Montag, 3. März 2014

Dissolution by Affidavit - Personal Appearance Not Required

DISSOLUTION BY AFFIDAVIT

Personal appearance for Hearing Not Required in Missouri

The elimination of the requirement of personal appearance for hearing in Missouri dissolution of marriage actions arose out of, what may be termed in its broadest sense, a prisoner’s civil rights action.

In State ex rel. Kittrell v. Carr, 878 S.W.2d 859 (Mo. App. 1994), the Missouri Court of Appeals, Eastern District, addressed the issue of whether a personal appearance for hearing is necessary to obtain a Judgment of Dissolution of Marriage. The appellant in that case was an inmate in custody of the Missouri Department of Corrections whose petition for Dissolution of Marriage was dismissed for his failure to appear for a hearing after his wife’s default.

The inmate’s spouse had been served, but failed to file any responsive pleading, and was in default. There were no children and the petitioner had waived his rights to any property that could be considered marital property. The inmate moved for a default judgment which was denied. The case was set for hearing and dismissed by the court when the petitioner failed to appear, the court having previously denied the inmate’s petition for writ of habeus corpus to testify.

The inmate filed thereafter filed a petitioner for a writ of mandamus with the court of appeals to require the circuit court to enter a judgment of dissolution in his case. His petition alleged that the circuit court had denied him meaningful access to the courts by dismissing his petition. After a brief discussion regarding prisoners’ rights to meaningful access to the courts and the judicial system, the concluded that a personal appearance at a default hearing is unnecessary. The court reasoned that, by failing to file any response or defend the action after being duly served, wife had admitted the traversable allegations of the petition.

The court held that procedures for obtaining a default judgment in civil actions under Rules 74.04 (Summary Judgment) and 74.05 (Default Judgment) of the Missouri Supreme Court Rules are equally available for use in actions for dissolution of marriage. Although Rule 74.05 would not, standing alone, permit default judgments in cases involving division of property due to the necessity of proving value, and would never be appropriate to determine child custody or support, the court held that there would be no impediment to judgment where neither property, nor child custody or support are at issue.

Despite the protest of the lower court, the appellate court stated “Although a personal appearance and live witnesses may at one time have been a prerequisite to issuance of a dissolution decree, we find no such absolute requirement in the dissolution statutes as they are presently constituted.” Id. at 863.

Accordingly, although requirements may vary, between counties and individual judges. Dissolution of Marriage is available in many cases without either party ever appearing in court.