Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri held that the jurisdictional guidelines in the Uniform Child Custody Jurisdiction Act (UCCJA) were statutory in nature, and, as such, an Appellant cannot raise the jurisdictional challenge on appeal if the alleged error was not preserved at trial. The court held further that the trial court’s finding that Missouri was the proper forum under the UCCJA to litigate custody of the child was supported by the evidence. Finally, the court held that the trial court’s additional finding that the modification of the custody decree was proper due to changed circumstances was supported by substantial evidence.
I. Facts and Holding
John Hightower (hereinafter “Father”) and Melissa Myers (hereinafter “Mother”) had a child together in 1999. [2] After the relationship ended in 2001, Mother moved to New Jersey and shared custody with Father, who stayed in Missouri per their mutual agreement. [3]
A. 2003 Judgment
Father filed a petition for a declaration of paternity and custody of the child in Jackson County circuit court in January 2002. [4] Mother filed a motion to dismiss for lack of personal jurisdiction but later dismissed the motion after reaching an agreement with Father with respect to custody and child support. [5] In the August 2003 judgment, the court declared Father to be the child’s father, granted joint legal and physical custody to both parents, designated Mother as the child’s primary physical custodian and ordered Father to pay $500 per month in child support. [6]
Per the parenting plan in the 2003 judgment, Father was granted custody of the child for a certain number of holidays, breaks, and summer vacations with detailed provisions regarding each party’s duties with respect to transporting the child. [7] Between 2003 and 2006, Mother failed multiple times to abide by the parenting plan by refusing to send the child to Father over Father’s designated breaks. [8] In addition, Mother regularly denied Father telephone contact with the child and failed to send pictures and report cards as required by the parenting plan. [9]
Between 2001 and 2006, Mother moved five times while she lived in New Jersey and failed to provide Father with the required notice, their new address, and the child’s new school information. [10] In June 2003, Mother’s boyfriend and two of his sons moved in with Mother and the child. [11] In July 2006, Mother informed Father that she, her boyfriend, and the child would be moving to Georgia in August 2006. [12] After moving to Georgia in August 2006, Mother was unemployed, and she did not enroll the child in school until September 2006, almost a full month after classes had started. [13]
B. 2007 Modification of the 2003 Custody Agreement
Mother made a request to the Missouri Department of Social Services for an increase in child support from Father on July 20, 2006. [14] On September 5, 2006, Father filed a motion in Jackson County circuit court to modify the 2003 custody agreement. [15] Father requested that custody be transferred to him and that Mother be required to pay him child support. [16] In response, Mother filed a pro se pleading, captioned “Objection to Motion to Modify Custody, Visitation and Support,” in which she failed to challenge the court’s jurisdiction over either her personally or the proceedings. [17] The trial court found that it had jurisdiction over the custody issues involving the child under the Uniform Child Custody Jurisdiction Act (hereinafter “UCCJA”), Missouri Revised Statute section 452.450[.1](2), because it was in the child’s best interest and there was a significant connection with the State. [18] Further, the court found that Missouri was the most appropriate forum, considering the child’s recent relocation from New Jersey to Georgia. [19] The trial court granted Father’s motion changing the child’s primary residency to Missouri with Father and ordered Mother to pay child support. [20]
Mother moved for a new trial that was overruled by the trial court, which then issued additional findings of fact and conclusions of law. [21] In its additional findings, the trial court found that because Mother had moved the child to Georgia in August 2006, New Jersey was no longer the child’s home state. [22] As a result of this relocation, according to the trial court, Missouri was the most appropriate forum to resolve custody issues with the child, in accordance with Missouri Revised Statute sections 452.450.1(2) and (4), because the child had a substantial connection to Missouri and more evidence would be located in Missouri than in Georgia. [23]
C. Points on Appeal
On appeal, Mother raised three points:
(1) Mother “argues the trial court lacked subject matter jurisdiction for the 2003 paternity action because the child’s permanent residence had been New Jersey for more than six months.” [24]
(2) Mother “claims the trial court lacked subject matter jurisdiction for its 2007 modification because on the date Father filed his motion, the child’s home state was New Jersey.” [25]
(3) Mother claims “the trial court’s finding that the continuing changed circumstances of the parties and the best interests of the child justified a modification of custody was not supported by substantial evidence, was against the weight of the evidence and a misapplication of the law.” [26]
D. Standard of Review
A judgment of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. [27] The court will view the evidence and all permissible inferences therefrom in a light most favorable to the judgment. [28]
E. Holdings
The Supreme Court of Missouri held that the statutory jurisdictional provisions of the UCCJA did not deprive the trial court of power under the Missouri Constitution to hear the case and also held that because Mother did not preserve her jurisdictional challenge for appeal, she could not raise them on appeal. [29]
Further, the court found that the trial court’s determination that Missouri was the proper forum in which to litigate the custody dispute under the UCCJA was supported by the evidence. [30]
Finally, the court found that there was substantial evidence to support the trial court’s determination that the modification of the custody decree was in the best interest of the child due to changed circumstances between the initial custody decree and the modification in 2007. [31]
III. Legal Background
A. Jurisdictional Challenges
Mother argued that the trial court lacked subject matter jurisdiction in both the 2003 paternity judgment and the 2007 modification under the provisions of the UCCJA. [32] The Supreme Court of Missouri found that Mother’s challenges on subject matter jurisdiction must fail for two reasons. First, the court found that Mother had not preserved her objections to jurisdiction for appeal. [33] The court began by explaining that it is true that subject matter jurisdiction cannot be waived and cannot be conferred by consent of the parties. [34] However, in J.C.W. ex rel. Webb v. Wyciskalla, [35] the court held that Missouri courts recognize two types of jurisdiction, personal and subject matter jurisdiction, and both are derived from the Missouri Constitution. [36] Subject matter jurisdiction is governed by article V of the Missouri Constitution and concerns “the court’s authority to render a judgment in a particular category of cases.” [37] Article V of the Missouri Constitution grants “original jurisdiction over all cases and matters, civil and criminal, to the circuit courts.” [38] Therefore, because this was a civil case, the trial court had constitutionally vested subject matter jurisdiction over the case. [39] Jurisdiction as specified in the UCCJA (and previously enacted into Missouri law) is only a statutory limitation, and, because Mother did not raise a challenge to the trial court’s authority in either the 2003 or 2007 proceedings, those points of error were unpreserved. [40]
Second, the court also found that there was enough evidence to support the trial court’s finding that it did have authority under Missouri Revised Statute sections 452.450.1(2) or (4) to modify the custody decree. [41] Missouri was the most appropriate forum because Mother had moved from New Jersey to Georgia in August 2006. [42] Had Mother not taken the child from New Jersey, it would have been the proper forum. [43] However, because Missouri was the state with a more substantial connection to the child and more evidence would be present in Missouri than Georgia, the jurisdictional requirements in the statute were satisfied. [44]
B. Trial Court’s Findings Supporting Changed Circumstances to Modify Custody Judgment
Mother also claimed that the trial court’s findings that the continuing changed circumstances of the parties and the best interests of the child justified a modification of custody were not supported by substantial evidence, were against the weight of the evidence and were a misapplication of the law. [45]
Missouri Revised Statute section 452.410.1 sets forth the proper standard for modification of a joint physical custody judgment and says that a court “shall not modify a prior custody decree unless . . . it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child.” [46] The court found that Mother’s claim that such evidence must be “substantial” and “continuing” are unmerited because those requirements are not found in the statute and have not been read into the statute. [47]
The court found that there was substantial evidence to support the trial court’s determination that the modification of the custody decree was in the best interest of the child due to changed circumstances between the initial custody decree and the modification in 2007. [48] The court cited several major changes: (1) Mother had not maintained a stable living situation for the child in that she changed residences multiple times, disrupted enrollment and school attendance, and lacked stability in employment and income; (2) Mother failed to abide by the custody decree by failing to give Father proper notice of moves; (3) Mother failed to abide by the custody decree with a pattern of denying or refusing Father court-allocated visits; and (4) Mother thwarted efforts by Father to maintain contact with the child. [49]
The court cited the Missouri legislature, which has specifically decreed that the violation of a court order “may be deemed a change of circumstance under section 452.410, allowing the court to modify the prior custody decree.” [50] Also, the Missouri legislature has established a public policy in favor of meaningful contact with both parents, [51] and a parent’s denial of visitation rights to the non-custodial parent may be deemed a change in circumstances warranting modification of a custody decree. [52]
Further, according to the court, the trial court appropriately considered the factors listed in section 452.375.2 to determine the best interest of the child in the modification of the custody determination and submitted written findings in conjunction therewith. [53] The trial court’s express decision not to consider all the factors still complied with the statute because no evidence of those factors were introduced at trial. [54]
V. Comment
The present case is a vivid illustration that the Supreme Court of Missouri does not intend to back away from its holding in Wyciskalla that the only bases of jurisdiction courts at the appellate level will consider are the bare personal and subject matter jurisdictional doctrines under the Missouri Constitution and statutory objects to jurisdiction preserved for appeal. [55] Statutes that purport to limit jurisdiction in the circuit courts do not provide an additional level of “jurisdictional competence” that may be appealed at any level of the trial process. [56] The upshot of this decision is a warning to lawyers and litigants who, like the mother in the present case, fail to preserve jurisdictional objections at the trial level for appeal. Because issues of jurisdictional competence are not limitations on the power of courts per the Missouri Constitution, if a litigant fails to object to statutory limitations on the circuit court’s exercise of power, the issue is not preserved, and the point will fail on appeal.
-Bradley S. Dixon
[1] No. 89951 (Mo. March 9, 2010). The West reporter citation is Hightower v. Myers, 304 S.W.3d 727 (Mo. banc 2010).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id. at *2.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id. at *3.
[25] Id.
[26] Id.
[27] Id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).
[28] Id. (citing Suffian v. Usher, 19 S.W.3d 130 (Mo. banc 2000)).
[29] Hightower, 2010 WL 796997, at *4.
[30] Id. at *5.
[31] Id.
[32] Mo. Rev. Stat. § 452.440-.550 (repealed by H.B. 481 § A (2009)); Hightower, 2010 WL 796997, at *3. The UCCJA is no longer the current law of Missouri and has been replaced by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Id. at *3 n.4. The UCCJEA became effective in August 2009. Id.
[33] Hightower, 2010 WL 796997, at *5.
[34] Id. at *4 (citing Dept. of Soc. Serv. v. Hudson, 158 S.W.3d 319, 323 (Mo. App. 2005); In re Miller v. Sumpter, 196 S.W.3d 683, 689 (Mo. App. 2006)).
[35] 275 S.W.3d 249 (Mo. banc 2009).
[36] Id. at 252.
[37] Hightower, 2010 WL 796997, at *4 (citing Wyciskalla, 275 S.W.3d at 253).
[38] Mo. Const. art. V, sec. 14.
[39] Hightower, 2010 WL 796997, at *4.
[40] Id. at *5.
[41] Id. at *5. Mo. Rev. Stat. § 452.450.1 states that a court “has jurisdiction to make a child custody determination by initial or modification decree” if one of the four prerequisites are met: “(2) It is in the best interest of the child that the court of this state assume jurisdiction because: (a) The child and his parents, or the child and at least one litigant, have a significant connection with this state; and (b) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;” or “(4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.”
[42] Hightower, 2010 WL 796997, at *5.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Id.
[48] Id.
[49] Id. at *6.
[50] Id.
[51] See Mo. Rev. Stat. § 452.375.4.
[52] Hightower, 2010 WL 796997, at *6. See Searcy v. Seedorff, 8 S.W.3d 113 (Mo. banc 1999); Heslop v. Sanderson, 123 S.W.3d 214 (Mo. App. 2003).
[53] Hightower, 2010 WL 796997, at *7.
[54] Id.
[55] Wyciskalla, 275 S.W.3d at 254.
[56] Id.
