OPINION
GARY M. GAERTNER, SR., Presiding Judge.
Appellant, Lorenzo S. Ecford (“Defendant”), appeals from the judgment of the Circuit Court of Marion County, following a jury trial, finding him guilty of criminal nonsupport, section 568.040, RSMo 2000.1 Defendant waived jury sentencing. The trial court sentenced Defendant to three years of imprisonment but suspended the execution of sentence. Defendant was placed on probation for a period of five years. We affirm.
On May 9,1997, the trial court entered a default paternity judgment, which declared Defendant to be the father of Stanisha D. Ecford (“Child”). Child’s mother is Valarie McCloud (“Mother”). The trial court ordered Defendant to pay $234 per month to Mother in child support for Child. Defendant never appealed from this paternity judgment or sought to modify it.
On November 12, 2003, Defendant was charged by information with criminal nonsupport. On May 17, 2004, Defendant filed a motion for blood tests requesting the court to order Defendant, Child, and Mother to submit to blood tests for the purpose of determining whether Defendant was Child’s biological father. The trial court overruled Defendant’s motion for blood tests on May 20, 2004. Subsequently, Defendant sought a writ of prohibition from this Court, which was denied on December 2, 2004.
A jury trial took place on April 18, 2005. The jury found Defendant guilty of criminal nonsupport. Defendant waived jury sentencing. On June 6, 2005, the trial court sentenced Defendant to three years of imprisonment but suspended the execu[158]*158tion of sentence. Defendant was placed on probation for a period of five years. This appeal by Defendant followed. Defendant does not challenge the sufficiency of the evidence.
In his first point on appeal, Defendant asserts that the trial court erred in overruling his motion for blood tests.
In his first sub-point on appeal, Defendant argues he had a right to show that Child was not his biological child.
We review a trial court’s ruling on the admission or exclusion of evidence for abuse of discretion. State v. Nelson, 178 S.W.3d 638, 642 (Mo.App. E.D.2005).
Pursuant to section 568.040.1, a parent commits the crime of criminal nonsupport when he “knowingly fails to provide, without good cause, adequate. support which such parent is legally obligated to provide for his child or stepchild who is not otherwise emancipated by operation of law....” Section 568.040.1. “Child” is defined as “any biological or adoptive child, or any child legitimated by legal process, or any child whose relationship to the defendant has been determined, by a court of law in a proceeding for dissolution or legal separation, to be that of child to parent.” Section 568.040.2(1) (emphasis added).
The Missouri Supreme Court has recently held that a child is “legitimated by legal process” within the meaning of section 568.040.2(1) when the State proves beyond a reasonable doubt that there was a default paternity judgment entered against a parent. State ex rel. Sanders v. Sauer, 183 S.W.3d 238, 240 (Mo.banc 2006). In Sanders, the Missouri Supreme Court held it was an abuse of discretion for a court to order DNA testing for a parent in a criminal nonsupport case when there has been a default paternity judgment entered against him. Id.
In this case, Defendant concedes there was a default paternity judgment entered against Defendant, declaring him to be the father of Child. As a result, the State met its burden of proving beyond a reasonable doubt that Child was legitimated by legal process. Whether Defendant was in fact the biological parent of Child was irrelevant in this criminal nonsupport case. See id. Therefore, the trial court did not abuse its discretion in overruling Defendant’s motion for blood tests. Sub-point denied.
In his second sub-point on appeal, Defendant maintains that the default paternity judgment is subject to collateral attack because it was void in that, due to improper service, it was entered without personal jurisdiction over Defendant.
Because the issue of whether a default judgment is void for lack of personal jurisdiction is a question of law, we review it de novo. Bueneman v. Zykan, 52 S.W.3d 49, 58 (Mo.App. E.D.2001).
A judgment that has been, entered by a court without personal jurisdiction over the defendant is void and may be attacked collaterally. Worley v. Worley, 19 S.W.3d 127, 130 (Mo.banc 2000). A trial court’s judgment is entered without personal jurisdiction and is void when service of process is improper. Maul v. Maul, 103 S.W.3d 819, 821 (Mo.App. E.D.2003). Service at the dwelling house or usual place of abode of the defendant with a person of the defendant’s family over the age of fifteen years is a proper method of service. See Rule 54.13(b)(1).
A collateral attack on a judgment is an effort to impeach the judgment in a proceeding not initiated for the express purpose of voiding the judgment. Miller v. Jonesburg State Bank, 174 S.W.3d 79, 80 (Mo.App.E.D.2005). A collateral attack only has merit when the record itself [159]*159affirmatively reveals that the judgment was void for lack of jurisdiction. Id. Extrinsic evidence is not admissible to impeach a judgment upon a collateral attack. See id. The sheriffs return on service is considered prima facie evidence of the facts recited therein. Rule 54.22(a).
In this case, because Defendant’s argument that the court did not have personal jurisdiction over him in the default paternity judgment is raised in this criminal nonsupport action, Defendant is collaterally attacking the default paternity judgment. Thus, our review is limited only to the record of the paternity action.
The record of the paternity action reveals that Deputy Sheriff Roger Wasson served the summons by “leaving a copy of the summons and a copy of the petition at the dwelling house or usual abode of the defendant with Gloria Murphy, a person of the defendant’s family over the age of 15 years.” There is not any other evidence in the record of the paternity action regarding service. Thus, the record reveals that Defendant was properly served. Therefore, the default paternity judgment is not void for lack of personal jurisdiction. Sub-point denied.
In his second point on appeal, Defendant argues the trial court erred in preventing him from presenting evidence that Mother told Pamela Bridges that Child was not Defendant’s biological child.
We review a trial court’s ruling on the admission or exclusion of evidence for abuse of discretion. Nelson, 178 S.W.3d at 642. “A trial court does not abuse its discretion when it excludes irrelevant evidence.” Mehrer v. Diagnostic Imaging Center, P.C., 157 S.W.3d 315, 320 (Mo.App. W.D.2005).
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
GARY M. GAERTNER, SR., Presiding Judge.
Appellant, Lorenzo S. Ecford (“Defendant”), appeals from the judgment of the Circuit Court of Marion County, following a jury trial, finding him guilty of criminal nonsupport, section 568.040, RSMo 2000.1 Defendant waived jury sentencing. The trial court sentenced Defendant to three years of imprisonment but suspended the execution of sentence. Defendant was placed on probation for a period of five years. We affirm.
On May 9,1997, the trial court entered a default paternity judgment, which declared Defendant to be the father of Stanisha D. Ecford (“Child”). Child’s mother is Valarie McCloud (“Mother”). The trial court ordered Defendant to pay $234 per month to Mother in child support for Child. Defendant never appealed from this paternity judgment or sought to modify it.
On November 12, 2003, Defendant was charged by information with criminal nonsupport. On May 17, 2004, Defendant filed a motion for blood tests requesting the court to order Defendant, Child, and Mother to submit to blood tests for the purpose of determining whether Defendant was Child’s biological father. The trial court overruled Defendant’s motion for blood tests on May 20, 2004. Subsequently, Defendant sought a writ of prohibition from this Court, which was denied on December 2, 2004.
A jury trial took place on April 18, 2005. The jury found Defendant guilty of criminal nonsupport. Defendant waived jury sentencing. On June 6, 2005, the trial court sentenced Defendant to three years of imprisonment but suspended the execu[158]*158tion of sentence. Defendant was placed on probation for a period of five years. This appeal by Defendant followed. Defendant does not challenge the sufficiency of the evidence.
In his first point on appeal, Defendant asserts that the trial court erred in overruling his motion for blood tests.
In his first sub-point on appeal, Defendant argues he had a right to show that Child was not his biological child.
We review a trial court’s ruling on the admission or exclusion of evidence for abuse of discretion. State v. Nelson, 178 S.W.3d 638, 642 (Mo.App. E.D.2005).
Pursuant to section 568.040.1, a parent commits the crime of criminal nonsupport when he “knowingly fails to provide, without good cause, adequate. support which such parent is legally obligated to provide for his child or stepchild who is not otherwise emancipated by operation of law....” Section 568.040.1. “Child” is defined as “any biological or adoptive child, or any child legitimated by legal process, or any child whose relationship to the defendant has been determined, by a court of law in a proceeding for dissolution or legal separation, to be that of child to parent.” Section 568.040.2(1) (emphasis added).
The Missouri Supreme Court has recently held that a child is “legitimated by legal process” within the meaning of section 568.040.2(1) when the State proves beyond a reasonable doubt that there was a default paternity judgment entered against a parent. State ex rel. Sanders v. Sauer, 183 S.W.3d 238, 240 (Mo.banc 2006). In Sanders, the Missouri Supreme Court held it was an abuse of discretion for a court to order DNA testing for a parent in a criminal nonsupport case when there has been a default paternity judgment entered against him. Id.
In this case, Defendant concedes there was a default paternity judgment entered against Defendant, declaring him to be the father of Child. As a result, the State met its burden of proving beyond a reasonable doubt that Child was legitimated by legal process. Whether Defendant was in fact the biological parent of Child was irrelevant in this criminal nonsupport case. See id. Therefore, the trial court did not abuse its discretion in overruling Defendant’s motion for blood tests. Sub-point denied.
In his second sub-point on appeal, Defendant maintains that the default paternity judgment is subject to collateral attack because it was void in that, due to improper service, it was entered without personal jurisdiction over Defendant.
Because the issue of whether a default judgment is void for lack of personal jurisdiction is a question of law, we review it de novo. Bueneman v. Zykan, 52 S.W.3d 49, 58 (Mo.App. E.D.2001).
A judgment that has been, entered by a court without personal jurisdiction over the defendant is void and may be attacked collaterally. Worley v. Worley, 19 S.W.3d 127, 130 (Mo.banc 2000). A trial court’s judgment is entered without personal jurisdiction and is void when service of process is improper. Maul v. Maul, 103 S.W.3d 819, 821 (Mo.App. E.D.2003). Service at the dwelling house or usual place of abode of the defendant with a person of the defendant’s family over the age of fifteen years is a proper method of service. See Rule 54.13(b)(1).
A collateral attack on a judgment is an effort to impeach the judgment in a proceeding not initiated for the express purpose of voiding the judgment. Miller v. Jonesburg State Bank, 174 S.W.3d 79, 80 (Mo.App.E.D.2005). A collateral attack only has merit when the record itself [159]*159affirmatively reveals that the judgment was void for lack of jurisdiction. Id. Extrinsic evidence is not admissible to impeach a judgment upon a collateral attack. See id. The sheriffs return on service is considered prima facie evidence of the facts recited therein. Rule 54.22(a).
In this case, because Defendant’s argument that the court did not have personal jurisdiction over him in the default paternity judgment is raised in this criminal nonsupport action, Defendant is collaterally attacking the default paternity judgment. Thus, our review is limited only to the record of the paternity action.
The record of the paternity action reveals that Deputy Sheriff Roger Wasson served the summons by “leaving a copy of the summons and a copy of the petition at the dwelling house or usual abode of the defendant with Gloria Murphy, a person of the defendant’s family over the age of 15 years.” There is not any other evidence in the record of the paternity action regarding service. Thus, the record reveals that Defendant was properly served. Therefore, the default paternity judgment is not void for lack of personal jurisdiction. Sub-point denied.
In his second point on appeal, Defendant argues the trial court erred in preventing him from presenting evidence that Mother told Pamela Bridges that Child was not Defendant’s biological child.
We review a trial court’s ruling on the admission or exclusion of evidence for abuse of discretion. Nelson, 178 S.W.3d at 642. “A trial court does not abuse its discretion when it excludes irrelevant evidence.” Mehrer v. Diagnostic Imaging Center, P.C., 157 S.W.3d 315, 320 (Mo.App. W.D.2005).
As discussed in the first point on appeal, evidence that Child is not Defendant’s biological child is irrelevant to the criminal nonsupport proceeding. As such, the trial court did not abuse its discretion in excluding this evidence. Point denied.
In his third point on appeal, Defendant maintains the trial court plainly erred in not sua sponte declaring a mistrial when the State made comments in closing argument that the case was not about child support, but whether Child was Defendant’s child.
Defendant admits that because defense counsel did not object to the State’s argument, we review for plain error. See State v. Cole, 71 S.W.3d 163, 170 (Mo.banc 2002). Under plain error review, we will only reverse the decision of the trial court if there was a plain error affecting a substantial right that results in manifest injustice or a miscarriage of justice. State v. Miller, 162 S.W.3d 7, 16 (Mo.App. E.D.2005).
Defendant contends that it was improper for the State to make this argument to the jury when Defendant was not allowed to present evidence that he was not Child’s biological Father.
The State never asserted during closing argument that this case was about whether Child was the biological child of Defendant. Regardless, no manifest injustice could have resulted from such an argument because, as discussed above, whether Defendant was Child’s biological father was irrelevant. Point denied.
In his fourth point on appeal, Defendant asserts the trial court erred in overruling his motion for judgment of acquittal because he was not legally obligated to provide for Child in that the default paternity judgment was entered without personal jurisdiction over him.
As discussed earlier, the default paternity judgment is not void for lack of personal jurisdiction. Thus, the trial court did not
[160]*160err in overruling Defendant’s motion for judgment of acquittal. Point denied.
Based upon the foregoing, we affirm the judgment of the trial court.
GEORGE W. DRAPER III, concurs.
KENNETH M. ROMINES, concurs in separate opinion.