In re the Marriage of Phillips

723 S.W.2d 579, 1987 Mo. App. LEXIS 3505
CourtMissouri Court of Appeals
DecidedJanuary 21, 1987
DocketNo. 14688
StatusPublished
Cited by5 cases

This text of 723 S.W.2d 579 (In re the Marriage of Phillips) 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
In re the Marriage of Phillips, 723 S.W.2d 579, 1987 Mo. App. LEXIS 3505 (Mo. Ct. App. 1987).

Opinion

CROW, Chief Judge.

Alan David Phillips (“Alan”) appeals from a judgment denying his “First Amended Request to Assume Jurisdiction Pursuant to Uniform Child Custody Jurisdiction Act and Modify Decrees of Dissolution.” His two assignments of error require an abbreviated history of the litigation between the parties.

In October, 1980, Alan and his then wife, Lucia Maria Phillips (“Lucia”), from whom Alan was separated, were residing in Fair-fax County, Virginia. A “Property Settlement Agreement” signed by them October 4, 1980, provided, among other things, that Lucia was to have custody of the parties’ daughter, Monica Alice Phillips (“Monica”), bom November 6, 1971. Alan, per the agreement, was to have visitation “[e]very other weekend, ... one week during the summer, with reasonable notice to [Lucia] of said week, alternating major Federal holidays ... and such other mutually agreeable visitation as agreed to between the parties.”

Alan, unaccompanied by Lucia or Monica, left Virginia and came to Jasper County, Missouri, in “December of ’80 or January of ’81,” where he has since remained.

On July 7, 1981, Alan filed a petition for dissolution of marriage in the Circuit Court of Jasper County, alleging, among other things, that Monica was residing with Lucia in Fairfax County, Virginia. The petition requested that Lucia be awarded custody of Monica, with Alan to receive “reasonable visitation privileges.” A summons, together with a copy of Alan’s petition, was served on Lucia by a deputy sheriff in Fairfax County, Virginia, July 14, 1981.

On October 26, 1981, Lucia filed a “Bill of Complaint” against Alan in the Circuit Court of Fairfax County, Virginia, seeking a decree of divorce. The complaint prayed, among other things, that the property settlement agreement of October 4, 1980, be “ratified, confirmed and approved and made an enforceable part of” any decree therein entered. A “Subpoena in Chancery,” together with a copy of the complaint, was served on Alan by a deputy sheriff in Jasper County, November 6, 1981.

Lucia filed no responsive pleading to Alan’s petition, and on November 17, 1981, Alan appeared with counsel in the Circuit Court of Jasper County. Evidence was [580]*580heard, after which the court entered its findings on the “docket sheet.” A decree reflecting those findings was to be prepared by Alan’s lawyer.

On December 4, 1981, the Circuit Court of Jasper County entered a decree dissolving the marriage of Alan and Lucia. The decree provided, among other things, that Lucia was to have “the exclusive care, custody, and control” of Monica, and that Alan was to have “the right to reasonable visitation.”

On January 30,1982, the Circuit Court of Fairfax County, Virginia, entered a decree awarding Lucia a divorce from Alan. The decree provided that the property settlement agreement of October 4, 1980, was “ratified, confirmed and approved and made an enforceable part of this Decree so far as allowable under Virginia law.”

During the ensuing three years, Alan had only “minimal contacts” with Monica. He saw her occasionally in Virginia and once at his parents’ home in the state of New York. Alan explained that Monica was outside the United States in 1983 and 1984, during which time he had only “one or two letters from her,” but that when she was in the United States he talked with her by phone “about once a month,” and received a letter from her “every three months.”

In the spring of 1985, Alan and Lucia agreed that Monica could visit Alan in Jasper County. Alan testified:

“We agreed ... that I would pay for ... transportation for Monica to come from Virginia to Missouri, that the visitation would not have a definite time length, that it could be lengthened or shortened depending on how well Monica fit in and enjoyed herself here_ I agreed to ... pay transportation both ways.”

Pursuant to that arrangement, Monica arrived at Alan’s home June 14, 1985. It was the first time she had ever been in Missouri. Alan’s testimony:

“Q. ... So, it was contemplated at that point in time that the child would in fact be returned to the State of Virginia, is that correct?
A. It was contemplated..
Q. When was the child to be returned to the State of Virginia?
A. There was no date set for the child to return to Virginia.
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Q. Was your understanding that the child was to be returned to the State of Virginia?
A. At that time, yes.”

On July 23, 1985, in the sixth week of Monica’s visit, Alan filed a motion in the Circuit Court of Jasper County, alleging that a substantial and continuing change of circumstances had occurred since entry of the Missouri and Virginia decrees awarding custody of Monica to Lucia, and that by reason thereof Monica’s best interest would be served by awarding custody to him.

The motion averred that the court should exercise jurisdiction under § 452.450, RSMo 1978, in that Monica was presently residing with Alan in Missouri, that she had a “significant connection” with Jasper County, having been there from June 14, 1985, that she had made many friends there and desired to attend public school there, that there was substantial evidence concerning her present and future care, protection, training and personal relationships in Missouri, that it was necessary to protect her from threatened mistreatment or abuse in Virginia, and that no other state which would have jurisdiction under § 452.450 was more appropriate to exercise jurisdiction than said court.

On August 1,1985, Alan filed a motion in the Circuit Court of Jasper County, seeking temporary custody of Monica. Lucia, on August 16, 1985, filed a motion to dismiss Alan’s motion for temporary custody, and on August 21, 1985, the Circuit Court of Jasper County granted Lucia’s motion to dismiss.

That same day, August 21, Alan filed his First Amended Request to Assume Jurisdiction Pursuant to Uniform Child Custody Jurisdiction Act and Modify Decrees of Dissolution. It paralleled his motion of July [581]*58123,1985, and added that he had no information of any custody proceedings concerning Monica pending in Missouri or any other state.1 The motion prayed the trial court to exercise jurisdiction over the issue of Monica’s custody and determine that Missouri was the appropriate forum therefor. It further prayed “that the decrees be modified for the physical care and custody of [Monica] to be placed in [Alan].”

On October 4, 1985, Lucia, “specially appearing,” filed a motion to dismiss Alan’s pleading of August 21. Lucia’s motion averred there were “insignificant contacts with the State of Missouri to confer jurisdiction of this Court pursuant to the Uniform Child Custody Jurisdiction Act, Section 452.440 et seq. R.S.Mo.” Lucia’s motion further alleged that the Jasper County decree of dissolution of marriage filed December 4, 1981, was void “because of the prior jurisdiction of the Circuit Court of Fairfax County, Virginia.”

The trial court thereafter conducted two evidentiary hearings on the issue whether it had jurisdiction to make a custody determination regarding Monica.

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Bluebook (online)
723 S.W.2d 579, 1987 Mo. App. LEXIS 3505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-phillips-moctapp-1987.