Kilgore v. Kilgore

• Decision Date: 14 February 1984
• Docket Number: No. WD34451,WD34451
• Citation: 666 S.W.2d 923
• Parties: Jack Thompson KILGORE, Appellant, v. Ilene Annette KILGORE, Respondent.
• Court: Missouri Court of Appeals

Page 923

666 S.W.2d 923

Jack Thompson KILGORE, Appellant, v. Ilene Annette KILGORE, Respondent.

No. WD34451.

Missouri Court of Appeals Western District.

Feb. 14, 1984.

Jere L. Loyd, St. Joseph, for appellant.

Michael L. Taylor, St. Joseph, for respondent.

Before SOMERVILLE, P.J., and NUGENT and LOWENSTEIN, JJ.

NUGENT, Judge.

Plaintiff, Jack Thompson Kilgore, obtained a Texas decree of divorce and custody, and attempted to register and enforce the decree pursuant to § 511.760 and Rule 74.79 (Missouri adoption of the Uniform Enforcement of Foreign Judgments Act), and §§ 452.500 and 452.510. ¹ (Missouri's adoption of the Uniform Child Custody Jurisdiction Act is found in §§ 452.440-452.550). Upon plaintiff's motion for judgment on the pleadings, the Circuit Court of Daviess County denied registration and enforcement of the Texas divorce and custody decree and plaintiff appeals.

Plaintiff Jack Thompson Kilgore and defendant Ilene Annette Kilgore were married in June, 1980, in Troy Kansas, and became the parents of Jack Thompson Kilgore, Jr., on January 17, 1981. On about December 26, 1981, defendant mother separated from plaintiff husband and took the minor child with her. She filed a petition for dissolution of marriage and custody of the child in Daviess County, Missouri, on March 25, 1982. In the petition, she stated that the child was in her custody when the petition was filed. The record does not indicate service upon the father.

On April 1, the father filed a petition for divorce in the District Court of Dallas County, Texas, and service was had on defendant mother. In his petition he stated that he had resided in Texas for the preceding six months, that Ilene Kilgore abandoned the marriage in January of 1982, that she removed the child from Texas, and that she and the child reside in Missouri. He also stated that "[n]o other court has continuing exclusive jurisdiction of a suit affecting the parent-child relationship with respect to the child."

On August 9, 1982, the Texas court tried the father's case on the merits. He appeared, but the defendant mother failed to appear. The Texas court issued a final decree of divorce appointing the father managing conservator of the child. That decree recited that "after examining the pleading and listening to the evidence and arguments of counsel [the court] finds that it has jurisdiction over this cause, the parties and the minor children, pursuant to the Texas Family Code and precedent presented by petitioner's attorney." Although the court specifically recited that at the time the suit was filed the plaintiff father had been a domiciliary of Texas for the preceding six months, no such finding appears as to the child.

On September 3, 1982, plaintiff filed a two count petition in Daviess County, Missouri. In Count I, he sought recognition of the Texas dissolution and custody decree pursuant to Rule 74.79 and §§ 452.500 and 452.510. In Count II, plaintiff sought a writ of habeas corpus pursuant to Supreme Court Rule 91. Plaintiff asked that the writ be directed to defendant mother ordering that she deliver the child. The petition alleged that the State of Missouri was bound to recognize the Texas decree regarding the custody of the child, pursuant to § 452.500, as Texas had assumed jurisdiction under Title 2 of the Texas Family Code, § 11.045, a statutory provision substantially similar to the jurisdictional provisions of §§ 452.440 to 452.500. Plaintiff also alleged that the Texas court entered its decree under factual circumstances meeting the jurisdictional standards of §§ 452.440 to 452.500.

On September 28, defendant mother filed her answer to petition for registration of foreign judgment and return to writ of habeas corpus. For her answer to Count I she admitted that the Texas court had purportedly entered a final decree of divorce on August 9, 1982, but she alleged that it had no "jurisdiction to enter an order concerning child custody in that the requirements of § 11.045 of the Texas Family Code did not exist" at the time of plaintiff's filing for divorce in Texas. Defendant mother also alleged that at the commencement of the action in Texas she and the child were residents of Missouri, that she had filed her petition for dissolution in Daviess County on March 25, 1982, and that plaintiff Jack Kilgore knew of the earlier Missouri action. She also alleged that the "Texas [c]ourt was without jurisdiction to enter an order concerning child custody in that the requirements of § 11.045 of the Texas Family Code did not exist at the time of the filing by petitioners [sic] action for divorce in Texas," and that the "judgment obtained by petitioner as to the custody of said minor child was not entitled to recognition under § 452.500 in that there had been no showing that the Texas court acted in conformity with" the jurisdictional provisions of Missouri's U.C.C.J.A. In her return to the writ of habeas corpus, she alleged that she legally had the child in her custody on several grounds, one of which was that the defendant had no judgment of custody of the child which was enforceable in the State of Missouri.

On October 19, 1982, plaintiff filed an answer to the mother's return to writ of habeas corpus in which he denied every allegation contained in defendant's return to the writ, except that plaintiff admitted that defendant had the child in her custody.

On October 29, 1982, plaintiff filed a motion for judgment on the pleadings pursuant to Rule 55.27(b), alleging that defendant's answer and return to writ admitted all of the facts alleged in plaintiff's petition and that the facts set forth in defendant's answer and return to writ were insufficient in law to constitute a defense. In his suggestions in support of his motion, plaintiff admitted that defendant filed a petition for dissolution in Missouri prior to his filing in Texas, but argued that this fact did not excuse the court from enforcing the Texas decree. Plaintiff also contended in his suggestions that the plaintiff, defendant, and child lived in Texas until December 26, 1981, when defendant left Texas with the child. Defendant argued that Texas properly exercised jurisdiction over the child pursuant to § 11.045 of the Texas Family Code. Plaintiff stated that the pleadings raised no question of fact and that "the only significant issue before the court is whether pursuant to § 452.500 R.S.Mo., the court 'assumed jurisdiction under statutory provisions substantially in accordance with §§ 452.440 to 452.500, or which was made under factual circumstances meeting the jurisdictional standards of §§ 452.440 to 452.500 ....' " § 452.500.

On December 7, 1982, the circuit court entered the following judgment:

Now on this 7 day of December, 1982, the Court having reviewed the Petitioner's Petition for Registration of Foreign Judgment and Writ of Habeas Corpus and having reviewed Respondent's Answer to Petition for Registration of Foreign Judgment and the Return to Writ of Habeas Corpus the Court, after reviewing the pleadings and upon submission of the matters to the court by the parties upon the pleadings finds that;

1. The issues contained in Count I of Petitioner's Petition for Registration of Foreign Judgment and for Writ of Habeas Corpus are hereby found in favor of the Respondent and therefore the Petitioner is denied any relief thereunder whatsoever.

2. As to Count II of Petitioner's Petition for Registration of Foreign Judgment and for Writ of Habeas Corpus, the Court finds the issues joined therein in favor of the Respondent, and, therefore denies the Petitioner any further relief thereunder.

3. The Court assessed the cost of this matter against the Petitioner.

Plaintiff appeals from that judgment contending that the trial court erred in denying his motion for judgment on the pleadings in which he sought recognition and enforcement of a Texas custody decree. Courts have repeatedly held that a denial of a judgment on the pleadings and an overruling of a motion for summary judgment are not final appealable orders. E.g., Wilson v. Hungate, 434 S.W.2d 580, 583 (Mo.1968); Desloge v. Desloge, 617 S.W.2d 486, 487 (Mo.App.1981); Guthrie v. Reliance Construction Co., 612 S.W.2d 366, 368 (Mo.App.1980).

The court here did not, however, merely deny plaintiff's motion for judgment on the pleadings; it entered a final judgment in favor of the defendant mother. Thus, the judgment was appealable. Plaintiff incorrectly states the basis of his appeal, though, by complaining that the trial court denied his motion for judgment on the pleadings. His complaint should be based instead on a claim that the trial court erred in entering judgment in favor of the defendant. The court here, however, could have properly treated plaintiff's motion for judgment on the pleadings as one for summary judgment, Union Electric Company v. Public Service Commission, 591 S.W.2d 134 (Mo.App.1979); Want v. Leve, 574 S.W.2d 700 (Mo.App.1978); Rule 55.27(b), and thus could have entered judgment in favor of the non-moving party, the defendant. Rule 74.04(c). But such a judgment is appropriate only if the record shows that no genuine issue as to any material fact appears and that the opposing party is entitled to judgment as a matter of law. See, e.g., State ex rel. Boyer v. Stussie, 592 S.W.2d 269 (Mo.App.1979).

The record in this case indicates that genuine issues as to material facts do indeed exist and that neither party is entitled to judgment as a matter of law. The trial court's entry of judgment in favor of the defendant mother must therefore be reversed and the case remanded.

Plaintiff attempted in this case to enforce his Texas divorce and custody decree both by means of the Uniform Enforcement of Foreign Judgement Act, Rule 74.79, and the Uniform Child Custody Jurisdiction Act, §§ 452.440--452.500. The Uniform Enforcement of Foreign Judgment Act facilitates enforcement of a judgment in the state where registered....