In re Marriage of Miller and Sumpter

• Decision Date: 31 July 2006
• Docket Number: No. 26830.,26830.
• Citation: 196 S.W.3d 683
• Parties: In re the MARRIAGE OF Leanna F. MILLER and James D. SUMPTER, Jr. Leanna F. Miller, Petitioner-Respondent, v. James D. Sumpter, Jr., Respondent-Appellant.
• Court: Missouri Court of Appeals

196 S.W.3d 683

In re the MARRIAGE OF Leanna F. MILLER and James D. SUMPTER, Jr.

Leanna F. Miller, Petitioner-Respondent, v. James D. Sumpter, Jr., Respondent-Appellant.

No. 26830.

Missouri Court of Appeals, Southern District, Division Two.

July 31, 2006.

COPYRIGHT MATERIAL OMITTED

Sarah Luce Reeder, Joplin, MO, for appellant.

Susan S. Jensen, Springfield, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

James D. Sumpter, Jr. (Father) has appealed from a default judgment that dissolved his marriage to Leanna F. Miller (Mother), awarded Mother sole legal and physical custody of the parties' two minor children, granted Father reasonable visitation, ordered Father to pay $631 per month as child support and divided the parties' assets and debts. Father contends the judgment should be reversed for three reasons: (1) the trial court did not have subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) to adjudicate the issue of child custody; (2) hence, the court also lacked subject matter jurisdiction to adjudicate the issue of child support; and (3) the court abused its discretion by unfairly and inequitably dividing the parties' property.¹ For reasons explained below, we agree with Father that the provisions of the judgment dealing with child custody and child support must be reversed for lack of subject matter jurisdiction. Father's point dealing with the division of the parties' property and debts, however, must be dismissed because he is attempting to directly appeal from a default judgment without first having filed a timely motion to set aside or vacate that judgment.

I. Factual and Procedural Background

Mother has been a resident of Barton County, Missouri, for 39 years. In October 1986, she joined the United States Army. After Mother became a member of the military, she continued to list Lamar, Missouri, as her permanent residence. It is her intention to return to Missouri to live upon her retirement from the Army. Since 1986, however, her physical presence in Missouri has been limited to those occasions when she returned to the state while on leave.

Father and Mother were married in Lamar, Missouri, on October 21, 1989, but the couple has never lived in this state. In 1994, they moved to West Point, New York, because Mother was transferred to an Army base there. While living in New York, Father and Mother had two children: Calvin Sumpter, who was born in January 1995; and Bradley Sumpter, who was born in September 1996.² In 1998, Mother was transferred to an Army base in Hawaii. The family lived there until July 2002, when Mother was transferred again. In the process of moving from Hawaii to Virginia, the family stayed with Mother's parents in Lamar, Missouri, for several weeks while Mother was on leave.

In September 2002, the family moved into base housing at Mother's new duty station in Ft. Belvoir, Virginia. Both of the children have medical problems for which they have received treatment and other services in Virginia. Calvin has asthma and also receives weekly mental health therapy. Bradley has reactive airway disease, bronchiactasis and autism. His autism is sufficiently severe that he requires constant care and supervision, and it is very doubtful he will ever be able to live independently. He receives special services through autism-inclusion classes at a Virginia public school, and he receives in-home behavioral therapy as well.

On October 29, 2003, the parties separated and Father moved out. Mother, Calvin and Bradley continued to live on base at Ft. Belvoir. Father moved to Woodbridge, Virginia, but he continued working in Ft. Belvoir. On October 30, 2003, Mother obtained a temporary protective order barring Father from having any contact with Mother or the children based upon allegations of domestic abuse. After a hearing, a court in Fairfax County, Virginia, extended the effective date of the initial protective order for six months. On December 10, 2003, the court modified the order so that it would not terminate for two more years.

On August 31, 2004, Mother filed a petition for dissolution of marriage in the Circuit Court of Barton County, Missouri. The petition alleged that Mother was a Missouri resident and that Calvin and Bradley resided with Mother in Ft. Belvoir, Virginia. The summons and petition were personally served upon Father on October 29, 2004 by the Sheriff of Fairfax County, Virginia. Father failed to file an answer to the petition and was in default.

In certain limited circumstances, the Circuit Court of Barton County permits the entry of a dissolution judgment upon the affidavit of one party in the event the adverse party defaults.³ On December 3, 2004, Mother sought to avail herself of this rule by filing such an affidavit. On December 6, 2004, the trial court entered a judgment dissolving the parties' marriage, awarded Mother sole legal and physical custody of the two minor children, granted Father reasonable visitation, ordered Father to pay child support in the amount of $631 per month and divided the parties' property and debts.

On December 14, 2004, Father's attorney filed a special entry of appearance on Father's behalf and challenged the trial court's jurisdiction to proceed under the UCCJA. Specifically, Father contended the trial court lacked jurisdiction over the children because: (1) Virginia was their home state since they had lived there for more than six months preceding the filing of Mother's petition for dissolution of marriage; (2) substantial evidence concerning the children's present or future care, protection, training and personal relationships was available in Virginia; and (3) Father had a significant connection with that state.

On December 29, 2004, the court held a hearing at which both Father and Mother were present and represented by counsel. At the request of Father's counsel, the court set aside the December 6, 2004 judgment because Local Rule 68.12 did not authorize the entry of a dissolution judgment by affidavit in this situation.⁴ The court then took up Father's motion challenging the court's subject matter jurisdiction to adjudicate the issues of child custody and support under the UCCJA. Father was allowed to present evidence (which we previously summarized above) concerning where and when the family had lived in various states in order to support his jurisdictional challenge. The court overruled the motion because "even for purposes of [the UCCJA], . . . the residence of the children is whatever the residence of the custodial parent is for purposes of determining jurisdiction." Thereafter, the court took up Mother's petition for dissolution. Since Father was still in default, the court decided to hear Mother's testimony and then enter a new default judgment.⁵ Father and his attorney were not permitted to participate in the presentation of evidence concerning the merits of the dissolution action.

On January 7, 2005, the trial court entered a new default judgment against Father. The court made the following finding to establish its jurisdiction under the UCCJA:

That [Mother] and minor children have been residents of this state for more than ninety days immediately preceding the commencement of this proceeding. [Mother] is on active duty in the United States Army and the residence of the minor children follows that of the custodial parent. That the Court has jurisdiction over the subject matter and the parties including the minor children.

The essential terms of the January 7th judgment were the same as those in the vacated December 6th judgment. Mother was granted sole legal and physical custody of the children; Father was granted reasonable visitation and ordered to pay $631 child support per month; and the court divided the parties' property and debts in an identical fashion. After entry of this new default judgment, Father did not file a motion requesting that the judgment be vacated or set aside. Instead, he appealed directly from the January 7th judgment itself.

II. Discussion and Decision

As noted above, Father is directly appealing from the January 7th default judgment without having first filed a motion to set aside or vacate that judgment. Father's attempt to do so presents us with an issue concerning our jurisdiction over this appeal, which we have a duty to determine sua sponte. Treetop Village Property Owners Ass'n v. Miller, 139 S.W.3d 595, 599-600 (Mo.App.2004); State ex rel. Anderson v. Anderson, 186 S.W.3d 924, 925 (Mo.App.2006).

Our review of the relevant law on this subject begins with Green v. Green, 623 S.W.2d 265 (Mo.App.1981). There, the husband directly appealed from a default judgment in a dissolution action. Because husband had not filed a post-trial motion to set the judgment aside, the Eastern District declined to review the husband's arguments that certain procedural improprieties rendered the judgment defective. Id. at 266. Nevertheless, the appellate court did address husband's contention that there was insufficient evidence to support the trial court's division of the marital property. The court did so because "Section 452.330 RSMo 1978 requires the trial court to make a just division of marital property. This statutory obligation is not dependent upon whether the dissolution is contested, uncontested, or as in this case by default." Id. The case was reversed and remanded because no evidence had been presented below concerning the value of husband's pension and profit-sharing plans. Id. at 267-68.

In Blackmore v. Blackmore, 639 S.W.2d 268 (Mo.App.1982), the Eastern District was again confronted with an attempt by a husband to directly appeal from a default judgment entered in a dissolution action without having filed a motion to have the judgment set aside. The court dismissed husband's appeal for lack of appellate jurisdiction:

Is a default judgment appealable in the absence of a motion to set aside or vacate the judgment? This court rules it is...