Grega v. Grega

• Decision Date: 20 June 2017
• Docket Number: No. ED 105083,ED 105083
• Citation: 524 S.W.3d 150
• Parties: Stephen GREGA, Appellant, v. Julie GREGA, Respondent.
• Court: Missouri Court of Appeals

524 S.W.3d 150

Stephen GREGA, Appellant,

v.Julie GREGA, Respondent.

No. ED 105083

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed June 20, 2017 Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2017

ATTORNEYS FOR APPELLANT: Bradley R. Bodeux, 222 S. Central Avenue, Clayton, MO 63105.

ATTORNEYS FOR RESPONDENT: Julie Grega, Pro Se, 27531 Jaquita, Laguna Niguel, CA 92677.

ROBERT G. DOWD, JR., Judge

Stephen Grega("Father") appeals from the judgment dismissing his petition seeking to modify the child support and child custody orders of a California judgment dissolving his marriage to Julie Grega("Mother").We affirm.

The parties were married and lived with their two children in California.The marriage was dissolved by a court in Orange County, California in 2010.Therein, the parties were awarded joint legal custody of the children, but Father was given primary physical custody with visitation rights to Mother at times agreed to by the parties.The visitation was ordered to be supervised because evidence had been presented to the court based on allegations of Mother's alcohol abuse.Neither party was ordered to pay any monthly amount of child support—the judgment indicated "child support is reserved"—but Father was ordered to maintain health insurance coverage for the children, and Mother and Father were ordered to share equally any reasonable uninsured health care costs for the children.

In 2012, the California court modified the custody provisions on the parties' stipulation.Thereunder, Mother and Father continued to have joint legal custody and Father had primary physical custody, but Father was given permission to take the children to Missouri.Mother was granted visitation on two full Sundays a month and on holidays, as agreed by the parties, in California or Missouri.The parties were ordered to cooperate so they could pre-plan for these visits "until mother is able to relocate to [Missouri]" and to "effectuate frequent phone visits prior to mom's move to [Missouri]."The visitation remained supervised "until further order of the court," based again on allegations of Mother's alcohol abuse, which Mother disputed.

Father relocated to Missouri with the children, and they have lived here since 2012, but Mother has remained in California.Father registered the original and modified California judgments in Missouri and filed a petition in the circuit court for the City of St. Louis, seeking to modify the California judgments.As to custody, Father asserted the following changes in circumstances: Mother's failure to exercise her visitation rights, meeting with the children only five out of a possible 91 times since 2012; her failure to exercise her rights to joint legal custody; Mother's, and the children's, desire to have extended summer visits; Mother's failure to move to Missouri as planned.Father asked to be granted sole legal custody and joint physical custody, with the following visitation parameters: Father would be the residential parent, Mother's visitation would remain supervised on every first weekend of the month, two weeks in the summer and on certain specified holidays.As to child support, Father alleged that he needs support and Mother can now pay.

Mother asserted that the Missouri court lacked authority to modify another state's custody determinations and support orders under the Uniform Child Custody Jurisdiction and Enforcement Act and the Uniform Interstate Family Support Act.She asked the court to suspend proceedings until the court could communicate with the California court about which state was the more appropriate forum to resolve the custody matter.The court granted Mother's request after a hearing.Thereafter, the Missouri court entered an order noting that it had a telephone conference with the California court"to address whether California or Missouri has jurisdiction to determine the issues of custody and visitation."The Missouri court concluded that Mother's visitation was ordered by the California court to be supervised because of alleged alcohol abuse, that the alleged changes in circumstances in Father's petition "focus on"Mother's "failure to abide" by the California judgment and her "desire for extended visitation" and that Mother"continues to reside in California, where the evidence of [her] efforts to address her alleged alcohol abuse is available."Ultimately, the trial court concluded it could not proceed on either the custody matter or on the child support issues and it dismissed Father's petition with prejudice.This appeal follows.

In his first five points on appeal, Father challenges various aspects of the court's dismissal of his motion to modify the California court's custody determinations.A Missouri court's authority to modify the child custody determinations of a court in another state is governed by the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), codified in Missouri at Sections 452.700 to 452.930.Whether a Missouri court has such statutory authority is a question of law we review de novo on appeal.Blanchette v. Blanchette , 476 S.W.3d 273, 277-78(Mo. banc 2015).¹

A Missouri court cannot modify another state's custody determination unless certain requirements are met:

[A]court of this state may 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 that 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 child, nor a parent, nor any person acting as a parent presently resides in the other state.

Section 452.800.²Thus, first we must look to the Missouri court's authority to make an initial custody determination.Section 452.740 provides that the "home state" has authority to make initial custody determinations."Home state" is where the children have resided with a parent for at least six consecutive months.Section 452.705(8).Mother admitted in her trial court pleadings that Missouri is the children's home state because they have resided here for more than six consecutive months before Father's petition was filed.In her brief, however, Mother asserts—without citations—that the children have never spent six consecutive months here and have spent over a third of their time in California on vacation and for holidays.Because those factual assertions are not supported by any reference to the record before the trial court, we will not consider them on appeal.³In any case, trips to California for visits and holidays would be merely temporary absences that would not defeat the conclusion that Missouri is the home state.SeeSection 452.705(8)(six-month period includes "[a] period of temporary absence").

Although it has "home state" authority, the Missouri court still cannot modify the California's custody order unless the requirements in Section 452.800(1) or (2), cited above, are met.It is undisputed that Mother resides in California, thus subparagraph (2) is inapplicable.Therefore, the only way for Missouri to have authority to modify California's order is if the California court determines either "that it no longer has exclusive continuing jurisdiction" or "that a court of [Missouri] would be a more convenient forum."Section 452.800(1)."[O]nly the original decree State" can make a determination about its continuing jurisdiction, and the UCCJEA puts the onus on the party seeking to modify custody to obtain that determination from the proper court.UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT , Section 202 cmt.(1997)("A party seeking to modify a custody determination must obtain an order from the original decree State stating that it no longer has jurisdiction.")Moreover, "the modification State is not authorized to determine that the original decree state has lost its jurisdiction."UCCJEA, Section 203 cmt."There should be a clear basis to determine when [the original decree]court has relinquished jurisdiction."UCCJEA, refs & annos, prefatory note.

Father has not obtained any orders from California indicating that it no longer has jurisdiction or that it declines jurisdiction because Missouri is a more convenient forum.Father claims that California released its jurisdiction when it modified the dissolution judgment in 2012 to allow Father to relocate with the children to Missouri, presuming Mother would eventually be moving too.We disagree.The continuing jurisdiction determination required by Section 452.800(1) must be made under the factors in Section 452.745, which requires a finding by the California court that "neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state, and that substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships" or that "neither the child, nor a parent, nor any person acting as a parent presently resides in this state."Section 452.745.1(1) and (2).Nothing in the California court's modification judgment in 2012 could be construed as containing either finding.Moreover, rather than release jurisdiction, the modification judgment clearly preserves California's continuing jurisdiction over the custody matters.In spite of the pending move to Missouri, the California court expressly stated that Mother's visitation was to be supervised "until further order of the court" and the court reserved findings on the disputed allegations of alcohol abuse that gave rise to the supervision "pending further investigation and hearing or trial."The modification judgment from 2012 cannot be construed as a determination...