Opinion
No. ED 84259
November 16, 2004
Appeal from the Circuit Court of Cape Girardeau County, Honorable William L. Syler, Jr.
Allen E. Moss, Jr., Finch Moss Law Firm, Cape Girardeau, MO, for appellant.
Diane C. Howard, Limbaugh, Russell, Payne Howard, Cape Girardeau, MO, for respondent.
Gary M. Gaertner, Sr. P.J., Sherri B. Sullivan, J. and Booker T. Shaw, J.
Appellant, Melissa Elaine Pirisky ("Mother"), appeals from the judgment of the Circuit Court of Cape Girardeau County, following a hearing on respondent, Adrian Dennis Meyer's ("Father"), motion to modify the terms of the dissolution decree pertaining to legal and physical custody of the minor male child ("Child") born July 3, 1992. We reverse and remand to the trial court with instructions to dismiss the action. Mother and Father's marriage was dissolved on May 20, 1994. At that time, the trial court ordered the parties to share joint legal custody of Child, and Mother was given primary physical custody, subject to visitation privileges of Father.
At the time of the dissolution, Mother resided in the Cape Girardeau area and Father was serving in the military. Currently, Mother and Child reside in Tucson, Arizona, where they have lived since 1996. Father is currently stationed in Italy.
About five months after the dissolution, Father obtained a contempt judgment against Mother in Missouri because she attempted to prevent him from exercising his visitation before he left to be stationed in South Korea for a year.
From 1995 to 1998, Father was stationed in Nevada. In 1996, Mother and Child had moved to Tucson, Arizona. Father and Child visited regularly during this time.
From 1998 to 2002, Father was stationed near Wichita Falls, Texas. Child would travel to Texas for visitation during this time, and according to Father, there were some minor problems with visitation "when [Mother] got mad about something."
In 2002, Father was selected to attend officer training school and sent to Alabama and then Italy. According to Father, Child expressed an interest in living with Father, although Mother denies this. In any case, the relationship between Mother and Father has deteriorated since then.
The trial court modified the decree of dissolution on June 3, 2003 so that Mother and Father shared both joint legal and joint physical custody after finding substantial changed circumstances including Mother and Father's inability to agree upon reasonable periods of visitation. The trial court also attached a parenting schedule dividing the time the child was to spend with each parent. Although Mother had been duly served, she filed no responsive pleading, and this order was entered in default.
On October 23, 2003, Father filed a motion to modify, arguing there had been substantial and continuing changes that made the terms of the June 3, 2003 decree unreasonable. The changed circumstances at issue were that Mother refused to allow Father to exercise any periods of visitation or temporary custody with Child despite the court's orders, and Mother is attempting to alienate Child's affection for his father by refusing and returning written communication and boxes sent by Father to Child.
Meanwhile, Father filed a Petition for Order to Show Cause in Arizona in an effort to enforce his Christmas visitation terms set forth in the June 3, 2003 decree. Mother had attempted to get the Arizona Superior Court in Pima County, Arizona to assume jurisdiction. The court in Arizona granted Father's petition, but denied Mother's motion for assumption of jurisdiction.
In response to Father's October 23, 2003 motion to modify, the trial court issued another judgment modifying the May 20, 1994 decree of dissolution of marriage on January 30, 2004. The trial court found Mother had refused to allow Father to exercise his rights of visitation and temporary custody and that Mother began alienating Child from Father as soon as Child expressed an interest in residing with Father. Mother, according to the trial court, did now allow personal, e-mail, or telephone contact between Child and Father, and she prohibited Child from using a plane ticket, purchased by Father, to visit Father. The trial court also found Mother had no justification for attempting to alienate Child from Father, and that each time Father has filed an action, Mother has sought delays apparently to interfere with Father's efforts to utilize the court's enforcement processes. The trial court granted Father full legal and physical custody of Child because it found such an arrangement was Father's only opportunity for meaningful contact with his son.
Mother filed a "Motion to Vacate, Set Aside, Reopen, Amend Judgment; or, Grant a New Trial," which was denied. At the hearing for this motion, Father's attorney stated that the Arizona judge said to Mother "there is a pending action in Missouri for custody and you're contending that jurisdiction is not proper. There is a way to handle that. You've got to hire a lawyer in Missouri. You have to respond to that pending action in Missouri. . . . If you want to fight jurisdiction, you've got to go there and fight jurisdiction." This appeal followed.
In her first point on appeal, Mother argues the trial court lacked subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act ("UCCJA") because no other court had declined jurisdiction based upon the required finding that Missouri was a more appropriate forum and it was not in best interests of the child that Missouri assume subject matter jurisdiction.
Our review is de novo for jurisdictional matters. Bounds v. O'Brien, 134 S.W.3d 666, 670 (Mo.App.E.D. 2004). Subject matter jurisdiction is a significant issue. Reed v. Reed, 62 S.W.3d 708, 711 (Mo.App.W.D. 2001). Therefore, it can be raised for the first time on appeal. Id. "Jurisdiction under the UCCJA to hear custody matters is characterized as subject matter jurisdiction, which may not be waived, and may not be conferred by consent of the parties and must be based upon circumstances at the time the court's jurisdiction is invoked." Lavalle v. Lavalle, 11 S.W.3d 640, 651 (Mo.App.E.D. 1999).
Mother argues that neither she, nor Father, nor Child has a significant connection with the State of Missouri. Thus, Mother contends the trial court has no jurisdiction under section 452.450.1(1-3) RSMo (2000). Further, Mother argues the trial court lacked jurisdiction under 452.450.1(4) because no other state had yet declined jurisdiction on the ground that Missouri is the more appropriate forum to determine child custody when this action was filed. Mother did eventually file a motion asking the state court of Arizona to assume jurisdiction because Mother and Child lived in Arizona. The Arizona state court denied Mother's motion, but the reason for its denial is not evidenced in the record. Mother also argues the best interests of Child were not served by having a Missouri court assume subject matter jurisdiction because Child had not resided in Missouri for eight years and had no significant connections there.
All statutory references are to RSMo 2000 unless otherwise indicated.
Section 452.450 provides:
1. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
* * *
(2) It is in the best interest of the child that a court of this state assume jurisdiction because:
(a) The child and his parents, or the child and at least one litigant, have a significant connection with this state; and
(b) There is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships . . .
* * *
(4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction. Section 452.450.
Where one parent continues to reside in Missouri after a dissolution decree entered in Missouri, Missouri will continue to have preferential jurisdiction to hear subsequent custody and visitation matters even if the child and one parent have moved to another jurisdiction. Dobbs v. Dobbs, 838 S.W.2d 502, 503 (Mo.App.E.D. 1992). However, this is not a conclusive determination of jurisdiction. Payne v. Weker, 917 S.W.2d 201, 204 (Mo.App.W.D. 1996). Courts generally cannot make custody determinations when a child has lived out of the state for over six months. Id.
Our colleagues have noted that writers addressing the purposes of the UCCJA have suggested that its drafters included the section 452.450.1(2) (as enacted in Missouri) so that "a state which enters an original custody decree [maintains] jurisdiction of subsequent proceedings so long as that state continues to have significant contacts with a party or the child who is the subject of the proceeding." Lydic v. Manker, 789 S.W.2d 129, 131 (Mo.App.S.D. 1990).
However, the Western District and this court have interpreted section 452.450.1(2) more specifically, finding
jurisdiction exists only if it is in the child's interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state. The submission of the parties to a forum, perhaps for purposes of divorce, is not sufficient without additional factors establishing closer ties with the state. Divorce jurisdiction does not necessarily include custody jurisdiction. Payne, 917 S.W.2d at 204 quoting Timmings v. Timmings, 628 S.W.2d 724, 726-727 (Mo.App.E.D. 1982) quoting UNIFORM CHILD CUSTODY JURISDICTION ACT § 3, 9 U.L.A. 124 (1969) (Commissioners' Note).
As a result, the minimum requirement under section 452.450.1(2)(a) is that the child and at least one litigant have a "significant" connection with Missouri. Payne, 917 S.W.2d at 204 (emphasis in original). We have found that what is in the best interest of Child is the paramount concern in determining child custody. Ficker v. Ficker, 62 S.W.3d 496, 499 (Mo.App.E.D. 2001).
Residence for those in military service generally remains unchanged, even though one may be stationed in the line of duty at a particular place even for a period of years. Edwards v. Edwards, 709 S.W.2d 165, 168 (Mo.App.E.D. 1986). A change of domicile is effectuated only when there exists actual physical presence in a new place and also a present intent to remain there, either permanently or for an indefinite time, without any fixed or certain purpose to return to the former place of abode.Id.
Although he is currently stationed in Italy, Father is a Missouri resident and therefore, has significant connections with Missouri. Further, the trial court is well-acquainted with this matter having previously entered a Decree of Dissolution of Marriage in 1994 and a Judgment and Order Modifying Decree of Dissolution of Marriage almost ten years later in 2003. There is also other evidence in the record indicating the trial court's familiarity with this matter. For example, Judge Syler stated
I have the impression here, looking at this file and thinking back on what I've heard and learned in the past and correspondence that's in here and the pleadings, that [Mother] is actually working the system; that she has taken advantage of the fact that her former husband lives out of the country because he's in the service and has limited opportunities to come and have his visitation, and that she does just enough to bump things along, and then when time is elapsed, then she has nothing to worry about till the next time he comes back, and I think that she's played the system once again.
However, Child only lived in Missouri for the first four years of his life, and has lived in Arizona since 1996. Unlike inDobbs where the children's Father lived in Missouri and the children had visitation with the Father in Missouri as well as school records and witnesses from Missouri at the modification hearing, from 1996 to the present, the only evidence in the record showing that Child ever visited or had any contact with Missouri is that he spent ten days here in 2002 alone with Father's current wife before traveling to Alabama to meet Father and that he had Christmas visitation in 2003 with Father here. Moreover, most of the evidence regarding Child's present or future care, protection, training, and personal relationships would be found in Arizona. Arizona is clearly the state of maximum rather than minimum contacts for Child. Therefore, Missouri does not have jurisdiction to make a child custody modification pursuant to section 452.450(2).
We noted above that an Arizona court denied Mother's motion for assumption of jurisdiction, which was filed after the proceedings regarding Father's October 23, 2003 Motion for Modification had begun in Missouri court. The specific reasons for this denial are not contained in the record, although at the hearing on Mother's "Motion to Vacate, Set Aside, Reopen, Amend Judgment; or, Grant a New Trial," Father's attorney stated that the Arizona judge indicated that Mother needed to first challenge jurisdiction in Missouri rather than simply trying to get the Arizona court to assume jurisdiction. Therefore, we cannot determine that the Arizona court declined jurisdiction on the ground that Missouri is the more appropriate forum to determine the custody of the child. Even assuming arguendo that the Arizona court specifically found Missouri was the more appropriate forum, we find that the child's best interests are not served by deciding this case in Missouri when Child has no demonstrated significant connection with Missouri.
Therefore, we find that the trial court erred in exercising subject matter jurisdiction under the UCCJA in this matter. Because the trial court did not have subject matter jurisdiction, we dismiss this appeal. In holding as we do, we would like to make it clear that we do not reach the merits of this case.
Because we have determined that the trial court lacked subject matter jurisdiction, it is not necessary to address Mother's other point on appeal.
We reverse the judgment and remand to the trial court with instructions to dismiss the action.