In re Marriage of Rhoads

• Decision Date: 08 December 2006
• Docket Number: No. 27205.,27205.
• Citation: 209 S.W.3d 24
• Parties: In Re the MARRIAGE OF Jack L. RHOADS and Michele A. Rhoads. Jack L. Rhoads, Petitioner-Respondent, v. Michele A. Rhoads, Respondent-Appellant.
• Court: Missouri Court of Appeals

209 S.W.3d 24

In Re the MARRIAGE OF Jack L. RHOADS and Michele A. Rhoads.

Jack L. Rhoads, Petitioner-Respondent, v. Michele A. Rhoads, Respondent-Appellant.

No. 27205.

Missouri Court of Appeals, Southern District, Division Two.

December 8, 2006.

J. Matthew Miller, Springfield, MO, for Appellant's Attorney.

Jack L. Rhoads, Springfield, MO, acting pro se.

JEFFREY W. BATES, Chief Judge.

Michelle A. Rhoads (Mother) appeals from a judgment dissolving her marriage to Jack L. Rhoads (Father), presenting seven points for our decision. Four of Mother's points involve issues relating to the custody and support of the parties' minor child, Clayton Rhoads (Clayton). Because Clayton had lived with Mother in Massachusetts for approximately ten years prior to trial, we conclude that the court below lacked subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) to adjudicate these issues.¹ Accordingly, we must reverse and remand the case with instructions to vacate these provisions of the judgment. The remainder of this appeal must be dismissed for lack of appellate jurisdiction. By failing to apportion a federal tax debt between Father and Mother, the trial court failed to completely divide the parties' debts as required by § 452.330.1. Consequently, there is no final judgment from which an appeal may be taken.

Father and Mother were married on September 4, 1976, in Los Angeles, California. In 1985, the parties moved to Springfield, Missouri. At that point, they had two children: Joshua, who was born in February 1980; and Tyler, who was born in February 1983.

Joshua became involved in the sport of artistic roller skating and participated in competitions all across the country. While at a skating event, Father and Mother spoke with a well-known skating coach about the possibility of training Joshua. The coach lived in New Hampshire. In 1993, the Rhoads family moved to New Hampshire to live near the coach. Their third son, Clayton, was born that year as well.

Father, a real estate broker, obtained his New Hampshire real estate license and a position with a real estate firm there. Due to lack of business, Father agreed to return to Springfield, Missouri. The plan was that he would generate some income selling real estate there, sell the family home and return to his family in New Hampshire. After a few initial trips back to New Hampshire, Father remained in Springfield, maintained telephone contact and sent money to Mother from 1994 until 2002 when he filed for divorce. During this period of time, Father failed to pay federal taxes on his income. As a result, the parties accrued a debt to the Internal Revenue Service (IRS) of approximately $334,000.

In the meantime, the skating coach moved to Massachusetts. Sometime in 1995, Mother and the children decided to follow. They moved from New Hampshire to Raynham, Massachusetts. As of the date of trial, Joshua and Tyler were emancipated. Mother and Clayton continued to reside in Raynham. He attended school there and got involved in artistic roller skating like his older brothers. Clayton last saw Father in 1998 and had last talked to him by telephone a year before Father filed his dissolution petition on October 9, 2002.

In Father's petition, he alleged that "within the five years next preceding the filing of this Petition, [Clayton] has resided with [Mother], in Raynham, Bristol County, Massachusetts" and that "the State of Massachusetts has jurisdiction to decide issue[s] of child custody and support." In February 2003, Mother answered the petition and filed her own counter-petition for dissolution. In Mother's answer, she admitted the former allegation and denied the latter. Mother sought sole physical and legal custody of the child, as well as temporary and periodic maintenance. Neither Mother's answer nor her counter-petition for dissolution contained any allegations sufficient to vest a Missouri court with subject matter jurisdiction to adjudicate the issues of child custody, visitation or support pursuant to the UCCJA. Mother merely alleged that Clayton was living in her custody and not involved in any other custody proceeding.

The trial was conducted in March 2005. In an attempt to establish jurisdiction under the UCCJA, Father testified that Clayton's "legal residence" was "in the State of Missouri prior to 2002." Father also testified about the $334,000 federal tax debt owed to the IRS. The parties had filed joint tax returns, and all of the money giving rise to the federal tax debt was marital income. As of the date of trial, Father was planning to meet with an IRS agent in a few days to discuss the details of a repayment plan. Father requested that the trial court divide the federal tax debt between Father and Mother.

On July 7, 2005, the court issued its findings, recommendations for judgment and decree of dissolution of marriage. The court specifically found the child's "legal residency was in the State of Missouri for the six-month period prior to the filing of this action, and, therefore, this court has jurisdiction regarding the issues concerning [Clayton]." The court awarded both parties joint physical and legal custody of the child, adopted Father's parenting plan, ordered Father to pay $901 per month child support, allowed Father the tax dependency exemption and declined to apportion responsibility for Clayton's college expenses between the parties. The court found Mother was entitled to maintenance, but denied that relief to her because Father was unable to pay it. With respect to the federal tax liability, the court only made the following findings:

[T]he parties have a Federal tax liability that is a joint obligation, and the Court also finds that neither party's conduct caused an unfair burden to be imposed on the marital estate. The Court also finds that the decision to follow the skating coach was a mutual decision even though the decision may not have been simultaneous, and, at times both wavered in their testimony as to whether or not their decision was a wise one. The Court further finds that each party's actions confirm that they both tacitly approved of their living arrangements and the sacrifices that they made were direct consequences of their decision, and that the tax liability is a direct consequence of parties' decision made in 1993 and 1994 and each following year.

The court listed the "Joint Federal tax liability" with an "[u]nknown" value on both parties' debt schedules.

On July 22, 2005, Mother filed a motion for rehearing, in which she challenged, inter alia, the court's ruling on the federal tax liability and its failure to award her maintenance. After a hearing, the court denied Mother's motion. This appeal followed.

Child Custody and Support Issues

In Points II, III, IV and VI, Mother contends the trial court erred in: (1) awarding Father joint legal custody of Clayton because there had been no contact between father and child for several years while Clayton and Mother had been living in Massachusetts; (2) ordering child support without considering Clayton's extraordinary expenses for artistic roller skating; (3) awarding Father the tax dependency exemption for Clayton; and (4) failing to order the parties to pay Clayton's college expenses. For the reasons explained below, the trial court lacked subject matter jurisdiction under the UCCJA to adjudicate any of these issues. Though neither party raised the issue, we may examine sua sponte whether the trial court possessed subject matter jurisdiction under the UCCJA. Elbert v. Elbert, 833 S.W.2d 884, 887 (Mo.App.1992). Our review of jurisdictional issues is de novo. Bounds v O'Brien, 134 S.W.3d 666, 670 (Mo.App.2004).

A trial court's jurisdiction under the UCCJA to hear custody matters is described as "subject matter jurisdiction," which must be based upon circumstances existing at the time the court's jurisdiction is invoked. Pirisky v. Meyer, 176 S.W.3d 145, 146 (Mo. banc 2005). Even though the parties may agree to determine custody in this state, subject matter jurisdiction cannot be conferred by the consent of the parties or predicated upon the doctrine of waiver. Id.; Lavalle v. Lavalle, 11 S.W.3d 640, 651 (Mo.App.1999). The UCCJA is purposely designed "to ensure that a child's custody determination is made in the state with which the child and his family are most closely connected and where the most significant evidence concerning the child's custody is available ...." State ex rel. In Interest of R.P. v. Rosen, 966 S.W.2d 292, 299 (Mo.App.1998). Father bore the burden of establishing a prima facie basis for jurisdiction pursuant to the UCCJA because he was the proponent of that jurisdiction below. In re Marriage of Dooley, 15 S.W.3d 747, 755 (Mo.App.2000).

Section 452.450.1 sets out the four alternative jurisdictional bases that exist under the UCCJA. Only two are potentially applicable here.² If a court is otherwise competent to decide a child custody matter, this statute grants the court subject matter jurisdiction to do so if:

(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 reason, and a parent or person acting as parent continues to live in this state; or

...

(4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.

"It is implicit in the UCCJA that the trial court is to make an initial determination of jurisdiction by express findings of fact before proceeding to the substantive issue of custody." State ex rel....