Hightower v. Myers

• Court: Missouri Supreme Court
• Writing for the Court: PATRICIA BRECKENRIDGE
• Citation: Hightower v. Myers, 304 S.W.3d 727 (Mo. 2010)
• Decision Date: 09 March 2010
• Docket Number: No. SC 89951.,SC 89951.
• Parties: John T. HIGHTOWER, Respondent, v. Melissa Ann MYERS, et al., Appellant.

304 S.W.3d 727

John T. HIGHTOWER, Respondent, v. Melissa Ann MYERS, et al., Appellant.

No. SC 89951.

Supreme Court of Missouri, En Banc.

March 9, 2010.

Ronald Ribaudo, Lake St. Louis, MO, for appellant.

Michelle N. Higinbotham, Higinbotham & Higinbotham, Belton, MO, for respondent.

PATRICIA BRECKENRIDGE, Judge.

Melissa Ann Myers (Mother) appeals from a 2007 judgment modifying the child custody and support provisions for the parties' child. The trial court found that it was in the best interest of the child to modify the parenting plan so that the address of the child's father, John T. Hightower (Father), is designated as the residence of the child for school and mailing purposes and that Father have physical custody of the child during the school year. The trial court also ordered Mother to pay child support of $87 per month. Mother asserts on appeal that the trial court lacked subject matter jurisdiction to enter the modification decree in 2007 as well as the initial decree in 2003. She also claims that the trial court's finding that a continuing and substantial change of circumstances made a custody modification in the best interests of the child was not supported by substantial evidence, was against the weight of the evidence, or was the result of the court's misapplication of the law. Because there was subject matter jurisdiction to enter the 2003 initial decree and 2007 custody modification and no error in the modification of the custody provisions, the trial court's judgment is affirmed.

Facts and Procedural Background

In 1999, Father and Mother had a child in Kansas City, Kansas. They lived in Kansas City, Missouri, from June 2000 through May 13, 2001. When the relationship between the parents ended, Mother moved to New Jersey with the assistance of Father. By agreement, the two exchanged custody of the child, who resided with Father from June 23, 2001, through August 12, 2001, (51 days) and November 17, 2001, through December 23, 2001 (36 days).

In January 2002, Father filed a petition for a declaration of paternity and custody of the child in the Jackson County circuit court. Mother filed a motion to dismiss for lack of personal jurisdiction. She later dismissed her motion when the parties reached an agreement regarding custody and support. On August 25, 2003, the court entered an amended judgment and order of paternity, a parenting plan, and an award of child support. In the 2003 judgment, the court declared Father to be the child's father. The court granted joint legal and physical custody of the child to Father and Mother, with Mother being designated the child's primary physical custodian.¹ The court also ordered Father to pay $500 per month in child support.

Under the parenting plan, Father was to have custody of the child for Thanksgiving and spring breaks in even-numbered years and Christmas breaks in odd-numbered years. He also was to have custody of the child for six weeks in the summer. Father was to pay the cost of transportation of the child and, while the child required a chaperone, the cost of Mother's travel so she could accompany the child on the trip to Kansas City.² Although Father received custody of the child as ordered in the summers, the only other custody time he received between 2003 and 2006 was one Christmas break. Mother failed to put the child on the airplane for Christmas break 2005 and again refused to allow the child to fly to Orlando in the spring of 2006 for a trip to Disney World, which was planned as make-up parenting time for Father. She also regularly denied Father telephone access to the child and did not provide him with academic report cards or school pictures.

Mother changed residences five times while she lived in New Jersey. She did not provide Father with the required notice of the moves or the child's new addresses and the names of the schools the child was going to attend. With regard to her living arrangements, Mother's boyfriend and two of his three sons moved in with her and the child in June 2003.³

In July 2006, Mother told Father that she might be moving to Georgia with her boyfriend, who signed a lease August 5, 2006, to rent a house in Georgia. Mother and the child moved to Georgia the same month. Mother, who was employed in New Jersey, had not secured a job in Georgia when she moved. She did not provide Father with the required 60-day advance notice of her proposed relocation. Although the child's new second grade in Georgia started classes August 7, 2006, the child was not enrolled in school and did not begin classes until September 6, despite the fact that second grade was scheduled to take standardized tests beginning September 15.

On July 20, 2006, Mother requested that Missouri's department of social services' family support division review the parties' case for an increase in Father's support obligation. On September 5, 2006, Father filed a motion to modify the 2003 custody agreement in the Jackson County circuit court, requesting that custody of the child be transferred to him and that Mother be ordered to pay him child support. Mother filed a pro se pleading, captioned "Objection to Motion to Modify Custody, Visitation and Support." In said pleading and at trial, Mother did not challenge the court's jurisdiction over her or the proceedings. After a trial, the court found that it had jurisdiction "over all custody issues involving the minor child, under the UCCJA, section 452.450.1(2) RSMo, in that it is in the best interest of the child that this court assume jurisdiction because the minor child and Father have a significant connection with this state and there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships." The court added that Missouri is the most appropriate forum because of "Mother's recent relocation from... New Jersey to ... Georgia without proper notice being given to Father." The court granted Father's motion, maintaining joint physical and legal custody, changing the child's primary residency to Missouri with Father, and ordering Mother to pay child support of $87 per month.

Mother moved for a new trial. The trial court overruled the motion and issued additional findings of fact and conclusions of law. In its additional findings, the trial court found that Mother had moved to Georgia in August 2006 and that New Jersey was no longer the child's home state. The court stated that had Mother not moved, New Jersey would have been the forum with the most evidence concerning the child's present and future care. Relocation to Georgia made Missouri the most appropriate forum because the child had a substantial connection to Missouri and more evidence would be present in Missouri than in Georgia. Ultimately, the trial court found that "there was a factual and legal basis for this court's assuming subject matter jurisdiction over the custody proceedings under Sections 452.450.1(2) and (4)."

Mother appeals, raising three points. In her first point, she argues that the trial court lacked subject matter jurisdiction to enter judgment for custody and support in the 2003 paternity action because the child's permanent residence had been in New Jersey for more than six months. In her second point, she claims that the trial court lacked subject matter jurisdiction to enter its 2007 modification because, on the date Father's motion to modify was filed, the child's home state was New Jersey. In her third point, she asserts that the trial court's finding that the continuing changed circumstances of the parties and the best interests of the child warranted a modification of residential custody was not supported by substantial evidence, was against the weight of the evidence, and was a misapplication of the law. After opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.

Standard of Review

In a court-tried case, the trial 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This Court views the evidence and permissible inferences drawn from the evidence in the light most favorable to the judgment. Suffian v. Usher, 19 S.W.3d 130, 136 (Mo. banc 2000). This Court gives even more deference to the trial court's judgment in a custody matter than in other matters. Id.

Jurisdictional Challenges

Mother's first two points raise claims that the Missouri court lacked subject matter jurisdiction when it entered the initial 2003 paternity judgment awarding custody and support and the 2007 modification judgment modifying the custody and support awards. Specifically, she argues that the trial court lacked "subject matter jurisdiction" under the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA). Sections 452.440 to 452.550 (repealed by L.2009 H.B. 481 § A).⁴

The UCCJA provides that a court "has jurisdiction to make a child custody determination by initial or modification decree" if one of four prerequisites are met:

(1) This state:

(a) Is the home state of the child at the time of commencement of the proceeding; or

(b) Had been the child's home state within six months before commencement of the proceeding and the child is absent from this state for any reasons, and a parent or person acting as parent continues to live in this state; or

(2) It is in the best interest of the child that 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 this state; and

(b) There is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or

(3) The child is physically present in the state and:

(a) The child has been abandoned; or

(b) It is necessary in an

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