Doss v. Brown

Decision Date29 January 2013
Docket NumberNo. WD 74782.,WD 74782.
Citation419 S.W.3d 784
PartiesJason Matthew DOSS, Appellant, v. Cathy Laray BROWN, Respondent, Gabrielle Leean Doss, Respondent, State of Missouri, Department of Social Services, Family Support Division, Respondent.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Anne Kiske, Kansas City, MO, for Appellant.

Jennifer Addadi, Kansas City, MO, William Gnefkow, Jr., Independence, MO, John Reed, Lee's Summit, MO, for Respondents.

Before: JAMES EDWARD WELSH, C.J., THOMAS H. NEWTON, J., and CHARLES E. ATWELL, Sp. J.

THOMAS H. NEWTON, Presiding Judge.

Mr. Jason Matthew Doss appeals the trial court's judgment granting Ms. Cathy Laray Brown's motion to modify child custody and support and to emancipate a child, and denying her Respondent's Motion for Declaration of Non-paternity, and to Set Aside Judgment of Child Support.” We affirm.

Factual and Procedural Background

In 2002, the trial court dissolved the marriage between Mr. Doss and Ms. Brown. In its decree, the trial court found three minor children (a son and two daughters) were born of the marriage and granted their sole legal and physical custody to Mr. Doss. It ordered Ms. Brown to pay $439 monthly in child support, and amended the award to $280 in a subsequent modification judgment. In 2005, Mr. Doss received permission to relocate with the children from Missouri to Maryland to work at a job with a higher pay and Ms. Brown's child support obligation was reduced to $205. The court modified the legal custody to joint legal custody and awarded Ms. Brown liberal visits including summers with the children. Later, Mr. Doss remarried and moved the children and his new family from Maryland to Michigan. In May 2009, Ms. Brown attended the son's high school graduation in Michigan. After the graduation, the daughters remained in Missouri after their summer visit instead of returning home to Mr. Doss. Mr. Doss relocated with his new family to Florida, and the son later joined him.

In July 2009, Ms. Brown filed a motion to modify child custody and child support and to emancipate the son. Mr. Doss replied to the motion, requesting that the court deny her requests. A temporary order was entered on April 28, 2010; the court designated Ms. Brown's residence as the daughters' residence for mailing and educational purposes, abated Ms. Brown's child support obligation, and emancipated the son. While the case was still pending, in August 2010, Ms. Brown filed a motion for declaration of non-paternity as to one of the daughters and to set aside the judgment of child support against her under section 210.854.

In October 2011, a hearing was held during which Ms. Brown presented evidence and an appointed guardian ad litem (GAL) recommended that the court deny the non-paternity motion. Mr. Doss did not present any evidence because the court had stricken his pleadings and prevented him from presenting evidence as sanctions for discovery violations. At the conclusion of Ms. Brown's evidence, the trial court entered judgment. It terminated Ms. Brown's child support obligation; awarded joint physical custody of the two daughters; and awarded sole legal custody to Ms. Brown, designating her address as the daughters' residence for mailing and educational purposes; and ordered Mr. Doss to pay child support in the amount of $1001 per month. It denied Ms. Brown's motion for declaration of non-paternity. Mr. Doss appeals.

Standard of Review

We review the trial court's judgment modifying child custody and child support under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). See O'Connell v. Horton, 313 S.W.3d 702, 705 (Mo.App. W.D.2010). We will affirm the judgment unless it is unsupported by substantial evidence, “it is against the weight of the evidence, or it erroneously declares or applies the law.” Id. (internal quotation marks and citation omitted).

Legal Analysis

In his first point, Mr. Doss argues that the trial court erred in failing to grant him relief on Ms. Brown's non-paternity motion by not extinguishing any child support arrearage and keeping his name on the birth certificate of a child who is not his biological daughter in violation of section 210.854.4.1 He claims that section 210.854.4 requires the court to “grant the relief requested in the petition for non-paternity,” when it finds that a properly conducted genetic test indicates that the person is not the biological father, as it did here.

In her motion, Ms. Brown alleged that a properly conducted genetic test proved Mr. Doss was not the biological father of one of the daughters; she attached the results. She requested that the court declare Mr. Doss was not the father, remove his name from the child's birth certificate, and set aside its previous judgment of child support against her. The trial court denied the motion because it was in the best interests of the parties to maintain Mr. Doss's paternity of the child.

We do not address this point because Ms. Brown had no standing to bring the motion under section 210.854.2 “Standing requires that the party seeking relief has a legally cognizable interest in the subject matter and that the party has a threatened or actual injury.” Wilson v. Cramer, 317 S.W.3d 206, 209 (Mo.App. W.D.2010) (quoting Shannon v. Hines, 21 S.W.3d 839, 841 (Mo.App. E.D.1999)). “Thus, to have standing, the party must have some actual, justiciable interest susceptible of protection through litigation.” Shannon, 21 S.W.3d at 841. A trial court does not have subject matter jurisdiction if a petitioner lacks standing to bring the action, which in turn prompts us to dismiss any points on appeal from that judgment. See id. at 842 (stating the appellate court did not need to review points on appeal of appellant-defendants because respondent-petitioner did not have standing to bring the action).

Section 210.854.1, in pertinent part, states:

In the event of the entry of a judgment or judgments of paternity and support, whether entered in one judgment or separately, a person against whom such a judgment or judgments have been entered may file a petition requesting a circuit court with jurisdiction over the subject child or children to set aside said judgment or judgments in the interests of justice and upon the grounds set forth in this section .... Any such petition shall be served upon the biological mother and any other legal guardian or custodian in the same manner provided for service of process in the rules of civil procedure.

(emphasis added).

Section 210.854.4 states:

Upon a finding that the genetic test referred to herein was properly conducted, accurate, and indicates that the person subject to the child support payment order has been excluded as the child's father, the court shall, unless it makes written findings of fact and conclusions of law that it is in the best interest of the parties not to do so:

(1) Grant relief on the petition and enter judgment setting aside the previous judgment or judgments of paternity and support, or acknowledgment of paternity under section 210.823 only as to the child or children found not to be the biological child or children of the petitioner;

(2) Extinguish any existing child support arrearage only as to the child or children found not to be the biological child or children of the petitioner; and

(3) Order the department of health and senior services to modify the child's birth certificate accordingly.

Inasmuch as the remedies of setting aside a judgment of paternity and/or support against a petitioner are limited to the child or children found not to be “the biological child or children of the petitioner,” the statute's subject matter is the judgment of child support unjustly entered against the petitioner. It addresses the injury of putative and presumed fathers paying child support for children who are in fact not their biological children, but who could not otherwise obtain a vacation of child support orders or paternity judgments. See Walker v. Walker, 280 S.W.3d 634, 639–40 (Mo.App. W.D.2009) (affirming trial court's dismissal of petitioner's motion to declare non-paternity because his discovery that he was not the biological father was based on intrinsic fraud rather than extrinsic fraud and was thus barred). Consequently, Ms. Brown, who was a biological parent, did not have a legally cognizable interest under this statute to set aside the child support judgment against her. Ms. Brown had already obtained abatement of her child support obligation in a temporary order, the proper recourse for such a remedy. Thus, the trial court erred in addressing the motion on its merits.

Accordingly, because Ms. Brown did not have standing to bring an action under section 210.854, we need not address Mr. Doss's first point. See Shannon, 21 S.W.3d at 842. Moreover, Mr. Doss is estopped from raising this point because the relief that he claims should have been granted was not before the trial court in that he did not request such relief and no judgment of paternity and/or support against Mr. Doss had been entered into evidence. See Walker v. Walker, 954 S.W.2d 425, 428 (Mo.App. E.D.1997) (declining to review an issue on appeal that had not been raised before the trial court). Accordingly, Mr. Doss's first point is denied.

In his second point, Mr. Doss argues that the trial court erred in striking his pleadings for failing to respond to a discovery request because he was not required to update his previously submitted discovery in that no changes in circumstances had occurred and the failure to use less drastic sanctions deprived the court of information necessary to determine the children's best interests.

Trial was set for April 12, 2010, almost a year after Ms. Brown filed a motion to modify. Ms. Brown had requested discovery from Mr. Doss in February 2010. In April 2010, Mr. Doss requested a continuance and received it over Ms. Brown's objection. Trial was then set for July 22, 2010. On April 21,...

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