition, there were "Service Instructions" that the petition was to be served by a special process server. Nevertheless, three days later, the clerk of the circuit court issued a summons for service on Mr. Westmoreland, which was taken to be served by Debra Hopkins, attorney for Susan Westmoreland. There was no request in writing by Susan Westmoreland that the clerk deliver the summons to her or her attorney or a written statement that she would be responsible for service. The summons was returned with the return of service executed by Mick Davidson, indicating that he personally served the summons for the petition of dissolution on Charles D. Westmoreland in Bates County, Missouri. In addition, an affidavit of Mr. Davidson was filed, wherein he stated that he personally served Mr. Westmoreland at Route 2, Box 80, Butler.

On March 4, 1999, counsel for Susan Westmoreland filed a notice that a hearing on the petition for dissolution was set on March 12, 1999, at 11:00 a.m. The notice included a certificate of service that the notice was sent to Mr. Westmoreland by regular mail. On March 12, Susan Westmoreland and her attorney appeared for the hearing, but Mr. Westmoreland did not appear and was found to be in default. After hearing Susan Westmoreland's evidence, Judge O'Bannon entered judgment, dissolving the marriage, dividing the party's real and personal property, and apportioning the marital debt. Subsequent to the entry of the judgment of dissolution, Mr. Westmoreland remarried and had a child with his new wife.

At the end of 2001, Susan Westmoreland filed a motion for contempt, alleging that Mr. Westmoreland had failed to pay the debts apportioned to him in the dissolution judgment. On March 15, 2002, Mr. Westmoreland filed a motion to quash the motion for contempt and to set aside the dissolution judgment. In this motion, Mr. Westmoreland claimed he had been improperly served because Mr. Davidson was not "the sheriff or other person specially appointed to serve" and Susan Westmoreland had not requested in writing to serve the pleading, as required by Rule 54.01. Thus, he argued the court lacked personal jurisdiction over him when it entered the dissolution judgment.

On March 29, 2002, Judge O'Bannon held a hearing on Mr. Westmoreland's motion to quash the motion for contempt and to set aside the dissolution decree. Judge O'Bannon denied Mr. Westmoreland's motion because:

It is clear in this case as presented, [Mr. Westmoreland] has relied on the dissolution judgment entered by remarriage, fathering a child, and waiting a substantial period of time to challenge the judgment only after the terms of the judgment were sought to be enforced. There was real property set aside to [Susan Westmoreland] in the judgment without complaint or action by [Mr. Westmoreland] until [Susan Westmoreland] sought to enforce orders in the judgment for indemnification and payment of debt. [Susan Westmoreland] also sold real property with reliance on the judgment.

On April 11, 2002, Mr. Westmoreland filed a writ of prohibition with this court seeking to preclude Judge O'Bannon from going forward with a hearing on the motion for contempt and from enforcing the dissolution judgment. Mr. Westmoreland claims that because the petition for dissolution was not properly served on him, the court had no personal jurisdiction over him and the judgment was void. This court issued a preliminary writ of prohibition on May 2, 2002.

Denial of Motion to Set Aside Judgment is an Appealable Judgment

Before reaching the merits of Mr. Westmoreland's petition for writ of prohibition, this court considers whether the extraordinary remedial writ of prohibition is proper in the circumstances of this case. "Prohibition is a powerful writ, divesting the body against whom it is directed to cease further activities." State ex rel. Riverside Joint Venture v. Mo. Gaming Comm'n, 969 S.W.2d 218, 221 (Mo. banc 1998). As such, the Supreme Court has limited its application to "three, fairly rare, categories of cases." Id. One of the categories in which writs of prohibition are proper is "where a judicial or quasi-judicial body lacks personal jurisdiction over a party." Id.

Nevertheless, "[n]o original remedial writ shall be issued by an appellate court in any case wherein adequate relief can be afforded by an appeal[.]" Rule 84.22. The right to appeal is statutory, Hatfield v. Cristopher, 841 S.W.2d 761, 764 (Mo.App.1992), and one of the instances where the statutes grant a party the right to appeal is "from any special order after final judgment in the cause." Section 512.020, RSMo 2000. "The phrase `any special order after final judgment in the cause' refers to the orders in special proceedings attacking or aiding the enforcement of the judgment after it has become final in the action in which it was rendered.'" GUI, Inc. v. Adams, 978 S.W.2d 515, 517 (Mo.App.1998) (quoting Helton Constr. Co. v. High Point Shopping Center, Inc., 838 S.W.2d 87, 91 (Mo.App.1992)). The phrase "contemplates that a judgment has become final and that one of the parties is attempting to enforce the judgment or to attack the enforcement of the judgment." Id.

The Supreme Court...