Holden v. Holden

977 S.W.2d 951, 1998 Mo. App. LEXIS 1954
CourtMissouri Court of Appeals
DecidedOctober 30, 1998
DocketNo. 22008
StatusPublished
Cited by7 cases

This text of 977 S.W.2d 951 (Holden v. Holden) 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
Holden v. Holden, 977 S.W.2d 951, 1998 Mo. App. LEXIS 1954 (Mo. Ct. App. 1998).

Opinion

PER CURIAM.

This appeal is from a judgment modifying an award of child custody. B.H. was born on May 9, 1995. Her parents, Lisa Dawn Morgan (“Mother”) and Johnny Lee Roger Holden (“Father”), separated in December 1995, and Mother filed a petition for dissolution of marriage. It was discovered during that proceeding that Mother’s previous marriage had not been dissolved, and thus instead of a dissolution, her marriage to Father was annulled in June 1996. In the judgment annulling the marriage, Mother was awarded custody of B.H.; Father was ordered to pay child support of $150 per month; Father was awarded reasonable visitation rights; and Mother was permitted to move with B.H. to Colorado so that she could be with her motín er who lived in Colorado Springs.

In April 1997, Father filed a motion to modify in which he sought custody of B.H. or, in the alternative, specific visitation privileges. The case was tried in September 1997, and the trial court subsequently entered a judgment awarding custody of B.H. to Father, granting Mother reasonable visitation, and cancelling the child support order. Mother appeals.

Before reviewing the merits of this case, it is necessary that we address the issue of the trial court’s jurisdiction. It is undisputed that Father was a resident of Missouri, and that Mother and B.H., as authorized by the annulment decree, were living in Colorado. The parties agree in their briefs that B.H. was born in Missouri and lived here until moving to Colorado with Mother after the June 1996 annulment decree. Mother did not initially challenge the jurisdiction of the trial court to entertain the motion to modify, but does so on this appeal.

Mother’s first point relied on is:

The trial court erred in finding that it had subject matter jurisdiction in this case without specific findings of fact on which jurisdiction could be based, when the home state of the child is Colorado; when the child has no significant connection to Missouri and no substantial evidence exists in Missouri concerning the current or future welfare of the child. This error was contrary to the credible evidence presented and was, in fact, against the weight of the evidence.

Section '452.4501 is part of the Uniform Child Custody Jurisdiction Act (UCCJA) and concerns the jurisdiction of courts to make custody determinations, either by initial or modification decrees.2 Section 452.410.1 ac[954]*954knowledges the applicability of § 452.450 to modification proceedings by providing that no court shall modify a prior custody decree unless it has jurisdiction under the provisions of § 452.450.

In the instant case, the trial court found that it had jurisdiction pursuant to § 452.450.1(2)(b), and quoted the language of that statutory provision.3 In Piedimonte v. Nissen, 817 S.W.2d 260, 266 (Mo.App. W.D.1991), however, the court said that “a ruling of jurisdiction by a court that is merely eon-clusory or that assumes jurisdiction, but is tacit as to the factual basis for that adjudication, does not meet the objectives of the Act.”

The trial court also noted, however, that no party challenged its jurisdiction by pleading or evidence, and that both parties were present at the hearing and participated in it. Accordingly, Father argues that Mother waived the jurisdictional issue by not raising it in the trial court. In support, he cites Brown v. Brown, 676 S.W.2d 519 (Mo. banc 1984). Similar to the instant case, Brown involved parents and two children who were Missouri residents when the original custody decree was entered. The mother was permitted to move with the children to another state. The father, who remained a resident of Missouri, later successfully sought custody in a motion to modify filed in the Missouri court which originally entered the custody decree. The mother apparently did not contest the trial court’s jurisdiction under the UCCJA until she appealed from the judgment modifying the custody decree. The Missouri Supreme Court said, “We do not believe that UCCJA operates to disable the court which issued the original dissolution and custody decree when neither party objects to its jurisdiction.” Id. at 520.

Other courts have treated the issue of jurisdiction under the UCCJA differently, however. For instance, in Elbert v. Elbert, 833 S.W.2d 884, 887 (Mo.App. E.D.1992), the court said:

The trial court’s jurisdiction under §§ 452.440 — 452.550, to hear a custody determination is often characterized as jurisdiction of the subject matter. Subject matter jurisdiction may be raised at any time, may not be waived, and may not be conferred by consent of the parties. The circumstances upon which the trial court bases its jurisdiction must exist at the time the jurisdiction of the court is invoked. Though not raised by a party, subject matter jurisdiction may be examined by this court sua sponte. (citations omitted).

In State ex rel. Laws v. Higgins, 734 S.W.2d 274, 279 (Mo.App. S.D.1987), this Court made an extensive review of the question of jurisdiction in a case involving the UCCJA. We recognized that “jurisdiction” to adjudicate a controversy falls into three categories: (1) jurisdiction of the subject matter; (2) jurisdiction of the res or the parties; and (3) jurisdiction to render the particular judgment in the particular case. It was noted that the authority of a court under the UCCJA to hear a particular custody case is often characterized as jurisdiction of the subject matter which may not be established by the voluntary submission of the parents, which cannot be waived, and which may be raised at anytime. Id. While a circuit court has jurisdiction over custody determinations generally, the issue of whether it has jurisdiction to hear a particular motion to modify is an issue of jurisdiction over a particular custody determination. Id. We cited with approval the following language from State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57 (1941):

... the third essential, jurisdiction to render the particular judgment in the particular case (sometimes called ‘competency’), partakes of the character of one or the other of the first two. Where the lacking element of jurisdiction goes to the personal privilege of the litigant, it may be waived. But when it depends on the power of the court under a public policy established by statute or otherwise, it cannot be waived.

[955]*955Id. See also Miller v. Robinson, 844 S.W.2d 574, 578 (Mo.App. W.D.1992), where the court said that a parent’s voluntary appearance in a child custody ease establishes the court’s jurisdiction over the parent, but does not grant the court jurisdiction of the subject matter.

We are, however, constitutionally bound to follow the last controlling decision of the Missouri Supreme Court. Mo. Const. Art. V, § 2; State v. Wilson, 795 S.W.2d 590, 591 (Mo.App. S.D.1990).

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Bluebook (online)
977 S.W.2d 951, 1998 Mo. App. LEXIS 1954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holden-v-holden-moctapp-1998.