Chipman v. Counts, 24977.

• Decision Date: 14 May 2003
• Docket Number: No. 24977.,24977.
• Citation: 104 S.W.3d 441
• Parties: Karen CHIPMAN, Petitioner-Respondent, v. Jaima COUNTS, Respondent-Appellant, and Tad Sessums, Respondent.
• Court: Missouri Court of Appeals

Page 441

104 S.W.3d 441

Karen CHIPMAN, Petitioner-Respondent, v. Jaima COUNTS, Respondent-Appellant, and Tad Sessums, Respondent.

No. 24977.

Missouri Court of Appeals, Southern District, Division One.

May 14, 2003.

John M. Albright, Moore & Walsh, L.L.P., Poplar Bluff, for appellant.

Lew Polivick, Legal Services of Southern Missouri, Charleston, for respondent.

PHILLIP R. GARRISON, Judge.

Jaima Counts ("Appellant") appeals from the judgment of the trial court awarding sole legal and physical custody of her daughter, L.K.S., to Appellant's mother, Karen Chipman ("Respondent"). Appellant raises two points on appeal; we do not reach them, however, as we find the trial court lacked subject matter jurisdiction.

Appellant was divorced from her first husband, with whom she had one child, on April 8, 1994 in an Arkansas court. Shortly thereafter, L.K.S. was born to Appellant and Tad Sessums ("Sessums"). Appellant and Sessums were never married. For the first six months of L.K.S.'s life, she lived with Appellant and Sessums. Since that time, she has lived in Respondent's home, with Respondent being her primary caregiver. At the time of trial, L.K.S. was six years old.

On February 7, 2000, Respondent filed a petition for custody, in which she sought sole legal and physical custody of L.K.S., and the child born to Appellant and her first husband.¹ Some sixteen months later, on June 19, 2001, a hearing was held on a motion of Respondent for temporary custody of L.K.S. Sessums entered his appearance as L.K.S.'s father and consented to the granting of temporary custody to Respondent. Appellant was declared in default, and the trial court entered an order granting Respondent temporary custody of L.K.S.

Eight days later, on June 27, 2001, Appellant filed a motion to set aside the temporary custody order and for leave to file responsive pleadings out of time. A hearing on these motions was held on July 12, 2001 in which the trial court, believing a full hearing was in the best interest of L.K.S., modified the temporary custody order, appointed a guardian ad litem for L.K.S. and set the case for full hearing. The court also ordered Appellant to submit to a drug test that day; Appellant complied, and the test results were negative.

On August 23, 2001, the trial court apparently took up the petition for custody, although the docket sheet indicates the court took up once again the motion to set aside the temporary custody order.² We are left to speculate as to the exact nature of this proceeding; in any event, it concluded, rather abruptly in the middle of Respondent's testimony, with the trial court continuing the case and ordering that temporary custody of L.K.S. remain with Respondent.

On October 9, 2001, Appellant, through newly retained counsel, filed a motion to dismiss the petition for custody, and a cross-petition for writ of habeas corpus. Six days later, on October 15, 2001, Respondent moved the court for leave to file an amended petition for custody, which was granted during a hearing on October 31, 2001.³ At that hearing, Appellant withdrew her motion to dismiss. The trial court heard argument on Appellant's cross-petition for writ of habeas corpus, which it then denied.⁴

The case proceeded to trial on Respondent's amended petition on December 3, 2001. Significant evidence at trial showed that Appellant had a lengthy history of substance abuse, including frequent use of methamphetamine, morphine and alcohol. Following the birth of L.K.S., Appellant had numerous boyfriends with whom she often would leave for extended stays away from Respondent and L.K.S., leaving no way for Respondent to contact her in case of an emergency. Appellant's employment history was sporadic at best.

Evidence also was adduced showing that Appellant's life had stabilized somewhat by the time of trial. She had recently married, had passed numerous random drug tests and had maintained employment, albeit for a relatively short period of time, in a job that typically experiences significant turnover. Respondent continued, however, to be the primary caregiver and parental figure to L.K.S.

At the close of evidence, the trial court took the case under advisement. Five months later, on May 3, 2002, the court entered its judgment granting sole legal and physical custody of L.K.S. to Respondent. In its judgment, the trial court found specifically that it had jurisdiction over the parties and the case, based on its fmding that Missouri was the home state of both L.K.S. and the parties, and that no other custody proceedings concerning L.K.S. were pending in any court. The court stated that "[i]n making a custody determination, [it had] considered the public policy of Missouri set out in Section 452.375⁵ and also the factors listed in subdivisions (1) to (8) of subsection 2 of Section 452.375." While the court acknowledged that "[a]t the time of trial [Appellant's] home life and employment seemed more stable," and that it was "reluctant to label [Appellant] as totally unfit or unable to be [L.K.S.'s] custodian," it nevertheless found that she was "unsuitable as custodian." (emphasis in original). The court stated that "[t]his term encompasses the needs of [L.K.S.], plus the history of unreliability of [Appellant] in putting parenting ahead of her personal wants." The court found that "Section 452.375(5) require[d][it] to address the appropriateness of different custodial arrangements prior to making an award of custody." In view of the "extraordinary circumstances" of the case, the court determined that neither of L.K.S.'s parents should be awarded custody, finding instead that "third-party custody in [Respondent] [was] the most appropriate custodial arrangement" for L.K.S. based upon the court's application of Section 452.375.2(1)-(8). The trial court concluded its judgment by stating that it "reaffirm [ed][its] denial of [Appellant's] Petition for Writ of Habeas Corpus as shown by docket entry of October 31, 2001" (emphasis in original).

Appellant raises two points on appeal. In her first point, she alleges that the trial court erred "in applying Chapter 452 standards, divorce law, to an action brought by a grandparent to obtain custody because the only legal mechanism allowing a grandparent to initiate a custody case is under the guardianship statutes, Chapter 475[.]" Appellant also suggests under this point that, had the proper statutory scheme been applied to the evidence, there was insufficient evidence to support a finding that Appellant was unfit as a custodian to L.K.S. In her second point, Appellant apparently alleges that the trial court abused its discretion in making a finding that Respondent was the proper custodian because that finding was against the weight of the evidence.

As stated above, we find it unnecessary to address Appellant's points on their merits, for we find the trial court lacked subject matter jurisdiction to hear the case from the outset. "A court has `subject matter jurisdiction' if it has authority to adjudge the type of issue presented in the case that is before it." In re McGlaughlin, 885 S.W.2d 33, 34 (Mo.App. S.D.1994). Regardless of whether the issue is raised by the parties, an appellate court has an affirmative duty to determine jurisdiction prior to addressing the issues raised on appeal. Henningsen v. Independent Petrochemical Corp., 875 S.W.2d 117, 118 (Mo.App. E.D.1994) (citing Estate of Sawade v. State, 787 S.W.2d 286, 288 (Mo. banc 1990)).

Neither Appellant's first point on appeal nor her argument in support of that point raise specifically the issue of jurisdiction or standing in assigning error to the trial court for applying the wrong statutory scheme to this case. Rather than identifying the court's error as jurisdictional in nature, which would render the trial court's judgment void ab initio, Appellant characterizes the court's error in terms of misapplying the law, a reversible error under the well-established standard announced in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976).⁶

Respondent, however, astutely recognizes the crux of Appellant's first point as being a challenge to Respondent's standing to bring the original action by way of a petition for custody. Acknowledging that "Appellant never actually questions Respondent's `standing' in so many words," Respondent nevertheless contends that "the arguments set forth under [Appellant's first point] lead to the conclusion that Respondent's standing is in issue and, therefore, subject matter jurisdiction is also in issue."

Respondent is correct in stating that "[s]tanding is a jurisdictional matter antecedent to the right to relief." Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc 2002) (citing State ex rel. Williams v. Marsh, 626 S.W.2d 223, 227 n. 6 (Mo. banc 1982)). To determine a party's standing is to "ask[] whether the person[] seeking relief [has] a right to do so." Id. (citing State ex reL Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo. banc 1992)). If a court determines a party lacks standing, it "must dismiss the case because it does not have jurisdiction of the substantive issues presented." Id. (citing State ex rel. Ryan v. Carnahan, 960 S.W.2d 549, 550 (Mo.App. E.D.1998); Rule 55.27(g)(3)).

With commendable candor, Respondent concedes she "did not have standing to bring the initial custody action against Appellant on February 7, 2000." Her concession is supported by McCoy v. Rivera, 926 S.W.2d 78 (Mo.App. W.D. 1996). In McCoy, a minor child's grandfather and his wife petitioned the trial court for custody of the child, who had lived with them for four years at the request of the child's mother while she was incarcerated. Id. at 79. The mother filed a motion to dismiss for lack of standing and subject matter jurisdiction, which the trial court denied. Id. at 79-80. The court's subsequent judgment granted custody of the child to the mother, but ordered, in the best interests of the child, that...