896 S.W.2d 756 | Mo. Ct. App. | 1995
Francis Wambugu, husband, appeals from a dissolution of marriage granted to Florence Wambugu, wife. The only issue presented on appeal is whether the trial court had jurisdiction over the divorce action. Husband contends that the trial court lacked subject matter jurisdiction because wife was not a resident of Missouri for 90 days prior to filing her petition as required by § 452.305.1 RSMo 1994. The judgment of dissolution is vacated.
Husband and wife were married on March 3,1979 in Kenya. Three children were born of the marriage and were still minors at the time of dissolution. The parties and their children came from Kenya to live in St. Louis on December 17, 1991. Wife was granted a visa to work with Monsanto Corporation in a government exchange program. Husband and the children also obtained visas to join wife.
Husband contends in his only point on appeal that the trial court lacked jurisdiction because wife was not a resident of Missouri at the time of the filing for dissolution.
Section 452.305.1 RSMo 1994 states that a decree of dissolution shall be entered by the circuit court if “(1) [t]he court finds that one of the parties has been a resident of this state, ... for ninety days next preceding the commencement of the proceedings.” The issue of residency in Missouri for purposes of a dissolution action is “a jurisdictional fact which must be pleaded and proved.” Berry v. Berry, 620 S.W.2d 456, 457 (Mo.App.1981). To establish residence in Missouri, a plaintiff must show “actual presence in the new place and the intention to remain there, either permanently or for an indefinite time, without any fixed or certain purpose to return to the former place of abode.” Goeman v. Goeman, 833 S.W.2d 476, 478 (Mo.App.1992).
“In determining whether a party has the requisite intent to remain either permanently or for an indefinite period of time, the court should consider the acts and utterances of the person, specifically, the ‘declarations of the person and the acts made before, at, and after the time the domicile is in dispute.’ ” Id., quoting Trumbull v. Trumbull, 393 S.W.2d 82, 91 (Mo.App.1965).
In the present case, wife bore the burden of establishing residency for the purposes of subject matter jurisdiction. To this end, she stated in her petition that she had been a resident of Missouri for more than ninety days. She repeated the same at trial. However, after reviewing the record, we find that the only evidence produced by wife indicates her intent was not to remain in Missouri indefinitely. The evidence at trial includes acknowledgements by wife that the household goods and the car must be returned and that she agreed to, and must, return to Kenya upon the completion of her training.
Wife argues that both parties stated under oath in their pleadings that both were residents of Missouri for the requisite ninety day period. Wife further asserts that “there is nothing in the record that would indicate that either party intended to go back to Kenya at any specific time when they first arrived in St. Louis.” Finally, wife asserts that her trial testimony is only an expression of her intent to leave the United States at the time of trial, and not of her intent when she filed her petition.
We are unpersuaded by these arguments. While allegations in a petition, admitted in an answer, are judicial admissions, In re Marriage of Maupin, 829 S.W.2d 125, 127 (Mo.App.1992), “[a] party’s appearance or answer does not confer subject matter jurisdiction, nor may a party waive the defense of lack of subject matter jurisdiction.” Davis v. Davis, 799 S.W.2d 127, 130 (Mo.App.1990). Contrary to wife’s assertion, the
The judgment is vacated. The case is remanded to the trial court with instructions to dismiss the action for lack of subject matter jurisdiction.
. In reaching this decision, we express no opinion on the effect of wife's visa in establishing residency for the purpose of subject matter jurisdiction. Both parties admitted that wife was here on a J-l visa, and husband and children on J-2 visas. The visas are not included in the record on appeal. Husband’s legal file contains a document from the Immigration and Naturalization Service declaring husband ineligible for employment authorization under 8 C.F.R. § 274A.12(A) or (C). The record contains no reference under which section of the U.S.C. the visas were authorized. Husband attempts on appeal to provide the necessary information, particularly in his reply brief. The characterization as a J-l or J-2 visa does not direct this court to a