Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the City of Lincoln County
14L6-FC00218Honorable Gregory K. Allsberry
M. Gaertner Presiding Judge.
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.
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.
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 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.
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.
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.
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).
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 ...