Marriage of Holden, In re, 22008

• Decision Date: 30 October 1998
• Docket Number: No. 22008,22008
• Citation: 977 S.W.2d 951
• Parties: In re the MARRIAGE OF Lisa Dawn HOLDEN and Johnny Lee Roger Holden. Lisa Dawn HOLDEN, Petitioner-Appellant, v. Johnny Lee Roger HOLDEN, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 951

977 S.W.2d 951

In re the MARRIAGE OF Lisa Dawn HOLDEN and Johnny Lee Roger Holden.

Lisa Dawn HOLDEN, Petitioner-Appellant, v. Johnny Lee Roger HOLDEN, Respondent-Respondent.

No. 22008.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 30, 1998.

Susan F. Butler, Joplin, for Appellant.

Johnny Lee Roger Holden, pro se.

Before GARRISON, C.J., MONTGOMERY, J., and SHRUM, P.J.

PER CURIAM.

This appeal is from a judgment modifying an award of child custody. B.H. was born on May 9, 1995. Her parents, Lisa Dawn Morgan ("Mother") and Johnny Lee Roger Holden ("Father"), separated in December 1995, and Mother filed a petition for dissolution of marriage. It was discovered during that proceeding that Mother's previous marriage had not been dissolved, and thus instead of a dissolution, her marriage to Father was annulled in June 1996. In the judgment annulling the marriage, Mother was awarded custody of B.H.; Father was ordered to pay child support of $150 per month; Father was awarded reasonable visitation rights; and Mother was permitted to move with B.H. to Colorado so that she could be with her mother who lived in Colorado Springs.

In April 1997, Father filed a motion to modify in which he sought custody of B.H. or, in the alternative, specific visitation privileges. The case was tried in September 1997, and the trial court subsequently entered a judgment awarding custody of B.H. to Father, granting Mother reasonable visitation, and cancelling the child support order. Mother appeals.

Before reviewing the merits of this case, it is necessary that we address the issue of the trial court's jurisdiction. It is undisputed that Father was a resident of Missouri, and that Mother and B.H., as authorized by the annulment decree, were living in Colorado. The parties agree in their briefs that B.H. was born in Missouri and lived here until moving to Colorado with Mother after the June 1996 annulment decree. Mother did not initially challenge the jurisdiction of the trial court to entertain the motion to modify, but does so on this appeal.

Mother's first point relied on is:

The trial court erred in finding that it had subject matter jurisdiction in this case without specific findings of fact on which jurisdiction could be based, when the home state of the child is Colorado; when the child has no significant connection to Missouri and no substantial evidence exists in Missouri concerning the current or future welfare of the child. This error was contrary to the credible evidence presented and was, in fact, against the weight of the evidence.

Section 452.450 ¹ is part of the Uniform Child Custody Jurisdiction Act (UCCJA) and concerns the jurisdiction of courts to make custody determinations, either by initial or modification decrees. ² Section 452.410.1 acknowledges the applicability of § 452.450 to modification proceedings by providing that no court shall modify a prior custody decree unless it has jurisdiction under the provisions of § 452.450.

In the instant case, the trial court found that it had jurisdiction pursuant to § 452.450.1(2)(b), and quoted the language of that statutory provision. ³ In Piedimonte v. Nissen, 817 S.W.2d 260, 266 (Mo.App. W.D.1991), however, the court said that "a ruling of jurisdiction by a court that is merely conclusory or that assumes jurisdiction, but is tacit as to the factual basis for that adjudication, does not meet the objectives of the Act."

The trial court also noted, however, that no party challenged its jurisdiction by pleading or evidence, and that both parties were present at the hearing and participated in it. Accordingly, Father argues that Mother waived the jurisdictional issue by not raising it in the trial court. In support, he cites Brown v. Brown, 676 S.W.2d 519 (Mo. banc 1984). Similar to the instant case, Brown involved parents and two children who were Missouri residents when the original custody decree was entered. The mother was permitted to move with the children to another state. The father, who remained a resident of Missouri, later successfully sought custody in a motion to modify filed in the Missouri court which originally entered the custody decree. The mother apparently did not contest the trial court's jurisdiction under the UCCJA until she appealed from the judgment modifying the custody decree. The Missouri Supreme Court said, "We do not believe that UCCJA operates to disable the court which issued the original dissolution and custody decree when neither party objects to its jurisdiction." Id. at 520.

Other courts have treated the issue of jurisdiction under the UCCJA differently, however. For instance, in Elbert v. Elbert, 833 S.W.2d 884, 887 (Mo.App. E.D.1992), the court said:

The trial court's jurisdiction under §§ 452.440--452.550, to hear a custody determination is often characterized as jurisdiction of the subject matter. Subject matter jurisdiction may be raised at any time, may not be waived, and may not be conferred by consent of the parties. The circumstances upon which the trial court bases its jurisdiction must exist at the time the jurisdiction of the court is invoked. Though not raised by a party, subject matter jurisdiction may be examined by this court sua sponte. (citations omitted).

In State ex rel. Laws v. Higgins, 734 S.W.2d 274, 279 (Mo.App. S.D.1987), this Court made an extensive review of the question of jurisdiction in a case involving the UCCJA. We recognized that "jurisdiction" to adjudicate a controversy falls into three categories: (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. It was noted that the authority of a court under the UCCJA to hear a particular custody case is often characterized as jurisdiction of the subject matter which may not be established by the voluntary submission of the parents, which cannot be waived, and which may be raised at anytime. Id. While a circuit court has jurisdiction over custody determinations generally, the issue of whether it has jurisdiction to hear a particular motion to modify is an issue of jurisdiction over a particular custody determination. Id. We cited with approval the following language from State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57 (1941):

... the third essential, jurisdiction to render the particular judgment in the particular case (sometimes called 'competency'), partakes 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.

Id. See also Miller v. Robinson, 844 S.W.2d 574, 578 (Mo.App. W.D.1992), where the court said that a parent's voluntary appearance in a child custody case establishes the court's jurisdiction over the parent, but does not grant the court jurisdiction of the subject matter.

We are, however, constitutionally bound to follow the last controlling decision of the Missouri Supreme Court. MO. CONST. Art. V, § 2; State v. Wilson, 795 S.W.2d 590, 591 (Mo.App. S.D.1990). Accordingly, we are constrained to hold, pursuant to Brown, that the trial court had jurisdiction.

In her second point relied on, Mother claims that the trial court erred in awarding custody to Father because he failed in his burden of establishing a substantial and continuing change of circumstances since the initial custody award, and he also failed to establish that a change of custody would serve the best interests of B.H. In essence she argues that the judgment was not supported by substantial evidence. We agree.

Appellate review of this case is pursuant to Rule 73.01. Smith v. Smith, 839 S.W.2d 382, 383 (Mo.App. S.D.1992). Accordingly, we are to affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

Section 452.410.1 provides, in pertinent part:

... the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.

When custody has been once adjudicated, it is presumed that the custodian remains suitable and the burden of proving a change of circumstances justifying a change of custody is on the party seeking the change. In re Marriage of D.L. (B.)M., 783 S.W.2d 473, 474 (Mo.App. S.D.1990). The change of circumstances required by § 452.410.1 relates to the circumstances of the child or the custodian. Nichols v. Ralston, 929 S.W.2d 302, 305 (Mo.App. S.D.1996). The necessary change of circumstances must be significant before a child custody decree may be modified. D.L.(B.)M., 783 S.W.2d at 474-75.

B.H. was a premature baby, weighing one pound, twelve ounces, who remained in the hospital for two months following her birth. She has experienced breathing problems; had pneumonia three times, each of which required hospitalization; and had tubes surgically placed in her ears because of recurrent ear infections. At the time of trial, B.H. was two years, four months old and weighed 21 pounds. Mother testified that B.H. was doing much better physically, but that she had a speech impairment and was developmentally disabled. Because of that condition, Mother had made arrangements for her to receive speech therapy and special education through the Head Start Program in an effort to prepare her for a timely start in kindergarten. She further testified that pursuant to a Colorado doctor's recommendation, B.H. ate six to seven times...