Aldridge, In re, 18103

• Decision Date: 30 November 1992
• Docket Number: No. 18103,18103
• Parties: In re Christopher Jacob ALDRIDGE, a minor. Betty Ruth LEDOUX, Petitioner, v. Philip Edward ALDRIDGE and Laura Aldridge, Respondents.
• Court: Missouri Court of Appeals

Page 793

841 S.W.2d 793

In re Christopher Jacob ALDRIDGE, a minor.

Betty Ruth LEDOUX, Petitioner, v. Philip Edward ALDRIDGE and Laura Aldridge, Respondents.

No. 18103.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 30, 1992.

Sylvia K. Byrnes-Ales, Roberts, Fleischaker & Williams, Joplin, for petitioner.

John M. Garrity, Susanna Jones, Legal Aid of Western Missouri, Joplin, for respondents.

CROW, Presiding Judge.

In this original proceeding in habeas corpus, Petitioner, Betty Ruth Ledoux, seeks custody of her grandson, Christopher Jacob Aldridge ("Chris"), who resides with Respondents, Philip Edward Aldridge ("Philip") and Laura Jane Aldridge ("Laura"), in Jasper County, Missouri.

Pursuant to Rule 68.03, Missouri Rules of Civil Procedure (1992), we appointed The Honorable Dennis D. Reaves, Associate Circuit Judge of Cedar County, as Master. With commendable dispatch and diligence, he conducted an evidentiary hearing and thereafter furnished us a comprehensive and scholarly report. His findings form the basis of the following narrative.

Chris, born February 5, 1982, is the son of Petitioner's daughter, Sandra Dawn Barker ("Sandra"), and one Fred Gilchrist. Their parental rights were either suspended or terminated by the Superior Court of the State of Arizona, County of Maricopa ("the Arizona court"), on May 14, 1985. ¹ At that time, Chris was residing with Petitioner in Arizona. The Arizona court approved Petitioner as "temporary custodian" of Chris.

Philip is Petitioner's son, Sandra's brother, and Chris' uncle. Laura is Philip's wife.

Sometime after the 1985 court action, Petitioner's health deteriorated. Consequently, she turned Chris over to Philip and Laura, then Arizona residents. Thereafter, on October 29, 1987, with Petitioner's consent, the Arizona court appointed Philip guardian of Chris.

In 1988, Philip and Laura moved to Jasper County, Missouri, bringing Chris with them. Petitioner, who remained in Arizona, was aware of the move and did not protest. Chris has not been in Arizona since moving to Missouri.

On December 5, 1990, Petitioner filed an application in the Arizona court for an order (a) setting an expedited hearing to determine whether Philip's guardianship of Chris should be revoked, and (b) granting her temporary physical custody of Chris.

The Arizona court issued an order directing Philip to show cause at a hearing January 7, 1991, why his guardianship of Chris should not be terminated. Petitioner appeared in the Arizona court on the appointed date and testified. She was the only witness.

On January 15, 1991, the Arizona court entered an order stating, in pertinent part:

....

5. That this Court has continuing jurisdiction to appoint a guardian in this matter.

6. That Christopher ... continues to be a ward of the State of Arizona.

7. That this Court determines that Arizona is the home state of Christopher ...;

8. That Philip Aldridge was personally served a copy of the petitioner's [application of December 5, 1990].

9. That the Court set a hearing ... on January 7, 1991 at 9:00 a.m.;

10. That the Court allowed Philip Aldridge to appear telephonically if desired to represent his interest in the scheduled proceedings;

11. That Philip Aldridge, did not appear in these proceedings despite that [sic] fact that notice and opportunity to be heard was provided;

12. That evidence was presented that Philip Aldridge has caused physical and emotional abuse on Christopher ... and that Philip Aldridge is an otherwise unacceptable person to care for Christopher

....

WHEREFORE, IT IS HEREBY ORDERED AND DECREED, that the October 27 [sic], 1987 guardianship order ... naming Philip Aldridge guardian of Christopher ... is hereby terminated. Hence forth [sic], Philip Aldridge's guardianship ... of Christopher ... is terminated.

IT IS FURTHER ORDERED that petitioner ... is appointed temporary guardian of Christopher ... until such time as this Court can rule upon her petition for appointment as guardian of Christopher....

IT IS FURTHER ORDERED that Philip Aldridge place Christopher ... in the care and custody of [Petitioner] ... without delay.

In regard to the January 7, 1991, court proceeding, our Master found (from ample evidence) that Philip made an unsuccessful attempt "to contact the court at the hearing by telephone."

Petitioner immediately came to Missouri and filed a petition for writ of habeas corpus in the Circuit Court of Jasper County, seeking custody of Chris per the January 15, 1991, order of the Arizona court. The Circuit Court heard evidence and thereafter, on January 29, 1991, entered judgment denying Petitioner's prayer for custody. Petitioner returned to Arizona without Chris.

On July 25, 1991, the Arizona court heard further evidence regarding guardianship of Chris. This time, Philip mailed sundry documents to the Arizona court and participated in the hearing by telephone.

By an order filed September 5, 1991, the Arizona court appointed Petitioner guardian of Chris and commanded physical custody of Chris be immediately given to Petitioner. The order stated, among other things:

1. That this Court has jurisdiction to hear this petition under A.R.S. § 8-403(A);

....

14. That ... a copy of the Petition was properly served upon Philip Aldridge in ... Missouri and that Philip Aldridge has had notice and an opportunity to be heard within the meaning of A.R.S. § 8-404;

....

21. That this guardianship order shall be given binding force and res judicata effect as to all parties who have appeared herein pursuant to A.R.S. § 8-412.

Petitioner commenced the instant proceeding in this Court on April 20, 1992, basing her claim on the orders of the Arizona court filed January 15, 1991, and September 5, 1991. Much of the evidence heard by our Master concerned the alleged physical and emotional abuse referred to in paragraph 12 of the January 15, 1991, order (quoted supra ). On that subject, our Master found:

The Division of Family Services [ ("DFS") ] in Missouri has investigated the allegations of abuse and neglect alleged by [Petitioner] and has not substantiated those allegations.... [Chris] has been a client of [DFS] which has provided assistance in dealing with [his] behavioral problems as a hyperactive child.... This assistance was provided at the request of Philip and Laura Aldridge.... [Chris] has not been the subject of any protective services through [DFS] because of any suspected abuse or neglect....

No party filed exceptions to the Master's report. Our examination of the record confirms the above finding enjoys substantial evidentiary support.

Among the Master's conclusions are these:

Unquestionably the ... Arizona [court] had jurisdiction when it appointed Philip Aldridge guardian of Christopher Aldridge. Christopher was a ward of the State of Arizona and all interested persons were residents of that state.

The issue before this court is whether Arizona has continuing jurisdiction to modify its prior order to change custody of Christopher Aldridge.

Petitioner maintains she is entitled to custody of Chris for two reasons, the first of which is, in her words:

This Court should grant the relief requested in Petitioner's petition for writ of habeas corpus (i.e., recognition and enforcement of an Arizona state court order granting her custody of a minor child) because there is no evidence that the Arizona court assumed jurisdiction under statutory provisions not substantially in accordance with [§§ 452.440-.550, RSMo 1986], and therefore, Missouri law and the U.S. Constitution require that the Arizona state court decree be recognized and enforced.

We infer the phrase "the Arizona state court decree" in the above passage is meant by Petitioner to comprise the orders of January 15, 1991, and September 5, 1991. The constitutional provision to which she refers is Article IV, § 1 of the Constitution of the United States. It reads:

Full Faith and Credit shall be given in each State to the ... judicial Proceedings of every other State....

This provision requires Missouri to give a judgment of a sister state full faith and credit unless there was (1) lack of jurisdiction over the subject matter, (2) failure to give due notice to the defendant, or (3) fraud in the concoction or procurement of the judgment. In re Veach, 365 Mo. 776, 287 S.W.2d 753, 758-59 (banc 1956); Waterloo Lumber Company, Inc. v. Gardner, 806 S.W.2d 513, 515 (Mo.App.1991); Schumacher Elevator Co., Inc. v. Springfield Elevator Co., Inc., 804 S.W.2d 42, 45 (Mo.App.1991). A judgment of a court of a sister state, regular on its face, is entitled to a strong presumption that the court had jurisdiction over the parties and subject matter. Johnson v. Johnson, 770 S.W.2d 483, 485 (Mo.App.1989); State of Minnesota, Marshall County v. Bybee, 744 S.W.2d 511, 513 (Mo.App.1988); Kilgore v. Kilgore, 666 S.W.2d 923, 932 (Mo.App.1984). The burden of overcoming this presumption is on the party challenging the validity of the judgment. Johnson, 770 S.W.2d at 485; State of Minnesota, Marshall County, 744 S.W.2d at 513; Kilgore, 666 S.W.2d at 932; In Interest of K.P.B., 625 S.W.2d 692, 694 (Mo.App.1981).

Lack of jurisdiction may be shown by evidence dehors the record, notwithstanding jurisdictional recitals of the foreign judgment. Leichty v. Kansas City Bridge Co., 354 Mo. 629, 190 S.W.2d 201, 203[1, 2] (banc 1945), cert. denied, 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009 (1946); Turner v. Turner, 637 S.W.2d 764, 769 (Mo.App.1982); Hill v. Hill, 241 Mo.App. 243, 236 S.W.2d 394, 399 (1951).

As we have seen, paragraph 7 of the January 15, 1991, order of the Arizona court recites Arizona is Chris' home state. Paragraph 1 of the September 5, 1991, order of the Arizona court recites such court has jurisdiction to hear Petitioner's application to be appointed Chris' guardian under A.R.S. § 8-403(A). ² That section reads:

The superior court of the state of Arizona is vested with jurisdiction to...