I_ D v. B_ C_ D

941 S.W.2d 658
CourtMissouri Court of Appeals
DecidedFebruary 18, 1997
DocketNo. 21062
StatusPublished
Cited by2 cases

This text of 941 S.W.2d 658 (I_ D v. B_ C_ D) 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
I_ D v. B_ C_ D, 941 S.W.2d 658 (Mo. Ct. App. 1997).

Opinion

CROW, Judge.

C_I_D_(“Mother”), biological mother of A_ K_ B_ D_(“Child”), appeals from a judgment denying her motion to set aside a decree of adoption which granted the petition of I_D_and J_D_(“Grandparents”) to adopt Child. Mother’s sole point relied on avers the trial court erred in refusing to set aside the adoption decree in that “the amended petition requesting adoption was not served on [Mother].”

The record on appeal consists of only a legal file. The facts set forth in this opinion have been gleaned from it and from the parties’ briefs.2

Child was bom October 26,1986. She was sired by B_C_D_(“Father”), the son of Grandparents.

On August 16, 1993, Grandparents filed a pleading designated “Petition for Temporary Legal Custody” in the trial court. It averred, inter alia, that Child had lived with Grandparents since October, 1986, and it would be in Child’s best interest for temporary legal custody to be awarded Grandparents. The sole relief prayed for was “an order granting [Grandparents] the temporary legal custody of [Child].”

The petition was accompanied by sundry documents including one designated “Waiver of Service and Entry of Appearance,” signed and sworn to by Mother. The text thereof appears below.3 Another document accompanying the petition was designated “Consent for Transfer of Custody.” It was signed and acknowledged by Mother. The text thereof appears below.4

The petition was also accompanied by two documents signed by Father. Their respective designations and contents were the same as those signed by Mother.

On November 18, 1993, the trial court appointed a lawyer as guardian ad litem for Child. Grandparents appeared before the trial court that date in person and with coun[660]*660sel; Child appeared by her guardian ad li-tem, who filed an answer for Child. The answer denied the allegations in Grandparents’ petition and asked that Grandparents “make strict proof.”

The trial court’s “docket sheet” shows: “Petitioners announce they intend to file an Amended Petition seeking adoption in Count II and, therefore, the Court proceeds on the Petition as if it were Count I for Transfer of Legal Custody with a view towards Adoption. Evidence adduced and the Court finds that the allegations of the Petition are true and that a Transfer of Legal Custody would be in the best interest of the minor child. It is, therefore, Ordered that legal and physical custody of the minor child ... be and hereby is vested in the Petitioners ... pending a hearing on the Adoption nine (9) months hence....”

On November 29,1993, Grandparents filed a pleading designated “Amended Petition for Adoption” in the trial court. It contained two counts. Count I prayed that the “full temporary legal custody” of Child be placed in Grandparents “pending further adoption proceedings herein.” Count II pled, inter alia, that Mother and Father had each signed a consent to the adoption of Child by Grandparents. Count II prayed the court to enter a decree of adoption “ordering that ... [Child] shall, to all legal intents and purposes, be the child of [Grandparents].”

No copy of the amended petition was served on Mother.

On October 12, 1994, Grandparents appeared in the trial court with counsel; Child appeared by her guardian ad litem. Neither Mother nor Father appeared. The court heard evidence. Two days later, the court entered the decree of adoption referred to in the first sentence of this opinion. The decree contained this provision:

“The written consent of the natural father and natural mother to the adoption of the minor child has been duly executed and filed.”

On August 31, 1995, ten months after entry of the adoption decree, Mother filed a motion asking the trial court to set the decree aside. The motion pled sundry grounds, one of which was that the amended petition filed November 29, 1993, was not served on her.

On March 18, 1996, the trial court held a hearing on Mother’s motion. Grandparents appeared with counsel; Child appeared by her guardian ad litem; Mother appeared in person and with counsel. The trial court’s “docket sheet” shows:

“The attorneys announce that the sole issue to be decided is the legal question of whether or not the Consent for Adoption signed by [Mother] would obviate the necessity of service of process on [Mother] of the Amended Petition for Adoption which was filed after the Consent was executed.”

On September 9,1996, in a judgment unadorned with any explanation — apparently none was requested (see Rule 73.01(a)(3))— the trial court denied Mother’s motion. As reported earlier, Mother’s sole attack on that judgment in this appeal is that no copy of the amended petition was served on her.

Mother cites Rule 43.01(a), which reads:

“Every pleading, subsequent to the original petition ... shall be served upon each of the parties affected thereby, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the maimer provided for service of summons.”

The “Waiver of Service and Entry of Appearance” signed and sworn to by Mother is set forth earlier in this opinion.5 We henceforth refer to it as the ‘Waiver/Entry.” As we comprehend Mother’s brief, she tacitly concedes the Waiver/Entry constituted an entry of appearance by her in the trial court in the action commenced by Grandparents’ original petition.

An entry of appearance serves the same purpose as if a summons had been served. Stockstrom v. Jacoby, 775 S.W.2d 300, 302[2] (Mo.App. E.D.1989). Mother’s [661]*661Waiver/Entry was filed August 16, 1993, simultaneously with Grandparents’ original petition. The Waiver/Entry stated Mother had read the original petition. Under Stock-strom, the effect of the Waiver/Entry was just as if a summons and a copy of the original petition had been served on Mother on August 16,1993.

However, as observed earlier, the original petition prayed for only an order awarding Grandparents temporary legal custody of Child.6 There was no averment that Grandparents intended to adopt Child. That averment first appeared in the amended petition.

Rule 43.01(a), quoted earlier, begins by requiring that every pleading subsequent to the original petition be served upon each party “affected thereby.” We refer to that provision as the “general requirement.” The general requirement is followed by an exception. The exception provides that no service of a subsequent pleading need be made on “parties in default for failure to appear” unless the subsequent pleading asserts “new or additional claims for relief’ against such parties.

Here, as explained below, it makes no difference whether the general requirement of Rule 43.01(a) or the exception applies. The result is the same in either event.

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941 S.W.2d 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/i_-d-v-b_-c_-d-moctapp-1997.