Rodriguez v. Rodriguez

975 S.W.2d 485, 1998 Mo. App. LEXIS 1560, 1998 WL 538218
CourtMissouri Court of Appeals
DecidedAugust 25, 1998
DocketNo. 72521
StatusPublished
Cited by2 cases

This text of 975 S.W.2d 485 (Rodriguez v. Rodriguez) 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
Rodriguez v. Rodriguez, 975 S.W.2d 485, 1998 Mo. App. LEXIS 1560, 1998 WL 538218 (Mo. Ct. App. 1998).

Opinion

JAMES R. DOWD, Judge.

Luciano Rodriguez (“Husband”) appeals from the trial court’s judgment ordering the payment of sums owed to Husband in satisfaction of a judgment in an unrelated lawsuit to Shawna Rodriguez (“Wife”) for past due child support and to establish a bond to secure Husband’s future payment of child support. Husband claims that the trial court lacked personal jurisdiction over him, and therefore, its judgment is void.

I.

Husband and Wife married on September 2, 1988. Two children were born during the marriage. On July 8, 1990, Husband and Wife separated. Wife subsequently filed for divorce and served Husband with process. Husband then fled the United States and returned to Mexico where he is a citizen. On November 16, 1992, the court entered a default decree of dissolution. The decree ordered Husband to pay Wife $173 per month for each of their two minor children until the children were emancipated. Husband has made no child support payments to Wife.

In 1994, Husband filed a personal injury lawsuit in the Circuit Court of the City of St. Louis against the City of St. Louis. Husband apparently returned to St. Louis - and testified at the trial but subsequently returned to Mexico. On May 15, 1996, judgment was entered in favor of Husband in the amount of $235,000. The City of St. Louis appealed the judgment, but the ease was settled shortly before oral argument in this ease.1

On May 23, 1996, pursuant to section 454.519 RSMo 1994, Wife asserted a lien in the amount of $18,001.72 for delinquent child support, including interest, on any money judgment Husband may receive from his personal injury lawsuit. Wife mailed a Notice of Lien to the City Counselor’s Office of the City of St. Louis and to Husband’s attorney [487]*487of record in the personal injury lawsuit.2

On October 3,1996, Wife filed a Motion for Order to Post Bond or for Other Security pursuant to section 452.344 RSMo 1994.3 On November 12, 1996, Wife filed a Motion to Determine Liability, requesting the trial court to calculate the amount of child support in arrears and interest, to determine that a lien existed in that amount against Husband’s civil judgment, and to award Wife attorneys’ fees and costs. Wife mailed a copy of both motions to Husband’s personal injury attorney.

Also on November 12, 1996, Husband’s current attorney filed a Special Entry of Appearance and a Motion to Dismiss Petitioner’s Motions to Determine Liability and to Post Bond. Husband argued that Wife’s action should be dismissed for lack of subject matter jurisdiction, lack of personal jurisdiction based on lack of personal service, and because Wife had other remedies by which to enforce her judgment.

On January 28,1997, the court conducted a hearing on the pending motions. Wife testified that Husband has not paid any child support as ordered in the dissolution decree. Wife also testified that Husband is a citizen of Mexico, where he resides, and that she has not had any direct contact with him. Husband did not appear personally at any time during this proceeding.

On March 12, 1997, the trial court entered its Findings of Fact, Conclusions of Law, Order, and Judgment in which the court granted Wife’s motions and denied Husband’s motion to dismiss. Specifically, the court ordered the City to make the following disbursement of any sums payable to Husband in satisfaction of his judgment: first, the amounts due as and for attorneys’ fees and litigation expenses to Husband’s personal injury attorney were to be paid pursuant to a lien filed by the personal injury attorney; second, $21,888 was to be paid to Wife as and for satisfaction of past due child support, including interest from the date of entry of the dissolution decree to January 31, 1997; third, all amounts payable, including interest, to Wife for child support pursuant to the dissolution decree from February 1, 1997 and the date of payment were to be paid to Wife; finally, to establish a bond, the balance of the net personal injury proceeds were to be paid to the Circuit Clerk who

shall deposit said sums in a separate interest bearing account and, subject to any lien in favor of Wife’s attorneys, on the 15th day of each month in which Husband has failed to pay to Wife on or before the 10th day of the month the amounts required under the said decree of dissolution for support of the minor child, beginning with the first month following receipt of said sums, shall pay to Wife the sum of $173.00 for each child until said sums, including all accrued interest, are exhausted or the emancipation of each minor child, whichever shall first occur.

Husband now appeals from this judgment.

II.

Court-tried cases are reviewed according to the standard articulated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc [488]*4881976). Thus, we will affirm the judgment unless there is no substantial evidence to support it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. Id.

III.

On appeal, Husband raises several points of error; however, the issue of whether the trial court properly exercised its jurisdiction is dispositive of this appeal. Wife’s motion to post bond was filed pursuant to section 452.344 RSMo 1994. According to this section, an obligee of an order for support may petition a court for an order directing a spouse obligated to pay child support to post a bond to secure future support payments. Relief granted under section 452.344 does not modify the amount of an obligor spouse’s periodic child support liability. Therefore, a section 452.344 action may be filed independently of a motion to modify a maintenance or support decree pursuant to section 452.370 RSMo 1994.

Wife’s action is a proceeding in rem against Husband’s property located within the City of St. Louis. At one time, it was widely accepted that a plaintiff could obtain a judgment in rem against a nonresident defendant on property the defendant owns within the territorial jurisdiction of the court. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878). It was further believed that due process did not require a plaintiff to give personal notice to a nonresident property owner that his property was the subject of an in rem proceeding. See, e.g., Ballard v. Hunter, 204 U.S. 241, 262, 27 S.Ct. 261, 51 L.Ed. 461 (1907). The rationale underlying in rem jurisdiction was that the state was considered to maintain exclusive sovereignty over property based solely on the property’s presence within its territory.

The notion that jurisdiction could be premised on the mere physical presence of property was laid to rest in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). In Shaffer v. Heitner, the United States Supreme Court overruled Pennoyer v. Neff and held that due process requires all assertions of state-court jurisdiction, whether in rem or in personam, to be evaluated under the standards set forth in International Shoe Co. v. Washington,

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151 S.W.3d 148 (Missouri Court of Appeals, 2004)

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Bluebook (online)
975 S.W.2d 485, 1998 Mo. App. LEXIS 1560, 1998 WL 538218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-rodriguez-moctapp-1998.