In the Matter of: B.R.R., a minor child, JOANNA DENICE ROGERS and TRACY W. ROGERS v. MISSOURI DEPT. OF SOCIAL SERVS., CHILDREN'S DIVISION and TENA WENDERSKI, Petitioners-Respondents.

• Court: Missouri Court of Appeals
• Decided: April 26, 2016
• Docket: SD33714
• Status: Published

Opinion

In thee Matter of: ) B.R.RR., a minor child, c ) ) JOAN NNA DENICCE ROGERS and ) TRACY W. ROG GERS ) Peetitioners-Apppellants, ) ) v. ) N No. SD337114 ) F Filed: Aprill 26, 2016 MISS SOURI DEP PT. OF SOCIIAL SERVS S., ) CHIL LDREN’S DIVISION D annd ) TENA A WENDERRSKI, ) Peetitioners-Reespondents. )

APPEA AL FROM THE T CIRCUIIT COURT OF PEMISC COT COUN NTY

Honorablee W. Keith Currie, C Assocciate Circuitt Judge

AFFIIRMED

Tracy and d Joanna Rog gers, husban nd and wife ((the Rogers)), appeal from m a judgmennt

entered by the probate diivision of the t circuit court appoointing Tena Wenderskki

(Wen nderski) guardian of B.R R.R. (Child)). Relying uupon § 211..093, the Roogers contennd

the trrial court laacked “statu utory jurisdicction” to ennter its judggment becauuse a juvenille

proceeeding involv w pending.1 Finding nno merit in thhis contentioon, we affirm ving Child was m.

1 All statu utory referen nces are to RSMo R (20000). All rule rreferences arre to Missouuri Courtt Rules (2015). Factual and Procedural Background

Child was born in April 2014 and tested positive for methamphetamine. The next

day, the Missouri Department of Social Services, Children’s Division (the Children’s

Division), filed a petition for protective custody in the juvenile division of the Circuit

Court of Pemiscot County (hereinafter referred to as the juvenile case).2 The case was

assigned to the Honorable W. Keith Currie, who entered an order removing Child from

his mother’s custody. At that time, Kevin Rash (Rash), Joanna Roger’s brother, was

believed to be Child’s father. Acting upon that belief, the Children’s Division placed

Child in the physical custody of the Rogers upon Child’s discharge from the hospital.

In May 2014, Judge Currie ordered that Child be placed in the legal custody of the

Children’s Division and gave it the authority to make an appropriate physical placement.

Mounting doubt as to Child’s paternity prompted the Children’s Division to order a

paternity test. On August 27, 2014, before the test was conducted, the Children’s

Division informed the Rogers that it intended to place Child in the physical custody of

Wenderski. She was Child’s maternal aunt and had physical custody of two of Child’s

half-siblings. That same day, the Rogers filed a petition in the probate division of the

Circuit Court of Pemiscot County (the guardianship case) seeking to have them appointed

as Child’s co-guardians. The guardianship case also was assigned to Judge Currie.

In response to the Roger’s petition, the Children’s Division filed a motion to

dismiss or continue the guardianship case based upon the pendency of the juvenile case.

The Rogers filed written objections. After hearing argument on the motion, the

2 Pursuant to this Court’s order, the Children’s Division filed a supplemental legal file containing certified copies of documents from the juvenile case that are relevant to this appeal. See In re T.L.F., 184 S.W.3d 642, 643 n.1 (Mo. App. 2006) (utilizing the same procedure to obtain relevant documents in an appeal involving competing adoption petitions brought in separate cases). 2 guardianship case was continued. After a paternity test revealed that Rash was not

Child’s biological father, the Children’s Division filed its own petition in the

guardianship case requesting that Judge Currie appoint Wenderski as Child’s guardian.

In December 2014, a consolidated hearing was held on the parties’ competing

petitions. On December 22, 2014, Judge Currie entered a judgment in the guardianship

case appointing Wenderski as Child’s guardian. Two days later, the Children’s Division

filed a motion asking Judge Currie to terminate the juvenile case due to the entry of the

judgment in the guardianship case. The juvenile case was terminated that day. The

Rogers now appeal from the judgment entered in the guardianship case.

Discussion and Decision

The Rogers contend that the judgment entered in the guardianship case was null

and void because the trial court lacked “statutory jurisdiction” to appoint Wenderski as

guardian for Child so long as the juvenile case was pending. This contention lacks merit

because it improperly conflates the separate legal concepts of jurisdiction and statutory

authority.

The nub of the problem lies with the Rogers’ description of the legal issue in this

appeal as a lack of “statutory jurisdiction[.]” As applied to cases brought in circuit court,

this phrase is an oxymoron and provides no basis for relief. In J.C.W. ex rel. Webb v.

Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), our Supreme Court explained that:

Missouri courts recognize two kinds of jurisdiction: subject matter jurisdiction and personal jurisdiction. These two kinds of jurisdiction— and there are only two for the circuit courts—are based upon constitutional principles. Personal jurisdiction is, for the most part, a matter of federal constitutional law. Subject matter jurisdiction is governed by article V of the Missouri Constitution.

3 Id. at 252. The Rogers do not contend the trial court in the guardianship case lacked

either subject matter or personal jurisdiction. Instead, their appeal is based upon the

language in § 211.093, which states:

Any order or judgment entered by the court under authority of this chapter or chapter 210 shall, so long as such order or judgment remains in effect, take precedence over any order or judgment concerning the status or custody of a child under age twenty-one entered by a court under authority of chapter 452, 453, 454 or 455, but only to the extent inconsistent therewith.

Id. The Rogers argue that, so long as the juvenile case was pending, this statute

precluded the trial court from proceeding in the guardianship case and rendered all

actions taken therein null and void. As our Supreme Court explained in J.C.W., however,

the granting of relief not authorized by statute is not jurisdictional in nature. J.C.W., 275

S.W.3d at 254. Rather, “[w]hen a statute speaks in jurisdictional terms or can be read in

such terms, it is proper to read it as merely setting statutory limits on remedies or

elements of claims for relief that courts may grant.” Id. at 255.3

Because the Rogers’ claim of error is not jurisdictional, we can review for legal

error only. See In re Marriage of Hendrix, 183 S.W.3d 582, 590 (Mo. banc 2006);

Schmidt v. State, 292 S.W.3d 574, 576-77 (Mo. App. 2009). The Rogers, however, are

precluded from advancing a legal-error-argument in this appeal for two reasons. First,

the legal issue they have briefed on appeal was not presented to or decided by the trial

3 The Rogers support their “statutory jurisdiction” argument with citations to several cases that were decided before J.C.W. See State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178 (Mo. banc 1967); In re the Marriage of Denton, 169 S.W.3d 604 (Mo. App. 2005); Ogle v. Blankenship, 113 S.W.3d 290 (Mo. App. 2003); Miller v. Russell, 593 S.W.2d 598 (Mo. App. 1979); State ex rel. McCarty v. Kimberlin, 508 S.W.2d 196 (Mo. App. 1974). To the extent these cases described statutory noncompliance as a jurisdictional defect, that analysis is no longer valid in light of J.C.W. See Schmidt v. State, 292 S.W.3d 574, 576-77 (Mo. App. 2009).

4 court. Therefore, it is not preserved for appellate review. See Brown v. Brown, 423

S.W.3d 784, 787-88 (Mo. banc 2014); Welch v. Dir. of Revenue, 465 S.W.3d 550, 553

(Mo. App. 2015); Rule 78.09. Second, when the Children’s Division filed a motion to

dismiss the guardianship case based upon § 211.093, the Rogers opposed the motion.4

We will not permit a party to: (1) take a position on a matter that is directly contrary to,

or inconsistent with, one previously assumed; or (2) complain on appeal about an alleged

error in which he joined, acquiesced or invited by his conduct at trial. See Klineline v.

Klineline, 481 S.W.3d 551, 554 (Mo. App. 2015); Ard v. Shannon Cty. Comm’n, 424

S.W.3d 468, 476 (Mo. App. 2014).

The Rogers’ point is therefore denied, and the trial court’s judgment is affirmed.

JEFFREY W. BATES, J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – CONCUR

GARY W. LYNCH, J. – CONCUR

4 Given the basis for our disposition of this appeal, we express no opinion on whether § 211.093 applies to this § 475.030 guardianship proceeding, as the Children’s Division argued below. It is worthy of note, however, that § 211.093 expressly limits its application to inconsistencies involving “any order or judgment concerning the status or custody of a child under age twenty-one entered by a court under authority of chapter 452, 453, 454 or 455 ….” 5