R.W.B. v. T.W. ex rel. K.A.W.

947 S.W.2d 815, 1997 Mo. App. LEXIS 1098, 1997 WL 333935
CourtMissouri Court of Appeals
DecidedJune 19, 1997
DocketNo. 21042
StatusPublished
Cited by4 cases

This text of 947 S.W.2d 815 (R.W.B. v. T.W. ex rel. K.A.W.) 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
R.W.B. v. T.W. ex rel. K.A.W., 947 S.W.2d 815, 1997 Mo. App. LEXIS 1098, 1997 WL 333935 (Mo. Ct. App. 1997).

Opinion

CROW, Judge.

R.W.B.,1 designating himself “Petitioner,” brought this action against: “[T.][WJ, A Minor by Next Friend, [K.] A. [W.], and [KJ A. [W.], Individually.” For convenience (and, we hope, clarity), we henceforth refer to:

R.W.B. as “R,”

T.W. as “T,”

K.A.W. as “K.”

R’s two-count petition designated T and K as “Respondents.”

R denominated Count I of his petition as a “cause of action seeking declaration of paternity, pursuant to RSMo Chapter 210 et. seq.” Count I pled, inter alia, that T was born August 23,1994, that K is T’s mother, that R and K “had sexual intercourse at the time of conception of [T],” and that R is T’s father. Count I prayed the trial court to declare R the father of T and to change T’s surname to that of R.

R designated Count II of his petition as a “cause of action for Temporary Custody and Visitation.” Count II prayed the trial court to award R “primary care” of T, “subject to liberal rights of temporary custody and visitation to [K].” Count II also prayed the trial court to order K to pay R child support.

A lawyer identifying himself as “Attorney for Respondents” filed an answer and counterclaim. The answer responded to the allegations in each count of R’s petition, admitting some allegations and denying others. However, the admissions and denials were by [816]*816only “Respondent, [K.] A. [W.].” There wére no admissions or denials by T.

The answer admitted K is T’s mother and that T was born August 28, 1994. The answer further pled that during the month of T’s conception, K “had sexual relations with [R] and with her former husband; therefore there has always been uncertainty whether [T] was the natural Child of [R].”

The counterclaim was asserted by K alone. The counterclaim pled that K terminated her relationship with R because of “physical assaults and abuse” by him. The counterclaim further pled that R harassed K, causing her emotional distress, mental anguish, humiliation and embarrassment. The counterclaim prayed for actual and punitive damages plus attorney fees.

While the case was pending in the trial court, R moved for summary judgment on the paternity issue, averring that a “blood test” showed he had “a combined paternity index of 149 to 1 and a probability of paternity of 99.33%.”

On July 27, 1995, the trial court entered an “Order and Judgment of Paternity Pendente Lite,” declaring that R is T’s father.2

The remaining issues were tried without a jury on March 25,1996.

On May 10, 1996, the trial court entered judgment reiterating its earlier declaration that R is T’s father. On the issue of custody, the judgment provides:

“Respondent[3] shall be awarded Sole Legal Custody of the minor child; Respondent shall be awarded primary care, custody and control of the minor child, subject to the Petitioner receiving periods of temporary custody and visitation with the minor child as set forth in Appendix J’, which is attached hereto and is incorporated herein by reference.”

Appendix J (a component of the judgment) sets out an elaborate custody plan wherein R, according to his brief, has physical custody of T 38 percent of the year.4

The judgment also, inter alia: (1) orders R to pay K $350 per month child support, (2) denies R’s prayer to change T’s surname, and (3) denies K’s counterclaim.

R brings this appeal, maintaining the trial court erred in: (1) denying R’s prayer to change T’s name, and (2) setting the child support at $350 per month. R argues the child support should have been only $159 per month.

For the reasons that follow, we decline to address either claim of error.

As reported earlier, R sought the declaration of paternity “pursuant to RSMo Chapter 210.” We assume he was referring to the Uniform Parentage Act, §§ 210.817-.852, RSMo 1994. Section 210.830 reads:

“The child shall be made a party to any action commenced under sections 210.817 to 210.852. If he is a minor, he may be represented by a next Mend appointed for him for any such action. The child’s mother or father or the division of child support enforcement may represent him as his next Mend. A guardian ad litem shall be appointed for the child only if child abuse or neglect is alleged, or if the child is named as a defendant, or if the court determines that the interests of the child and his next Mend are in conflict-” (Emphasis added.)

As we have seen, R brought this action against T and K, designating them as “Respondents.” Inasmuch as T did not bring this action,5 but was instead a party against whom the action was brought, T was obviously a “defendant” within the meaning of § 210.830, above. Consequently, § 210.830 mandated the appointment of a guardian ad litem for T.

Mindful of that requirement, this court combed the record to determine whether [817]*817such an appointment was made. This court found no indication of one.6

In Lechner v. Whitesell by Whitesell, 811 S.W.2d 859 (Mo.App. S.D.1991), a man sued a child and the child’s mother seeking a declaration under the Uniform Parentage Act that he was the child’s father. Id. at, 860. The petition in Lechner — like R’s petition here— alleged the man was bringing the action against the child “by his next friend, [the mother],” and against the mother “in her capacity as next friend for [the child].” Id.

At trial in Lechner, the man and the mother stipulated that he was the child’s father. Id. The trial court entered judgment resolving other issues, i.e., custody, visitation, child support, birth expenses and attorney fees. Id. The man appealed, raising claims of error regarding the latter rulings. Id. at 860-61.

This court explained in Lechner that the clause in § 210.830 (quoted supra) which refers to the appointment of a next friend to represent a child envisions that the child will be proceeding as a plaintiff. Id. at 861. This court further explained that Rule 52.02(e) provides that after a civil action is commenced against a minor and process is served on him, the action shall not be further prosecuted until a guardian or guardian ad litem for such minor be appointed. Id. That is consistent with the clause in § 210.830 which provides that a guardian ad litem shall be appointed for the child “if the child is named as a defendant.”

In Lechner, this court examined the record and found no indication that a next friend or guardian ad litem was appointed for the child. Id. The opinion pointed out: “Merely alleging that [the mother] was the mother and next friend does not make her the next Mend or guardian.” Id. at [3]. This court held:

“Failure to appoint a guardian ad litem for a minor although not resulting in a void judgment is reversible error on a direct appeal. McDaniel v. Lovelace, 439 S.W.2d 906, 911 (Mo.1969).

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Bluebook (online)
947 S.W.2d 815, 1997 Mo. App. LEXIS 1098, 1997 WL 333935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rwb-v-tw-ex-rel-kaw-moctapp-1997.