Section 27.4 Domicile and Residence—Defined

• Library: Family Law Deskbook and 2014 Supp

1. (§27.4) Domicile and Residence—Defined

Missouri courts use the terms “residence” and “domicile” interchangeably. Byars v. Byars, 593 S.W.2d 656 (Mo. App. S.D. 1980). Both terms refer to the place where an individual makes a permanent home and not simply a location where the individual happens to reside for the time being. Phelps v. Phelps, 246 S.W.2d 838 (Mo. App. W.D. 1952); see alsoCapuozzo v. Capuozzo, 782 S.W.2d 163 (Mo. App. S.D. 1990) (citing Byars,593 S.W.2d 656, with approval).

In Goeman v. Goeman,833 S.W.2d 476 (Mo. App. W.D. 1992), the court held that a party’s testimony alone that he “resided” in Missouri for 90 days before filing may not be enough to meet the statutory requirement. Thus, when the time of presence in Missouri is short, there should be evidence in the record of intent to make Missouri the domicile of the party.

Although the language of several Missouri cases refers to the 90-day residency requirement of § 452.305, RSMo Supp. 2011, as a jurisdictional element, the Supreme Court of Missouri’s 2009 clarification of the meaning of the term “jurisdiction” requires that these cases be read
in a different light. J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). In Wyciskalla, the Supreme Court of Missouri explained that subject matter jurisdiction is governed by Article V, §14, of the Missouri Constitution, which provides that the circuit courts have original jurisdiction over all civil and criminal cases. Id. at 252. As a result, statutes, such as § 452.305, that “speak[ ] in jurisdictional terms or can be read in such terms” must be read as “merely setting...