Roy v. Nicks

125 S.W.3d 399, 2004 Mo. App. LEXIS 112, 2004 WL 135842
CourtMissouri Court of Appeals
DecidedJanuary 28, 2004
DocketNo. 25465
StatusPublished
Cited by1 cases

This text of 125 S.W.3d 399 (Roy v. Nicks) 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
Roy v. Nicks, 125 S.W.3d 399, 2004 Mo. App. LEXIS 112, 2004 WL 135842 (Mo. Ct. App. 2004).

Opinion

KENNETH W. SHRUM, Judge.

The Director of the Division of Child Support Enforcement (“DCSE”) entered an administrative order that modified the child support obligation of James Nicks (“Father”). Father petitioned the circuit court for review of the DCSE’s order. His review petition included counts that sought relief other than review of the DCSE’s order. One count sought a declaration [400]*400that the child support order in his original divorce decree was void ab initio because the divorce court did not have in person-am jurisdiction over him. In another count, Father asked for return of all child support money paid by him. The court dismissed Father’s petition, and he filed this appeal. We affirm.

FACTUAL AND PROCEDURAL HISTORY

On November 12, 1987, Sherry Nicks (“Mother”) sued Father in the circuit court of Pulaski County, Missouri, for dissolution of their marriage. Her petition included a request that custody of the parties’ two children be placed with her and that she be awarded child support. A summons to appear and a copy of the petition were served, via registered mail, on Father in Greensburg, Pennsylvania. On January 25, 1988, the Pulaski County court entered a judgment that dissolved the marriage between Mother and Father, granted Mother custody of the children, and ordered Father to pay $400 per month as child support. Father did not appear in this proceeding, nor did he challenge the trial court’s assumption of personal jurisdiction, nor did he appeal the dissolution judgment.

Over the years, Mother and DCSE sought to collect the child support owed by Father through administrative orders and intercepting Father’s tax refunds. In 2002, at Mother’s request, the DCSE filed a motion for modification of child support, alleging that Father should pay $517 per month. At Father’s request, an administrative hearing was conducted wherein he appeared to contest the modification amount. The hearing officer eventually modified the child support to $869 per month.

Father then filed a three-count petition in the Pulaski County circuit court. His first count was entitled “set aside part of judgment of dissolution.” In that count, Father alleged that the 1988 child support award in the dissolution decree was void because he was not properly served; thus, he argued the Pulaski County court did not obtain personal jurisdiction over him. Father premised his improper service argument on the fact that “the only service had on [him] was by mail and not by personal service.” Count II of his petition sought judicial review of the administrative decision in relation to the modification of the child support amount. In Count III, Father asked that Mother and DCSE repay the $36,000 he paid in child support since the entry of the dissolution judgment. The trial court dismissed each count of Father’s petition, whereon he appealed.

DISCUSSION AND DECISION

We reproduce Father’s sole point on appeal verbatim:

“The court erred in sustaining the Division of Child Support Enforcement’s amended order in that neither the court in the original action, nor the administrative agency and the court thereafter had jurisdiction over the person of the appellant herein because appellant herein was originally served by registered mail and registered mail is not sufficient to confer in personam jurisdiction and the amended order specifically refers to the original order as the one that the agency is modifying.”

As this court understands his point and argument, Father is challenging only the adequacy of service that gave him notice of the proceedings in the original dissolution action. Father points out he was not present in Missouri when served with Wife’s 1987 Divorce petition and summons. He claims therefore, that service on him by registered mail was not adequate to sub[401]*401ject him to a judgment in personam, i.e., a judgment for child support. To the contrary, Father argues personal service was required.

Father’s argument fails, however, because it ignores relevant facts and provisions of law. Specifically, Father fails to recognize the significance of language in the 1987 dissolution petition and judgment which shows that the 1988 child custody determination was made pursuant to the Uniform Child Custody Jurisdiction Act (“UCCJA”), §§ 452.440 to 452.550, RSMo (1986).1 For instance, Mother’s 1987 Pulaski County divorce petition alleged that Missouri was the “home state” of the parties’ children. The “home state” allegation bespeaks Mother’s reliance on the UCCJA. This follows because the “home state” term is one statutorily defined in the UC-CJA, specifically in section 452.445(4).2 Moreover, Mother’s petition contained other specific allegations concerning the children and their custody as required by section 452.480 of the UCCJA.3 Since Father never appeared or otherwise answered Mother’s petition, all child custody allegations in Mother’s petition were admitted. Consequently, the dissolution court properly relied upon those factual allegations in deciding the scope of its authority to make a “custody determination” under the UCCJA.

A “custody determination” under the UCCJA “means a court decision and court orders ... providing for the custody of a child, including visitation rights.” § 452.445(1). Moreover, a “custody determination” under section 452.445(1) can include adjudication of child support under the circumstances that existed in this case. This follows because of language in section 452.445(1) and a relevant part of section 452.460. Specifically, section 452.445(1) provided that “the court shall have the right in any custody determination where jurisdiction is had pursuant to section J/,52460 and where it is in the best interest of the child to adjudicate the issue of child support [.]” (Emphasis added). The referenced statute (§ 452.460) provided:

“1. The notice required for the exercise of jurisdiction over a person outside this state shall be given in a manner reasonably calculated to give actual notice, and may be given in any of the following ways:
[402]*402“(3) By certified or registered mail.”

Supreme Court Rule 54.18 (1987) is also relevant in analyzing Father’s argument. It provided that when “a statute contains provisions for a method of service, service may be made pursuant to the provisions of the statute or as provided by these Rules.”4

Here, “the notice required for the exercise of jurisdiction over [Father] outside this state” was given in a manner authorized by section 452.460, i.e., “by certified or registered mail.” The record also shows that the registered mail service on Father complied with other procedural rules. For instance, an affidavit was filed by Mother’s attorney stating that Father could not be personally served in Missouri. See Rules 54.16 and 54.18. The clerk of the circuit court then mailed a summons and a copy of the petition to Father in Pennsylvania by registered mail. See §§ 452.460.1(3) and 452.490.2; Rules 54.16, 54.18, and 54.20(d). The return receipt card, signed by Father, was then filed with the circuit court. See § 452.460.2; Rules 54.16 and 54.20(d).

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In Re Marriage of Miller and Sumpter
196 S.W.3d 683 (Missouri Court of Appeals, 2006)

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Bluebook (online)
125 S.W.3d 399, 2004 Mo. App. LEXIS 112, 2004 WL 135842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roy-v-nicks-moctapp-2004.