Lindo v. Higginbotham

9 S.W.3d 620, 1999 Mo. App. LEXIS 1818, 1999 WL 709974
CourtMissouri Court of Appeals
DecidedSeptember 14, 1999
DocketNo. ED 74717
StatusPublished
Cited by2 cases

This text of 9 S.W.3d 620 (Lindo v. Higginbotham) 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
Lindo v. Higginbotham, 9 S.W.3d 620, 1999 Mo. App. LEXIS 1818, 1999 WL 709974 (Mo. Ct. App. 1999).

Opinion

CRANDALL, Presiding Judge.

Respondent-husband, John Thomas Higginbotham, appeals from the decree of dissolution of his marriage to petitioner-wife, Chaille Anderson Lindo-Higginbotham. We affirm as modified.

Husband and wife were married on July 2, 1988. The marriage was dissolved on June 10, 1998. No children were born of the marriage. At the time of the dissolution, husband was employed as general chairman of a local machinists’ and aerospace workers’ union and was earning $87,746.00 annually, plus per diem pay of about $8,400.00 per year. Wife had been employed as an airline reservationist for about 21 years and earned $28,339.69 annually.

In May 1996, wife accepted a transfer to a newly opened airline reservation center in Virginia. Initially, wife viewed the move to Virginia as permanent. In August 1996, however, when she learned that husband did not want to move to Virginia, she decided to return to St. Louis when her one-year commitment to the job expired in August 1997. Husband never moved to Virginia. The parties continued to maintain the marital home in St. Louis County in which husband resided. Wife lived in an apartment in Virginia and visited St. Louis frequently. In November 1996, husband vacated the marital home and moved with his paramour to Texas into a home he had purchased with marital funds. Wife did not learn of husband’s departure until she returned to the marital home for Christmas and found the house emptied of husband’s belongings and of other property. Wife filed her petition for dissolution on March 24,1997.

Husband had dissipated about $77,-000.00 of the marital assets without wife’s knowledge. Throughout the marriage, the parties had accumulated assets including bank accounts, individual retirement accounts, deferred compensation plans, securities, annuities, life insurance policies, and rental properties. Wife testified that she was 48 years of age, did not have a college degree, and her monthly expenses exceeded her monthly income by about $3,000.00.

The court entered the decree of dissolution. Only those provisions pertinent to this appeal are set forth. The court found that wife was a resident of Missouri for 90 days preceding the commencement of the dissolution action. The court further found that wife could not provide for her reasonable needs and ordered husband to pay modifiable maintenance of $1,500.00 per month. The court stated its intent to divide the marital property 55 percent to wife and 45 percent to husband. With regard to the real estate owned by the parties at the time of dissolution, the court awarded husband the Texas residence and two pieces of rental property and awarded wife one piece of rental property; but ordered husband to pay the remaining mortgage payments on all the properties.

In his first point, husband contends the trial court erred in finding that wife was a resident of Missouri for 90 days preceding the commencement of the dissolution action because she had been residing in Virginia for 10 months prior to the filing of her petition and was still residing there at the time of dissolution. In a dissolution action, the issue of residency in Missouri is a jurisdictional fact which must be pleaded and proved. Lewis v. Lewis, [622]*622930 S.W.2d 475, 477 (Mo.App. E.D.1996). When a trial court exercises jurisdiction, an appellate court must accept as true any facts which would support the conferring of jurisdiction. Id. Here, wife pleaded that she was a resident of Missouri in the 90 days preceding the commencement of her dissolution action and testified to that effect. Husband admitted wife’s Missouri residency in his responsive pleading and did not challenge subject matter jurisdiction at trial. Husband raises the issue of jurisdiction for the first time on appeal.

Generally, the term “residence” as used in section 452.305, RSMo (1994) is equivalent to “domicile.” Lewis, 930 S.W.2d at 477. To establish residency, a petitioner 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.

Husband relies on this court’s decision in Lewis to defeat the trial court’s subject matter jurisdiction in this instance. In Lewis, 930 S.W.2d at 477, the trial court denied the husband’s motion to dismiss for lack of subject matter jurisdiction because the wife was not a resident of Missouri for more than 90 pays preceding the filing of the dissolution action. The evidence adduced at the trial established that the wife moved to Colorado with the husband in August 1992. Id. at 476. They bought an expensive home and enrolled the children in school and other activities. Id. The wife secured a Colorado driver’s license, registered to vote, and joined a tennis club and the Junior League. Id. She returned to St. Louis in February 1993 and brought the dissolution action in March 1993. Id. This court vacated the decree of dissolution and remanded the case to the trial court to dismiss for lack of subject matter jurisdiction. Id. at 478. This court stated, “Wife could not actually reside in one place and by mental gymnastics fix in her mind her intent to live somewhere else. Rather, the totality of the evidence supports the view that at the time she moved to Colorado wife intended to make it her home.” Id.

Initially we note that in Lewis, the husband contested the wife’s Missouri residency from the commencement of the case and requested a dismissal of the wife’s petition for dissolution for lack of subject matter jurisdiction. In contrast, husband in the present action admitted that wife was a resident of Missouri and only contested jurisdiction for the first time on appeal. We acknowledge that the parties can neither waive nor stipulate to subject matter jurisdiction. Groh v. Groh, 910 S.W.2d 747, 749 (Mo.App. W.D.1995). Furthermore, a party may raise the issue of the 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.

Husband argues that the Lewis decision is controlling because wife’s intent to relinquish her Missouri residency was determined at the time she moved to Virginia at which point she viewed the move as “permanent.” Yet, although wife referred to the job in Virginia as “permanent,” there was evidence before the trial court that wife’s establishing residency in Virginia was conditioned upon husband’s residing there with her. From the time wife learned of husband’s reluctance to move to Virginia in August 1996, she fixed in her mind her purpose to return to Missouri at a time certain; namely, in August 1997 at the end of her one-year commitment. From that point on, her conduct evinced her intent not to adopt Virginia as her residence but to maintain her Missouri residency. The parties kept the marital home in Missouri and left personal proper[623]*623ty there. Wife did not purchase a new home in Virginia, but resided in an apartment.

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Bluebook (online)
9 S.W.3d 620, 1999 Mo. App. LEXIS 1818, 1999 WL 709974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindo-v-higginbotham-moctapp-1999.