Susan Ball vs. Robert K. Ball, II

Kansas City, MO - Divorce lawyer represented Appellant with appealing the dissolution of marriage.

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.



2Per section 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 not 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 longarm 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

We affirm the trial court’s judgment.