Washington v. Washington
| Decision Date | 31 October 1972 |
| Docket Number | No. 34475,34475 |
| Citation | 486 S.W.2d 668 |
| Parties | Ethel WASHINGTON, Plaintiff-Appellant, v. Walter WASHINGTON, Defendant-Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Shaw & Howlett, Charles Clifford Schwartz, Clayton, for plaintiff-appellant.
Sale & Evans, James E. Phelps, Clayton, for defendant-respondent.
This appeal presents the question of whether the Missouri single-act, long-arm statute (Section 506.500 1) can be used in a divorce proceeding to obtain personal service of a non-resident defendant who was married in Missouri.
Plaintiff's petition was filed in June, 1971 in the usual form, charging general indignities and seeking divorce, custody of the child of the marriage, child support, alimony, and attorney's fees. An affidavit for service outside of the state was also filed. In due time return was made showing personal service upon defendant by a deputy sheriff of Pulaski County, Arkansas. Defendant entered a special appearance and filed a motion to dismiss on the basis of lack of jurisdiction over the person. A hearing was held and the motion to dismiss was sustained.
The parties were married in 1964 in Missouri. Prior to that time defendant was a resident of Arkansas; plaintiff of Missouri. After the marriage the parties went to Arkansas and remained there until the separation in 1966, when plaintiff took the child and returned to St. Louis. Defendant continued to reside in Arkansas and was still a resident of Arkansas at the commencement of the divorce action and the date of service.
Plaintiff premises her contention that personal service is proper upon § 506.500, 2 and particularly subsection 1(2). Section 451.010 provides that 'Marriage is considered in law as a civil contract. . . .' But it has been pointed out that it is in a 'category separate and distinct from the ordinary and usual business contracts.' Heil v. Rogers, Mo.App., 329 S.W.2d 388(4, 5). Or as stated in Coy v. Humphreys, 142 Mo.App. 92, 125 S.W. 877, l.c. 879: '. . . The marriage contract, once entered into, becomes a relation, rather than a contract, and invests each party with a status towards the other, and society at large, involving duties and responsibilities which are no longer matter for private regulation but concern the commonwealth.'
It is unnecessary to set forth the many ways in which a marriage contract differs from an ordinary business contract. It is enough to say that there are very real pratical, legal and sociological differences. We therefore must determine whether it was the General Assembly's intention in enacting § 506.500 to have it apply to suits brought to dissolve the marriage contract.
As we stated in State ex rel. Nichols v. Fuller, Mo.App., 449 S.W.2d 11(2):
The original Illinois act is virtually identical with the one enacted in Missouri in 1967 except it does not include paragraph 1(2). In 1965 the Illinois act was amended to provide one additional basis for jurisdiction: 'With respect to actions of divorce and separate maintenance, the maintenance in this State of a matrimonial domicile at the time the cause of action arose or the commission in this State of any act giving rise to the cause of action.' Smith-Hurd Illinois Annotated Statutes, Chapter 110, Section 17.
In enacting the Missouri law this provision of the Illinois statute was deleted. This is strong evidence that the General Assembly did not intend for the long-arm statute to apply to actions for divorce or separate maintenance. It is further evident that the place in which the marriage is contracted is of little practical importance as compared to the domicile of the parties during the marriage and after separation. It borders on the absurd to believe the General Assembly intended to permit personal jurisdiction where the marriage was contracted in Missouri, but the parties have long since left the state, and to deny it where the marriage took place elsewhere but the parties have resided in Missouri for years. The benefits to be gained by permitting deserted spouses to obtain personal service on the deserting spouse are not accomplished by looking to the place of the marriage but by reference to the domicile of the parties during the relationship.
We also believe the...
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