In re Marriage of McAllister ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,612
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
RICHARD K. MCALLISTER,
Appellant,
and
EUGENIA M. MCALLISTER,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; DAVID W. HAUBER, judge Opinion filed August 6, 2021.
Appeal dismissed.
William C. Odle, of McDowell, Rice, Smith & Buchanan, P.C., of Kansas City, Missouri, for
appellant.
Ronald W. Nelson and Ashlyn L. Yarnell, of Ronald W. Nelson, PA, of Overland Park, for
appellee.
Before ARNOLD-BURGER, C.J., ATCHESON and HURST, JJ.
PER CURIAM: A party may invoke this court's appellate jurisdiction as a matter of
right from a final decision in any action. K.S.A. 2020 Supp. 60-2102(a)(4). A final
decision is one that finally decides and disposes of the entire merits of the controversy
and reserves no other questions or directions for the future or further action of the court.
In re Estate of Butler, 301 Kan. 385, 395, 343 P.3d 85 (2015). Because Richard K.
McAllister's divorce action was not final when the district court set aside the default
decree of divorce previously entered, we lack jurisdiction over this appeal.
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FACTUAL AND PROCEDURAL HISTORY
This is a divorce action filed by Richard, currently residing in Kansas, and
Eugenia M. McAllister, currently living in Switzerland. The merits of the case before us
center on whether the Kansas courts have personal jurisdiction over Eugenia. After the
district court entered a default judgment, Eugenia moved to set it aside on three grounds:
(1) Richard had not established his own residency in Kansas to grant the court subject
matter jurisdiction over the divorce; (2) she lacked sufficient contacts in Kansas for the
court to exercise personal jurisdiction over her; and (3) Richard had not personally served
her with process as required by the Hague Convention on the Service of International
Process.
The district court granted Eugenia's motion to set aside the default judgment in
December 2019. The court found that it had subject matter jurisdiction, because Richard
had sufficiently established his residency in Kansas, but it lacked personal jurisdiction
over Eugenia. The order concluded:
"While the Court has subject-matter jurisdiction over the [case], it lacks personal
jurisdiction over respondent. Without personal jurisdiction, it may not enter any orders
relating to maintenance or property outside of Kansas. The Journal Entry and Decree of
Divorce . . . must be set aside. Respondent's motion to set aside judgment is hereby
GRANTED."
The court based its decision on Eugenia's lack of contacts with Kansas and did not rule
on whether service of process was proper—although it assumed that it was proper.
Richard timely appealed the December 2019 order setting aside the decree of
divorce.
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ANALYSIS
Before addressing the merits of the district court's finding that it lacked personal
jurisdiction over Eugenia, we have a duty to examine our own jurisdiction. See State v.
Garcia-Garcia, 309 Kan. 801, 806, 441 P.3d 52 (2019) (holding that a jurisdictional
question may be raised sua sponte by the appellate court). We put the parties on notice of
our concerns and asked them in advance to address the issue at oral argument, which they
did.
The right to appeal is statutory in Kansas. Subject to certain exceptions, appellate
courts have jurisdiction to entertain an appeal only if the party files the appeal in the
manner prescribed by statute. Wiechman v. Huddleston, 304 Kan. 80, 86-87, 370 P.3d
1194 (2016). Whether jurisdiction exists is a question of law over which an appellate
court's scope of review is unlimited. In re Care & Treatment of Emerson, 306 Kan. 30,
34, 392 P.3d 82 (2017). A party may invoke this court's appellate jurisdiction as a matter
of right from a final decision in any action. K.S.A. 60-2102(a)(4). A final decision is one
that finally decides and disposes of the entire merits of the controversy and reserves no
other questions or directions for the future or further action of the court. In re Estate of
Butler, 301 Kan. at 395. There is a strong policy against piecemeal appeals in Kansas.
AMCO Ins. Co. v. Beck, 258 Kan. 726, 728, 907 P.2d 137 (1995).
Here, after the court set aside the default judgment, there was still an active case
pending. As the district court stated in its order: "When personal jurisdiction over a party
is lacking in a divorce action, a Kansas court may only decide the status of the parties and
of any marital property within Kansas' borders." This was a correct statement of the law.
The only jurisdiction is in rem jurisdiction. But in rem jurisdiction still allows the district
court to grant a divorce, even if there were no marital property in Kansas. In re Marriage
of Salas, 28 Kan. App. 2d 553, 556, 19 P.3d 184 (2001) (finding district court's in rem
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jurisdiction permits the court to "decide the status of the parties, i.e., whether they were to
remain married or be divorced").
The Kansas Supreme Court addressed a similar issue in Bates & Son Construction
Co. v. Berry, 217 Kan. 322, 324-25, 537 P.2d 189 (1975), when the court held that the
district court's
"order vacating the default judgment against Berry and permitting Berry to file an answer
and cross petition leaves this cause still pending before the trial court. The court's ruling
did not constitute a final determination of the matters in litigation; it did not constitute a
final judgment from which an appeal could be taken."
The situation here is the same as in Bates. The district court set aside the decree of
divorce, but the divorce action is still pending. The district court still has at least two
options. It can dismiss the case for lack of personal jurisdiction, or it can enter judgment
solely on the divorce and distribute any marital property in Kansas if it otherwise has in
rem jurisdiction. Without such a final order, the case is not concluded. Because there is
no final order which would establish this court's jurisdiction to hear the appeal, we must
dismiss it.
Appeal dismissed.
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