In Re the Marriage of Bouska , 1977 Iowa Sup. LEXIS 1101 ( 1977 )

RAWLINGS, Justice.

Appeal by petitioner from trial court order setting aside a previously entered marriage dissolution decree for lack of subject matter jurisdiction. We affirm.

November 18, 1972, petitioner, Sharon Bouska, and respondent Donald A. Bouska, were married in Iowa. They resided in this state for some time but in March 1973 moved to Colorado.

In September 1975, Sharon returned to Iowa. About the same time Donald apparently moved to Wyoming.

February 6, 1976, or less than a year after her return to this state, Sharon filed a petition seeking dissolution of the marriage. Petitioner concedes she had not been an Iowa resident for the statutory one year period prior thereto.

February 19, Donald executed an instrument designated “Acceptance of Service of Original Notice”, which provides:

“COMES NOW the Respondent, Donald A. Bouska, and I hereby accept service of Original Notice, as provided by the Iowa Rules of Civil Procedure, and I hereby waive the formal service of such Original Notice and consent to the jurisdiction of the Court. This Acceptance of Service of Original Notice should not be construed in any way as being a waiver of any defense or rights which I may possess at this time and is merely accepting service of Notice so as to avoid formal service of Notice in this action.”

Respondent filed no motions or answer.

May 20, trial court granted a default decree purportedly dissolving the marriage and awarding custody of the one child to petitioner. Respondent thereupon moved to vacate and set aside this adjudication, alleging the court lacked subject matter jurisdiction. July 16, that motion was sustained and the dissolution decree set aside.

The sole issue before us is whether noncompliance with the one year residence requirement, Section 598.6, The Code 1975, deprived trial court of jurisdiction as to this dissolution proceeding.

I. Our review is de novo. See Iowa R.Civ.P. 334, 344(f)(7).

II. It is now well settled the Iowa statutory minimum residency requirement is not unconstitutional. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). See also Annot., 57 A.L.R.3d 221.

III. Furthermore, absence of such requisite residency negates trial court jurisdiction. Korsrud v. Korsrud, 242 Iowa 178, 182-183, 45 N.W.2d 848 (1951). See also J. Peters, “Iowa Reform of Marriage Termination”, 20 Drake L.Rev. 211, 222-223 (1971).

Phrased otherwise, the power to adjudicate marriage dissolution proceedings is expressly restricted by § 598.6 and in event of noncompliance therewith a court has no jurisdiction to act upon the matrimonial matter or res. As stated by 1 Vestal & Willson, Iowa Practice, § 8.04 (1974):

“In addition to the limitations which inhere in the concept of subject matter jurisdiction, that is, what types of litigation can be heard by a court, there is an additional limitation which may properly be called special subject matter jurisdiction.

“The district court in Iowa has general jurisdiction over actions for the dissolution of marriage. However, the Iowa district court cannot adjudicate in such a case unless there is jurisdiction over the specific marriage involved. This comes through the residence of one of the parties to the action.”

See also 2 Nelson, Divorce and Annulment, § 21.13 (2d ed. 1945); 24 Am.Jur.2d, Divorce and Separation, § 240; 27A C.J.S. Divorce § 75.

IV. Like ordinary subject matter jurisdiction, it cannot be conferred by waiver, estoppel or consent. Lloyd v. State, 251 N.W.2d 551, 556 (Iowa 1977); State ex rel. Iowa St. Hwy. Com’n. v. Read, 228 N.W.2d 199, 202 (Iowa 1975); Green v. Sherman, 173 N.W.2d 843, 846 (Iowa 1970); Bonner v. Reandrew, 203 Iowa 1355, 1358, 214 N.W. 536 (1927). See also Vestal & Willson, Iowa Practice, § 8.01; Nelson, Divorce and Annulment, § 21.09. See generally 20 Am. Jur.2d, Courts, §§ 105,139; 21 C.J.S. Courts §§ 23, 116, 118, 119. Any prior holdings by this court to the contrary are hereby overruled.

Furthermore, lack of special subject matter jurisdiction may be raised at any time. Lloyd v. State, supra; Bowen v. Story, County Board of Supervisors, 209 N.W.2d 567, 572 (Iowa 1973). See also Verney v. Verney, 53 A.D.2d 608, 383 N.Y.S.2d 905, 907 (1976). This means that where, as in the present case, it is in any manner brought to the court’s attention a decree has been entered absent such special subject matter jurisdiction, it must be set aside or vacated and the action dismissed. Lloyd v. State, 251 N.W.2d at 558; Korsrud v. Korsrud, 242 Iowa at 183, 45 N.W.2d 848; Snyder v. Snyder, 240 Iowa 239, 242, 35 N.W.2d 32 (1948); 22 Drake L.Rev. at 222; Code § 598.9.

Petitioner’s assigned issue is without merit.

AFFIRMED.

MOORE, C. J., and MASON, LeGRAND and UHLENHOPP, JJ., concur. McCORMICK, REES, REYNOLDSON and HARRIS, JJ., dissent.