Gaffney v. Gaffney

528 S.W.2d 738, 1975 Mo. LEXIS 318
CourtSupreme Court of Missouri
DecidedSeptember 8, 1975
DocketNo. 58871
StatusPublished
Cited by9 cases

This text of 528 S.W.2d 738 (Gaffney v. Gaffney) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gaffney v. Gaffney, 528 S.W.2d 738, 1975 Mo. LEXIS 318 (Mo. 1975).

Opinions

HOLMAN, Judge.

In this divorce case the trial court entered a judgment in plaintiff’s favor, granting her a decree of divorce, alimony in gross, periodic alimony, custody of two small children, child support and an attorney’s fee. On appeal to the Court of Appeals, Springfield District, the decree dissolving the bonds of matrimony existing between the parties was affirmed. The order granting custody of the children, although limited to some extent, was also affirmed. In all other aspects the decree of the trial court was vacated. Upon application of respondent we ordered the case transferred to this court. It will be finally determined here the same as on original appeal. Art. V, § 10, Mo.Const.

With one exception, we agree with the conclusion of the court of appeals on the issues and will adopt portions of the opinion filed by that court without the use of quotation marks.

The parties were married on July 26, 1969, in Reno, Nevada. Plaintiff, who had been reared in Camden County, Missouri, was then an airline stewardess; defendant was serving in the Air Force as a navigator in the Strategic Air Command. The two established a succession of temporary residences, moving as the defendant’s duty station was changed. Shortly before their separation, the parties lived at Bossier City, Louisiana, approximately five miles from Barksdale Air Force Base, where the defendant was then stationed. They owned a home there.

The marriage was apparently never a happy one, although plaintiff and defendant became the parents of two children, one being born after their separation. Since we shall not consider the action on its merits, it is unnecessary to discuss plaintiff’s grounds for divorce.

Plaintiff left her husband and returned to her parents’ home in Camden County, Missouri, on February 7,1972. Eleven days later she filed a petition for divorce in the Circuit Court of Camden County. To invoke the court’s jurisdiction of the marital status, plaintiff averred in the familiar language of former § 452.050, RSMo 1969, V.A.M.S., that she was a resident of Camden County, Missouri, and had been a resident of the state for more than one whole year next before the filing of her petition. Seeking further to vest the court with jurisdiction of defendant’s person, plaintiff sought and obtained service of summons and a copy of her petition upon defendant under former Rule 54.07, which authorized the rendition of general (in personam) judgments against persons domiciled in this state at the time of1 commencement of the action or at the time of service, upon service of process outside the state by an officer authorized to serve process in the state or territory where service was had. It was and is conceded that the defendant was [740]*740served with a copy of the writ of summons and copy of the petition, as provided by former Rule 54.07. Nevertheless, defendant filed a timely motion asserting that no proper service of process was had upon him, and that the court had no jurisdiction of his person. When this motion was denied, defendant answered, pressing the same objection to the jurisdiction of the court.

The action was commenced February 18, 1972. The case was thereafter tried in fits and starts, first on defendant’s motion to dismiss for lack of jurisdiction — denominated a “motion to quash service” — then on his motion to stay proceedings under the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.A. App. § 521, and finally upon the merits on December 6, 1972, after the stay was denied and defendant’s counsel left the courtroom. A great deal of the slender record before us consists of conversation— or downright argument — between counsel and the trial court. We shall, therefore, forego narration of the particulars of the trial as it progressed.

At the outset of our consideration of the merits of this appeal it should be noted that defendant did not have the same attorney in this court that represented him in the trial court and the court of appeals; and that the position stated by defendant’s attorney in oral argument was somewhat different from that stated in the brief.

Defendant’s first contention is that he was not domiciled in Missouri at the time he was served with summons (or at any other time) and therefore the court had no “in personam” jurisdiction of him and erred in rendering a personal money judgment against him. At the time the case was argued here, defendant’s attorney stated that he was not contesting the issue as to the jurisdiction of the court to grant the divorce and that it was agreeable with defendant for that portion of the decree to be affirmed; he also agreed that the court had jurisdiction to make certain orders relating to the custody of the children.

In view of the foregoing position taken by defendant the decree of divorce will be affirmed. In regard to the custody portion of the decree, it is our view that such also should be affirmed. It has long been the rule in this state that where a plaintiff and child reside in Missouri the court granting a divorce has jurisdiction to award custody of the child even though only constructive service is obtained upon the absent parent. Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566 (1949). See also, State ex rel. Stoffey v. La Driere, 273 S.W.2d 776[9] (Mo.App.1954). And such is the general rule as indicated by the following from 24 Am.Jur.2d, Sec. 774, p. 882: “If the plaintiff has a domicil in the divorce state and has actual possession of the children within the divorce state, the divorce court has jurisdiction to award custody to the plaintiff even though the defendant is served constructively.”

The court of appeals opinion, sua sponte, discussed a possible limitation upon the trial court’s jurisdiction to award custody but we do not deem it necessary or advisable to discuss that matter. That point was not included in the briefs and after we granted transfer appellant has not elected to file a supplemental brief in order to raise and develop the question. Appellate review is ordinarily limited under the civil rules to points properly briefed. Rule 84.04(a); School Services of Missouri, Inc. v. Caton, 419 S.W.2d 954[4] (Mo.App.1967); White v. Kuhnert, 207 S.W.2d 839[1] (Mo.App.1948).

The validity of the money judgment portion of the decree is dependent on the domicile of the defendant. He was 28 years of age at trial time, but his domicile of origin is not shown. Relying on In re Toler’s Estate, 325 S.W.2d 755 (Mo.1959), and other authorities, plaintiff sought to show that Missouri was defendant’s domicile of choice. It was established that defendant had designated “Post Office Box 225, Osage Beach, Missouri” as his permanent home while he was in military service; that defendant had paid personal property taxes in Camden [741]*741County and had registered two automobiles in Missouri. Defendant had discussed going into business with his father-in-law. The plaintiff admitted, nevertheless, that she and her husband had never “lived together” as husband and wife in Missouri; defendant had been in Camden County, on occasion, but only during vacations and once when plaintiff underwent an operation.

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Bluebook (online)
528 S.W.2d 738, 1975 Mo. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaffney-v-gaffney-mo-1975.