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Killingham v. Killingham

Court of Appeals of Missouri, Eastern District, Third Division

October 17, 2017

PAULA KILLINGHAM, Respondent,
v.
WILLIAM H. KILLINGHAM, Appellant.

         Appeal from the Circuit Court of the City of Lincoln County 14L6-FC00218Honorable Gregory K. Allsberry

          Gary M. Gaertner Presiding Judge.

         Introduction

         William H. Killingham (Husband) appeals the trial court's denial of his motion to set aside a default judgment the trial court entered upon Paula Killingham's (Wife) petition for dissolution of marriage. Because we find service was improper, we reverse.

         Background

         Wife filed her petition for dissolution of marriage on October 1, 2014. On November 20, 2014, a deputy sheriff delivered the summons and petition to Husband's residence. The deputy left the summons with the parties' adult son, Alex, and filed a return of service so reflecting. Husband did not appear before the trial court for any hearings regarding the dissolution. The trial court entered default judgment after a default hearing on July 10, 2015.

         On December 20, 2015, Husband's attorney entered an appearance and filed a motion to set aside the default judgment. As relevant to this appeal, Husband's motion alleged that Alex did not reside with Husband at the time of service, but rather was only visiting Husband. Wife responded to this argument in her memorandum of law opposing Husband's motion, arguing that Section 452.310.5[1] allows for service to a family member and does not require that the family member reside with the respondent. The trial court conducted a hearing on Husband's motion on January 15, 2016. During the hearing, Husband testified that Alex lived with him and had for about the past two months, but Alex did not live with Husband at the time of service. Wife testified that Alex would go back and forth between the parties' homes for weeks at a time.

         The trial court denied Husband's motion to set aside the default judgment. The trial court's judgment contained the following findings:

[Husband] testified that his son is residing with him now and that, as early as 2014, his son was staying with him overnight on occasion. Thus, [Husband] has not established by a preponderance of the evidence that abode service in this case was invalid.

         This appeal follows.

         Discussion

         Husband raises three points on appeal, but the first is dispositive. He argues that the service in this case was insufficient because Alex did not reside at Husband's home at the time of service, rendering the judgment void for lack of personal jurisdiction. We agree.[2]

         Proper service of process is a prerequisite to personal jurisdiction. Maul v. Maul, 103 S.W.3d 819, 820 (Mo. App. E.D. 2003). "A court lacks the power to adjudicate when the requirements for proper service of process are not met." Id. at 821 (citing Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000)). The determination of personal jurisdiction is a question of law that we review de novo. Bate v. Greenwich Ins. Co., 464 S.W.3d 515, 517 (Mo. banc 2015).

         Here, the sheriffs deputy attempted service according to Section 452.310.5, which requires service to the respondent in a dissolution proceeding to be accomplished "in the manner provided by the rules of the supreme court and applicable court rules[J" Rule ...


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