Al-Hawarey v. Al-Hawarey

388 S.W.3d 237, 2012 Mo. App. LEXIS 1392, 2012 WL 5395753
CourtMissouri Court of Appeals
DecidedNovember 6, 2012
DocketNo. ED 97993
StatusPublished
Cited by9 cases

This text of 388 S.W.3d 237 (Al-Hawarey v. Al-Hawarey) 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
Al-Hawarey v. Al-Hawarey, 388 S.W.3d 237, 2012 Mo. App. LEXIS 1392, 2012 WL 5395753 (Mo. Ct. App. 2012).

Opinion

KURT S. ODENWALD, Judge.

Introduction

Cindy Al-Hawarey (“Mother”) appeals from the judgment of the trial court dismissing her motion to modify a child custody order entered in the State of Illinois. Mother suggests the trial court erred in granting the motion to dismiss her motion to modify filed by Sherif Al-Hawarey (“Father”). Mother asserts that her motion to modify sufficiently pleaded facts that, when taken as true, entitle her to relief. Ancillary to this point, Mother contends the trial court erred by considering the order of the Illinois court affirming its jurisdiction over the child custody issues between Mother and Father. Mother also claims the trial court erred in dismissing her motion to modify because there was no simultaneous proceeding in the Illinois court as referenced under Section 452.7651 that would prevent Missouri courts from exercising jurisdiction. The trial court properly considered and applied the statutory provisions of the Uniform Child Custody Jurisdiction and Enforcement Act as adopted by the Missouri legislature. In following this statutory mandate, the trial court appropriately recognized the limits of its authority to accept jurisdiction of the child custody matters, which are within the continuing, exclusive jurisdiction of the Illinois courts. Finding no error in the trial court’s dismissal of Mother’s motion to modify the child custody order entered in the State of Illinois, we affirm.

Factual and Procedural History

Mother and Father were divorced on February 15, 2007, after seven years of marriage. A Judgment for Dissolution of Marriage was entered by an Illinois trial court, which awarded Mother and Father joint legal and physical custody of the children, subject to the terms of the Joint Parenting Agreement.

On September 4, 2009, the Illinois trial court modified the Joint Parenting Agreement to provide that the children’s primary residence would be with Mother in Peoria, Illinois, and to allow Father visitation rights. The modification further provided that Mother would relocate by June 15, 2010, to whatever metropolitan area Father was then residing. If Mother did not relocate by June 15, 2010, Mother agreed that the children would be taken to Father’s residence to reside with him as the primary residential parent until she complied with her agreement to relocate. The Illinois trial court extended Mother’s deadline to move to the St. Louis metropolitan area, where Father had chosen to live, until August 15, 2010. The children moved to Missouri to live with their father sometime in June or July 2010.2

In December 2010, Father filed a petition seeking permanent physical custody of the children.3 After a hearing on that issue, the Illinois trial court entered an order dated June 9, 2011, finding that there had been a complete breakdown in communication between the parties, Mother had not spent meaningful time with her [240]*240children since the summer of 2010, and Father had provided 100% of the support, care, and guidance for the minor children. The Joint Custody Agreement between the parties was terminated and sole custody of the two minor children was awarded to Father. The court order allowed Mother supervised visitation with the children at the visitation center in Peoria, Illinois. The Illinois court also scheduled a hearing for July 29, 2011, to review the progress of the supervised visitation with Mother.

Also on June 9, 2011, the Illinois trial court entered an order denying Mother’s pro se, oral motion to transfer venue of the child custody proceedings to Missouri. The court found that there was no pending petition in Missouri and that the proceedings in the case had already begun in Illinois. The proceedings included taking the testimony of the parties, the appointment of a guardian ad litem, and investigation by the guardian ad litem.

On July 13, 2011, Mother filed a motion to modify the Illinois child custody order in the Circuit Court for St. Louis County, Missouri (“Missouri trial court”). Mother alleged in her motion that the children had lived with Father in Missouri for more than six months prior to the filing of Father’s Illinois petition for permanent physical custody, making Missouri the home state of the children under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Mother claimed the Illinois trial court was without jurisdiction to enter its June 9, 2011, Order giving Father sole custody of the children. In the memorandum of law filed in support of her motion to modify, Mother averred that she ceased to reside in Illinois prior to December 15, 2010, and was currently residing in Nevada.

On July 29, 2011, Mother and Father appeared before the Illinois trial court for review of the supervised visitation order. The Illinois trial court ordered that supervised visitation continue in Peoria and set further review of visitation for October 24, 2011.

On September 27, 2011, Father moved to dismiss the motion to modify filed by Mother in the Missouri trial court. Father alleged Mother’s motion to modify did not state a claim for which relief may be granted by the court because “the Illinois Court timely assumed jurisdiction to adjudge and determine the parties’ respective custody rights over the minor children.” Father asserted that the Illinois litigation regarding his petition seeking full custody of the children began in December 2010, which was less than six months after the children relocated to Missouri. Accordingly, Father argued that Illinois remained the children’s home state.

Father appeared in the Illinois trial court for the review of visitation on October 24, 2011. Mother did not appear. The court ordered that visitation be terminated until Mother appeared in Peoria County, and set the matter for further hearing on December 19, 2011. In that order, the Illinois trial court also “confirm[ed] that the custody ruling of this court was clearly within its jurisdiction based inter alia, on the filing of [Father’s] petition before the children were Missouri residents for 6 months, and [Mother’s] sworn residence in Peoria.”

The Missouri trial court heard arguments on Father’s motion to dismiss Mother’s motion to modify on November 3, 2011. After considering the arguments and the parties’ memoranda in support of their respective positions, the Missouri trial court entered a judgment and order granting Father’s motion to dismiss. The Missouri trial court cited the Illinois trial court’s order confirming its jurisdiction on child custody issues because Father’s petition was filed in Illinois before the children [241]*241were Missouri residents for six months and because of Mother’s sworn residence in Illinois. The Missouri trial court also found that Illinois had commenced litigation involving the custody of the children, and that the Illinois action had not been terminated or stayed. Furthermore, Illinois had not declined to exercise or continue its jurisdiction on the ground that a court in Missouri was the more appropriate forum. Therefore, the Missouri trial court held it was without authority to exercise its jurisdiction to proceed on Mother’s motion, and dismissed Mother’s motion to modify. This appeal follows.

Points on Appeal

Mother presents three points on appeal. First, Mother claims that the trial court erred in dismissing her motion to modify because she sufficiently pleaded facts that, when taken as true, entitle her to relief.

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Bluebook (online)
388 S.W.3d 237, 2012 Mo. App. LEXIS 1392, 2012 WL 5395753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/al-hawarey-v-al-hawarey-moctapp-2012.