| TION BY AFFIDAVIT | | | | courts by dismissing his petition. After a brief |
| Personal Appearance for Hearing Not Required in | | | | discussion regarding prisoners' rights to meaningful |
| Missouri | | | | access to the courts and the judicial system, the |
| The elimination of the requirement of personal | | | | concluded that a personal appearance at a default |
| appearance for hearing in Missouri dissolution of | | | | hearing is unnecessary. The court reasoned that, by |
| marriage actions arose out of, what may be termed | | | | failing to file any response or defend the action after |
| in its broadest sense, a prisoner's civil rights action. | | | | being duly served, wife had admitted the traversable |
| In State ex rel. Kittrell v. Carr, 878 S.W.2d 859 (Mo. | | | | allegations of the petition. |
| App. 1994), the Missouri Court of Appeals, Eastern | | | | The court held that procedures for obtaining a |
| District, addressed the issue of whether a personal | | | | default judgment in civil actions under Rules 74.04 |
| appearance for hearing is necessary to obtain a | | | | (Summary Judgment) and 74.05 (Default Judgment) |
| Judgment of Dissolution of Marriage. The appellant in | | | | of the Missouri Supreme Court Rules are equally |
| that case was an inmate in custody of the Missouri | | | | available for use in actions for dissolution of marriage. |
| Department of Corrections whose petition for | | | | Although Rule 74.05 would not, standing alone, permit |
| Dissolution of Marriage was dismissed for his failure to | | | | default judgments in cases involving division of |
| appear for a hearing after his wife's default. | | | | property due to the necessity of proving value, and |
| The inmate's spouse had been served, but failed to | | | | would never be appropriate to determine child |
| file any responsive pleading, and was in default. There | | | | custody or support, the court held that there would |
| were no children and the petitioner had waived his | | | | be no impediment to judgment where neither |
| rights to any property that could be considered | | | | property, nor child custody or support are at issue. |
| marital property. The inmate moved for a default | | | | Despite the protest of the lower court, the appellate |
| judgment which was denied. The case was set for | | | | court stated "Although a personal appearance and |
| hearing and dismissed by the court when the | | | | live witnesses may at one time have been a |
| petitioner failed to appear, the court having | | | | prerequisite to issuance of a dissolution decree, we |
| previously denied the inmate's petition for writ of | | | | find no such absolute requirement in the dissolution |
| habeus corpus to testify. | | | | statutes as they are presently constituted." Id. at |
| The inmate filed thereafter filed a petitioner for a | | | | 863. |
| writ of mandamus with the court of appeals to | | | | Accordingly, although requirements may vary, |
| require the circuit court to enter a judgment of | | | | between counties and individual judges. Dissolution of |
| dissolution in his case. His petition alleged that the | | | | Marriage is available in many cases without either |
| circuit court had denied him meaningful access to the | | | | party ever appearing in court. |