Ballenger v. Ballenger

• Decision Date: 14 October 2014
• Docket Number: No. WD 77261.,WD 77261.
• Citation: 444 S.W.3d 914
• Court: Missouri Court of Appeals
• Parties: John BALLENGER, Respondent, v. Janice BALLENGER, Appellant.

444 S.W.3d 914

John BALLENGER, Respondent
v.
Janice BALLENGER, Appellant.

No. WD 77261.

Missouri Court of Appeals, Western District.

Oct. 14, 2014.

444 S.W.3d 915

Adam Sommer, for Respondent.

John H. Edmiston, Warrensburg, for Appellant.

Before Division Two: VICTOR C. HOWARD, Presiding Judge, JAMES E. WELSH, Judge and ANTHONY REX GABBERT, Judge.

Opinion

HOWARD.

In this habeas corpus proceeding, the trial court ordered the return of custody of the minor child to John Ballenger (Father) pursuant to a paternity judgment entered before the parties' marriage. Janice Ballenger (Mother) appeals arguing that the parties' marriage effectively abrogated and ified the prior paternity judgment.¹ The judgment of the trial court is reversed.

On March 7, 2002, Mother gave birth to a son out of wedlock. On November 7, 2003, a paternity judgment was entered declaring Father to be the biological father of the child. The judgment also awarded Mother and Father joint legal and physical custody of the child. Father's residence was designated as the child's residence for educational and mailing purposes with Mother receiving reasonable and specific physical custody rights in accordance with the court-approved parenting plan. Specifically, the parenting plan provided for an approximately fifty percent shared custody arrangement with physical custody of the child alternating each week between Mother and Father.

Mother and Father married on May 14, 2007. On December 13, 2013, Father filed a petition for writ of habeas corpus alleging

444 S.W.3d 916

that he was lawfully entitled to custody of the child pursuant to the 2003 paternity judgment, that he had requested Mother to return the child to him, and that Mother had refused. Mother filed an answer to the petition alleging that the parties' marriage on May 14, 2007, effectively abrogated and ified the 2003 paternity judgment. Following a hearing on the petition, the trial court entered judgment on January 6, 2014, ordering the return of custody of the minor child to Father pursuant to the paternity judgment. Thereafter, Father filed a petition for dissolution of marriage on January 10, 2014. The petition remains pending in the trial court. This appeal by Mother followed.

In her sole point on appeal, Mother contends that the trial court erroneously applied the law in granting Father's petition for writ of habeas corpus and directing her to return custody of the minor child to Father pursuant to the prior paternity judgment, which included a custody determination. She claims that the parties' marriage in 2007 effectively abrogated and ified the prior paternity judgment.

The custody issue presented in this case has never been decided in Missouri. Father cites Cook v. Cook, 691 S.W.2d 243 (Mo. banc 1985), and Pauley v. Pauley, 771 S.W.2d 105 (Mo.App. E.D.1989), for his argument that the trial court did not err in ordering the return of custody of the minor child to him pursuant to the paternity judgment. Neither case, however, addressed the effect of a parties' subsequent marriage on a prior custody order in a paternity action.

In Pauley, the parties were married, had three children, and then divorced. 771 S.W.2d at 106. They remarried, had two more children, and divorced again. Id. In the second dissolution case, the trial court's judgment included provisions for the custody and support of all five children. Id. at 106, 110. The father argued on appeal that the trial court lacked jurisdiction to enter custody and support orders for the three children born of the first marriage and that a separate motion to modify the first dissolution decree was required for any custody or support determinations concerning those children. Id. at 110.

The Eastern District did not address the effect of the parties' remarriage on the first dissolution decree but instead held that the father tried by consent the issues of custody and support of all five children where he admitted the allegations in the petition for dissolution of marriage that there were five minor children born of the marriage. Id. The Eastern District continued, “The new petition for dissolution of the parties' subsequent marriage put the issues of child custody and support before the court, just as a motion to modify would have invoked the court's continuing jurisdiction to make such changes.” Id. The court's comment regarding a motion to modify was dicta in that it was unnecessary to the decision. “Obiter dicta, by definition, is a gratuitous opinion. Statements are obiter dicta if they are not essential to the court's decision of the issue before it. While dicta can be persuasive when supported by logic, it is not precedent that is binding upon us.” Swisher v. Swisher, 124 S.W.3d 477, 482 (Mo.App. W.D.2003) (internal quotes and citations omitted). Pauley is not useful in this case.

In Cook, the marriage of the parties was dissolved, and the mother was awarded custody of the minor child subject to the father's visitation. 691 S.W.2d at 244. Thereafter, the dissolution decree was modified by granting custody of the child to the father. Id. In the habeas corpus proceeding, the mother claimed custody of the child under the original dissolution decree arguing that the order modifying the

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