Bridgeman v. Bridgeman

63 S.W.3d 686, 2002 Mo. App. LEXIS 6, 2002 WL 10256
CourtMissouri Court of Appeals
DecidedJanuary 2, 2002
DocketED 78955
StatusPublished
Cited by23 cases

This text of 63 S.W.3d 686 (Bridgeman v. Bridgeman) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bridgeman v. Bridgeman, 63 S.W.3d 686, 2002 Mo. App. LEXIS 6, 2002 WL 10256 (Mo. Ct. App. 2002).

Opinion

KATHIANNE KNAUP CRANE, Judge.

Wife appeals from a decree of dissolution of marriage. On appeal wife first contends that the trial court lacked subject matter jurisdiction because she had not been a resident of Missouri for ninety days before the action was filed. Alternatively, if there was jurisdiction, wife challenges the amounts the trial court used in calculating child support, the denial of maintenance, the failure to order a parenting plan for one of the minor children, the marital debt allocation, and the order conveying title to real property. Husband has not filed a respondent’s brief. We reverse that part of the judgment containing the custody order involving one child and remand with directions to complete a parenting plan. In all other respects the judgment is affirmed.

Victor Bridgeman (“husband”) and Consuelo Bridgeman (“wife”) were married on August 27, 1988 in Kansas. Two of their children had been born prior to the marriage; Angelamarie E. Bridgeman, on October 18, 1983, and Victor L. Bridgeman, Jr., on December 6, 1987. One child, Christian R. Bridgeman, was born during the marriage on October 16,1990. In 1998 the parties lived in St. Charles County in a house they had purchased. Wife filed for dissolution in the Circuit Court of St. Charles County in March, 1998. The parties attempted a reconciliation and dismissed the dissolution action in November, 1998. From August, 1998 to December, 1998 husband lived in Kansas City to attend an employer training program.

In January, 1999 husband went to Ke-nosha, Wisconsin to open a new plant for his employer. His employer provided him with an apartment through August, 1999. Wife and children joined husband in Wisconsin in February, 1999. They lived in the employer-provided apartment, but continued to maintain their house in St. Charles and made mortgage payments on it. Husband and wife left their personal property in the St. Charles home. 1 Wife did not want to sell the house while the family was in Wisconsin and turned down every offer to purchase the house, including a full-price offer. In August, 1999 the parties again separated and wife returned to the parties’ home in St. Charles, Missouri in August, 1999 with the parties’ two sons. In September, 1999 husband moved into his own apartment in Wisconsin. The parties’ daughter stayed with him.

On September 15, 1999, husband filed a petition for dissolution and a petition for paternity in the Circuit Court of St. Charles County, Missouri, to which wife filed an answer and counter-petition thirty days later. After a trial the trial court entered a decree dissolving the marriage. *689 It also entered a judgment and decree of paternity with respect to the two children born prior to the marriage. In its judgment the trial court found that, at the time the petition was filed, wife was a resident of the state of Missouri and had been for a period of time greater than ninety days. The court awarded joint legal custody of the minor children to both parties and awarded wife primary physical custody of the parties’ sons with temporary custody and visitation to husband. The court awarded husband primary physical custody of the parties’ daughter with temporary custody and visitation to wife. The court denied wife’s request for maintenance and ordered husband to pay $1,463.69 monthly for net child support. The court ordered that wife be covered by husband’s health insurance for thirty months.

DISCUSSION

On review of a dissolution decree, we affirm the decree if it is supported by substantial evidence, is not against the weight of the evidence, and neither erroneously declares or applies the law. In re Marriage of Clark, 801 S.W.2d 496, 498 (Mo.App.1990). We view the evidence and permissible inferences therefrom in the light most favorable to the trial court’s decree and disregard all contrary evidence and inferences. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). We defer to the trial court’s determination of the credibility of the witnesses. Rapp v. Rapp, 789 S.W.2d 148, 150 (Mo.App.1990).

1. Jurisdiction

In her first point, wife asserts that the trial court did not have subject matter jurisdiction because neither party was a resident of Missouri for more than ninety days prior to the commencement of the proceedings as required by Section 452.305 RSMo (2000). In support of this contention, wife relies on both husband’s and wife’s testimony that wife was in Wisconsin with husband until August, 1999, less than ninety days before husband filed this action.

Section 452.305.1(1) requires that one of the parties have been a resident of Missouri for ninety days immediately preceding the commencement of the proceeding. In a dissolution action, the issue of Missouri residency is a jurisdictional fact which must be pleaded and proved. Lin-do-Higginbotham v. Higginbotham, 9 S.W.3d 620, 621 (Mo.App.1999). When a trial court exercises jurisdiction, we must accept as true any facts which would support jurisdiction. Id. at 622.

Both husband and wife alleged and admitted in the pleadings that wife had been a Missouri resident for more than the ninety-day period. Husband testified that wife had been a resident of Missouri for more than ninety days preceding the filing of his dissolution petition. In addition, wife testified that she had been a resident of Missouri for more than ninety days prior to filing her answer and cross-petition for dissolution, which would also include time she was in Wisconsin. Wife contests jurisdiction for the first time on appeal.

We recognize that parties can neither waive nor stipulate to subject matter jurisdiction. Id. Furthermore, a party may raise lack of subject matter jurisdiction for the first time on appeal. Id. “It is axiomatic, however, that when jurisdiction on the basis of residency is not challenged at trial, the quantum of evidence on the issue of residency will be less than when residency is contested from the beginning of the proceeding.” Id.

We have held that the term “residence” as used in Section 452.305 is equivalent to “domicile.” Id. To establish *690 residency, a party must show actual personal presence in the new place and the intention to remain there, either permanently or for an indefinite time, without any fixed or certain purpose to return to the former place of abode. Id. A dissolution of marriage decree is void for lack of jurisdiction if it is entered in a state in which neither of the parties to the action are domiciled at the commencement of the action. Id.

There was sufficient evidence in the circumstances of this case to support the trial court’s finding that wife was a resident for the required ninety days. In addition to the parties’ testimony, there was other evidence supporting an inference that wife did not intend to permanently or indefinitely stay in Wisconsin.

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Bluebook (online)
63 S.W.3d 686, 2002 Mo. App. LEXIS 6, 2002 WL 10256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bridgeman-v-bridgeman-moctapp-2002.