Adams v. Adams

871 S.W.2d 105, 1994 Mo. App. LEXIS 297, 1994 WL 50142
CourtMissouri Court of Appeals
DecidedFebruary 22, 1994
Docket63472
StatusPublished
Cited by9 cases

This text of 871 S.W.2d 105 (Adams v. Adams) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. Adams, 871 S.W.2d 105, 1994 Mo. App. LEXIS 297, 1994 WL 50142 (Mo. Ct. App. 1994).

Opinion

CRAHAN, Judge.

Kellie Ann Adams (“Mother”) appeals from the dismissal of her petition to modify a foreign decree with respect to child support and visitation. The trial court dismissed the petition for lack of subject matter jurisdiction. We reverse and remand.

On appellate review of a dismissal, we treat all facts alleged in the petition as true. The petition asserts that Mother and John Quincy Adams (“Father”) were married on February 17, 1984. Their daughter, Christine Lydia Adams, was born on March 31, 1986 in Noel, Missouri. All three resided in Missouri from the time of the daughter’s birth until the time of Mother’s and Father’s separation in July, 1987. Mother and daughter thereafter remained in Missouri and have resided there ever since. Father moved to Arkansas and continues to reside there.

On April 15, 1991, the Chancery Court of Benton County, Arkansas entered a decree of divorce. The divorce was filed by Father and was entered pursuant to Mother’s default. In the divorce decree Mother was awarded custody of the daughter and Father was granted visitation for six consecutive weeks in the summer and for five consecutive days in the winter around the Christmas holiday. Father was also ordered to pay child support in the amount of twenty-five dollars per week once Mother notified the court of her address and produced the daughter for visitation. Mother complied, but Father made no attempt to exercise his visitation rights.

On June 1, 1992, Mother filed a motion to modify the foreign decree in the Circuit Court of Jefferson County, Missouri. Specifically, Mother requested that Father’s visitation be limited to supervised visitation and that Father be obligated to pay more for child support, retroactive to the date of filing, and to procure medical insurance for daughter. Mother asserted jurisdiction to modify the decree based on the fact that Missouri is the daughter’s home state. The motion to modify contains no challenge to the Arkansas court’s jurisdiction to enter the earlier decree. It does, however, allege that modification is proper due to substantial and continuing changed circumstances. The changed circumstances include: (1) an increase in the cost of supporting the daughter; (2) Mother’s unemployed status and inability to adequately support the daughter; (3) an increase in medical expenses for daughter due to a speech disorder; and (4) Father’s failure to exercise his visitation rights and absence from daughter for more than five years.

On November 25, 1992, Father filed a motion to dismiss for lack of subject matter jurisdiction. Father asserted that Missouri lacks jurisdiction to modify the child support provisions of the Arkansas decree because the state of Arkansas has retained jurisdiction over the decree and is therefore the proper forum to litigate the issue of child support. The trial court sustained Father’s motion and dismissed Mother’s motion to modify. This appeal followed.

A motion to dismiss for lack of subject matter jurisdiction should be granted whenever it appears to the court that it lacks such jurisdiction. Rule 55.27(g)(3). The burden is on the party alleging that jurisdiction is lacking. Parmer v. Bean, 636 S.W.2d 691, 694 (Mo.App.1982). Jurisdiction to decide child custody matters is governed by the Uniform Child Custody Jurisdiction Act *107 (“UCCJA”), §§ 452.440-.550 RSMo 1986, 1 which was adopted by Missouri in 1978. The state of Arkansas has also adopted the UCCJA. See Ark.Code Ann. §§ 9-13-201 to 9-13-227 (Michie 1987).

The UCCJA limits a court’s jurisdiction to act in custody proceedings to those defined in § 452.445, 2 under the circumstances described in § 452.450. 3 Mother sets out in her brief the definitions of “custody determination” and “home state” and, based on these provisions, argues that the lower court has jurisdiction under § 452.450.1(l)(a) to modify child custody, specifically with respect to visitation and child support. Father did not file a brief. In his motion to dismiss, however, Father claimed that jurisdiction in Missouri is lacking because Arkansas has retained jurisdiction over this matter. The trial court did not specify its reasons for dismissal, so this court may assume the court acted for the ground asserted in Father’s motion to dismiss. State ex rel. Hwy. Comm’n v. London, 824 S.W.2d 55, 58 (Mo.App.1991).

When a court’s jurisdiction to modify a decree entered in another state is called into question, the mere recitation that the other state has retained jurisdiction is not dispositive. See generally 9 Uniform Laws Annotated, Master Ed., § 14 commentary at 292-93 (1988). Rather, under § 452.505, 4 whether a Missouri court has jurisdiction to modify a court decree of another state under the UCCJA depends on (1) whether the court entering the decree has lost jurisdiction or, having jurisdiction, has declined to exercise it; and (2) whether Missouri has jurisdiction under the Act. Matter of T.C.M., 651 S.W.2d 525, 528 (Mo.App.1983).

As to the first element, the issue of whether Arkansas would decline to exercise jurisdiction to modify the original decree does not come into play absent a determina *108 tion that Arkansas currently has jurisdiction to modify the decree under the provisions of the UCCJA. The UCCJA provides four possible bases for jurisdiction within a state, commonly referred to as the (1) home state, (2) significant connection, (3) emergency, and (4) default bases. See § 452.450; see also Ark.Code Ann. § 9-13-203 (Michie 1987); 9 Uniform Laws Annotated, Master Ed., § 3, p. 143-44 (1988). The state of Arkansas does not have jurisdiction as the home state 5 of the daughter because, as far as the record reflects, the daughter has never lived in Arkansas. § 452.450.1(1). Likewise, we find that it would not be in the child’s best interest for the Arkansas court to have jurisdiction because, although father does reside in Arkansas, the child has no significant connection with the state. § 452.450.1(2)(a). Neither does it appear that Arkansas would have available to it evidence concerning the daughter’s present or future care, protection, training, or personal relationships. § 452.450.-l(2)(b). The other two bases which would potentially permit Arkansas to exercise jurisdiction are also not applicable here. Section 452.450.1(3) gives a state jurisdiction when the child is present in the state and has been abandoned or is in need of emergency protection, none of which are true here. Lastly, § 452.450.1(4) is inapplicable because, as will be discussed below, there is another state, Missouri, that would have jurisdiction under the provisions of the UCCJA. Thus, the required finding under § 452.505 that the other state, here Arkansas, lacks jurisdiction is satisfied. See 9 Uniform Laws Annotated, Master Ed., § 14 commentary at 292 (1988).

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Bluebook (online)
871 S.W.2d 105, 1994 Mo. App. LEXIS 297, 1994 WL 50142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-adams-moctapp-1994.