Friday, October 28, 2005

Case Law Development: For Service by Publication to Give In Rem Jurisdiction to Divorce Court, Property Must Be Specifically Described

Teaching the somewhat dry and technical requirements of jurisdiction in the family law class can often be challenging against the backdrop of the more colorful cases the course provides.  Often a good horror story can wake up the students to the importance of getting jurisdiction right.  Here's a Missouri short story on in rem jurisdiction in divorce actions that, at least an attorney who gets it wrong, would be a tale of terror:

Husband and Wife separate, and after three years, Husband files for divorce.  He serves Wife by publication.  Court grants a default judgment of divorce and awards Husband title to property the couple had owned as tenants by the entirety. 

Time passes.  Husband dies, leaving his daughter (who is not Wife's daughter) as his heir. Wife reappears, discovers the default judgment and brings suit to quiet title to the land, asserting that Husband's failure to specifically describe the property in his service by publication rendered the divorce court without jurisdiction to adjudicate title to the property.  Trial court agrees and grants Wife fee simple title to the property.  The Court of Appeals affirms. 

Assuming Husband was represented by counsel in the divorce action, one might presume attorney is checking with his insurance carrier.

Miller v. Jonesburg State Bank, 2005 Mo. App. LEXIS 1555 (October 25, 2005)
Opinion on the web at http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/322cc63d5b8d1be2862570a4005308a5?OpenDocument (Last visited October 28, 2005 bgf)

http://lawprofessors.typepad.com/family_law/2005/10/case_law_develo_26.html

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