Blanchette v. Blanchette, SC 95053

• Decision Date: 22 December 2015
• Docket Number: No. SC 95053,SC 95053
• Parties: Kelly J. Blanchette, Appellant, v. Steven M. Blanchette, Respondent.
• Court: Missouri Supreme Court

476 S.W.3d 273

Kelly J. Blanchette, Appellant,

v.Steven M. Blanchette, Respondent.

No. SC 95053

Supreme Court of Missouri, en banc .

Opinion issued December 22, 2015

Mother was represented by Matthew T. Singer of The Law Office of Matthew T. Singer in St. Louis.

Father was represented by Richard B. Blanke of Uthoff, Graeber, Bobinette & Blanke in St. Louis.

Robert O. Appleton Jr. of Appleton Pohle in St. Louis.

Zel M. Fischer, Judge

Kelly Blanchette appeals from the circuit court's judgment in favor of her former spouse, Steven Blanchette. The circuit court registered the couple's foreign judgment of dissolution and two subsequent judgments modifying custody visitation and support, all issued in West Virginia. The circuit court's judgment dismissed Kelly's motion to modify custody in St. Louis County, Missouri, for lack of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). After opinion, the court of appeals transferred this case to this Court pursuant to Rule 83.02. The circuit court's judgment is affirmed.

Factual and Procedural History

The parties were residents of West Virginia when they had a son in November 2003 and were married in March 2004. Steven filed a petition for dissolution in Berkeley County, West Virginia, in February 2005. Shortly thereafter, and with the Berkeley County Family Court's consent, Kelly, then pregnant, and Son moved to Missouri, and the couple's daughter was born in St. Louis in July 2005.

In January 2006, the parties appeared before the Berkeley County court in person and by counsel and presented their settlement agreement, and related testimony as to all issues, for the court's approval. Relevant here, the Berkeley County court found that jurisdiction and venue were proper as to all matters contained in the petition (including custody, visitation, and support of both children), that both parties resided in West Virginia for more than a year preceding the filing of the dissolution petition, and that there were two children born of the marriage. There is no evidence in the record to suggest either party requested, or the court considered or contacted, St. Louis County as an alternative or preferable forum. The Berkeley County court entered judgment of dissolution, awarded Kelly "primary" physical custody of the children, and ordered Steven to pay child support of $1,500 per month. In 2008, Steven filed a motion to modify, seeking additional custodial time. At a hearing on that motion, Kelly appeared by telephone and by counsel, and the Berkeley County court granted Steven's motion.

In July 2013, after a custodial visit in West Virginia, Steven sent the children (then eight and nine years old) back to Missouri via commercial airliner unaccompanied, over Kelly's vehement protest. On September 6, 2013, Kelly filed in St. Louis County a petition to register the West Virginia dissolution judgment and first modification, combined with a motion to modify the existing parenting plan to require Steven to accompany the children on air travel for visitations. Around the same time, Steven filed in Berkeley County another motion to modify, seeking to increase his custodial time from one week to six weeks in the summer. Kelly received notice of a hearing on that motion on September 30, eight days before the scheduled date of the hearing. She did not request a continuance and did not appear at the hearing in any manner. In October 2013, the Berkeley County court granted Steven's motion, awarded him six consecutive custodial weeks in the summer, and specified that Kelly could either allow the children to fly unaccompanied or pay half the cost of the accompanying parent's airfare. The order also reduced Steven's child support obligation to $947 per month to reflect the shift in custodial time.

Kelly asked the St. Louis County court not to register this latest West Virginia modification but to grant her proposed modification instead. Steven responded with a motion to dismiss for lack of jurisdiction under the UCCJEA. After extensive briefing and argument, the circuit court issued its judgment registering all three West Virginia judgments (i.e., the original dissolution decree and two subsequent modifications) and dismissing Kelly's competing motion to modify for lack of jurisdiction because West Virginia retained exclusive continuing jurisdiction. The circuit court explained:

Subject matter jurisdiction exists only when a court has the right to proceed to determine the controversy at issue or grant the relief requested. Garcia–Huerta v. Garcia, 108 S.W.3d 684, 686 (Mo.Ct.App.2003).

The issue in this interstate child custody dispute is whether the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), Mo.Rev.Stat. §§ 452.700 to 452.930 (2013)et seq., confers jurisdiction upon this Missouri court to modify a West Virginia judgment as it relates to custody issues.

The UCCJEA states in pertinent part:

Except as otherwise provided in section 452.755, a court of this state shall not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under subdivision (1) or (2) of subsection 1 of section 452.740 and:

(1) The court of the other state determines it no longer has exclusive continuing jurisdiction under section 452.745 or that a court of this state would be a more convenient forum under section 452.770; or

(2) A court of this state or a court of the other state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in the other state.

Mo.Rev.Stat. § 452.750 (2013).

In this case, Petitioner does not assert the provisions of Mo.Rev.Stat. § 452.755 apply. Thus, for this Court to have jurisdiction to modify the West Virginia judgment as it relates to custody issues, the two-prong test set forth in Mo.Rev.Stat. § 452.750 (2013) must be satisfied. It is not. While this Court does have "jurisdiction to make an initial determination under subdivision (1) or (2) of subsection 1 of section 452.740," the West Virginia court has not "determine[d] it no longer has exclusive continuing jurisdiction under section 452.745" nor has the West Virginia court determined that "a court of this state would be a more convenient forum under section 452.770." Mo.Rev.Stat. § 452.750(1) (2013). Further, neither this Court nor the West Virginia court has "determine[d] that neither the child, nor a parent, nor any person acting as a parent presently resides in the other state." Mo.Rev.Stat. § 452.750(2) (2013). In fact, Petitioner concedes Respondent still resides in West Virginia. Accordingly, assuming Missouri continues to have jurisdiction to make an initial determination under subdivision (1) or (2) of subsection 1 of Mo.Rev.Stat. § 452.740, until such time as a West Virginia court determines it no longer has exclusive continuing jurisdiction under section 452.745, OR a West Virginia court determines Missouri would be a more convenient forum under section 452.770, OR Respondent no longer resides in West Virginia, this Court specifically lacks the jurisdiction necessary to modify the custody provisions of the West Virginia judgment.

Kelly appeals and asserts the circuit court erred by: (1) registering the foreign judgments as to Daughter because she has always resided in Missouri, so West Virginia lacked subject matter jurisdiction as to her custody, and (2) giving full faith and credit to the second modification because Kelly did not receive adequate notice of the hearing.

Standard of Review

A circuit court's decision whether to register a foreign judgment is a legal conclusion, so this Court's review is de novo . Peoples Bank v. Frazee, 318 S.W.3d 121, 127 (Mo. banc 2010). Whether Missouri has jurisdiction to determine custody under the UCCJEA is also a legal question this Court reviews de novo. Id. The circuit court's judgment 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.¹ Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In a proceeding to register a foreign judgment, there is a strong presumption the rendering court had jurisdiction and entered a valid judgment, and the party asserting the invalidity of the foreign judgment has the burden of overcoming the presumption of jurisdiction and validity. Peoples Bank, 318 S.W.3d at 127.

Kelly Has Standing to Appeal

As a preliminary matter, Steven urges this Court to dismiss Kelly's appeal on the theory that Kelly is not an "aggrieved" party under § 512.020² (governing who may appeal and what may be appealed) because the circuit court granted the relief she sought in her petition, namely registration of the West Virginia judgments. A party is not aggrieved by, and cannot appeal, a judgment that grants all relief sought by the party, but a party can appeal a judgment that grants only part of the relief sought. Smith v. City of St. Louis, 395 S.W.3d 20, 27 (Mo. banc 2013). A party is aggrieved when, as an immediate consequence, the judgment operates prejudicially and directly on her rights or interests. Hertz Corp. v. State Tax Comm'n, 528 S.W.2d 952, 954 (Mo. banc 1975). Kelly responds that the circuit court did not grant all the relief she sought; rather, she is aggrieved by the circuit court's registration of the second modification, which she did not request and the validity of which she challenges, and by its dismissal of her motion to modify. Insofar as the circuit court did not grant all the relief sought, and because Kelly's custodial rights are immediately and directly affected by the registration of custody orders that she challenges as void, Kelly is sufficiently aggrieved to bring this appeal.³

West Virginia's Jurisdiction as to Daughter

Kelly contends the Berkeley County court lacked subject matter jurisdiction as to Daughter because Missouri is Daughter's home state, making the West Virginia...