In re Marriage of Hendrix

• Decision Date: 14 February 2006
• Docket Number: No. SC 86938.,SC 86938.
• Citation: 183 S.W.3d 582
• Parties: In re the MARRIAGE OF Lewis HENDRIX and Kimberly Ann Hendrix, Lewis Hendrix, Respondent, v. Kimberly Ann Hendrix, Appellant.
• Court: Missouri Supreme Court

Page 582

183 S.W.3d 582

In re the MARRIAGE OF Lewis HENDRIX and Kimberly Ann Hendrix,

Lewis Hendrix, Respondent, v. Kimberly Ann Hendrix, Appellant.

No. SC 86938.

Supreme Court of Missouri, En Banc.

February 14, 2006.

Appeal from the Circuit Court, Webster County, Daniel Max Knust, J.

COPYRIGHT MATERIAL OMITTED

Mark J. Murphy, J. Michael Murphy, Liberty, for Appellant.

James R. Royce, Springfield, for Respondent.

LAURA DENVIR STITH, Judge.

Kimberly Hendrix (Mother) appeals the trial court's refusal to set aside its judgment modifying custody of her two children so as to make the home of Father, Lewis Hendrix, their residence for mailing and educational purposes. She argues that the judgment modifying custody was void under section 452.410¹ and Rule 74.06 because based on stipulated facts rather than on facts developed at an evidentiary hearing.

This Court affirms the judgment. The modification was not based merely on a stipulation of Mother and Father that a change of circumstances had occurred that required a modification of custody arrangements. Rather, after notice and an opportunity for hearing, the parties presented the court with sufficient, uncontested facts — set out in a parenting plan and in the proposed judgment and the stipulation signed by both the parties and the guardian ad litem (GAL) — to support the modification. This included facts showing that Mother had moved out of the marital home, leaving the children there in Father's care, and other facts underlying the court's determination that a change of circumstances had occurred sufficient to support modifying custody and making the children's address for mailing and educational purposes that of Father. The parties did not dispute the facts on which the modification was based or suggest, prior to entry of the order, that a hearing was necessary to establish additional facts. In these circumstances, section 452.410 did not require the trial court to hold an evidentiary hearing sua sponte.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father separated in September 1998. Their March 1999 judgment dissolving their marriage gave them joint legal custody, but gave Mother "primary" physical custody and granted Father substantial visitation.² The parties returned to living together and sharing expenses almost immediately, however, and in September the court modified the judgment to eliminate provisions ordering Father to pay child support.³

Mother and Father continued to live together in the family home in Marshfield, Missouri, until January 2003, when Mother moved out, leaving the children with Father. He then filed a motion to modify and proposed parenting plan in which he asked that he be given "primary" physical custody. The motion alleged Mother had left the children in Father's care in the marital home and that she stated she would keep Father from seeing the children. Mother filed a counter-motion and parenting plan proposing that she be given physical custody and Father have only visitation rights.

A hearing on the motions to modify was set for May 27, 2003. That hearing was never held, however, because on that date, at the parties' request, the GAL prepared and presented to the court a short stipulation, signed by both parties, agreeing to joint physical and legal custody as follows:

The parties do hereby agree and stipulate to the following conditions regarding custody and support of their minor children:

1. The parties shall share joint legal and joint physical custody;

2. There shall be no child support paid to either party, and Father shall maintain health insurance on the children;

3. Parenting time with the children shall be as follows:

Parties will prepare a parenting plan, which will maximize the time each parent spends with the children during that parent's non-working hours. As closely as possible the parties will alternate weekends and holidays and shall each have available to them one uninterrupted two-week period of parenting time in the summer;

4. Parties shall allow phone contact with the non-custodial parent;

5. Parties will communicate with each other regarding the health, education and schedule of the children;

6. The non-custodial parent shall be the first option for a baby-sitter should the need arise. Only if the non-custodial parent is unavailable should a baby-sitter be consulted.

(emphasis added).

The parties and their counsel at that time also agreed that the children would live with Father and that counsel for Father would prepare a parenting plan and Form 14 reflecting this agreement. Counsel would also draft a proposed judgment that would incorporate the stipulation, parenting plan and Form 14 and fill in remaining factual details about the circumstances of the parties that formed the basis for the modification. In accordance with this agreement, counsel prepared a proposed judgment stating:

4. [T]here has been a substantial and continuing change of circumstances which include, but are not limited to the following:

a. That the minor children have lived continuously with [Father] since the date of the dissolution of marriage;

b. [Mother] no longer resides with [Father], and the parties and children desire to change the provisions of the custody plan; and

c. The circumstances of the parties and the unemancipated minor child have changed to make the present order for custody and support unreasonable.

The proposed judgment did not itself make Father's home the children's residence for mailing and educational purposes, but incorporated the parenting plan and stated that the parties agreed to joint legal and physical custody, that neither was to pay child support, and that each would pay their own attorneys' fees. That plan, as agreed, provided that the children's address for mailing and educational purposes would be Father's home.

Counsel for Mother and Father, and the GAL, all submitted the proposed judgment to the court, along with the stipulation, Form 14 and parenting plan. At the end of the proposed judgment all three signed their names beneath the legend, "approved as to form." While the purpose of having counsel and the GAL "approve" a judgment is not self-evident — only a judge can enter a judgment — counsel suggest that requiring such signatures is local practice and indicates that counsel agree that the judgment accurately reflects the matters addressed therein.⁴ The court signed the judgment, without change, on July 22, 2003.

Although counsel had approved the judgment as to form and later testified that it accurately reflected the parties' agreement, Mother later claimed that she first became aware that Father's home would be the primary residence for educational and mailing purposes only when she was sent a copy of the signed judgment in August. She raised no objection to this provision until she found, after she moved to Kansas City in September, that visitation under the plan had become more difficult. In December, she filed a motion to set aside the modification pursuant to Rule 74.06(b), alleging that the court's judgment was void because the court had not held an evidentiary hearing on the motion to modify and asking that primary physical custody be returned to her.

The trial court held an evidentiary hearing on the motion to set aside the modification, at which Mother testified that she had neither seen nor authorized counsel to approve the parenting plan before the court signed the judgment. Her counsel and his paralegal testified by deposition to the contrary, stating that she had approved the contents of the parenting plan and was agreeable to having Father's residence be the children's address for mailing and educational purposes. They stated Mother feared that if such an agreement had not been reached, the court might have given Father sole custody due to Mother's having moved out of the home, the difficulties she gave Father in regard to seeing the children, and other matters. The court overruled the motion to set aside. Mother appeals. After opinion by the Court of Appeals, Southern District, this Court granted transfer. Mo. Const. art V, sec. 10.

II. STANDARD OF REVIEW

"The judgment denying a motion filed pursuant to Rule 74.06(b) is appealable." Baxi v. United Technologies Auto. Corp., 122 S.W.3d 92, 95 (Mo.App. E.D. 2003). "The trial court is vested with broad discretion in determining whether to set aside a judgment under Rule 74.06," id., and "its decision shall not be reversed unless the record clearly and convincingly proves an abuse of that discretion." In re Marriage of DeWitt, 946 S.W.2d 258, 261 (Mo.App. W.D.1997). "An abuse of discretion occurs when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003); DeWitt, 946 S.W.2d at 261. "If reasonable persons can differ as to the propriety of the trial court's action, then it cannot be said that the trial court abused its discretion." Hancock, 100 S.W.3d at 795.

III. JURISDICTION TO MODIFY CUSTODY UPON FINDING A CHANGE IN CIRCUMSTANCES FOLLOWING NOTICE AND STIPULATIONS AS TO FACTS SUPPORTING MODIFICATION

Mother argues that section 452.410 requires a court to hold an evidentiary hearing before it may modify custody and that the absence of such a hearing left the court without jurisdiction to modify custody. Because Mother is using the word "jurisdiction" in a broader sense than is usual, it is helpful to explain the types of jurisdictional defects that may render a court without power to hear a case or render a judgment.

A. Nature of Court's Jurisdiction and Authority.

The essential bases of a court's authority to adjudicate a controversy are its jurisdiction over the subject matter of the controversy and jurisdiction over the parties. This Court has also recognized that in...