State ex rel. Cobb v. Russell

727 S.W.2d 877, 1987 Mo. LEXIS 289

• Court: Supreme Court of Missouri
• Decided: April 14, 1987
• Docket: No. 68617
• Status: Published

Opinions

BLACKMAR, Judge.

Relator Carol Cobb seeks a writ to prohibit the Circuit Court of Johnson County from enforcing its order of October 7,1985, appointing a commissioner to sell certain real estate situated in Gladstone, Clay County, Missouri. We ordered the cause transferred after a preliminary rule in prohibition was quashed by the court of appeals, with opinion filed. We find that the order by the Johnson County court constitutes an unwarranted interference with a case properly pending in the Circuit Court of Clay County. Prohibition is an appropriate writ to correct this attempted interference. See State ex rel. J.E. Dunn, Jr. & Assoc., Inc. v. Schoenlaub, 668 S.W.2d 72 (Mo. banc 1984). We therefore make the preliminary rule in prohibition absolute.

On December 10, 1982, the Circuit Court of Johnson County entered a decree dissolving the marriage of Carol and Bill Cobb and dividing their property. It found, in relevant part, that the family residence located in Clay County and a farm located in Hickory County were marital property. The family residence was ordered sold with the proceeds to be divided 40% to Bill Cobb and 60% to Carol Cobb. The farm was completely set off to Carol Cobb. The decree was affirmed by the court of appeals on July 31, 1984.

On February 23, 1983, while the appeal of the decree was pending, Bill and Carol Cobb entered into a written agreement. Carol agreed to convey to Bill her interest in the farm to prevent an imminent foreclosure. Bill agreed to convey to Carol his interest in the residence, provided that Carol pay 129,000.00 in cash and execute a release of her right to recover $350.00 a month in temporary maintenance.

Upon Bill’s alleged failure to perform, Carol filed an action for declaratory judgment and specific performance in Clay County seeking to enforce the contract insofar as the residence was concerned. A motion to dismiss was filed by Bill and was overruled. Bill then filed a motion for contempt in Johnson County. In response to the motion for contempt, the Circuit Court of Johnson County again ordered the sale of the Clay County residence and appointed a commissioner to conduct the sale. We conclude that this order by the Johnson County court is in excess of its jurisdiction.

The marriage of the parties was dissolved and the decree had become final. They were perfectly competent to contract in relation to the properties assigned to them by the decree. In so doing, they show no contempt toward the dissolution court. They are simply doing with their own as they elect. The decree provision for the sale of the Clay County residence was entered, not as a command of the court that the property be sold, but as a means for giving effect to the property division as ordered in the decree. Bill Cobb could convey his interest in the residence to Carol, so that she owned the entire property. If she owned the entire property, she certainly did not have to see it sold out from under her.

When Carol concluded that Bill had not performed his part of the contract, she had the right to file a civil action in a court of competent jurisdiction to assert her rights. She was not obliged to proceed in the dissolution court, because the contract on which she relied was made after the dissolution, when the parties were entitled to deal with each other at arms’ length. The Circuit Court of Clay County apparently concluded that it had jurisdiction over the parties and over the subject matter of the suit, by overruling Bill’s motion to dismiss.

The suit, then, was properly pending in Clay County. Bill has every right to assert any defense he has to the action. He may claim that there was no contract in the first place, or that he is not in default, or that the contract is not specifically enforceable. If the decree goes against him, he may appeal. But he should not be allowed to undertake a collateral attack on the Clay County suit, while it is still pending.

But Bill did just that, in asking the Johnson County Circuit Court to hold Carol in contempt. He is asking that court to sit as a court of review over the Clay County Court. This he is not entitled to do. Carol cannot be in contempt for maintaining a suit which is found to be properly filed by the court in which it is pending.

The existence of the alleged contract and the pendency of the Clay County suit were brought to the attention of the respondent, but he apparently asserted the authority to decide for himself whether the contract was valid and effective. These were the issues in the pending suit in Clay County. The respondent had no authority to oust that court of jurisdiction, or to render its prospective action futile by mooting the issue there pending.

It is not necessary for the relator to demonstrate that the Clay County court has exclusive jurisdiction over the action she filed there. If title to real estate is placed directly in issue, a prudent lawyer would try to resolve any uncertainty by filing suit in the county in which the land is situated in accordance with § 508.030, RSMo 1986.¹ It is sufficient, however, to show that the court was a forum in which the action could have been brought, and it certainly was that; Bill, furthermore, submitted to the jurisdiction of that court by moving to dismiss, and its holding binds him unless he can secure relief on appeal.

There is absolutely nothing in the statutes or case law which gives the dissolution court exclusive jurisdiction over the parties’ subsequent dealings with the property interests assigned to them by the decree. Nothing said here, however, would preclude the respondent from exercising jurisdiction if the Clay County action should be finally decided against the relator.

The preliminary rule in prohibition is made absolute.

HIGGINS, C.J., and BILLINGS and RENDLEN, JJ., concur. DONNELLY and WELLIVER, JJ., dissent in separate opinion filed. ROBERTSON, J., dissents and concurs in dissenting opinion of DONNELLY, J.

1 . Section 508.030, RSMo 1986, provides:

Actions for real estate, where commenced. —Suits for the possession of real estate, or whereby the title thereto may be affected, or for the enforcement of the lien of any special tax bill thereon, shall be brought in the county where such real estate, or some part thereof, is situated.