In Re Marriage of Dunn

Missouri Court of Appeals

In Re Marriage of Dunn

650 S.W.2d 638, 1983 Mo. App. LEXIS 3150

CourtMissouri Court of Appeals

DecidedFebruary 1, 1983

Docket45423

StatusPublished

Cited by11 cases

This text of 650 S.W.2d 638 (In Re Marriage of Dunn) 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.

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In Re Marriage of Dunn, 650 S.W.2d 638, 1983 Mo. App. LEXIS 3150 (Mo. Ct. App. 1983).

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Opinion

KAROHL, Judge.

Petitioner-husband appeals award of maintenance in a dissolution proceeding. This appeal is dismissed for want of jurisdiction.

*639 Appellant-petitioner testified with respect to the dissolution petition that he did not sign the petition; that it was read to him on the telephone and that he confirmed the facts as read, to be right; that he did not sign it before a notary (or any other person authorized to take oaths). It was not a verified petition. Respondent filed an answer but did not file a verified counterclaim.

“A dissolution proceeding is a purely statutory action. The petition in a proceeding for dissolution of marriage or legal separation shall be verified and shall allege the marriage is irretrievably broken and shall set forth: ....” § 452.310.2 RSMo. 1978.

“Even if neither party questions our jurisdiction, we must consider it sua sponte.” Gaa v. Edwards, 626 S.W.2d 685, 686 (Mo.App.1981); Starnes v. Aetna Casualty & Surety Company, 503 S.W.2d 129, 130-31 (Mo.App.1973).

The requirement for a verified petition in a dissolution proceeding is jurisdictional. Hibdon v. Hibdon, 589 S.W.2d 646, 647 (Mo.App.1979); see also McCarty v. McCarty, 300 S.W.2d 394, 400 (Mo.1957), which recognized that the affidavit then required in divorce petitions was essential to jurisdiction. (§ 452.040 RSMo. 1949, now repealed). A petition signed by one other than the petitioner will not suffice to confer jurisdiction. No one can make this affidavit for him. Higginbotham v. Higginbotham, 146 S.W.2d 856, 857 (Mo.App.1940).

The trial court was therefore without jurisdiction of the persons or subject matter. The judgment is void and there is nothing before this court for review. Appeal dismissed.

CRANDALL, P.J., and REINHARD and CRIST, JJ., concur.

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KAROHL, Judge.

Petitioner-husband appeals award of maintenance in a dissolution proceeding. This appeal is dismissed for want of jurisdiction.

*639 Appellant-petitioner testified with respect to the dissolution petition that he did not sign the petition; that it was read to him on the telephone and that he confirmed the facts as read, to be right; that he did not sign it before a notary (or any other person authorized to take oaths). It was not a verified petition. Respondent filed an answer but did not file a verified counterclaim.

“A dissolution proceeding is a purely statutory action. The petition in a proceeding for dissolution of marriage or legal separation shall be verified and shall allege the marriage is irretrievably broken and shall set forth: ....” § 452.310.2 RSMo. 1978.

“Even if neither party questions our jurisdiction, we must consider it sua sponte.” Gaa v. Edwards, 626 S.W.2d 685, 686 (Mo.App.1981); Starnes v. Aetna Casualty & Surety Company, 503 S.W.2d 129, 130-31 (Mo.App.1973).

The requirement for a verified petition in a dissolution proceeding is jurisdictional. Hibdon v. Hibdon, 589 S.W.2d 646, 647 (Mo.App.1979); see also McCarty v. McCarty, 300 S.W.2d 394, 400 (Mo.1957), which recognized that the affidavit then required in divorce petitions was essential to jurisdiction. (§ 452.040 RSMo. 1949, now repealed). A petition signed by one other than the petitioner will not suffice to confer jurisdiction. No one can make this affidavit for him. Higginbotham v. Higginbotham, 146 S.W.2d 856, 857 (Mo.App.1940).

The trial court was therefore without jurisdiction of the persons or subject matter. The judgment is void and there is nothing before this court for review. Appeal dismissed.

CRANDALL, P.J., and REINHARD and CRIST, JJ., concur.

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650 S.W.2d 638, 1983 Mo. App. LEXIS 3150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-dunn-moctapp-1983.

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