Adoption of J.P.S., In re

• Decision Date: 14 April 1994
• Docket Number: No. 18634,18634
• Citation: 876 S.W.2d 762
• Parties: In re ADOPTION OF J__ P__ S__ and M__ E__ S__. A__ B__ and J__ B__, Petitioners-Respondents, v. J__ E__ S__, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 762

876 S.W.2d 762

In re ADOPTION OF J__ P__ S__ and M__ E__ S__ A__ B__ and J__ B__, Petitioners-Respondents, v. J__ E__ S__, Defendant-Appellant.

No. 18634.

Missouri Court of Appeals,

Southern District,

Division One.

April 14, 1994.

Motion for Rehearing or Transfer

Denied May 6, 1994.

Application to Transfer Denied June 21, 1994.

James M. Kelly, Republic, for defendant-appellant.

Kent O. Hyde, William C. Love, Harrison, Tucker & Hyde, Springfield, for petitioners-respondents.

SHRUM, Judge.

The biological father, J__ E__ S__ (Appellant), appeals from a decree entered January 21, 1993, adjudging the adoption of his two children by A__ B__ and J__ B__ (Respondents), maternal grandparents of the children. Appellant challenges the validity of the adoption decree, saying that Respondents did not have nine months "lawful custody" of the children before the decree, without which the adoption could not be ordered. He also insists that the trial court erred in denying his motion to prosecute this appeal as a poor person.

We affirm.

FACTS

J__ P__ S__ and M__ E__ S__ are the biological minor children of Appellant. The children's natural mother is dead because of Appellant's fatally shooting her on September 25, 1987, a crime to which he pled guilty on May 1, 1992. ¹

On February 10, 1988, Respondents filed a petition in the Circuit Court of Webster County, Probate Division (probate court), asking to be appointed guardians of J__ P__ S__ and M__ E__ E__. The probate court conducted a hearing on the guardianship petition on February 25, 1988. Appellant was present, appearing pro se. At the conclusion of the hearing the probate court appointed Respondents as guardians. It specifically found that Appellant was "unable to assume the duties of guardianship." ² No appeal was taken by Appellant from the order granting letters of guardianship to Respondents.

On February 14, 1991, Respondents filed a petition to adopt the children and to terminate Appellant's parental rights. After Respondents amended their petition on August 20, 1992, the matter was tried January 8, 1993. The adoption court entered findings of fact and conclusions of law, terminated Appellant's parental rights to the children, and

                granted the requested adoptions.  It found that on February 25, 1988, Respondents were "appointed guardians of the persons" of the children.  Continuing, the adoption court concluded that (a) it had "jurisdiction over this proceeding as required by Chapter 453," (b) that § 475.120 provides "that guardians of a minor are entitled to the custody and control of the minor," and (c) "[t]hat the minor children have been in the lawful and actual custody of [Respondents] for a period of at least nine months prior to the entry of this Decree."   It is from the judgment decreeing adoption that this appeal is taken
                

DISCUSSION AND DECISION

Lawful Custody Issue

In Missouri nine months actual and lawful custody of an adoptee is a jurisdictional prerequisite to the entry of a decree of adoption. § 453.080, RSMo 1986. See In Re Novak, 536 S.W.2d 33, 36 (Mo.banc 1976). With that as the cornerstone of his Point I, Appellant charges that the adoption court erred in decreeing adoption because the letters of guardianship found by the adoption court to be a "lawful custody order" were not "effective" to vest Respondents with lawful custody of the children.

Appellant's collateral attack upon the probate court's order rests exclusively upon the fact that the probate court did not give him 30 days in which to answer Respondents' petition for letters of guardianship. He relies upon the Uniform Child Custody Jurisdiction Act, as enacted in Missouri, §§ 452.440 to 452.550, RSMo 1986 (hereafter, UCCJA). Specifically he points to § 452.455.2, which says that "any parent whose parental rights have not been previously terminated ... must be served ... and may within thirty days after the date of service ... file a verified answer." ³

Although Appellant voluntarily appeared at the guardianship hearing, did not then object to the shortened time, and did not appeal from the judgment of the probate court, he insists that the 30-day answer time afforded him by § 452.455.2 is a jurisdictional prerequisite without which the probate court could not adjudicate custody of the children, and, therefore, there was no lawful custody order upon which the adoption court could base its decree. We disagree.

Section 452.450, RSMo 1986, specifically sets forth the necessary requirements for subject matter jurisdiction under the UCCJA and describes when the courts of this state have subject matter jurisdiction to make a custody determination. Patterson, 652 S.W.2d at 257; In re Marriage of Gohn, 639 S.W.2d 413, 414 (Mo.App.1982). It is the only statute that specifies what is required to confer subject matter jurisdiction on the court in such cases, and the specifications do not include giving a litigant 30 days in which to file an answer. See Higgins v. Karger, 753 S.W.2d 622, 625-26 (Mo.App.1988) (citing McCammon v. McCammon, 680 S.W.2d 196, 200-201 (Mo.App.1984)). "Section 452.450 (the statute setting forth the conditions that must exist for a Missouri court to have jurisdiction to make a child custody determination) does not mention § 452.455 or any other statute, nor does it state, explicitly or implicitly, that any other requirements must be met in order to vest jurisdiction." Higgins, 753 S.W.2d at 626.

On the authority of Higgins, McCammon, Gohn, and Patterson, we hold that, under the UCCJA, subject matter jurisdiction is governed solely by § 452.450 and not by § 452.455.2.

In contrast, the purpose of § 452.455.2 is to insure that a litigant in a custody proceeding who is not before the court has reasonable notice and an opportunity to be heard before a decree is rendered. ⁴ Thus, a litigant who has not voluntarily submitted to the court's jurisdiction must be given 30 days in which to plead before a hearing can be held; a decree rendered without such notice and without the litigant's appearance is void. In Re Cook, 691 S.W.2d 243, 245 (Mo.banc 1985); Patterson, 652 S.W.2d at 256.

A party may, however, waive a personal jurisdiction defense by voluntarily appearing without the service of any writ, or where the notice is short of that required by law or was defectively served if the party who so appears either fails then to raise his personal jurisdiction defense in a timely fashion or takes action that is wholly inconsistent with his assertion that the trial court is without personal jurisdiction. Crouch v. Crouch, 641 S.W.2d 86, 90-91 n. 4 (Mo.banc 1982); State ex rel. Lindell Tower Apartments, Inc., v. Guise, 357 Mo. 50, 206 S.W.2d 320, 323 (1947).

Missouri courts have applied this principle to § 452.455.2. In Niederkorn v. Niederkorn, 616 S.W.2d 529 (Mo.App.1981), a father complained that a trial court conducted a temporary custody hearing without affording him notice and opportunity to be heard in violation of § 452.455. The complaint was rejected.

"We find husband's claims in connection with the UCCJA to be without merit. Husband's claim that he had no notice and opportunity to be heard is frivolous.... As noted earlier, he had ample opportunity to testify on the question of custody and to cross-examine wife ..., yet he did neither."

616 S.W.2d at 537.

To the same effect is In Re B.R.F., 669 S.W.2d 240. There a father seeking custody of his daughter in a Missouri court via a habeas corpus action challenged a New Jersey custody order in favor of the maternal grandmother. He claimed that he was not given proper notice and the opportunity to be heard as required by New Jersey's version of the UCCJA. The Eastern District rejected the argument, saying:

"Regardless of how the father learned of the New Jersey proceedings, he did, in fact, appear before that New Jersey Court in person and by counsel, without raising the issue of improper notice. His appearance, thus, waived any objection to lack of notice, and the court properly had jurisdiction over his person.... [S]ee, e.g., Crouch v. Crouch, 641 S.W.2d 86, 90 (Mo.banc 1982)."

669 S.W.2d at 248 (emphasis ours).

In Miller v. Robinson, 844 S.W.2d 574 (Mo.App.1992), a mother argued that because no summons was ever issued on her ex-husband's motion to transfer custody and because she did not have 30 days to answer before hearing, a trial court was without jurisdiction to order custody of her son to his father. The Western District rejected that argument, saying:

"Miller relies on In re Cook, 691 S.W.2d 243 (Mo.banc 1985), in support of her argument. The Cook court noted that § 452.455.2 grants a party at least 30 days to plead before a hearing can be held. The Cook court voided an order to modify because the petitioner did not receive 30 days. Id. at 244-45. Unlike Miller, however, the petitioner in Cook did not appear at the hearing, presented no evidence, and received no notice of the hearing.

"Although a parent's voluntary appearance in a child custody case does not grant the court jurisdiction of the subject matter, State ex rel. Laws v. Higgins, 734 S.W.2d 274, 279 (Mo.App.1987), it does establish the court's jurisdiction over the parent. See In re B.R.F., 669 S.W.2d 240, 248 (Mo.App.1984). Miller received notice that the motion for contempt and motion for transfer of custody would be heard on April 19, 1991. She appeared in person on April 22, 1991, advised the court she wanted to proceed, and participated in the hearing."

844 S.W.2d at 578.

Appellant's argument that the 30-day answer period in § 452.455.2 is a requirement that cannot be waived by a litigant and is jurisdictional in the sense that the probate court could not adjudicate custody without the passage of that time is based upon four cases: Patterson, 652 S.W.2d 252; Cook, 691 S.W.2d 243; In the Interest of D.L.D., 701 S.W.2d 152 (Mo.App.1985); and In re M--, 446 S.W.2d 508 (Mo.App.1969).

We conclude that Appellant's cases...