Said v. Said

26 S.W.3d 839, 2000 Mo. App. LEXIS 1390, 2000 WL 1292676
CourtMissouri Court of Appeals
DecidedSeptember 14, 2000
DocketNo. 23362
StatusPublished
Cited by5 cases

This text of 26 S.W.3d 839 (Said v. Said) 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
Said v. Said, 26 S.W.3d 839, 2000 Mo. App. LEXIS 1390, 2000 WL 1292676 (Mo. Ct. App. 2000).

Opinion

CROW, Judge.

Sohail Said appeals from a judgment dissolving his marriage to Brenda Said. His sole point relied on avers the trial court erred as a matter of law when it [840]*840dismissed Count III of his amended petition. In that count, Sohail1 prayed for custody of Brenda’s two children, neither of whom was sired by him.

The parties married July 2,1988.

Two children were born to Brenda during the marriage: A_, born September 13, 1988, and C_, born February 24, 1992. A “paternity test,” the date of which is unrevealed in the record, established that Sohail is “not the natural father” of either child.

In his amended petition, Sohail pled in Count III that he “has bonded with the minor children, that he is of good moral character, and that he has sufficient income to care for and properly maintain and educate said minor children and give [them] proper training.” Count III further pled that because Brenda is “unfit,” the court should award “primary custody” of the children to Sohail.2

Sohail’s amended petition named Brenda as “Respondent” and Joseph Scott Snyder as a “Third Party Defendant.”3

Sohail’s lawyer arranged for service by mail on Snyder, a Texas resident. The trial court’s “case history” sheet shows service by registered mail was achieved June 15,1999.

Brenda moved the trial court to dismiss Count III of Sohail’s amended petition, averring inter alia that a “court order from the State of Virginia” declared Snyder to be C_⅛ father. Consequently, pled Brenda, the trial court “has no jurisdiction over the paternity or custody of [C_] in this action for dissolution of marriage.”

Brenda’s motion pointed out that C__ was born February 24, 1992. The motion then alleged: “[Sohail] had gone to Pakistan in 1990 and remained there for seven ... years, and during that time he had no physical contact nor sexual relations with [Brenda].”

As to A_(the eldest child), Brenda’s motion pointed out that A_ was born some two months after the parties married. The motion then averred that Sohail “has admitted that the parties never [had] sexual relations before they were married.”

The trial court conducted a hearing July 7, 1999, on Brenda’s motion. Sohail and Brenda appeared by their respective lawyers. The children appeared by their guardian ad litem (“GAL”), a lawyer.

Brenda’s lawyer told the trial court that A_⅛ birth certificate named no father. Sohail’s lawyer conceded that was true. Brenda’s lawyer also told the trial court that Sohail had “taken [A ] home to Pakistan for a long time,” but there is “no legal tie between them.”

As to C_, Brenda’s lawyer insisted the Virginia court adjudicated “custody, visitation, and support.” Furthermore, argued Brenda’s lawyer, the “blood tests” were unchallenged and proved Sohail was not “the biological father” of either child. Consequently, Brenda’s lawyer maintained the trial court had no jurisdiction to award custody of either child to Sohail.

Sohail’s lawyer argued the Virginia court order is not binding on Sohail because “he wasn’t a party in it ... he was not served in the case in Virginia.” Furthermore, declared Sohail’s lawyer, [841]*841§ 452.375.5(5), RSMo Cum.Supp.1998, vested the trial court with jurisdiction to award Sohail custody of the children. Section 452.375.5 reads:

“Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows:
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(5) Third-party custody or visitation: (a) When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded to any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment for the child. Before the court awards custody, temporary custody or visitation to a third person under this subdivision, the court shall make that person a party to the action;
(b) Under the provisions of this subsection, any person may petition the court to intervene as a party in interest at any time as provided by supreme court rule.”

Sohail’s lawyer declared that because Sohail was not “the natural parent” of either child, he was a “third person” within the meaning of the above statute, hence the statute empowered the trial court to award him custody.

On August 2, 1999, the trial court filed an order containing a finding that “there is a valid Court Order from the State of Virginia declaring Joseph Snyder to be the father and Brenda Said to be the mother [of C_].” The trial court ruled it “must give full faith and credit to the Decree of the Court in Virginia.” Accordingly, the trial court held it is “without jurisdiction to hear ... the request of ... Sohail ... as to changes in custody involving [C_].”

As to A_, the August 2, 1999, order noted “DNA testing” had determined there is no chance that Sohail is the natural father of A_, that Sohail is not on A_⅛ birth certificate, and that Brenda has avowed Sohail is not A_’s natural father. The trial court therefore concluded it had no jurisdiction “under Chapter 452 to hear and determine custody issues as ... requested by [Sohail] under his amended petition.”

Consistent with the conclusions in the two preceding paragraphs, the August 2, 1999, order dismissed Count III of Sohail’s amended petition.

On August 9, 1999, Snyder, represented by counsel, filed a motion asking the trial court for leave to intervene.4 The motion was accompanied by a motion to modify, the salient averments of which are set forth below.5

On August 10, 1999 — the day after Snyder filed his motion for leave to intervene and motion to modify — the following people appeared in the trial court: Sohail and his lawyer, Brenda and her lawyer, the GAL, and Snyder’s lawyer. The trial [842]*842court heard testimony from Sohail and Brenda.

Sohail confirmed that the “paternity test” showed he did not sire either A_or C_Nonetheless, when asked by his lawyer whether he wanted the court to award him “primary care and custody of [A_],” Sohail answered, “That’s correct.”

When Brenda testified, Sohail’s lawyer, during cross-examination, asked who fathered A_Brenda replied: “I still at this point cannot say, because that was at a point to where I went through some ... mental or hurtful pain through the father, and I cannot remember his name. I did not write it down or anything, because I thought things were going to work out between me and Sohail, as to letting him be the father.”

After hearing the parties’ testimony, the trial court took up Snyder’s motion to intervene.

Sohail’s lawyer protested that allowing Snyder to intervene would prejudice Sohail “with regard to the appeal, and would muddy and cloud the issues.” Sohail’s lawyer continued, “[W]ith the intervention and a continuation of this suit, I’m afraid that the Court of Appeals might bump it back for final order.”

The trial court asked Brenda’s lawyer and the GAL whether they objected to Snyder’s intervention. Neither did.

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D.S.K. ex rel. J.J.K. v. D.L.T.
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Fewell v. Greene County Juvenile Office
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Cite This Page — Counsel Stack

Bluebook (online)
26 S.W.3d 839, 2000 Mo. App. LEXIS 1390, 2000 WL 1292676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/said-v-said-moctapp-2000.