Opinion
No. ED91448
September 2, 2008
Writ of Prohibition.
William E. Albrecht, William Albrecht, P.C., Clayton, Missouri, FOR RELATOR.
Ted F. Frapolli, Law Offices of Ted Frapolli, St. Louis, Missouri, FOR RESPONDENT.
Relator, Patrick Gleeson, (Husband) filed a Petition for Writ of Prohibition with this Court, seeking to prohibit the Honorable Dennis N. Smith (Respondent) from taking any further action in the underlying case of In re the Marriage of Christie Gleeson, Petitioner, and Patrick Gleeson, Respondent, filed in the Circuit Court of St. Louis County, Missouri, Case No. 07FC-05154. Husband contends the trial court lacks jurisdiction to adjudicate issues in the pending dissolution of marriage as the court lacks personal jurisdiction over him because the parties never "lived in lawful marriage" in the state of Missouri, as required by Section 506.500.2 RSMo (2000) and Supreme Court Rule 54.06(b). We previously issued a Preliminary Order in Prohibition. The Preliminary Order in Prohibition is made permanent with regard to that portion of the dissolution proceeding relating to maintenance, division of marital property, attorney's fees, and costs. The Preliminary Order in Prohibition is quashed with regard to the dissolution of the marriage.
All statutory references are to Missouri Revised Statutes (2000) unless otherwise noted.
I. Background
Husband and Christie Gleeson (Wife) were married on January 12, 1991 in St. Clair County, Illinois. The parties remained domiciled in Illinois until their separation, after which Wife moved to Missouri. During their marriage the parties occasionally vacationed at the Lake of the Ozarks in Missouri where Husband had a fractional equitable interest in a condominium. After the separation, the parties purchased a condominium in St. Louis County, Missouri, where Wife moved in 2004. While Husband provided the down-payment, signed the loan, pays the mortgage and some of the condominium assessments, Husband has never been to the condominium or resided there. Throughout their marriage, the parties purchased motor vehicles in Missouri and since their separation Husband has leased vehicles for Wife's use in Missouri. Husband has visited Missouri on occasion for dining and entertainment. No children were born of the marriage.
Wife filed a Petition for Dissolution of Marriage action in St. Louis County Circuit Court on June 11, 2007, seeking a dissolution of the marriage, maintenance, division of martial property, and costs, including attorney's fees. Husband was personally served in Illinois on October 24, 2007. Husband contested the court's jurisdiction alleging Missouri did not have personal jurisdiction over him in this matter. An evidentiary hearing was held on Husband's motion to dismiss or strike for lack of personal jurisdiction on January 2, 2008. The trial court entered an order denying Husband's motion on February 7, 2008. This writ follows.
Husband filed a petition for dissolution in the St. Clair County, Illinois, Circuit Court on August 28, 2007. Wife was personally served with summons on October 30, 2007, in the Illinois case. The Illinois action is stayed pending a resolution of the jurisdictional issues presented to this court.
II. Standard of Review
This court's power to issue remedial writs derives from Article V, Section 4.1 of the Missouri Constitution. State ex rel. Dir. of Revenue v. Kinker, 209 S.W.3d 1, 2 (Mo.App.E.D. 2006) citing State ex rel. Dir. of Revenue v. Mobley, 49 S.W.3d 178, 179 (Mo. banc 2001). We have issued writs of prohibition in situations that generally fall within one of three categories: 1) where there is an usurpation of judicial power because the trial court lacks personal or subject matter jurisdiction; 2) where there exists a clear excess of jurisdiction or an abuse of discretion such that the lower court lacks the power to act as contemplated; or 3) where there is no adequate remedy by appeal. Id. This case falls into the first category.
"Prohibition is an independent proceeding to correct or prevent judicial proceedings that lack jurisdiction." State ex rel. Ford Motor Co. v. Nixon, 219 S.W.3d 846, 849 (Mo.App.W.D. 2007). A preliminary order of prohibition will be made permanent "only when there is a clear excess of jurisdiction." State ex rel. Am. Family Mut. Ins. Co. v. Koehr, 832 S.W.2d 7, 8 (Mo.App.E.D. 1992), citing State ex rel. Williams v. Mauer, 722 S.W.2d 296, 297 (Mo. banc 1986).
III. Discussion
In Missouri, to obtain personal jurisdiction over a non-resident defendant, a plaintiff must prove that 1) the cause of action arose out of an activity covered by Missouri's long-arm statute, Section 506.500, and 2) the defendant had sufficient minimum contacts with Missouri to satisfy due process requirements. In re Marriage of Berry, 155 S.W.3d 838, 840 (Mo.App.S.D. 2005).
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. Thompson v. Thompson, 657 S.W.2d 629, 630-631 (Mo. banc 1983). Lack of personal jurisdiction precludes consideration of orders pertaining to maintenance, child support, and attorney's fees. Id. at 631. Actions for dissolution of marriage involve "an amalgam of contractual right and status." In re Marriage of Berry, 155 S.W.3d at 840. "Insofar as the proceeding affects certain contractual aspects of the marriage (such as maintenance) the action is in personam and requires personal service or presence of the other spouse for valid judgment." Id. "[I]nsofar as such a proceeding affects status only [such as the marriage itself or custody of the children], the action is in rem — or at least quasi-in-rem — and requires for a valid judgment only that the res be before the court upon proper notice." Id. The court "must have jurisdiction over the person of the defendant to adjudicate a personal liability against him, such as maintenance, support, attorney's fees, and suit money, and must have jurisdiction over the thing, be it status or specific property, to affect the interest of defendant in that thing." Id.
In the matter before us the trial court proceeded under Missouri Supreme Court Rule 54.06, which sets forth the long-arm jurisdiction for dissolution of marriage actions as well as all other civil actions. Under Rule 54.06, the trial court has two possible avenues for obtaining personal jurisdiction over Husband in this dissolution action. Rule 54.06(a) authorizes in personam jurisdiction over a person outside of Missouri who, in person or through an agent:
Rule 54.06 mirrors the statutory long-arm provisions set forth in Section 506.500.
(1) Transacts any business within this state;
(2) Makes any contract within this state;
(3) Commits a tortious act within this state;
(4) Owns, uses or possesses any real estate situated in this state;
(5) Contracts to insure any person, property or risk located within this state at the time of contracting;
(6) Engages in an act of sexual intercourse within this state with the mother of a child within or near the probable period of conception of that child.
Additionally, Rule 54.06(b) authorizes in personam jurisdiction over a person:
whether or not a citizen or resident of the state, who has lived in lawful marriage within this state, as to all civil actions for dissolution of marriage or for legal separation and all obligations arising for maintenance of a spouse, support of any child of the marriage, attorney fees, suit money or disposition of marital property, if the other party to the lawful marriage lives in this state or if a third party has provided support to the spouse or to the children of the marriage and is a resident of this state.
Notably, section (c) of Rule 54.06 states, "[o]nly causes of action arising from the acts or conduct enumerated in Rule 54.06(a) or Rule 54.06(b) may be asserted against a defendant in an action in which jurisdiction is based on this Rule 54.06." Accordingly, to acquire personal jurisdiction over a non-resident party under Rule 54.06(a), the cause of action must arise from the acts or conduct set forth in Rule 54.06(a). Likewise, to acquire personal jurisdiction over a non-resident party under Rule 54.06(b), the cause of action must arise from the acts or conduct set forth in Rule 54.06(b).
See also Section 506.500.
The causal relation requirement of Rule 54.06(c) is similarly echoed in the constitutional due process requirements for determining whether a non-resident's contacts within a state give rise to personal jurisdiction. In Land-o-Nod Co. v. Bassett Furniture Indus., Inc., 708 F.2d 1338, 1340 (8th Cir. 1983), the Eighth Circuit set forth a five factor test to determine whether a non-resident's contacts with a state satisfied constitutional due process requirements. Of the five factors enumerated by the Eighth Circuit, the relation of the cause of action to the non-resident's contacts is one of the factors given the greatest weight when determining the sufficiency of the non-resident's contacts to the forum state for purposes of due process. Dever v. Hentzen Coatings, Inc., 380 F. 3d 1070, 1074 (8th Cir. 2004), quoting Burlington Indus., Inc. v. Maple Indus., Inc., 97 F.3d at 1100, 1102 (8th Cir. 1996). We consider Husband's claims under both Rule 54.06(a) and 54.06(b).
Rule 54.06(b)
We first consider Husband's argument under Rule 54.06(b), which specifically authorizes personal jurisdiction in dissolution actions. Should Husband's contacts establish personal jurisdiction under sub-paragraph (b), we need not analyze the applicability of the more general long-arm considerations enumerated in sub-paragraph (a) of Rule 54.06.
The Missouri Supreme Court analyzed the meaning of Rule 54.06(b) inCrouch v. Crouch, 641 S.W.2d 86, 88 (Mo. banc 1982). In Crouch, Wife, a resident of Missouri, filed a petition for dissolution and served process on Husband who was residing in Kentucky. Id. Husband did not respond to the petition. The court entered a default dissolution which dissolved the marriage and awarded custody of the parties' child, child support, maintenance, distribution of property, and attorney's fees. Id. Husband moved to vacate the decree, arguing the court was without personal jurisdiction over him because the parties had not lived in lawful marriage within Missouri as required by the long-arm provision of Rule 54.06(b). Id. The Crouch court found Husband, who had never lived in lawful marriage within this state, lacked the requisite minimum contacts with Missouri to sustain the exercise of personal jurisdiction, and vacated the award of child support, maintenance, payment for joint interest in real property, and attorney's fees. Id. at 90, 94. The validity of the dissolution of the marriage itself was not affected. Id. at 94.
The Crouch court held that Rule 54.06(b) mandates compliance with the "minimum contacts test" by requiring that one whom the state would subject to an in personam judgment for maintenance, support, attorney's fees, suit money, or disposition of marital property must have "lived in lawful marriage within this state." Id. at 89; Thompson, 657 S.W.2d 629 at 631; In re Marriage of Berry, 155 S.W.3d at 842; Phelan, 965 S.W.2d at 888. Nothing in the record suggests that this standard has been satisfied in this case. Husband was a resident of Illinois at all times during the marriage. Husband was served with process while in Illinois. Husband is, and has been during the marriage, employed in Illinois and paid Illinois income taxes. Husband has at no time during the marriage been employed in Missouri or paid Missouri income taxes. The record contains no evidence that Husband had any intent to change his domicile to Missouri, or that the parties either attempted to establish a home in Missouri or intended to re-establish their relationship in Missouri. The facts set forth in the record do not meet the requirements of Rule 54.06(b), and cannot serve as a basis for the trial court's exercise of personal jurisdiction over Husband. Accordingly, we must look to Rule 54.06(a) to determine if Husband was properly under the personal jurisdiction of the trial court.
Rule 54.06(a)
Wife asserts that the trial court has personal jurisdiction over Husband because Husband has engaged in certain acts that fall within the contacts enumerated in Rule 54.06(a), and which also satisfy the minimum contacts required for due process. In particular, Wife alleges that Husband's contract to purchase real estate in Missouri, the mortgage and refinancing contracts for said real estate, Husband's lease of vehicles within Missouri, and Husband's occasional travel to Missouri from Illinois for recreational purposes subjects Husband to the jurisdiction of Missouri courts.
Section (a) of Rule 54.06 lists, inter alia, (1) transacting business within the state, (2) making contracts within the state, and (3) owning, using, or possessing any real estate situated in the state, as grounds for authorizing a general judgment in personam. In his brief Husband suggests that Missouri courts may not look to the long-arm considerations of Rule 54.06(a) in a dissolution action, but are limited to the requirement of Rule 54.06(b) that the non-resident party have "lived in lawful marriage" within Missouri before asserting personal jurisdiction. As support for his position, Husband cites several cases in which the trial court did not exercise personal jurisdiction over the non-resident where the record failed to demonstrate satisfaction of the Rule 54.06(b) requirement that the parties must have lived in lawful marriage within the state. Wife argues that Rule 54.06(a) also provides an alternative basis for asserting personal jurisdiction over a non-resident party in a dissolution action. While personal jurisdiction in dissolution cases is generally obtained under Rule 54.06(b), we agree with Wife that Missouri courts are not limited to sub-paragraph (b), and where sufficient contacts exist, sub-paragraph (a) may provide a basis for asserting jurisdiction over a non-resident party in a dissolution action.
Section 506.500.1 lists essentially the same actions, adding that the acts confer jurisdiction on Missouri courts "as to any cause of action arising from doing any of such acts."
However, sub-paragraph (a) cannot be read in isolation, and Husband's alleged contacts must be analyzed in conjunction with the cautionary language of Rule 54.06(c) which states, "[o]nly causes of action arising from acts or conduct enumerated in Rule 54.06(a) or Rule 54.06(b) may be asserted against a defendant in an action in which jurisdiction is based on this Rule 54.06." Wife has alleged, and the record reflects, that Husband has engaged in certain activities within Missouri enumerated in Rule 54.06(a). These activities are potentially sufficient to hale him into Missouri courts for causes of actions arising from those contacts. However, these contacts do not satisfy the constitutional due process requirements for exercising personal jurisdiction over Husband in the current dissolution matter unless there is a causal relationship between those specific acts and the dissolution action. Burlington Indus., Inc. v. Maple Indus., Inc., 97 F.3d 1100, 1102 (8th Cir. 1996). Unless the dissolution action arises from the Husband's purchase and financing of the real estate, lease of the automobiles, or occasional travel to Missouri, these contacts do not empower the trial court to exercise personal jurisdiction over Husband.
Section 506.500.3 likewise states: "Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based on this section."
Husband's purchase and financing of real estate in Missouri or lease of vehicles in Missouri will subject Husband to Missouri jurisdiction for causes of action arising from his ownership of said real estate or lease of said vehicles. However, we conclude that Husband's ownership and leasehold interests do not meet the causal relationship requirement under Rule 54.06(c), and further fail to satisfy the due process requirements for asserting personal jurisdiction as suggested by the Eighth Circuit inBurlington. Husband's actions do not provide a basis for personal jurisdiction under section (a) of Rule 54.06 because Wife's cause of action for dissolution does not arise from Husband's ownership of said real estate, lease of the vehicles, or occasional travel to Missouri. Other than the fact that Husband entered in to the alleged contractual relationships during his marriage, although after Husband and Wife were living separately, the record is void of any facts upon which we could conclude that Wife's petition for dissolution arose out of the actions and contacts upon which the trial court asserted personal jurisdiction over Husband. We find that both Rule 54.06(c), the underlying statute, Section 506.500.3, and the requirements of due process prohibit this type of jurisdictional "bootstrapping."
IV. Conclusion
The record before us contains no facts from which we can conclude that Husband and Wife lived in lawful marriage within this state pursuant to Rule 54.06(b). The record also fails to contain sufficient facts from which the trial court could exercise personal jurisdiction over Husband pursuant to Rule 54.06(a). Because Missouri courts are without personal jurisdiction over non-resident Husband, the trial court lacks jurisdiction to enter orders pertaining to maintenance, division of property, and attorney's fees and costs. However, the trial court properly exercised jurisdiction over the status of the marriage itself.
Respondent has no authority to enter any order pertaining to matters requiring personal jurisdiction. Relator's request for a permanent writ of prohibition is hereby granted, in part, prohibiting Respondent from taking any further action with regard to maintenance, division of property, and attorney's fees and costs. Accordingly, the portion of the Preliminary Order of Prohibition addressing all issues necessitating personal jurisdiction is made absolute. Because the trial court has jurisdiction over the status of the marriage, the Preliminary Order in Prohibition entered against Respondent on June 19, 2008 is quashed with regard to the status of the marriage or other issues not requiring personal jurisdiction of Husband.
George W. Draper III, Concur
Booker T. Shaw, J., Concur
OPINION SUMMARY
Relator, Patrick Gleeson, (Husband) filed a Petition for Writ of Prohibition with this Court, seeking to prohibit the Honorable Dennis N. Smith (Respondent) from taking any further action in the underlying case of In re the Marriage of Christie Gleeson, Petitioner, and Patrick Gleeson, Respondent, filed in the Circuit Court of St. Louis County, Missouri, Case No. 07FC-05154. Husband contends the trial court lacks personal jurisdiction over him to adjudicate issues in the pending dissolution of marriage because the parties never "lived in lawful marriage" in the state of Missouri, as required by Section 506.500.2 RSMo (2000) and Supreme Court Rule 54.06(b).
GRANTED IN PART.
Writ Division One Holds: The trial court did not have personal jurisdiction over Husband and thus has no authority to enter any order pertaining to matters of the dissolution proceeding relating to maintenance, division of marital property, attorney's fees, and costs. This ruling does not affect the dissolution of the marriage itself or other issues not requiring personal jurisdiction over Husband.