Bounds v. O'Brien

Decision Date16 March 2004
Docket NumberNo. ED 82849.,ED 82849.
Citation134 S.W.3d 666
PartiesMarty Lee BOUNDS, Respondent, v. Marife Chu O'BRIEN, Appellant.
CourtMissouri Court of Appeals

Chris Rollins, Kayla Vaughan, St. Louis, MO, for appellant.

Brian P. Seltzer, Crista C. Beracha, Clayton, MO, for respondent.

LAWRENCE G. CRAHAN, Judge.

Marife O'Brien ("Mother") appeals the judgments declaring Marty Bounds ("Father") to be the father of her son, Blake, and awarding Father sole legal and physical custody. We affirm in part and reverse and remand in part.

Mother is a citizen of the Philippines and a permanent resident of the United States as a result of her prior marriage to a United States Citizen.1 Father is an American citizen. Blake has dual Philippine and American citizenship by virtue of Mother's citizenship and his birth in this country.

Mother and Father first met in April 2000. About six months later, Mother became pregnant with Father's child and moved into his home. That child was later aborted. Shortly after the abortion, Mother became pregnant for a second time. The parties argued frequently, and Mother would periodically stay with friends until she and Father reconciled.

On November 9, 2001, Blake was born. Father did not sign the affidavit of paternity that would have acknowledged that he was the father and legally established his paternity. Mother and Blake returned to Father's home but the parties' stormy relationship did not improve. In December 2001 and in March 2002, police were called to the home. On March 8, 2002, Mother returned to Father's home after leaving for a couple of days because of an argument and discovered the locks had been changed. Father demanded that Mother move out of his house.

For the next month, Mother and Blake resided for brief periods with sympathetic friends. Mother was unemployed, and when she did find a cleaning job, she had to quit because Blake was sick and she could not arrange suitable child care. During this period, Mother periodically arranged meetings with Father so he could see Blake. The parties dispute whether Father paid for some necessities such as formula and diapers on these occasions. Father did make one token payment of $100. He did not, however, make any arrangement for regular child support or take any steps to formally acknowledge paternity. Finally, homeless, jobless, and unable to provide for Blake, Mother charged airline tickets on her credit card and, on April 26, 2002, she and Blake flew to the Philippines and returned to her parents' ("Grandparents") home in Cebu City, Philippines.

In July 2002, Mother returned to St. Louis, leaving Blake in the custody of Grandparents. Mother planned to work and amass sufficient savings to be able to support Blake when she brought him back to the United States for school. Mother found a job at a nursing home which included a room in which she could stay. However, Mother was not allowed to have visitors there and would not be allowed to live there with a child. Mother began sending money and packages of baby food and supplies to Grandparents to provide for Blake's support. Mother made no contact with Father upon her return.

In October 2002, Father learned where Mother was working. Father parked on the street outside the nursing home and waited for Mother to appear. When Mother drove up, he confronted her and asked where Blake was. Mother told him Blake was in another country but refused to tell him where. On October 21, 2002, Father filed the instant action seeking a declaration of his paternity, an order granting him sole legal and physical custody, and a change of Blake's surname to his own.

Mother filed an answer in which she admitted Father's allegation that he was Blake's natural father and disclosed that Blake was in Cebu City with Grandparents. A guardian ad litem was appointed for Blake. Mother filed a motion to dismiss for lack of jurisdiction, maintaining that the proper jurisdiction for adjudicating issues pertaining to Blake's custody was the Philippines. Mother also moved to join Grandparents as necessary parties. In that motion, Mother notified the court that Grandparents had filed an affidavit of guardianship with the court in Cebu City. Mother's motions and subsequent motions to reconsider both rulings were summarily denied without an evidentiary hearing.

Father moved for partial summary judgment on the issue of paternity based on Mother's admission of paternity in her answer. Mother filed a motion for paternity blood testing pursuant to section 210.834.1 RSMo 2000 and moved to dismiss Father's motion for partial summary judgment. Attached to the motion to dismiss Father's motion were affidavits from Mother relating Father's repeated denials of paternity and from a friend of Mother's who stated that Mother had confided in her that she had had other partners and wasn't certain who was the Father of her child. Mother also sought a continuance to permit testing. The trial court convened a hearing on Mother's motion for blood testing and for a continuance. At the hearing, Mother testified she had no doubt that Father was the biological father of Blake. The trial court denied the motions and granted Father's motion for partial summary judgment on the issue of paternity. Mother filed a premature notice of appeal.

After an evidentiary hearing, on April 22, 2003 the trial court on Father's motion entered a judgment directing that Blake be returned to Father's custody no later than April 28, 2003. Mother, or a person designated by Mother, was directed to produce Blake and his passport to Father at the American Embassy in Manila or such other location in the Philippines as Father might direct. Father was awarded temporary physical custody of Blake, subject to the terms of a parenting plan.

Father traveled to the Philippines but was unsuccessful in obtaining custody of Blake. Father filed a motion to hold Mother in contempt and a motion for an expedited hearing on his request to change Blake's surname to his own. According to Father, the fact that he and the child had different last names had been an obstacle in his attempt to have the judgment enforced by a Philippines court. On June 5, 2003, after an evidentiary hearing, the trial court granted Father's petition for change of name.

On July 21, 2003, after an evidentiary hearing, the trial court entered judgment awarding Father sole legal and physical custody of Blake, with specified periods of visitation by Mother as set forth in the parenting plan incorporated in the judgment. The judgment further ordered Mother to travel to the Philippines at Father's expense and return to St. Louis with Blake. Mother was ordered to place Blake and his passport in Father's custody no later than August 15, 2003. Mother amended her notice of appeal to include this judgment, which was now final for purposes of appeal.

In her first point, Mother claims the trial court erred as a matter of law in exercising jurisdiction over Father's petition for custody because the Philippines is the proper venue for determining custody. We review matters of jurisdiction de novo. Love v. Love, 75 S.W.3d 747, 755 (Mo.App. 2002). In Missouri, jurisdiction in child custody cases is governed by the Uniform Child Custody Jurisdiction Act ("UCCJA"), sections 452.440 through 452.550 RSMo 2000. It has been observed that it is implicit in the scheme of the UCCJA that the trial court should make an initial determination of jurisdiction by express findings of fact before proceeding to the substantive issue of custody. Piedimonte v. Nissen, 817 S.W.2d 260, 266 (Mo.App. 1991). Thus, a ruling of jurisdiction by a court that is merely conclusory or that assumes jurisdiction, but is tacit as to the factual basis for that adjudication, does not meet the objectives of the Act. Id.

In the instant case, the trial court made no express findings as to the factual basis for its assumption of jurisdiction. Father urges in his brief in this court that jurisdiction is properly predicated on section 452.450.1(2). That section permits the court to assume jurisdiction if it is in the best interest of the child that a 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 the state; and (b) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships. Father suggests that there is a significant connection with this state in that the child was born here and resided here from November 8, 2001 when he was born until April, 2002 when Mother took him to the Philippines and left him in Grandparents' care. Father further suggests that there is substantial evidence in this state concerning Father's ability to provide future care, protection, training and personal relationships.

It is questionable whether Blake can be said to have a significant connection with this state. Jurisdiction under section 452.450.1(2) is proper when there is "maximum rather than minimum contact with the state" and when there is "optimum access to relevant information about the child and his family." In re B.R.F., 669 S.W.2d 240, 247 (Mo.App.1984) (quoting Commissioners' Note, UCCJA sec. 3, 9 ULA 124 (Master ed.1979)). The mere fact that he was born here is of little or no significance. At the time Father filed his action, Blake had lived in the Philippines longer than he had lived in Missouri. Virtually no current information about the child, his development or his personal relationships can be found in Missouri. The fact that his parents both reside here cannot, by itself, constitute a "significant connection" for purpose of our analysis because if it was, jurisdiction could be predicated on this ground in virtually any case...

To continue reading

Request your trial
14 cases
  • In re Marriage of Miller and Sumpter
    • United States
    • Missouri Court of Appeals
    • July 31, 2006
    ... ... We engage in de novo review of jurisdictional matters. Bounds v. O'Brien, 134 S.W.3d 666, 670 (Mo.App.2004). A trial court's jurisdiction under the UCCJA to hear custody matters is described as "subject matter ... ...
  • In re Marriage of Rhoads
    • United States
    • Missouri Court of Appeals
    • December 8, 2006
    ... ... Elbert v. Elbert, 833 S.W.2d 884, 887 (Mo.App.1992). Our review of jurisdictional issues is de novo. Bounds v ... O'Brien, 134 S.W.3d 666, 670 (Mo.App.2004) ...         A trial court's jurisdiction under the UCCJA to hear custody matters is ... ...
  • Dunkle v. Dunkle
    • United States
    • Missouri Court of Appeals
    • March 29, 2005
    ...was untimely filed. We disagree. Whether this court has jurisdiction is a question of law that we review de novo. Bounds v. O'Brien, 134 S.W.3d 666, 670 (Mo.App. E.D.2004). Under the normal civil procedure rules, a motion for new trial and a motion to amend the judgment are both considered ......
  • Ketteman v. Ketteman
    • United States
    • Missouri Court of Appeals
    • August 23, 2011
    ...issue of custody.” Piedimonte v. Nissen, 817 S.W.2d 260, 266 (Mo.App.1991); see also Schoenecke, 230 S.W.3d at 67; Bounds v. O'Brien, 134 S.W.3d 666, 670 (Mo.App.2004); and Higgins, 734 S.W.2d at 277. In light of the Supreme Court's declaration in J.C.W. and the cases that have followed J.C......
  • Request a trial to view additional results
1 books & journal articles
  • Section 20 Contempt Judgments
    • United States
    • The Missouri Bar Remedies Deskbook Chapter 8 Habeas Corpus
    • Invalid date
    ...contempt orders are invalid when issued from courts that lack subject matter jurisdiction over the underlying action. Bounds v. O’Brien, 134 S.W.3d 666 (Mo. App. E.D. 2004). A direct appeal does not lie, however, from a criminal contempt guilt finding, in which case review must be by habeas......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT