Ernеst Lee Lamastus (“Husband”) appeals from a default judgment dissolving his marriage to Donna Marie Lamastus (‘Wife”) and awarding Wife primary custody of the child bom of their marriage, without rights of visitation or any other contact.
Husband contends on appeal that the triаl court erred in entering its judgment because: (1) the court failed to appoint a guardian ad litem, pursuant to § 452.423, R.S.Mo.Supp. 1993 (all further references to this section shall be to R.S.Mo.Supp.1993); (2) the alias *723 summons and return were defective, making personal jurisdiction ovеr Husband improper; (3) Husband did not receive timely notice of the dissolution hearing; and (4) the court should not have denied Husband’s request for a continuance where he “acted in a responsible manner ... and was diligent.” We affirm the dissolution and division of propеrty, but we reverse the judgment as to the paternity, custody and support of the child and remand for further proceedings.
On September 22, 1992, Wife filed a petition for dissolution of the marriage. In her petition, Wife alleged that the marriage was irretrievably broken, аnd that she was due to deliver a child of Husband in September, 1992. There was one other child in the household, A.L.S., who was not a child of the marriage. Wife also sought primary custody of and child support for her unborn child. The child, C.L.L., was born October 7, 1992.
Wife’s counsel wrote a letter dated May 18, 1993, seeking out-of-state service on Husband at his last known address, in Mt. Pleasant, Texas. The summons was returned non-est. On July 23, 1993, Wife’s counsel again filed a request for out-of-state service on Husband, who then was incarcerated at the Garrett County Jail in Oakland, Maryland. The return indicated that the summons was received on July 29, 1993, and that service was performed by Corporal Larry E. Gnegy of the Garrett County Sheriffs Department.
On August 30, 1993, the Washington County Circuit Clerk’s Office received an undated letter from Husband. In it, Husband requested “a delаy or continuance” in the dissolution proceeding, and he added, “I strongly believe [that C.L.L.] is not mine and until a gene test ... can be performed and [sic] verify whether the child is mine or not I will not take responsibility for said child.” Husband also addressed the division of property in his letter, but he did not address the trial court’s jurisdiction in any way. The Circuit Clerk sent a notice to Wife’s counsel on September 3, 1993, stating that the court “does not intend to respond or react to [Husband’s] letter (pleading) until the case is heard on September 20th, 1993.”
Wife’s сounsel sent a notice of the September 20 hearing to Husband at the Garrett County Jail on September 8, 1993. Counsel also sent a letter to the Circuit Clerk’s Office confirming that the notice was sent, along with a signed proof of service affidavit.
The hearing cоnvened as scheduled on September 20, 1993. The trial court treated Husband’s letter as a motion for a continuance, denied the motion, and found Husband in default. The court did not respond to any other matters contained in the letter.
The only witness to testify at thе hearing was Wife. She affirmed that the marriage was irretrievably broken and that C.L.L. was the only child born of the marriage. On direct examination, Wife requested that the court deny Husband all visitation rights to C.L.L., on the ground that he “sexually molested or raped” A.L.S., her daughter from а prior union.
The court entered an order on September 23, 1993, dissolving the marriage and dividing the property; granting primary custody of C.L.L. to Wife; denying Husband all visitation rights; and ordering Husband to (1) pay to Wife $60.98 per week for child support, beginning 90 days after Husband’s release frоm jail, and (2) provide medical insurance for C.L.L. through Husband’s employer. On October 20, 1993, Husband, through counsel, filed a motion to vacate and modify the dissolution decree and to set aside the default judgment, on grounds substantially the same as those contained in his points on appeal. The motion was denied.
Our review is governed by the oft-cited principles of
Murphy v. Carron,
Husband first asserts that thе trial court erred in failing to appoint a guardian ad litem because (1) Wife alleged that Husband sexually molested her daughter, A.L.S., and (2) Husband placed the paternity of C.L.L. in issue in his letter. We will address each of these grounds in turn.
Section 452.423.1 states:
*724 In all proceedings for child custody or for dissolution of marriage or legal separation where custody, visitation, or support of a child is a contested issue, the court may appoint a guardian ad litem. The court shall appoint a guardian ad litem in any proceeding in which child аbuse or neglect is alleged.
Our legislature enacted § 452.428 in 1988 in response to the Southern District’s entreaty in
C.J.(S.)R. v. G.D.S.,
[I]t is an abuse of discretion not to appoint a guardian ad litem ... where, as here, the choice of the custodian of minor children is in issue, and the court has knowledge, from the pleadings or from any other source, that the children in question have been, or are being, abused while in the custody of one claiming the right to be their custodian.
There is no issue as to the custody, visitation or support of A.L.S.; rather, it is C.L.L., the only child of Husband and Wife, whose paternity is at issue. Therefore, Wife’s testimоny as to abuse of A.L.S. did not compel the appointment of a guardian ad litem.
Our inquiry does not end there, however. Husband contested the paternity of C.L.L. in his letter to the trial court. He now argues that because he raised paternity as an issue, the court was required to appoint a guardian ad litem for C.L.L.
Although no statute addresses this issue, there is caselaw precedent for Husband’s position. “When pleadings or the evidence in the ease show that the paternity of the child is an issue, a guardian ad litem must be appointed for the child.”
In re Marriage of Myers,
Wife’s only response is that paternity was not actually at issue because Husband’s letter either was not a pleading or, if it was an answer to Wife’s petition, it was not filed in time.
Husband was served with process on July 29,1993, at the Garrett County Jail in Maryland. He then had thirty days in which to file an answer. Rule 55.25(a). July 29 did not count in the computation of time, as “the day of the act [of service] ... after which the designated [thirty-day] period of time begins to run....” Rule 44.01(a). July 30, then, was the first day, so August 28 was the thirtieth day. However, August 28, 1993, was a Saturday. Rule 44.01(a) states: “The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturdаy, Sunday nor a legal holiday.” Therefore, the period for Husband to answer was extended to Monday, August 30, 1993, the date on which his letter was filed. If his letter was an answer, it was timely, and Wife’s contention to the contrary is incorrect.
The trial court, however, treated Husband’s letter as a motion for continuance rather than an answer.
Myers, supra,
makes it clear that any evidence that places the paternity of a child in question mandates the appointment of a guardian ad litem. Whether Husband’s letter is an answer or а motion is not determinative here because, in either case, it properly raised paternity as an
*725
issue; thus, the court was required to appoint a guardian. Further, since paternity is disputed, the child should be joined as a party,
Lechner,
In his second point, he contends that the circuit court lacked personal jurisdiction over him, thereby invalidating the default judgment, because the alias summons and return were defective. Specifiсally, Husband argues that the summons and return (1) did not contain an affidavit of service as required by Rule 54.20(b), and (2) did not inform Husband that he must file a verified answer to the petition.
Since personal jurisdiction may be conferred by waiver,
State ex rel. Tinnon v. Mueller,
In
State ex rel. White v. Marsh,
Husband contends in his third point that the trial court erred in not setting aside the dissolution decree because he did not receive timely notice of the setting of the hearing. He explicitly disavows any insinuation that Wife’s attorney failed to send the notice, but, he argues, “the mailing of said notice does not constitute receipt by [Husband]....” The suggestion that proper notice depends on receipt is contrary to common practice. The evidence here shows that proper notice was sent to Husband at his last known address. Point denied.
In his final point, Husband claims error in the denial of his request for a continuance where he “acted in a responsible manner by filing a written response to the pleadings and was diligent in seeking help from an attorney.”
The trial court has broad discretion in deciding whether to grant a motion for continuance.
Nance v. Nance,
Rule 65.03 enumerates the proper procedure for seeking a continuance. It states in relevant part: “An appliсation for a continuance shall be made by written motion
*726
accompanied by the affidavit of the applicant or some other credible person setting forth the facts upon which the application is based....” Husband’s letter, which the trial cоurt construed as a motion for continuance, did not comply with Rule 65.08 because it lacked the required affidavit.
See Commerce Bank of Mexico, N.A. v. Davidson,
Husband seems to suggest that the trial court should have granted his motion because he was “responsible” and “diligent” despite not being represented by counsel. However, parties acting
pro se
are bound by the same rules and procedures as lawyers, аnd they are entitled to no indulgence they would not have received if represented by counsel.
Jim Medve Inv. Co. v. Bailous,
The judgment is affirmed with respect to the dissolution of the parties’ marriage and division of property, but as to the paternity, custody and support of C.L.L., it is reversed and remanded to the trial court for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed and remanded in part with directions.