DeLeon v. DeLeon

804 S.W.2d 801, 1991 Mo. App. LEXIS 173
CourtMissouri Court of Appeals
DecidedFebruary 5, 1991
DocketNo. 58193
StatusPublished
Cited by11 cases

This text of 804 S.W.2d 801 (DeLeon v. DeLeon) 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
DeLeon v. DeLeon, 804 S.W.2d 801, 1991 Mo. App. LEXIS 173 (Mo. Ct. App. 1991).

Opinion

CRANE, Judge.

This is an appeal by husband from an order pendente lite (PDL) in a dissolution of marriage action in which the trial court refused to recognize a prior foreign divorce decree between the parties. We reverse and remand to the trial court.

The trial court, in this dissolution of marriage action, entered a PDL order awarding wife $7500 per month for temporary child support and $2500 per month for temporary maintenance. As part of the PDL order, the court overruled husband’s motion to dismiss for lack of jurisdiction and specifically found that a foreign prior divorce decree had been obtained by fraud and was not entitled to recognition. On appeal husband contends that the trial court erred in overruling his motion to dismiss the PDL for lack of jurisdiction and in making its finding regarding the evidence that the prior divorce decree was obtained by fraud. He also challenges the amounts awarded as excessive. We agree that the trial court erred in making the finding that the prior divorce decree was obtained by fraud and not entitled to recognition and reverse the PDL order on that basis. We accordingly do not reach husband’s arguments relating to residency or the exces-siveness of the award.

As a threshold matter we must determine whether this court has jurisdiction to consider this issue on appeal. Although wife agreed at oral argument that this court should decide all of the issues presented by this appeal, our jurisdiction may not be conferred by waiver, silence, acquiescence, or consent, and it is incumbent upon us to sua sponte determine whether we have jurisdiction. Corder v. Corder, 546 S.W.2d 798, 800 (Mo.App.1977); L.F.H. v. R.L.H., 543 S.W.2d 520, 521 (Mo.App.1976). This is an appeal of an order granting a PDL motion. It is well-settled in Missouri that a PDL motion is a separate and independent proceeding. A PDL order which disposes of the merits is a final judgment from which an appeal may be taken. Dardick v. Dardick, 661 S.W.2d 538, 540 (Mo.App.1983). Failure to appeal from a PDL order confers finality upon it. State ex rel. Carlson v. Aubuchon, 669 S.W.2d 294, 296 (Mo.App.1984).

In the PDL order before us, the court denied the motion to dismiss the PDL and found the prior divorce decree to have been obtained by fraud. Ordinarily a denial of a motion to dismiss is not final and thus not appealable. St. Charles County v. Ross, 718 S.W.2d 209, 210 (Mo.App.1986). However, an order denying a motion to dismiss can be considered as part of the appeal from a final judgment. Lancaster v. Simmons, 621 S.W.2d 935, 940 (Mo.App.1981). Additionally, a challenge to the trial court’s jurisdiction may be considered on appeal from a PDL order. In re Marriage of Gillett, 762 S.W.2d 525, 527 (Mo.App.1988). Accordingly, in considering the appeal from the PDL order, we may also review the trial court’s denial of the motion to dismiss the PDL motion and its finding that the prior divorce decree was invalid, which rulings were contained in and part of the final judgment issued by the court.

We obtain the background facts from the wife’s verified statement of property, an authenticated copy of the divorce decree from the Dominican Republic, and wife’s testimony at the PDL hearing. We do not recite nor consider the many facts supplied by the parties in briefs and oral argument which do not appear in the record. Natasha DeLeon [wife] and Jose DeLeon [husband] were both born in the Dominican [803]*803Republic and are citizens of that country. Prior to her marriage wife lived in Venezuela and in the Dominican Republic. Husband and wife were married in the Dominican Republic on February 14, 1985. In February, 1988 the parties purchased an apartment in Santo Domingo, Dominican Republic. From March 10, 1988 until October 23, 1988 the parties lived in a rented apartment in St. Louis County, Missouri. In October, 1988 they returned to their apartment in the Dominican Republic and purchased substantial household goods. They did not retain their apartment or any other residence in Missouri. Two children were born during the marriage, one in Pittsburgh in 1986 and one in St. Louis in 1988.

The parties were separated in the Dominican Republic on January 3, 1989. Husband thereafter commenced a divorce action in the courts of the Dominican Republic. A decree of divorce was entered on July 20,1989 by the Civil Chamber of Commerce and Labor of the Court of First Instance of the Judicial District of La Vega. The decree was thereafter registered in La Vega, Dominican Republic. That decree recited that, according to “act number 58 (II)” dated April 2, 1989, wife was “notified by the Prosecuting Magistrate Attorney of this Judicial District to appear” on April 27 and that wife had failed to appear at that hearing “in spite of having been legally summoned.” The decree further recited that wife “petitions for custody and guardianship” of the two minor children and awarded custody and guardianship to her. The decree found husband to be a Dominican citizen and a resident of La Vega, Dominican Republic. The decree “declared valid the session conducted by this court on the 27th of April 1989, being regular in its format and totally just.”

Wife was in the Dominican Republic until May 4, 1989 when she came to Missouri with the two children. On June 15, 1989 she moved to the City of St. Louis and on June 16, 1989 she commenced her action for legal separation in the Circuit Court of the City of St. Louis. She filed an amended petition requesting an order dissolving the marriage on August 22,1989. She also filed her original PDL motion on this date. On December 16, 1989, before the hearing on the PDL motion, wife moved out of the City of St. Louis, but remained in this state.

Husband moved to dismiss the PDL. One of his grounds was that the parties had already been divorced in the Dominican Republic. The trial court heard evidence on the validity of the Dominican divorce decree at the PDL hearing. The only challenge to the decree raised at the hearing and in the subsequent legal memorandum was that it had been obtained by fraud. As part of its order granting the PDL motion, the trial court found that the Dominican divorce decree was obtained by fraud and consequently was not entitled to recognition in this state. We agree that there was no substantial evidence to support that ruling. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

It is generally recognized that “[wjhile the full faith and credit clause of the federal constitution has no application to foreign (country) judgments, as a general rule ... state and federal courts give recognition and force and effect to judgments obtained in foreign countries to the same extent as in the case of judgments of sister states on the basis of comity.” 50 C.J.S. Judgments § 904 p. 540 (1947). Consequently, the rules governing presumptions and burdens of proof will be the same whether the judgment is from a foreign country or a sister state.

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Bluebook (online)
804 S.W.2d 801, 1991 Mo. App. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deleon-v-deleon-moctapp-1991.