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In re Marriage of M.S.

Supreme Court of Missouri, En Banc

February 10, 2015

IN RE THE MARRIAGE OF: M.S., Appellant,
v.
D.S., Respondent

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY. The Honorable John N. Borbonus III, Judge.

M.S. was represented by Drey A. Cooley, Daniel R. Sokol, Sheila Greenbaum and Stephen G. Davis of Capes, Sokol, Goodman & Sarachan PC in St. Louis.

D.S. did not file a brief or participate in arguments.

A number of organizations filed briefs as friends of the Court. The American Civil Liberties Union of Missouri Foundation; KC LEGAL; Professor Annette R. Appell, director of the Washington University Law School Child & Family Advocacy Clinic; the American Civil Liberties Union; and the Lambda Legal Defense and Education Fund were represented by Anthony E. Rothert and Grant R. Doty of the American Civil Liberties Union of Missouri Foundation in St. Louis.

Gilliam R. Wilcox of the American Civil Liberties Union of Missouri Foundation in Kansas City.

PROMO was represented by Denise D. Lieberman, a solo practitioner in St. Louis.

The American Academy of Matrimonial Lawyers was represented by Alan E. Freed of Paule, Camazine & Blumenthal PC in St. Louis.

OPINION

Page 901

RICHARD B. TEITELMAN, JUDGE

This is an appeal from a judgment dismissing a petition to dissolve a same-sex marriage between M.S. and D.S. The circuit court dismissed the action sua sponte, with prejudice, on grounds that it lacked subject matter jurisdiction and constitutional and statutory authority to dissolve the marriage due to the state constitutional and statutory bans on same-sex marriage. See Mo. Const. art. I, sec. 33; section 451.022, RSMo Supp. 2001. This Court holds that that the circuit court had subject matter jurisdiction over the case. For that reason only, the judgment is reversed, and the case is remanded.

The circuit court dismissed the petition for lack of subject matter jurisdiction before D.S. was served or given an opportunity to answer the petition. While Rule 55.27(g)(3) requires a circuit court to dismiss an action " [w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter," Missouri procedural rules do not authorize a judgment on the merits prior to service and an opportunity to answer the petition. (Emphasis added). Therefore, the court's sua sponte judgment of dismissal for lack of subject matter jurisdiction did not resolve any of the underlying issues raised in the petition, including the court's constitutional or statutory authority to dissolve a same-sex marriage.

The sole issue before this Court is whether the circuit court had subject matter jurisdiction. The jurisdiction of Missouri circuit courts is defined by article V, section 14 of the Missouri Constitution:

The circuit courts shall have original jurisdiction over all cases and matters, civil and criminal. Such courts may issue and determine original remedial writs and shall sit at times and places within the circuit as determined by the circuit court.

The plain language of article V, section 14 provides that Missouri circuit courts have jurisdiction over all civil cases and matters. J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009). Nothing in article I, ...


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