345 S.W.2d 117 | Mo. | 1961
This is a suit upon the alimony provision of a divorce judgment rendered by the District Court of Johnson County, Kansas. The Circuit Court of Jackson County, Missouri declared the alimony provision of the Kansas judgment void, and invalidated a general execution and garnishment issued by the Missouri court to enforce it. Plaintiff, the ex-wife, has appealed.
Lillian M. Crump, now Lillian M. Rose-berry, filed suit in the District Court of Johnson County, Kansas against Roy T. Crump, praying for a divorce, an equitable division of the property, an allowance of suit moneys and attorney’s fees pendente lite, “and for such other and further relief as to the Court seems just and proper.”
Defendant filed motions to quash the execution and garnishment and to dismiss the petition on foreign judgment, alleging the invalidity of the judgment for lack of jurisdiction over the subject matter, lack of jurisdiction over the person of defendant, and gross fraud in procuring the judgment. At the hearing of the motions defendant, the ex-husband, testified that after service of the divorce petition the parties entered into a verbal settlement by the terms of which they divided the property between themselves and by which plaintiff agreed that she would not ask for alimony; that she told him there was no reason for him to spend an extra $100 on attorney’s fees “because we have made this agreement and I do not want alimony and I won’t ask for alimony.” Opposing the motions, plaintiff, the ex-wife, admitted that the parties had made a property settlement and that the property was divided as defendant had testified, but denied that she discussed alimony with defendant at any time, either before or after the filing of the petition for divorce.
On this appeal appellant complains that the lower court erred in refusing to give full faith and credit to the alimony provision of the Kansas judgment and contends-that the Kansas court had jurisdiction over the subject matter and that the Kansas, judgment is valid; there is no record' defect entitling the ex-husband to maintain a collateral attack upon the Kansas judgment; a foreign judgment cannot be attacked collaterally for fraud in the procurement unless the fraud was so great and gross as to amount to a denial of due process of law, and there was no clear,, cogent,.convincing evidence of fraud; a collateral attack upon a foreign judgment should not be permitted to be substituted for respondent’s failure to appeal the Kansas judgment, and that the ex-husband, with timely knowledge of its rendition, negligently failed to appeal and thereafter recognized the judgment by making numerous payments thereon. Respondent contends that the alimony judgment is void; the Kansas court had no jurisdiction; the judgment was beyond the scope of the pleadings and relief prayed and outside the issues before the court; there was no-jurisdiction over the person of respondent “to render the particular judgment”; the judgment was obtained by fraud, and that a void judgment is not entitled to full faith and credit and-is subject to collateral attack.
This cause must' be transferred for lack of jurisdiction. Under Constitution of Missouri, 1945, Art. 5, § 3, V.A.M.S., the only possible ground for the contention that jurisdiction is in this Court is that the construction of Art. IV, § 1, of the Constitution of the United States (“Full Faith and Credit shall be given in each State to the * * * Judicial Proceedings of every other State”) is involved, but there is no basis for any such contention. While appellant’s constitutional rights would be denied if a Missouri court refused to recognize a valid Kansas judgment, that does not mean that a construction of the' full faith and credit clause would be involved.
Accordingly, the cause is ordered transferred to the Kansas City Court of Appeals.
PER :GUSlAM-
The foregoing opinion 'by HOUSER, C., is adopted as the opinion of the court.
All of the Judges concur.'