Susan Ball v. Robert K. Ball, II ( 2021 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
SUSAN BALL, )
)
Respondent, )
)
v. ) WD83640
)
ROBERT K. BALL, II, ) Opinion filed: November 16, 2021
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
THE HONORABLE GEORGE E. WOLF, III, JUDGE
Division One: W. Douglas Thomson, Presiding Judge,
Alok Ahuja, Judge and Karen King Mitchell, Judge
Robert K. Ball, II (“Husband”) appeals the trial court’s judgment and decree of
dissolution of marriage. On appeal, Husband claims the trial court erred in entering
the judgment because: (1) it lacked personal jurisdiction in that his counsel’s special
appearance to challenge personal jurisdiction and request a continuance was not a
submission to the personal jurisdiction of the court; and (2) it had no authority to
divide any property or debt because it did not have personal jurisdiction. We affirm.
Factual and Procedural History
On April 4, 2019, Susan Ball (“Wife”), 83 years old, filed a petition for
dissolution of her twenty-six-year marriage to Husband, 81 years old. Wife sought
the appointment of a private process server, which was sustained. Two private
process servers were hired by Wife but neither were successful in establishing contact
with Husband. The private process servers filed affidavits of non-service stating they
were each unable to establish contact with Husband after attempting service
numerous times at his last known address and four other addresses associated with
him.
On May 22, 2019, Wife filed a motion for service by publication, citing the failed
attempts of service. Wife’s motion was sustained and a notice upon order for service
by publication was issued. On June 19, 2019, Wife submitted a case management
statement to the trial court in anticipation of the case management conference, which
stated in pertinent part:
Service: After numerous failed service attempts on Respondent, an
Order for Service by Publication was entered by the Court on May 23,
2019. The Notice of Order of Publication was first published in the Daily
Record Kansas City on June 5, 2019 and will be published for three (3)
additional weeks thereafter pursuant to Mo. Ann. Stat. §506.150 and
Missouri Supreme Court Rule 54.12. If Respondent does not file an
Answer or enter his appearance in the time prescribed, Petitioner will
move for Default Judgment against Respondent.
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The case management conference was held on June 27, 2019, at which Wife appeared
through counsel and Husband did not appear. The trial court issued a scheduling
order, notice of pretrial conference and notice of bench trial on August 26, 2019. The
court mailed notice to two addresses for Husband but both mailings were returned to
the court citing “insufficient address unable to forward.”
On August 12, 2019, Wife filed a motion for default judgment against Husband
alleging he failed to file an answer within the time prescribed. On the August 26,
2019 trial date, Husband filed a motion entitled, “Motion for dismissal for lack of
jurisdiction, and/or in the alternative, improper venue and motion for continuance
and additional time to enter and file pleadings,” and appeared through counsel at the
hearing. The motion states:
Comes Now Theodore D. Barnes, Attorney at Law, and specially enters
his appearance for the sole and limited reasons set forth in this Motion
for the Respondent, Robert K. Ball II.
Respondent states in support of this Motion as follows:
1.) That Neither party presently reside in Jackson County, Missouri.
2.) That Respondent is a licensed lawyer in the State of Missouri.
3.) That Respondent has been out of the country in Southeast Asia.
4.) That Petitioner’s son, Stephen Bergman has the Respondent’s e-
mail address and the only pleadings in the above matter provided
to Respondent was the Motion by Petitioner For this Default Court
Date.
5.) That Respondent has a son in Southeast Asia who is employed
there.
6.) That Respondent will be returning to the USA and the State of
Missouri on October 25, 2019.
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7.) That Respondent will engage a Domestic Relations and Family
Attorney to Represent Respondent upon his return to the USA.
8.) That Respondent while in Southeast Asia has been ill and without
funds due to his accounts being closed and taken by the Petitioner
and her son, a Maryland lawyer.
9.) That Respondent needs and requests that the above Default
Hearing scheduled today [sic] continued until his return on October
25, 2019.
10.) That Stephen Bergman has been in contact with Respondent and
yet did not cause to be provided to Respondent proper Notice of
pleadings.
11.) Publication was not a proper Notice to Respondent because
Petitioner was aware of Respondents whereabouts and Personal
Service should have been provided to Respondent.
12.) That Respondent is 82 years of age.
WHEREFORE, Respondent prays that the above Motion contesting
Jurisdiction, Venue and in the alternative, Requesting a Continuance
be granted and for such other and further relief as this Honorable Court
deems Just and proper in the Circumstances.
During the hearing, Husband’s counsel stated that he was appearing “specially” and
“requesting, amongst other things, a continuance in this matter until [Husband]
returns from out of the country so that he can get involved.” Wife’s counsel asserted
that they had provided notice of this case to Husband via email since May notifying
him that they had attempted service on him numerous times, obtained a court order
for publication, and included copies of the pleadings filed.1 When asked what the
1Although Wife’s counsel referenced Exhibits 8 and 9 at the hearing reflecting these emails to
Husband, in the record on appeal, the emails are found in Exhibit A to Wife’s response to Husband’s
motion.
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basis was for his assertion that neither party resides in Jackson County, Husband’s
counsel responded that the parties’ condominium was for sale and he was advised it
was vacant. Wife’s counsel asserted that the jurisdictional requirement is that Wife
resided in Jackson County for 90 days preceding the filing of the petition, which she
did.2 Wife asserted “jurisdiction and venue are proper in this court, and this is just a
stall tactic by respondent at the eleventh hour to give him time.” In response,
Husband’s counsel stated that justice requires that Husband have time and asserted
that Husband has numerous health issues. Notably, in response to Wife’s assertion
that jurisdiction and venue were proper, Husband’s counsel offered no argument to
counter her assertions, he only requested a continuance. Regarding personal
jurisdiction, the following exchange took place between the trial court and Husband’s
counsel:
Trial court: [I]t appears that the respondent has now appeared and is
submitting to the jurisdiction of the Court, at least with
respect to personal jurisdiction.
....
Counsel: Mine was a special limited appearance.
Trial court: That’s your appearance, but you’re asking me to –
Counsel: Set the thing over so he can hire his own lawyer.
Trial court: Exactly. So by doing that, he’s submitting to the personal
jurisdiction of the Court. Done.
Counsel: Well, then he should be allowed some time.
2Persection 452.305.1(1), a trial court lacks authority to adjudicate an action for dissolution of
marriage if neither party resided in state for 90 days preceding commencement of action. Groh v.
Groh, 910 S.W.2d 747 (Mo. App. W.D. 1995).
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Trial court: To do what?
Counsel: File responses and respond to the situation.
Trial court: Okay, but he’s submitted to the—he’s submitted—
Counsel: If that’s the Court’s ruling—I don’t necessarily agree with
it, but—
Trial court: Well, how can it not be? You’re asking me to take action.
Counsel: If you ask in there—I’ve asked for a special appearance—
Trial court: I know you’ve asked for that, but you’ve also asked for a
continuance.
Counsel: For a limited purpose. So that he can respond properly to
all the issues in there. That was it. But if the Court finds
that, that’s fine, as long as he gets time to get back her[e],
because that was his intent anyhow.
The trial court issued a scheduling and pretrial order reflecting that Husband
and Wife each appeared by counsel; granting Husband’s motion for continuance and
additional time to file pleadings; resetting the case for bench trial on November 26,
2019; and setting a case management conference on October 31, 2019. The trial court
denied Husband’s motion to dismiss and stated, “[Husband] shall file and serve an
answer to [Wife’s] Petition for Dissolution of Marriage on or before October 30, 2019.”
Husband never filed an answer to Wife’s Petition. No discovery occurred between the
parties, but Wife issued subpoenas to two financial institutions to obtain information
regarding marital accounts.
On the November 26, 2019 trial date, Wife appeared in person and through
counsel. Husband failed to appear. After a hearing, the trial court entered a
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judgment and decree of dissolution of marriage (“the Judgment”). In the Judgment,
the trial court found, in pertinent part:
1. The Court has jurisdiction of the parties and subject matter here in.
2. Petitioner was a resident of Jackson County, Missouri for at least
ninety (90) days immediately preceding the filing of her verified
Petition for Dissolution of Marriage, residing at 4545 Wornall Road
Apt. 1110 Kansas City, MO 64111.
3. Respondent was served by publication pursuant to Mo. Ann. Stat.
§506.160 and Missouri Supreme Court Rule 54.12 and failed to file
an Answer within the requisite period of time. An Affidavit of
Publication was filed with the Court on August 22, 2019.
Subsequently, at the Pre-Trial Conference on August 26, 2019,
counsel Ted Barnes entered his limited appearance on behalf of
Respondent. The Court found that based on counsel requesting the
Court take action to continue the hearing, Respondent had submitted
to the jurisdiction of the Court. Pursuant to the Order Denying
Respondent’s Motion to Dismiss, Respondent had until October 30,
2019 to file and serve an Answer to Petitioner’s Petition for
Dissolution of Marriage. Respondent has not filed an Answer and is
therefore in default.
....
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
Respondent was properly served pursuant to RSMo. §506.160 and
Missouri Supreme Court Rule 54.12, submitted to the jurisdiction of this
Court on August 26, 2019, and has failed to file an Answer and is,
therefore, in default[.]
On December 30, 2019, Husband, by different counsel appearing specially, filed
a motion to dismiss and/or reconsider judgment and decree of dissolution of marriage
asserting he did not waive jurisdiction and Wife lacks capacity to proceed without
appointment of a guardian ad litem or next friend because she suffers from
Alzheimer’s disease. Wife filed a response in opposition. On February 25, 2020, the
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trial court entered an “Omnibus Order” denying Husband’s motion to dismiss or
reconsider and Wife’s motion to quash.
Following a series of post-trial motions,3 Husband timely filed his notice of
appeal on March 5, 2020.
Standard of Review
A circuit court’s determination of personal jurisdiction is a legal conclusion
subject to de novo review. Johnson v. Riley, 573 S.W.3d 119, 123 (Mo. App. W.D.
2019) (citation omitted). “We defer to the circuit court’s factual findings and will
reverse the judgment only if it is supported by substantial evidence, is against the
weight of the evidence, or erroneously declares or applies the law.” Hope’s Windows,
Inc. v. McClain, 394 S.W.3d 478, 481 (Mo. App. W.D. 2013) (citing Murphy v. Carron,
536 S.W.2d 30, 32 (Mo. banc 1976)).
3Among other motions filed, on February 21, 2020, Wife filed a motion for contempt in which
she alleged that on October 4, 2019, after his counsel secured a continuance in the dissolution
proceeding, Husband obtained an order from a Colorado District Court approving the assignment to
him of the Pacific Life Annuity Contract for $200,985.81. On February 27, 2020, the trial court entered
an order which directed Husband to appear and show cause why he should not be held in contempt of
court for such actions. Attempts to serve Husband with the order to show cause were unsuccessful.
On May 1, 2020, the trial court issued another order to show cause, adding Husband’s appellate
counsel to the list of addresses. Service was unsuccessful. The affidavit of non-service reflects
Husband’s appellate counsel refused service stating he cannot accept service as it would be an
admission of knowing where his client is and he does not. On June 18, 2020, August 25, 2020, and
December 11, 2020, additional orders to appear and show cause were issued by the trial court.
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Analysis4
Point I
In Point I, Husband asserts the trial court erred in entering the Judgment
against him because the trial court lacked personal jurisdiction in that his counsel’s
special appearance to challenge personal jurisdiction, improper venue, and request a
continuance was not a submission to the personal jurisdiction of the court. We
disagree.
“[A] dissolution of marriage action involves ‘an amalgam of contractual right
and status.’” Patel v. Patel, 380 S.W.3d 625, 628 (Mo. App. W.D. 2012) (citation
omitted). “‘Insofar as such a proceeding affects status only, the action is in rem or
quasi-in-rem and requires only that the res be before the court upon proper notice.’”
Id. (citation omitted). “‘Insofar as the proceeding affects certain contractual aspects
of the marriage . . . the action is in personam and requires personal service or presence
of the other spouse for valid judgment.’” Id. (emphasis added) (citation omitted).
“Lack of personal jurisdiction precludes consideration of orders pertaining to
maintenance, child support, attorney’s fees; and division of property (not within the
State).” Id.4Preliminarily, Wife argues that we lack jurisdiction to hear this appeal because Husband
failed to timely file his appeal. In support of this argument, Wife incorrectly relies on an earlier version
of Rule 73.01 which stated that a party in has 15 days from judgment entry after a bench trial in which
to file a motion for new trial or to amend the judgment. However, Rule 73.01 was amended in 1993,
changing the time requirement to thirty days. Rule 73.01(d) now directs the procedure of filing of such
a motion to Rule 78.04, which provides that such a motion be filed not later than 30 days after
judgment entry. See also Developers Surety and Indemnity Co. v. Woods of Somerset, LLC, 455 S.W.3d
487, 491 (Mo. App. W.D. 2015) (after trial motion timely if within 30 day time period following entry
of a judgment in bench trial citing Rule 78.04).
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Here, due to unsuccessful attempts of personal service on Husband, service
was effected by publication. However, “[s]ervice by publication will not support an in
personam judgment unless the party sought to be subjected thereto has otherwise
voluntarily entered his appearance.” Bueneman v. Zykan, 52 S.W.3d 49, 58 (Mo. App.
E.D. 2001).
‘[P]ersonal jurisdiction refers . . . to the power of a court to require a
person to respond to a legal proceeding that may affect the person's
rights or interests.’ J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249,
253 (Mo. banc 2009). ‘[W]hen a court says that it lacks personal
jurisdiction, it means simply that the constitutional principle of due
process bars it from affecting the rights and interests of a particular
person, whether such a person be an individual or an entity such as a
corporation.’ Id. ‘Only by service of process authorized by statute or
rule (or by appearance) can a court obtain jurisdiction to adjudicate the
rights of a defendant.’ Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc
2000). A defendant must raise any challenges to the trial court's
personal jurisdiction, the sufficiency of process, and the sufficiency of
service of process in either a pre-answer motion or as a defense in the
answer. Rule 55.27(g)(1); Worley, 19 S.W.3d at 129. The failure to raise
these issues at the first opportunity results in waiver of any challenges
to the trial court's personal jurisdiction, the sufficiency of process, and
the sufficiency of service of process. Rule 55.27(g)(1); see also Stiens v.
Stiens, 231 S.W.3d 195, 199 (Mo. App. W.D. 2007).
Int. of A.R.B., 586 S.W.3d 846, 859 (Mo. App. W.D. 2019).
After having been served by publication, Husband then appeared by counsel at
the trial date and filed a motion entitled, “Motion for dismissal for lack of jurisdiction,
and/or in the alternative, improper venue and motion for continuance and additional
time to enter and file pleadings.” Although Husband claims this motion raised the
defense of lack of personal jurisdiction as required by Rule 55.27, we find the motion
failed to properly plead the defense.
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“Missouri courts employ a two-step analysis to evaluate personal jurisdiction.”
Bryant v. Smith Interior Design Group, Inc., 310 S.W.3d 227, 231 (Mo. banc 2010).
“First, the court inquires whether the defendant’s conduct satisfies Missouri’s long-
arm statute, section 506.500. If so, the court next evaluates whether the defendant
has sufficient minimum contact with Missouri such that asserting personal
jurisdiction over the defendant comports with due process.” Id. “‘Proper service of
process is a prerequisite to personal jurisdiction.’” Williams v. Zellers, 611 S.W.3d
357, 364 (Mo. App. E.D. 2020) (citation omitted).
Here, it is unclear whether, and on what basis, Husband challenged personal
jurisdiction in his “Motion for dismissal.” Husband’s motion fails to plead the specific
facts required to establish a lack of personal jurisdiction and it fails to adequately
raise the alleged defense. Thus, an asserted lack of personal jurisdiction is not
preserved for our review. No rule, statute, or legal authority is cited. Husband’s
motion does not specify what jurisdiction he is challenging. The motion does not even
use the words “personal jurisdiction” or “in personam jurisdiction.” The only
allegations made in motion that seemingly relate to a challenge of jurisdiction are the
following paragraphs:
(1) That [n]either party presently reside in Jackson County, Missouri.
(11) Publication was not a proper [n]otice to [Husband] because [Wife]
was aware of [Husband’s] whereabouts and [p]ersonal [s]ervice should
have been provided to [Husband].
Husband fails to explain his challenge in terms of the long arm statute or minimum
contacts. The purported fact that neither party resides in Jackson County, Missouri
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does not establish a lack of personal jurisdiction in the Missouri state courts
(although it could arguably support a claim of improper venue). Moreover, a bare
assertion that Wife knew Husband’s whereabouts is insufficient to claim improper
service of process.
Further, the transcript of the hearing from the trial date reveals that this
defense was all but abandoned by Husband’s counsel. “The general rule is that a
party may waive or abandon a motion by failing to proceed with it.” Shapiro v. Brown,
979 S.W.2d 526, 529 (Mo. App. E.D. 1998). When the trial court indicated that it
found Husband had submitted to the court’s jurisdiction by requesting a continuance,
thereby waiving his defense of lack of personal jurisdiction, Husband’s counsel offered
no argument or support for the defense. Instead, Husband’s counsel replied, “But if
the Court finds that, that’s fine, as long as he gets time to get back here, because that
was his intent anyhow.” (Emphasis added).
It is evident that the primary purpose of Husband’s “Motion for dismissal” was
not to challenge the circuit court’s personal jurisdiction, but instead to obtain
additional time to respond to Wife’s petition. The bulk of Husband’s motion explains
to the trial court that Husband was out of the country but intends to return, hire an
attorney, and respond to the dissolution proceeding. Likewise, at the hearing,
Husband’s counsel stated, “But if the Court finds that, that’s fine, as long as he gets
time to get back here, because that was his intent anyhow,” and the court gave him
exactly what he asked for—more time. Husband was to be back on October 26. The
court set the trial for a month later, November 26. And, to make sure all was ready
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for trial, the court set a case management conference on October 31, after Husband’s
designated date to be back in the country.
Husband failed to properly plead the defense of lack of personal jurisdiction in
his initial response to Wife’s petition.
Point I is denied.
Point II
In Point II, Husband claims the trial court did not have authority to divide any
property or debt because the trial court had no personal jurisdiction.
This point fails in light of our determination in Point I that Husband failed to
properly challenge personal jurisdiction.
Point II is denied.
Conclusion
We affirm the trial court’s judgment.
__________________________________________
W. DOUGLAS THOMSON, JUDGE
All concur.
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