K.M.J. ex rel. I.G.M. v. M.A.J.

• Decision Date: 31 January 2012
• Docket Number: No. ED 96677.,ED 96677.
• Citation: 363 S.W.3d 172
• Parties: K.M.J., for Herself and as Next Friend Of I.G.M., a Minor Child, Appellant, v. M.A.J., Respondent.
• Court: Missouri Court of Appeals

363 S.W.3d 172

K.M.J., for Herself and as Next Friend Of I.G.M., a Minor Child, Appellant,

v.M.A.J., Respondent.

No. ED 96677.

Missouri Court of Appeals, Eastern District, Division Three.

Jan. 31, 2012.Motion for Rehearing and/or Transfer to

Supreme Court Denied March 19, 2012.

Application for Transfer Denied

May 1, 2012.

Mary Elizabeth Davidson, St. Louis, MO, for Appellant.

Michael L. Schechter, Clayton, MO, for Respondent.

ROBERT G. DOWD, JR., Presiding Judge.

K.M.J. (“Mother”) appeals the dismissal of her action against M.A.J. (“Father”) for a declaration of paternity as to I.G.M. (“Child”) and an order of support and reimbursement of necessaries. Mother asserts the circuit court erred in dismissing the action for lack of jurisdiction because the circuit court had subject matter jurisdiction and personal jurisdiction over the parties. We reverse and remand for further proceedings.

On June 11, 2010, Mother filed an action against Father requesting a declaration of paternity, an order of support, and reimbursement of necessaries in the circuit court of St. Louis County. The petition alleged that as of the date of the filing, Mother and Child were residents of the state of Oklahoma, and Father was a resident and citizen of the country of Spain. The petition also alleged that approximately nine months prior to the birth of Child on June 12, 2002 in the State of Oklahoma, Mother and Father engaged in sexual intercourse in St. Louis County, Missouri, which resulted in the birth of Child. Father was served with the petition in the state of California on June 15, 2010 by an appointed Special Process Server.

On June 1, 2010, prior to the filing of the action in St. Louis County, Mother filed an action pursuing a step-parent adoption of Child by her current husband in Child's home state of Oklahoma. In that petition, Mother requested Father's parental rights be terminated and sought a declaration that the consent of Father to the adoption was not necessary because he had not contributed to the support of Child and had failed to maintain a relationship with Child. ¹ On August 16, 2010, the Oklahoma court terminated Father's parental rights and granted the adoption.

Father subsequently entered a special appearance in the circuit court of St. Louis County to file a motion to dismiss and an amended motion to dismiss. In his motion to dismiss, Father asserted the circuit court did not have “jurisdiction” to determine the matter and grant relief because under Section 210.829.4, RSMo 2000,² an action under the Uniform Parentage Act in Missouri may only be brought in the county in which the child resides, the mother resides, or the alleged father resides or is found. Father also asserted the circuit court lacked jurisdiction because there was a simultaneous proceeding occurring in Oklahoma. Finally, Father alleged the circuit court should dismiss the action because Missouri must give full faith and credit to the action in Oklahoma which terminated Father's parental rights. Thereafter, the circuit court dismissed Mother's petition. In its judgment, the circuit court stated:

Motion to dismiss filed by [Father] is sustained.

The Court has no jurisdiction over the parties to this cause. [Mother] and [Child] are residents of Oklahoma. [Father] is a resident of Spain.

Mother now appeals.

In her point, Mother contends the circuit court erred in dismissing the action for lack of jurisdiction because the circuit court had subject matter jurisdiction and personal jurisdiction over the parties.

At the outset, we must address whether this judgment is final for purposes of appellate review. The circuit court here did not indicate that the dismissal was with or without prejudice. A dismissal failing to indicate that it is with prejudice is deemed to be without prejudice. Rule 67.03. The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appealable. Harlow v. Harlow, 302 S.W.3d 154, 155 (Mo.App. E.D.2009)(citing Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997)). An appeal from such a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum. Williams v. Lee, 331 S.W.3d 298, 298 (Mo. banc 2011). Here, although the circuit court's dismissal is deemed to be without prejudice, as will become clear from our analysis below, we hold the judgment had the practical effect of terminating the litigation in Mother's chosen forum, and thus, the judgment is final and appealable.

We now turn to Mother's arguments concerning the jurisdiction of the circuit court. We review matters of jurisdiction de novo. Bounds v. O'Brien, 134 S.W.3d 666, 670 (Mo.App. E.D.2004).

In its judgment, the circuit court stated that it had “no jurisdiction over the parties” and dismissed Mother's action. The trial court's determination is erroneous. The circuit court had subject matter jurisdiction over the cause and personal jurisdiction over the parties.

As to subject matter jurisdiction, this is a civil case. Article V, Section 14 of the Missouri constitution provides that “the Circuit Courts shall have original jurisdiction over all cases and matters, civil and criminal.” Therefore, the circuit court had constitutionally vested subject matter jurisdiction over the cause. J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 254 (Mo. banc 2009); Hightower v. Myers, 304 S.W.3d 727, 733 (Mo. banc 2010).

In addition, the circuit court had personal jurisdiction over the parties. By filing her petition in St. Louis County, Mother consented to the jurisdiction of the circuit court. The circuit court also had personal jurisdiction over Father pursuant to Section 210.829.2. That section of the Uniform Parentage Act provides that:

a person who has sexual intercourse in this state submits to the jurisdiction of the courts of this state to an action brought under sections 210.817 to 210.852 with respect to a child who may have been conceived by that act of intercourse.

Furthermore, Section 454.857 of the Uniform Interstate Family Support Act contains a similar provision. That section provides, in pertinent part:

In a proceeding to establish, enforce, or modify a support order or to determine parentage, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:

* * *

(6) the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse.

Section 454.857(6).³ In her petition for a declaration of paternity, order of support, and for necessaries, Mother asserted she and Father engaged in sexual intercourse in St. Louis County which resulted in the conception of Child. Father has not disputed this and in fact, Father has agreed that his parental rights have been terminated by the Oklahoma court. Thus, pursuant to Section 210.829.2, Father has submitted to the courts of the State of Missouri, in particular to the circuit court here, to exercise personal jurisdiction over him.

Although the circuit court had subject matter and personal jurisdiction, it appears from the judgment there was some confusion by the circuit court regarding the issue of jurisdiction. Father framed the argument in his motion to dismiss in terms of jurisdiction. In his motion to dismiss, Father asserted the trial court did not have jurisdiction over the cause citing Section 210.829.4. To the extent Father asserts Section 210.829.4 is a subject matter jurisdiction provision, he is incorrect.

Section 210.829.4 provides that “[a]n action brought under sections 210.817 to 210.852 may be brought in the county in which the child resides, the mother resides, or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.” Subject matter jurisdiction concerns a court's power to hear and determine cases. Lochhaas v. Burnett, 77 S.W.3d 12, 15 (Mo.App. E.D.2002). Venue refers to the place of trial or the locality where an action may be properly brought. Id. Section 210.829.4 specifically refers to the place where an action under these sections may be brought and thus, it concerns venue and not subject matter jurisdiction. In addition, venue and personal jurisdiction address entirely different concerns and venue is not a prerequisite to personal jurisdiction. State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820, 821 (Mo. banc 1994).

Even though Father referred to “jurisdiction” in his motion, he specifically cited to the venue provision of Section 210.829,⁴ and the circuit court cited facts supporting a lack of venue. Therefore, we must consider whether the circuit court was a proper venue for Mother's action.

Venue is determined solely by statute. Control Technology and Solutions v. Malden R–1 School Dist., 181 S.W.3d 80, 82 (Mo.App. E.D.2005). Statutory construction is a question of law, not judicial discretion. Id. No deference is due to a circuit court's judgment where resolution of the controversy is a question of law. Id.

The relevant portion of Section 210.829.4, provides that an action brought under Sections 210.817 to 210.852 “may be brought in the county in which the child resides, the mother resides, or the alleged father resides or is found.” As stated in the circuit court's judgment, Mother and Child are residents of Oklahoma and Father is a resident of Spain. Thus, the venue provision in Section 210.829.4 does not appear to contemplate a situation like the present. Here, Father is not a resident of the United States. Because Father is not a resident of the United States, the only state that can obtain personal jurisdiction over Father is the state where the sexual intercourse took place, the state of Missouri. Yet, none of the parties resides in Missouri, and under these facts, Section 210.829.4...