State ex rel. Phelan v. Davis

965 S.W.2d 886, 1998 Mo. App. LEXIS 540, 1998 WL 130811
CourtMissouri Court of Appeals
DecidedMarch 24, 1998
DocketNo. WD 54671
StatusPublished
Cited by6 cases

This text of 965 S.W.2d 886 (State ex rel. Phelan v. Davis) 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
State ex rel. Phelan v. Davis, 965 S.W.2d 886, 1998 Mo. App. LEXIS 540, 1998 WL 130811 (Mo. Ct. App. 1998).

Opinion

HANNA, Presiding Judge.

Richard Phelan, relator, and Christine Phelan are parties to a dissolution of marriage proceeding filed by Ms. Phelan in the circuit court of Clay County on March 14, 1997.1 She also filed a motion for temporary child support, attorney fees and suit money pendente lite. Relator appeared specially to contest jurisdiction pursuant to Rule 55.27,2 and filed a motion to dismiss for lack of personal and subject matter jurisdiction. On June 26, 1997, a hearing was held on the pending motions. On July 8, 1997, the respondent entered an order asserting both personal and subject matter jurisdiction over the relator, without explanation as to her basis. The July 8th order directed relator to pay Ms. Phelan child support commencing August 1st. Relator filed his petition for writ of prohibition with this court. We issued a preliminary order in prohibition, which is now made permanent.

Relator was a lifelong resident of Arkansas before meeting Ms. Phelan. The parties resided together in Missouri during 1991 and 1992. They moved to Arkansas and, on December 26, 1992, were married in Little Rock. The marriage was registered in Pulaski County, Arkansas. A child was born of the marriage on August 7,1996. The parties continued to live in Little Rock from 1992 and until Ms. Phelan and her daughter moved to Missouri on November 28, 1996. Thereafter, relator came to Missouri on several weekends to visit his daughter. As a result of these visits, and the fact that relator and Ms. Phelan engaged in sexual relations on those occasions, Ms. Phelan contends they lived in lawful marriage in Missouri.

The relator was served in Arkansas under Missouri’s long arm statute, § 506.500. The wife contends that there was personal jurisdiction. She also maintains that there was significant minimum contacts between relator and Missouri to justify personal jurisdiction. Ms. Phelan argues that they engaged in sexual relations on more than one occasion which satisfied the requirement of Rule 54.06(b) that they “lived in lawful marriage within this state,” which gives the court per[888]*888sonal jurisdiction over relator.3 The issue presented by the parties is whether the several occasions that they stayed together in Missouri constitutes “living in lawful marriage within this state.” 4

It is well established that a court must have jurisdiction over the person of the defendant in a dissolution of marriage proceeding to impose an in personam judgment, and lack of personal jurisdiction precludes consideration of orders pertaining to child support. Thompson v. Thompson, 657 S.W.2d 629, 681 (Mo. banc 1988). The burden is east upon Ms. Phelan to prove, first, that the defendant had sufficient minimum contacts with Missouri to satisfy due process requirements and, second, that the suit arose out of an activity enumerated in the long arm statute. See § 506.500; Rule 54.06(b); Mead v. Conn, 845 S.W.2d 109, 111 (Mo.App.1993). The relevant portion of the long arm statute is that:

[a]ny person, whether or not a citizen or resident of this state, who has lived in lawful marriage within this state, submits himself to the jurisdiction of the courts of this state as to all civil actions for dissolution of marriage ... and all obligations arising for maintenance of a spouse, support of any child of the marriage, attorney’s fees, suit money, or disposition of marital property, if the other party to the lawful marriage lives in this state....

Section 506.500. See also Rule 54.06(b).

The minimum contacts requirement to “ensure traditional notions of fair play and substantial justice” dates to International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), when the Supreme Court held that:

[d]ue process requires only that in order to subject a defendant to a judgment in per-sonam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

Id. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457,463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)). Section 506.500.2 mandates compliance with the minimum contacts test by requiring that one whom the state would subject to an in personam judgment for child support must have “lived in lawful marriage within this state.” Thompson v. Thompson, 657 S.W.2d at 631 (citing Rule 54.06(b)).

The Missouri Supreme Court in Thompson construed the meaning of Rule 54.06(b). 657 S.W.2d at 630. The parties were secretly married in Georgia and whole the husband was attending college, the wife returned to Springfield where she lived with her parents. When the parties’ parents learned of their Georgia marriage, a religious ceremony was held in Springfield to bless their marriage. The next day the couple returned to Georgia where they lived while the husband completed school. See id. Later they moved to Louisville, Kentucky, and maintained a home there until their divorce. During their marriage, they returned on several occasions to visit their families here, but never established a home in Missouri. After filing for divorce, the wife returned to Missouri and lived with her parents and the husband moved to Texas. The divorce was granted in Kentucky and provisions for custody and child support were made by the Kentucky court. See id.

Subsequently, Ms. Thompson filed an action in Missouri seeking modification of the Kentucky divorce decree and requested delinquent child support, increased child support, and modification of visitation privileges. She relied on Rule 54.06(b) to acquire per[889]*889sonal jurisdiction claiming that she and her former husband had lived in Missouri “in lawful marriage.” See id Mr. Thompson challenged the Missouri court’s in personam jurisdiction.

The Thompson court noted that Missouri courts have repeatedly rejected attempts to render in personam judgments against nonresidents when the requirements of Rule 54.06 have not been met. See id. at 630-31. The court noted that “the parties were together in Missouri on several occasions during the husband’s school vacation, but only spent one night under the same roof after their marriage had been blessed and immediately returned to Georgia as had been their original intention.” Id at 631-32. The court held that these facts did not establish that the couple had “lived in lawful marriage in Missouri.” Id. at 632. Thus, the requirement of Rule 54.06(b) had not been met. The Supreme Court cited to Ferrari v. Ferrari as authority that neither party had “lived in lawful marriage within this state.” 585 S.W.2d 546, 547 (Mo.App.1979).5

The court noted in Thompson that the dispositive facts of Crouch v. Crouch, which also construed the meaning of what constituted “lived in lawful marriage within this state,” were markedly similar.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ketteman v. Ketteman
347 S.W.3d 647 (Missouri Court of Appeals, 2011)
Noakes v. Noakes
168 S.W.3d 589 (Missouri Court of Appeals, 2005)
Reed v. Reed
62 S.W.3d 708 (Missouri Court of Appeals, 2001)
In re D.T.
743 A.2d 1077 (Supreme Court of Vermont, 1999)
State ex rel. Premier Marketing, Inc. v. Kramer
2 S.W.3d 118 (Missouri Court of Appeals, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
965 S.W.2d 886, 1998 Mo. App. LEXIS 540, 1998 WL 130811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-phelan-v-davis-moctapp-1998.