Welsh v. Welsh

714 S.W.2d 640, 1986 Mo. App. LEXIS 4189
CourtMissouri Court of Appeals
DecidedMay 28, 1986
DocketNo. 14064
StatusPublished
Cited by3 cases

This text of 714 S.W.2d 640 (Welsh v. Welsh) 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
Welsh v. Welsh, 714 S.W.2d 640, 1986 Mo. App. LEXIS 4189 (Mo. Ct. App. 1986).

Opinion

CROW, Judge.

A mother appeals from the denial of her petition for review of a default judgment which transferred custody of her daughter from her to her ex-husband, the child’s father. A history of the litigation is essential in understanding the issues.

By an amended decree of dissolution of marriage entered February 5,1982, the Circuit Court of Butler County (“the trial court”) dissolved the marriage of William Marshall Welsh (“William”) and Sharon Renee Welsh (“Sharon”). The decree, among other things, awarded Sharon custody of the parties’ only child, Christi Pauline Welsh (“Christi”), born September 15,1980. William was awarded visitation with Christi two “weekends” each month, and temporary custody of Christi the first two weeks of June, July, and August each year. William was ordered to pay Sharon $225 per month child support.

On July 20, 1982, in response to an order by the trial court directing Sharon to show cause why she should not be held in contempt, Sharon appeared with counsel in the trial court. William and his attorney likewise appeared. Sharon’s attorney announced that an agreement had been reached regarding visitation “on a schedule that’s different from the amended decree.” Characterized by William’s counsel as an “interim schedule of visitation,” the stipulation was that William would have visitation with Christi from 5:00 p.m., July 23, until 5:00 p.m., July 30; from 5:00 p.m., August

[642]*6428, until 5:00 p.m., August 22 1; and from 5:00 p.m., September 5, until 5:00 p.m., September 19. The trial court informed the parties that the cause would be taken up again on September 21, 1982.

On August 20, 1982, William filed a motion for modification, alleging that Sharon had disobeyed the amended decree of dissolution by refusing to allow William any visitation with Christi except one two-day period. The motion added that Sharon had refused to comply with the visitation agreement of July 20, 1982, that she had removed herself and Christi from Missouri “for long periods of time” on several occasions, and that she was presently living outside Missouri “for the purpose of denying [William] his rights of visitation.” The motion sought an order modifying the amended dissolution decree by granting William custody of Christi and eliminating William’s duty to pay Sharon child support.

The motion for modification was never served on Sharon.

On September 8, 1982, William filed a first amended motion for modification, containing the same allegations as the motion of August 20, with an additional paragraph averring that the trial court had jurisdiction to make the child custody determination sought therein “under its inherent continuing jurisdiction and under the Uniform Child Custody Jurisdiction Act, RSMo 452.-440, et seq.”

There was, at that time, a note in the circuit clerk’s file showing the following address for Sharon: “Sharon Welsh, c/o Sandra Just, #22 Clipper Place, Abita Springs, La. 70420.” Alongside the address was the notation, “2-15-82.”

Upon the filing of William’s first amended motion for modification, the office of the circuit clerk, on September 9,1982, issued a summons for personal service outside Missouri, showing that Sharon could be served at “# 22 Place, Abita Springs, Louisiana.” The summons was sent to the sheriff of St. Tammany Parish, Covington, Louisiana, for service.

On September 16, 1982, the sheriff returned the summons unserved, reporting “no such street on map.” According to the sheriff, there was no information regarding Sharon at the post office, the water department, or the telephone company.

On September 21, 1982, pursuant to the directive that the trial court had issued at the conclusion of the proceedings on July 20, William and his attorney appeared in the trial court. Sharon did not appear, nor did anyone on her behalf. The trial court, after hearing evidence, found that Sharon had willfully and flagrantly disobeyed the amended decree of dissolution of marriage by refusing to allow William to visit Christi except for one two-day period. The trial court further found that Sharon had willfully and flagrantly refused to comply with the “temporary agreement” on visitation placed on record July 20, and that Sharon had removed herself and Christi from Missouri for long periods of time on more than one occasion since December, 1981. Additionally, the trial court found that Sharon was presently living outside Missouri with Christi for the purpose of denying William his visitation rights. On the basis of these findings, the trial court adjudged Sharon in contempt and sentenced her to six months in the county jail. Furthermore, the trial court awarded custody of Christi to William pending a hearing on William's first amended motion for modification. These orders, of course, remained unexecuted by reason of the absence of Sharon and Christi.

Thereafter, nothing significant occurred until January 19, 1983. On that date, William’s attorney executed and filed an affidavit for service by publication regarding William’s first amended motion for modification. The affidavit stated that Sharon was a nonresident of Missouri, that she could not be personally served in Missouri, and that her present address was unknown. [643]*643Pursuant to the affidavit, an order of publication of notice, issued by the office of the circuit clerk, was published weekly for four consecutive weeks in a Poplar Bluff newspaper, beginning January 26, 1983.

On March 11, 1983, according to the docket sheet, the trial court received by mail a copy of a “Petition to Recognize Foreign Judgment and File Certified Custody Decree” from an attorney in New Orleans, Louisiana. The original of the petition had evidently been filed by Sharon in the District Court of St. Tammany Parish, Louisiana, the objective being to obtain registration, in the Louisiana court, of the amended decree of dissolution of marriage of February 5,1982. The petition informed the Louisiana court that on February 15, 1982, Sharon and Christi had established domicile at 22 Clipper Place, Abita Springs, Louisiana, and that, by reason thereof, Louisiana was the “home state, and only state with jurisdiction to modify the previous custody decree, under the Uniform Custody Jurisdiction Act.” The petition averred that although Sharon had received no “legal notice” of proceedings concerning custody of Christi, Sharon had reason to believe such action “may be or has been instituted but the Missouri Courts no longer have jurisdiction over [Sharon] and her child.” At the foot of the petition was a certificate by the Louisiana attorney showing that copies of the petition had been sent by certified mail March 3, 1983, to William and to his attorney of record in Missouri.

• On March 22, 1983, William’s attorney executed and filed in the Missouri trial court an application and affidavit for service by mail in regard to William’s first amended motion for modification. The affidavit stated that Sharon was a nonresident of Missouri, and that her last known address was: “#22 Clipper Place, Abita Springs, Louisiana 70420.” The following day (March 23, 1983), a summons upon service by mail was issued by the office of the circuit clerk, addressed to Sharon at the aforesaid address. The summons was delivered to Sharon March 28, 1983, as evidenced by her signature on the registered mail receipt.

On April 25,1983, the trial court received a letter from Sharon’s Louisiana attorney, acknowledging that Sharon had received the Missouri summons by mail.

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State Ex Rel. Wilson v. Brown
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Bluebook (online)
714 S.W.2d 640, 1986 Mo. App. LEXIS 4189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welsh-v-welsh-moctapp-1986.