Kelly v. Kelly

• Decision Date: 19 February 2008
• Docket Number: No. WD 67736.,No. WD 67737.,WD 67736.,WD 67737.
• Citation: 245 S.W.3d 308
• Parties: Jacob R. KELLY, Respondent, v. Gaytha Jane KELLY, Appellant, Debra Jane McDowell and Anthony Martin McDowell, Appellants.
• Court: Missouri Court of Appeals

245 S.W.3d 308

Jacob R. KELLY, Respondent, v. Gaytha Jane KELLY, Appellant Debra Jane McDowell and Anthony Martin McDowell, Appellants.

No. WD 67736.

No. WD 67737.

Missouri Court of Appeals, Western District.

February 19, 2008.

Grace Day, William Walker Bird, St. Joseph, for Appellant.

Gerald Lyford Liles, St. Joseph, for Respondent.

Before RONALD R. HOLLIGER, Presiding Judge, HAROLD L. LOWENSTEIN, Judge, and JAMES M. SMART, JR., Judge.

RONALD R. HOLLIGER, Presiding Judge.

Gaytha Jane Kelly ("Mother"), along with Debra and Anthony McDowell ("Grandparents"), appeal the judgment of the trial court modifying physical custody regarding the sole child ("Child") of her marriage to Jacob Kelly ("Father").

The joint brief filed by Mother and Grandparents raises six points on appeal. In their first and second points on appeal, they contend that the trial court erred in asserting jurisdiction over Father's motion to modify. They contend that the modification court lacked jurisdiction of the custody modification motion because there was an outstanding guardianship order placing custody of the child with the grandparents. They contend that under something called the "concurrent jurisdiction doctrine" the modification court was required to dismiss Father's motion to modify the dissolution order unless the guardianship had been previously terminated. We disagree with appellants and find that the modification court did have jurisdiction, but find that the court erred in entering a conflicting custody order before termination of the guardianship. Because of this finding we need not consider the other arguments raised, and reverse and remand for further proceedings.

Factual and Procedural Background

After two years, Father and Mother's marriage was dissolved on February 13, 2004. During their marriage, they had a daughter born May 18, 2002. In the dissolution, the trial court awarded the parents joint legal and physical custody of Child. According to the parenting plan, from September to May, Child was to reside primarily with Mother, with alternate weekends and one day per week with Father. Father was awarded physical custody for June, July, and August with alternate weekends and one day per week with Mother during those months.

At the time of the dissolution, Mother and Child had been living with Grandparents in St. Joseph for several months. Mother and Child continued living with Grandparents once the dissolution was finalized. During the spring of 2004, Mother turned twenty-one and began frequenting bars with her friends. In June 2004, Father took physical custody of Child in accordance with the parenting plan. When Child was with Father that summer, Mother began going to bars with greater regularity. Grandparents worried that Mother was socializing with an irresponsible group of friends, staying out late, and occasionally not coming home.

By September 2004, when Mother was scheduled to have physical custody of Child, Grandparents were afraid that she might move out of their home and take Child with her. To prevent this from happening, Grandparents believed they needed to obtain a guardianship over Child. Before going to the probate division, Grandparents approached Father, explaining their fears and asking him to consent to the guardianship. Father testified that Anthony McDowell ("Stepgrandfather") called him to say his attorney told him that establishing a guardianship over Child would be the only way to ensure her safety. Following that phone call, Father called Grandparents' attorney to discuss the issue of guardianship; he did not seek independent counsel. Father then met with Grandparents and their attorney to further discuss the guardianship. Father testified that he was told the guardianship would have no effect on his legal rights, but would merely allow Grandparents to take over Mother's rights. He testified that Grandparents assured him he would see Child according to the same schedule ordered in the parenting plan. He further testified that everyone agreed the long — term goal was for Father to save enough money for an attorney so that he could seek sole custody of Child.

After consulting their attorney and Father, Grandparents went to the probate division, seeking guardianship over Child. The court found that, under section 475.030.4(2),¹ Father had consented to the guardianship and Mother was unfit to assume guardianship duties.² The court established guardianship over Child with Grandparents in September 2004.

Once Grandparents were appointed guardians, Child remained with them while Mother moved in with a friend in St. Joseph. In February 2005, Mother moved into another apartment in St. Joseph. In spring 2005, Mother pled guilty to charges of riding in a stolen vehicle and receiving stolen property. She was fined and placed on probation with the requirement that she report monthly and complete twenty — five hours of community service.

At some point following the dissolution, Father moved from his parents' home into a house he bought with a woman who is now his wife, Lauren Kelly ("Stepmother"). From June until September 2005, Child stayed with Father and Stepmother under the terms of the parenting plan ordered in the dissolution decree. In June 2005, Mother gave birth to another child and began attending counseling sessions at Grandparents' church. Mother lived in Independence briefly during August 2005 and finally moved back into Grandparents' home in September 2005, where she has remained.

Father filed a motion to modify custody in February 2006, seeking sole physical custody of Child. He served the motion on Mother and Grandparents. In their answer, Grandparents sought dismissal of the motion. Mother's answer included a counter — motion to modify in which she sought sole physical custody of Child.³ Mother then moved to dismiss Father's motion, arguing that Father had no standing due to the intervening guardianship. The circuit court denied Mother's motion without explanation.

The hearing on the motion to modify custody took place in September 2006. Grandparents supported Mother's efforts to retain joint physical custody, but did not seek custody for themselves. Before the hearing commenced, Grandparents' attorney stated that the facts which had prompted them to seek guardianship "no longer exist at this time." The attorney further stated, "Whatever the Court decides in this matter will conclude the guardianship situation." During the hearing on the motion to modify custody, the circuit court heard testimony from Mother, Father, Stepmother, Stepgrandfather, Mother's stepuncle, a childcare provider, and Grandparents' neighbor and ministers. On October 27, 2006, the court awarded joint legal custody to the parents, with sole physical custody to Father. Under the new parenting plan, Mother has parenting time on alternating weekends and one evening each week. She also has custody for two weeks of each month during summer vacation, totaling six weeks; holidays are evenly split with Father. Mother and Grandparents appeal the judgment in a joint brief.

"Concurrent Jurisdiction Doctrine"

Appellants contend that the trial court lacked jurisdiction of Father's motion to modify under the "concurrent jurisdiction doctrine." They contend that under that doctrine a court has no "competency" to hear the modification order when either there is an outstanding guardianship order or there is a pending motion to terminate the guardianship. Thus, they argue that the modification court had no choice but to immediately dismiss Father's motion. Their argument is based primarily upon In the Interest of Moreau, 161 S.W.3d 402, 407 (Mo.App. S.D.2005).

Moreau was a case procedurally similar to the instant case. In that case, the probate court granted guardianship of the child to the grandparents. Moreau, 161 S.W.3d at 404. Later that year, a North Carolina court granted the child's parents, the Roysters, a divorce, but lacked jurisdiction to enter a custody order.⁴ Id. Two years later, Mr. Royster filed a petition to terminate the guardianship and filed a separate petition for custody in circuit court. Id. The Moreau court characterized the simultaneously pending cases as a jurisdictional issue, requiring a sua sponte dismissal of the custody case. Id. at 405. The Moreau court stated, "[t]he jurisdiction of a court to adjudicate a controversy rests on three essential elements: (1) jurisdiction of the subject matter; (2) jurisdiction of the res or the parties; and (3) jurisdiction to render the particular judgment in the particular case." Id.

In Moreau, as in the case at bar, the motion court had personal jurisdiction over all parties involved since all appeared voluntarily without contesting the issue. See Rule 55.27(g). Both the probate division and the circuit court also had subject matter jurisdiction, the court's authority to hear cases of a particular class. Moreau, 161 S.W.3d at 405. The Moreau court continued its analysis by stating that once personal and subject matter jurisdiction is established, the issue is whether the trial court had "jurisdiction to render the particular judgment in the particular case," or, whether the concurrent jurisdiction doctrine applies, preventing the trial court from hearing the motion to modify. Id. at 405-06.

Citing Moreau, Mother and Grandparents argue that while the trial court had personal jurisdiction over all parties involved and subject matter jurisdiction to determine custody, it was lacking "jurisdiction to render the particular judgment in the particular case." Id. at 405. This third species of jurisdiction is sometimes referred to as jurisdictional "competency." See State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57 (banc 1941).

Although the procedural posture of Moreau is similar, it is not identical to this case. In Moreau, the probate division issued letters of guardianship to the child's grandparents, the Councils. Moreau, 161 S.W.3d at...