In re the Marriage of Hendrix v. Hendrix, No. 26470 (MO 6/30/2005)
| Decision Date | 30 June 2005 |
| Docket Number | No. 26470,26470 |
| Parties | IN RE THE MARRIAGE OF: LEWIS HENDRIX and KIMBERLY ANN HENDRIX, LEWIS HENDRIX, Petitioner-Respondent, v. KIMBERLY ANN HENDRIX, Respondent-Appellant. |
| Court | Missouri Supreme Court |
Appeal from the Circuit Court of Webster County, Honorable Daniel Max Knust, Associate Circuit Judge.
1
Kimberly Ann Hendrix ("Mother") appeals from the trial court's denial of her motion to set aside a judgment granting a motion to modify child custody filed by her former husband, Lewis Hendrix ("Father"). On this appeal, Mother contends that the trial court lacked jurisdiction to modify the custody provisions of the original custody judgment.
The original dissolution decree in this case, entered on March 19, 1999, awarded the parties joint legal custody and Mother "primary physical custody" of the two minor children born of their marriage, with Father to have parenting time as set out in an attached "Parenting Plan."2 According to that "Parenting Plan," the physical placement of the children was to be with Mother, and Father was to have custody every other weekend, a minimum of one night per week, four non-consecutive weeks during the summer, and on alternating holidays. A subsequent pleading indicated that the parties, along with the children, resumed living together in May 1999.
Father's motion to modify, which led to the judgment under consideration, was filed on January 17, 2003. The pleadings indicate that the parties again separated in January 2003, and that Father had exercised actual physical custody of the children since then. Mother also filed a counter motion to modify on March 31, 2003, in which she requested a modification so that she would have physical custody of the children but with changed visitation by Father.
The case was set for trial on May 27, 2003. The parties and their counsel, along with the court appointed guardian ad litem, appeared in court that day, but instead of having a trial, they entered into a written stipulation, the pertinent parts of which stated:
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.
. . . .
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.
No evidence was presented to the trial court then or at any time with reference to the motions to modify filed by Mother or Father. In its judgment bearing the date May 27, 2003, but file-stamped July 22, 2003, the trial court stated that "[t]he parties announce to the Court that an agreement has been reached resolving all issues in controversy," and "[t]he parties executed a Stipulation which is attached hereto as Exhibit A, and incorporated herein by reference." The judgment provided, in pertinent part:
4. That there 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 child3 have changed to make the present order for custody and support unreasonable.
5. That the substantial and continuing change of circumstances noted above justifies a modification of Judgment and Decree of Dissolution of Marriage as entered previously by this Court on March 1, 1999.
6. That the Parenting Plan, attached hereby as Exhibit B and incorporated herein by reference is in the best interest of the minor children of the parties, and the parties should be ordered to comply with the terms contained therein.
1. The parties are awarded the joint legal care, custody and control of the children, pursuant to the Parenting Plan attached hereto. Said Parenting Plan is in the best interest of the minor children, and the parties are ordered to comply with the terms contained therein.
The "Parenting Plan" attached to the judgment provided that the primary physical residence of the children would be with Father rather than Mother.
With this factual backdrop, Mother filed a motion pursuant to Rule 74.06(b) seeking to have the judgment set aside. At a hearing on that motion it was established that the "Parenting Plan" attached to the judgment was not signed by the parties and was not attached to the stipulation when the parties signed it. Mother testified that she did not agree to the terms of the "Parenting Plan," did not authorize her attorney to agree to it, and, in fact, did not see it until receiving a copy of the judgment after its entry. The record also indicates that the judgment entered by the trial court, as well as the "Parenting Plan" attached to it, was prepared by Father's attorney. While the paralegal for Mother's trial attorney4 testified that she sent Mother a copy of the judgment and "Parenting Plan" before it was signed by the court, she was unable to produce a file copy of any letter indicating that was done. Mother's motion was denied by the trial court. This appeal followed.
Mother contends in her one point on appeal that the trial court erred in failing to set aside the judgment modifying the custody provisions of the original custody judgment because the trial court lacked jurisdiction to modify the prior custody judgment in that (1) no evidentiary hearing was ever conducted upon a motion modifying custody and, (2) there was no evidence received to show that there was any change in circumstances to warrant a modification or that a change in custody was in the best interests of the children.
"It is a well-recognized principle that in order for a court to acquire jurisdiction to adjudicate, it must have jurisdiction of the subject matter, jurisdiction of the res or the parties, and jurisdiction to render a particular judgment in a particular case." Jenkins v. Craft, 63 S.W.3d 710, 712 (Mo.App. S.D. 2002) (quoting from Schneider v. Sunset Pools of St. Louis, Inc., 700 S.W.2d 137, 138 (Mo.App. E.D. 1985)). It has been held that a trial court must have all three in order to save a judgment from being void. Travis v. Contico Int'l., Inc., 928 S.W.2d 367, 370 (Mo.App. E.D. 1996). The trial court here had subject matter jurisdiction in that the motions to modify stated claims belonging to a general class over which the authority of the court extended. In re Marriage of Neal, 699 S.W.2d 92, 94 (Mo.App. S.D. 1985). In other words, the trial court generally had authority to decide motions to modify. It also had jurisdiction over the parties. The issue here is whether the trial court here had jurisdiction to enter the judgment in question or whether that judgment has any validity.
With reference to jurisdiction to render the particular judgment in the particular case, the Supreme Court of Missouri said in State ex rel. Lambert v. Flynn, 154 S.W.2d 52, 57 (Mo. banc 1941), that it
[p]artakes of the character of one or the other of the first two. Where the lacking element of jurisdiction goes to the personal privilege of the litigant, it may be waived. But when it depends on the power of the court under a public policy established by statute or otherwise, it cannot be waived. `If the court cannot try the question except under particular conditions or when approached in a particular way, the law withholds jurisdiction unless such conditions exist or unless the court is approached in the manner provided, and consent will not avail to change the provisions of the law in this regard.'
(citations omitted). In State ex rel. King v. Kinder, 690 S.W.2d 408, 409 (Mo. banc 1985), the court held that when a court of general jurisdiction engages in the exercise of special statutory power, its authority is strictly confined to that provided in the statute, and an order in excess of that jurisdiction is void. This court has cited King State ex rel. Laws v. Higgins, 734 S.W.2d 274, 279 (Mo.App. S.D. 1987).
The Supreme Court of Missouri has also said:
A court's authority to adjudicate a controversy is based on three essential elements; the court must have jurisdiction of the subject matter, jurisdiction of the res or the parties, and jurisdiction to render the particular judgment in the particular case. Subject-matter jurisdiction concerns "the nature of the cause of action or the relief sought" and exists only when the court "has the right to proceed to determine the controversy or question in issue between the parties, or grant the relief prayed." In other words, subject-matter jurisdiction is "the power to hear and determine cases of the general class to which the proceedings in question belong. . . ." "A court obtains jurisdiction of the subject matter by operation of law. . . .' And, although a court may be a court of general jurisdiction, when it engages in the exercise of a special statutory power, the court is confined strictly to the authority given by the statute.
Missouri Soybean Ass'n v. Missouri Clean Water Comm'n, 102 S.W.3d 10, 21-22 (Mo. banc 2001) (citations...
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