Mandacina v. Pompey

• Decision Date: 12 October 2021
• Docket Number: WD 84158
• Citation: 634 S.W.3d 631
• Parties: Christopher MANDACINA, Respondent, v. Amanda POMPEY, Appellant; Linda Mandacina, Respondent.
• Court: Missouri Court of Appeals

634 S.W.3d 631

Christopher MANDACINA, Respondent,

v. Amanda POMPEY, Appellant;Linda Mandacina, Respondent.

WD 84158

Missouri Court of Appeals, Western District.

OPINION FILED: OCTOBER 12, 2021

Nancy A. Garris, Blue Springs, MO, Counsel for Appellant.

Amanda Basri, Kansas City, MO, Counsel for Respondent Linda Mandacina.

Before Division One: Alok Ahuja, Presiding Judge, Lisa White Hardwick, Judge, Anthony Rex Gabbert, Judge

Anthony Rex Gabbert, Judge

Amanda Pompey ("Mother") appeals the circuit court's Judgment awarding third-party intervenor, Linda Mandacina ("Paternal Grandmother"), sole custody of Mother's and Christopher Mandacina's ("Father") minor son, S.M., on Mother's "Motion to Set Aside Default Judgment or Alternatively, Motion to Modify." Mother asserts six points on appeal. She contends that, 1) the Judgment of Dissolution of Marriage entered December 5, 2018, is void with regard to all orders related to custody, visitation, or support of the minor child, contending that under Missouri law the exclusive remedy for determining such matters for a child born out-of-wedlock is through a Petition for Declaration of Paternity, 2) the transcript of the circuit court proceeding deprives this court of sufficient information to make appellate review possible, arguing that ninety-six times during trial the proceedings were indiscernible to the court reporter, 3) the circuit court denied Mother due process and thereby erred in granting Paternal Grandmother's Motion to Intervene, arguing that the court granted the motion before Mother was served notice and an opportunity for a full and fair hearing, 4) the circuit court erred in granting Paternal Grandmother's Motion to Intervene, arguing Missouri Rule of Civil Procedure 52.04 requires either a statutory claim of intervention by right or a permissive intervention to protect a legally cognizable interest, and Paternal Grandmother had neither, 5) the circuit court erred in entering its Temporary Restraining Order without notice to Mother in violation of Rule 92.02(b)(3), and 6) the circuit court erred in entering its Preliminary Injunction, arguing Mother's due process rights were violated when the court entered the order without providing Mother the benefit of giving or receiving evidence, entering the order only two days after Mother was served the pleadings, and ordering a change of custody without a hearing of any kind. We affirm.

Background and Procedural Information

In the light most favorable to the Judgment,¹ the record reflects that on December 5, 2018, the circuit court entered a "Judgment of Dissolution of Marriage," thereby dissolving the marriage of Mother and Father which was entered into on March 19, 2016. Father appeared at the hearing; Mother did not. The Judgment found Father to be the "natural and biological Father of the minor child," Mother to be the "natural and biological Mother of the minor child," and that the child, born November 16, 2015, was "born of the relationship of the parties." Father and Mother separated on November 2, 2017, and the court found that, although the child had resided in the physical custody of both Father and Mother since birth, Mother regularly denied Father access to the child after the couple separated. Further, that it was in the child's best interest that Father be granted sole legal and sole physical custody of the child, with Mother granted supervised visitation, due to Mother's illegal drug use and criminal behavior. A Parenting Plan was detailed in the Judgment. Mother was awarded supervised visitation every other weekend (from Thursday at 6:00 p.m. until Monday at 6:00 p.m.) as well as various holidays and vacation time. The visitation was to be supervised by Mother's parents.

The circuit court further ordered that the parties were to comply with the provisions of Section 452.377.11² regarding relocation of the principal residence of the child. Absent exigent circumstances as determined by a court with jurisdiction, the parties were to give at least sixty days prior notice of any proposed relocation of the principal residence of the child. The notification was to include the intended new residence, the home telephone number of the new residence, the date of the intended move or proposed relocation, a brief statement of the specific reasons for the proposed relocation of the child, and a proposal for a revised schedule of custody for visitation with the child. The Judgment provided that, failure to obey the order of the court regarding a proposed relocation could result in further litigation to enforce the order, including being held in contempt of court. Further, a party's failure to notify another party of a relocation of the child could be considered in a proceeding to modify custody or visitation with the child.

On May 16, 2019, five months after the dissolution Judgment was entered, Mother filed a "Motion to Set Aside Default Judgment or Alternatively, Motion to Modify." Therein, Mother alleged in "Count I – Motion to Set Aside" that she was never properly served notice of the dissolution petition and summons. She contended the Special Process Server filed a Return of Service stating that he left a copy of the summons and petition at the dwelling place or usual abode of Mother with Mother's Mother, Laura Pompey, but Laura Pompey denied receiving anything. Mother's motion included an affidavit signed by Laura Pompey wherein Laura Pompey stated that, on or about March 30, 2018, a gentleman came to her home at 809 Oakridge, Kearney, Missouri, and inquired as to whether Mother lived at that residence. Pompey stated that she advised the process server that Mother "was not there and that she didn't reside there but moved back and forth between her home and the home I occupy with my husband." Laura Pompey further attested that, "at that time, my daughter was moving back and forth between her home in Platte County, Missouri and my home in Kearney, Missouri. I considered her residence to be that of her and her husband in Platte County[.]" Laura Pompey further stated that the process server left nothing with her, and she had received no mail at her home from the Court or any attorney concerning the matter.

Mother's motion also contained an affidavit signed by Mother wherein Mother claimed that the first she learned of the divorce "was when the court mailed to me a copy of the Court's Judgment on or about December 5, 2018. Before that date, I had received no Notice from anyone concerning the case being set on the court's docket nor had I received any notice from the court concerning the case having been set on a dismissal docket on December 14, 2018."³ Mother ultimately alleged that the dissolution judgment should be set aside because the court lacked the "power to adjudicate" because the requirements for proper service had not been met.

In "Count II-Motion to Modify," Mother alleged that a substantial and continuing change of circumstance had occurred in the circumstances of the child and/or his custodians making the terms of the dissolution Judgment modifiable and in the child's best interest. Among other things, Mother alleged that Father had assaulted Mother in the child's presence, that Father used controlled substances while caring for the child, that Father had threatened suicide, that Father had no permanent residence, that Father had left the child with Mother, unsupervised, in violation of the dissolution judgment, and that Father had stated to Mother that Paternal Grandmother had been abusive to S.M., but also executed a Power of Attorney to Paternal Grandmother which allowed her to maintain a supervisory role in S.M.’s life. Mother further alleged that Father sought continued custody over S.M. "so as to exercise control over [Mother]." Finally, Mother alleged that she had "reason to believe [Father] is not the biological [father] of the minor child." Despite these allegations, Mother requested that the court modify the existing Judgment to grant joint legal and joint physical custody of S.M. to Mother and Father. Although the circuit court's dissolution Judgment found sole legal and physical custody to Father to be in the child's best interest due to Mother's drug use and criminal behavior, Mother did not allege that her own circumstances regarding drug use and criminal behavior had changed.

On July 5, 2019, Mother moved the court to appoint a Guardian ad Litem, alleging that S.M. had "suffered from emotional abuse as well as physical abuse at the hands of the [Father]." Mother moved for DNA testing on that same date, arguing that "until DNA testing is conducted, a question will remain about the paternity issues raised in this case." Mother also moved for temporary custody of the child, making the same allegations regarding Father that were made in her motion to modify.

On July 9, 2019, Father answered Mother's motion by denying that Mother had not been properly served in the dissolution action, denying the allegations made against him by Mother and that any substantial and changed circumstances made the terms of the dissolution Judgment unreasonable, and requested that the court deny Mother's motion.

On October 2, 2019, Mother and Father entered a "Joint Stipulation as to Temporary Custody and Parenting Time" that was filed by Mother and accepted by the court on October 8, 2019. This custody arrangement was to be effective until the court resolved the issues then pending. In the Stipulation, Mother and Father agreed to share joint legal and joint physical custody of S.M. The parties agreed that all provisions set forth in the Judgment of Dissolution of Marriage, not specifically modified therein, would remain in full force and effect.

On December 3, 2019, the court appointed a Guardian ad Litem to represent S.M. Mid-February 2020, Mother left the state of Missouri without notice and took the child to Pennsylvania. Mother then filed a "Petition for Protection from Abuse" against Father on February 25, 2020, in ...