Urbanek v. Urbanek

• Decision Date: 11 December 1973
• Docket Number: No. 35019,35019
• Citation: 503 S.W.2d 434
• Parties: Aurelia URBANEK, Plaintiff-Appellant, v. James Eugene URBANEK et al., Defendants-Respondents. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 434

503 S.W.2d 434

Aurelia URBANEK, Plaintiff-Appellant, v. James Eugene URBANEK et al., Defendants-Respondents.

No. 35019.

Missouri Court of Appeals, St. Louis District, Division One.

Dec. 11, 1973.

Schnapp, Graham & Reid, Fredericktown, for plaintiff-appellant.

Strom & Strom, Cape Girardeau, for defendants-respondents.

SIMEONE, Acting Presiding Judge.

This is an appeal by plaintiff-appellant, Aurelia Urbanek, from a judgment of the Circuit Court of Madison County entered on November 16, 1972, dismissing her petition and amended petition praying for divorce, alimony, child custody and support, attorneys' fees and partition of certain property.

Aurelia Urbanek was married to defendant-respondent, James Eugene Urbanek, on July 29, 1966 and lived in the State of Mississippi as husband and wife. In 1969 a daughter, Karrie Lynn Urbanek, was born of the marriage. The parties lived together as husband and wife until June 25, 1971 when Aurelia returned with her daughter to Madison County, Missouri, where appearently she resided prior to her marriage. James did not return with Aurelia to Madison County.

James received a monthly rental income of $100.00 from a farm located in Madison County and admitted in his answers to certain requests for admission filed by the plaintiff that he received such amounts from June 25, 1971 through July 7, 1972 (except for the months of May and June, 1972). As stated, in June, 1971, Aurelia left James and came to Missouri while James remained a resident of Mississippi. From June, 1971 the parties lived apart, Aurelia and Karrie in Missouri and James in Mississippi.

The events which led to these proceedings began on December 16, 1971. On that date James and a friend came to Marquand in Madison County and took Karrie from the home of a babysitter who was caring for Karrie while Aurelia was teaching school. After James and his friend took Karrie, and were on their way to Cape Girardeau to return to Mississippi, they were stopped in Bollinger County as a result of bulletins issued for their arrest by the sheriff of Madison County. James and the other man were arrested. They were returned to Madison County and while in jail were served with papers in the divorce suit filed by Aurelia on the same date, December 16, 1971.

Aurelia's petition for divorce alleged that she was a bona fide resident of Madison County and 'the acts alleged herein took place in Madison County, Missouri. . . .' The petition further alleged the date of marriage, the date of the separation and that 'Defendant is a vagrant, ¹ an able bodied man and he has neglected and refused to provide for the support of his family,' although he owns real estate in Missouri and receives $100.00 a month rent on real estate. She also alleged that James took Karrie and that such acts 'have rendered Plaintiff's condition intolerable and future life with the Defendant impossible.' In this original petition she prayed: (1) to be divorced from the bonds of matrimony, (2) an award for the custody of Karrie, (3) for child support, (4) alimony and (5) for a reasonable attorneys' fee. On January 14, 1972 James filed a motion to dismiss the petition upon a special appearance alleging the court had no jurisdiction to maintain the cause.

Before any further proceedings were held in Madison County in Aurelia's suit for divorce, James, upon his return to Mississippi filed a petition for divorce from Aurelia in the Chancery Court of Lafayette County, Mississippi on December 29, 1971. On February 29, 1972, the Chancery Court granted a divorce to James upon default after 'being satisfied that the Defendant (Aurelia) . . .is properly before this Court by process duly and legally had, and that the Court has jurisdiction in this cause. . . .' The court granted to James a 'full, complete and absolute divorce from the Defendant. . . .' In its decree, the Mississippi court however did not determine the rights of custody of Karrie nor child support and expressly held that 'All questions relative to the minor child are hereby pretermitted for the reason that said child is not and was not at the time of the filing of this bill, within the jurisdiction of this court.'

The events then shift back to Madison County, Missouri. On February 25, 1972, the attorney for James mailed to the Circuit Clerk a sealed envelope and informed the clerk not to open the same until instructed to do so by the attorney. On February 29, the attorney instructed the clerk to open the sealed envelope which contaiend a petition for partition of certain real estate owned by the parties as tenants by the entirety. Then on March 6, 1972, Aurelia filed her motion for temporary alimony, child support and attorneys' fees. And on March 20, a duly authenticated copy of the Mississippi divorce decree was filed in the Madison County Circuit Court. On that date also, the attorney for James orally moved to dismiss Aurelia's petition. The trial court granted plaintiff thirty days within which to file briefs, but none was ever filed.

Some two months later, on May 5, Aurelia filed her 'First Amended Petition For Divorce' in four counts. Count I, after reciting facts, prayed for divorce, child custody and support, alimony and attorneys' fees. Count II alleged that the Mississippi court did not have jurisdiction to grant a divorce because the Missouri case had been filed prior to the filing of the Mississippi cause, and prayed for the same relief as in Count I. Count III alleged that in the event that the Missouri court should find that the Mississippi court did have jurisdiction to render a divorce, then the Missouri court is entitled to award her the custody of Karrie, child support, alimony and attorneys' fees. Count IV alleged that in the event the trial court finds that Mississippi had jurisdiction to grant a divorce, she be permitted to partition the real estate because James' action in securing a divorce did not divest the Missouri court from settling property rights. In this count she prayed for partition of the real estate, and that the property be sold, the proceeds divided and James' interest in the proceeds be held to satisfy alimony, attorneys' fees, and child support until the child reaches majority. This first amended petition was filed without permission of the trial court.

Aurelia, somewhat later, moved for an order permitting her to file a proposed second amended petition and to add parties defendant. On July 17, 1972 she filed her second amended petition. This second amended petition was also in four counts and similar to the first in all respects except that in Count IV she alleged that the real estate had been sold, on July 7, at trustee's sale, leaving a balance of $24,500 after the encumbrances had been paid and all expenses of the sale had been satisfied. This count also alleged that a deed for James' half interest in the property had been executed to J. M. Ash and was recorded in Madison County. Count IV prayed that the trustee be ordered to pay over to her one-half of the balance of the proceeds and that the court order the other half be paid to her for child support, alimony and attorneys' fees.

Two days after the filing of the second amended petition, James filed his amended motion to dismiss the petition upon special appearance contending that the Mississippi decree is to be given full faith and credit so that the court should dismiss Counts I and II of the amended petitions. As to Counts III and IV, James urged dismissal because these counts alleged new causes of action against defendant upon which proper service had not been obtained so that the court lacked jurisdiction. Also as to Count IV of the amended petitions, defendant urged that a prior suit for partition had been filed by him so that his partition suit should take precedence over Aurelia's Count IV seeking partition, and further because James had conveyed his interest in the partitioned property to J, M. Ash, and no jurisdiction had been obtained over him, the court had no jurisdiction to grant relief on this count.

On August 5, 1972, James, through his attorney, filed a verification of his oral motion to dismiss made to the court on March 20 for the purpose of making the 'record clear' in view of the court's announcement previously made that it would sustain the oral motion unless prohibited. Aurelia did seek prohibition in this court, but the petition for preliminary writ was denied by us. The circuit court, therefore, on November 16, 1972, entered its order dismissing the original petition and the first and second amended petitions. This appeal by Aurelia followed.

The appellant, Aurelia, contends here that the trial court erred in dismissing the various petitions because they stated a cause of action for divorce, custody of Karrie, child support, alimony, attorneys' fees and partition of the real estate. She argues that Missouri has the sole and exclusive jurisdiction to decide these questions because she first filed suit and obtained personal service on James prior to his filing suit for divorce in Mississippi. In her brief she contends that the actions of James, apparently the filing of suit for divorce in Mississippi, constitute a fraud upon the Missouri courts and upon her. She contends that she should be permitted to proceed with the counts in the amended petitions notwithstanding the Mississippi decree.

The respondent on the other hand urges that the trial court properly dismissed the petitions because (1) the parties were divorced by the decree of the Chancery Court of Mississippi which is entitled to full faith and credit under Article IV, § 1 of the United States Constitution, and (2) the trial court had no jurisdiction to consider the amended petitions for child custody and support, alimony, attorneys' fees and partition independently of the dismissed divorce action and properly exercised its discretion in dismissing these counts and also for the reason that a separate...