McCoy v. Rivera, WD

• Decision Date: 07 May 1996
• Docket Number: No. WD,WD
• Citation: 926 S.W.2d 78
• Parties: Gary L. McCOY, Sr., and Daylene Bartell, Appellants/Cross-Respondents, v. Rhonda L. RIVERA, Respondent/Cross-Appellant. 50747.
• Court: Missouri Court of Appeals

Page 78

926 S.W.2d 78

Gary L. McCOY, Sr., and Daylene Bartell, Appellants/Cross-Respondents, v. Rhonda L. RIVERA, Respondent/Cross-Appellant.

No. WD 50747.

Missouri Court of Appeals,

Western District.

May 7, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 2, 1996.

Application to Transfer Denied

Aug. 20, 1996.

J. Michael Murphy, David Bruce Sexton, Liberty, for Appellants.

John R. Shank, Jr., James Kessinger, Kansas City, for respondent.

Before SPINDEN, P.J., and BRECKENRIDGE and EDWIN H. SMITH, JJ.

SPINDEN, Presiding Judge.

In December 1994, the circuit court ordered Gary McCoy and his wife, Daylene Bartell, to return McCoy's granddaughter to her mother, Rhonda Rivera. Rivera placed the child in McCoy's and Bartell's custody in 1988 before she began serving a prison sentence in Florida. The circuit court ordered that the transfer of custody occur by August 1999. Both parties appeal. We reverse and remand.

After pleading guilty to trafficking cocaine in 1988 in a Florida criminal court, Rivera placed her infant daughter, born on January 7, 1988, in the temporary care of McCoy and his live-in girlfriend, Bartell. ¹ Rivera consented to McCoy's and Bartell's acting as guardians of the child while Rivera was in prison, but no one initiated formal guardianship proceedings. McCoy and Bartell anticipated that the child would stay with them for approximately a year while Rivera served her sentence. In January 1989, a Florida court ordered her to serve concurrently a five-year sentence for grand theft, two five-year sentences for delivery of cocaine and two five-year sentences for cocaine possession. In April 1990, the court sentenced her to 12 years in prison for trafficking cocaine but later resentenced her to five years and released her on parole on July 7, 1992. The child continued to reside with McCoy and Bartell.

On July 24, 1992, McCoy and Bartell filed a petition in circuit court seeking custody of the child. Rivera filed an answer and counter-motion for custody and a motion to dismiss on the grounds that the circuit court lacked jurisdiction, McCoy and Bartell lacked standing, their petition failed to state a claim upon which relief could be granted, and they failed to join a necessary party. The circuit court overruled the motion to dismiss. McCoy and Bartell filed an amended petition alleging that Rivera was unfit and unsuitable to have custody and that the child's best interests would be served by awarding them custody.

The circuit court convened a hearing in December 1992. In January 1993, it awarded temporary custody to McCoy and Bartell and gave Rivera visitation privileges. It found that Rivera was "either unsuitable or unable to have temporary custody of the child." On December 30, 1994, the circuit court entered a final judgment finding that the child should be reunited with Rivera. It decided, however, to delay the transfer. Finding that an immediate transfer would cause the child irreparable harm, the court ordered that the child's best interests would be served by waiting until August 1999 to make the transfer. In the interim, the court ordered McCoy and Bartell to give Rivera increased visitation. It did not award child support but awarded Rivera $4000 in partial attorney fees. Both parties appeal.

Rivera argues that the circuit court lacked jurisdiction. We agree. Because this is dispositive of all issues raised on appeal, it is the only one we address.

A litigant asserting that a court has jurisdiction bears the burden of establishing a prima facie basis for jurisdiction. State ex rel. Laws v. Higgins, 734 S.W.2d 274, 277 (Mo.App.1987). "A court has subject matter jurisdiction if it has authority to adjudge the type of issue presented in the case that is before it." In Re McGlaughlin, 885 S.W.2d 33, 34 (Mo.App.1994).

Child custody may be adjudicated in at least four types of actions: dissolution, habeas corpus, juvenile, and guardianship. State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178, 180 (Mo. Banc 1967). McCoy and Bartell did not allege in their petition that the circuit court had jurisdiction to determine custody; nor did the circuit court make any findings explaining the basis for its jurisdiction. McCoy and Bartell concede that this case does not fall within the jurisdictional provisions of the juvenile court because they did not claim that the child was neglected and no juvenile officer filed a petition concerning the child. They concede that they had no standing to bring this action pursuant to the dissolution of marriage statutes because no marriage was at issue. They also assert that they are not seeking to adopt the child or be appointed as the child's legal guardians. We fail to discern any basis for the circuit court's jurisdiction.

In their suggestions in opposition to Rivera's motion to dismiss, McCoy and Bartell asserted that the circuit court had subject matter jurisdiction to determine this custody matter pursuant to §§ 452.440-452.550, RSMo 1994(the Uniform Child Custody Jurisdiction Act), because Missouri was the child's "home state" to which they had "significant connections." McCoy and Bartell confuse "subject matter" jurisdiction with "forum" jurisdiction. Section 452.450 provides that a Missouri court competent to decide child custody matters has jurisdiction to make a child custody determination of an initial decree or modification of a decree. State ex rel. Rashid v. Drumm, 824 S.W.2d 497, 501 (Mo.App.1992). This, however, is a procedural statute only. It does not create any new substantive rights for any party. It...