McGaw v. McGaw

• Decision Date: 18 August 2015
• Parties: Melissa McGaw, Appellant, v. Angela McGaw, Respondent.
• Court: Missouri Court of Appeals

468 S.W.3d 435

Melissa McGaw, Appellant,

v.Angela McGaw, Respondent.

Missouri Court of Appeals, Western District.

WD 77799

FILED: August 18, 2015

Appeal from the Circuit Court of Clay County, The Honorable Kathryn E. Davis, Judge

Elizabeth A. Hodges–Williams, Kansas City, MO; Rochelle A. Kaskowitz, St. Louis, for appellant.

Kimberly S. Humphrey, Gladstone, MO, for respondent.

Anthony E. Rothert, St. Louis, and Rebecca J. Martin, Kansas City, MO, for Amicus Curiae.

Before Division Four: Alok Ahuja, C.J., Lisa White Hardwick, J. and Robert M. Clayton III, Sp.J.

Alok Ahuja, Chief Judge

Appellant Melissa McGaw filed a motion in the circuit court “to determine parent-child relationship, custody, and visitation” with respect to two children to whom she is not biologically related. The children were born at a time when Melissa ¹ was involved in a romantic relationship with the children's biological mother, respondent Angela McGaw. Melissa's motion alleged that she had participated in Angela's decision to become pregnant with the children, and that Melissa had acted as a parent to the children, both before and after her relationship with Angela terminated. The circuit court dismissed Melissa's motion without prejudice for lack of standing and failure to state a claim upon which relief could be granted. Melissa appeals. We affirm.

Factual Background

Taking the facts Melissa alleged as true, she and Angela started dating in 1995, and began cohabiting the following year. In 1997, the couple had a commitment ceremony in Kansas City, and in 2000 Angela legally changed her last name to McGaw. The McGaws bought a home together, and by 2002 had decided to have children.

In 2004, Angela gave birth to twins in Kansas City. The children were conceived using sperm from an anonymous donor jointly selected by Melissa and Angela. From 2004 to 2007, Angela and Melissa raised the children together as co-parents.

Angela and Melissa separated in January 2007, and Melissa moved out of the shared household. Melissa alleged that she and Angela agreed to a schedule for visitation with the children, and a division of property, through mediation. Although separated, Melissa and Angela continued to share expenses for the children and to follow a visitation schedule until June 2013. At that time, Angela stopped allowing Melissa to see the children, and sent Melissa a text message stating that “[the children] will be living at my house until the parenting plan issue is resolved. I will call the police if you try to come and get them.” Melissa has not seen the children since that time.

On March 7, 2014, Melissa filed a Motion to Determine Parent–Child Relationship ² in the Circuit Court of Jackson County, seeking “to determine parent-child relationship, custody, and visitation” pursuant to § 210.826.³ Angela filed an application for a change of venue to Clay County, which the court granted. In addition to her answer, Angela filed a motion to dismiss, arguing that Melissa had no biological relationship to the children and therefore lacked standing to assert her claims, and that Melissa's pleading failed to state a claim for relief.

In her suggestions in opposition to Angela's motion to dismiss, Melissa argued that she had standing under Missouri's version of the Uniform Parentage Act (“MoUPA”), §§ 210.817–210.854, and that she had standing under common-law equitable doctrines defining parentage.

A commissioner recommended that the action be dismissed on the basis that Melissa lacked standing and failed to state a claim upon which relief could be granted. A circuit court judge adopted the commissioner's findings and recommendations and entered judgment dismissing Melissa's motion without prejudice. This appeal follows.

Standard of Review

Our review of a dismissal for failure to state a claim or for lack of standing is de novo. When reviewing for failure to state a claim, we treat the facts contained in the petition as true and construe them liberally in favor of the plaintiffs. The petition states a cause of action if it sets forth any set of facts that, if proven, would entitle the plaintiffs to relief. Similarly, this court determines standing as a matter of law on the basis of the petition, along with any other noncontested facts accepted as true by the parties at the time the motion to dismiss was argued, and resolves the issue as a matter of law on the basis of the undisputed facts.

White v. White, 293 S.W.3d 1, 8 (Mo.App.W.D.2009) (citations and internal quotation marks omitted).

Analysis

At the outset, we note that the McGaws' relationship began, and ended, at a time when the right of same-sex couples to marry had not been recognized in Missouri. Despite their inability to marry, Melissa's motion alleges that she and Angela took multiple steps to formalize their relationship: they participated in a commitment ceremony; changed Angela's surname to match Melissa's; purchased a home together; jointly chose to conceive the children and raised the children together; and entered an agreement to govern the termination of their relationship. Nevertheless, the fact remains that Melissa and Angela were never married, and—as our decision in White recognized—Melissa's claims must therefore be addressed under the legal rules applicable to unmarried couples (heterosexual or homosexual). Following the decision of the Supreme Court of the United States in Obergefell v. Hodges, –––U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015) (which was decided after this case was submitted), couples like Melissa and Angela are now able to marry if they choose. We anticipate that in the wake of Obergefell, situations like this one, in which important issues involving children must be decided outside the established legal framework applicable to married couples, will occur less frequently.⁴

On appeal, Melissa does not challenge the circuit court's dismissal of her claim to have her parentage established under the MoUPA. Instead, she argues that she stated a claim for relief based on theories of breach of contract, or under common-law equitable doctrines. For the reasons discussed below, we conclude that none of those theories justifies reversal.⁵

I.

In her first Point, Melissa argues that the circuit court erred in dismissing her motion because she stated a claim to enforce a voluntary agreement between her and Angela governing visitation. Such agreements are enforceable, Melissa contends, so long as the trial court determines that the visitation agreement serves the best interests of the children.

“To properly plead a cause of action, the petition must state allegations of fact in support of each essential element of the cause pleaded.” Am. Eagle Waste Indus., LLC v. St. Louis Cnty., 379 S.W.3d 813, 829 (Mo. banc 2012) (citation and internal quotation marks omitted). A petition for breach of contract requires a plaintiff to “allege (1) the existence of a contract or agreement and the terms of that agreement; (2) that plaintiff performed or tendered performance; (3) that defendant did not perform; and (4) that defendant's failure to perform caused plaintiff damage.” White, 293 S.W.3d at 23 (citation and internal quotation marks omitted).

Melissa's motion failed to adequately plead a breach of contract theory under these standards. Our decision in White involved circumstances strikingly similar to those in the present case, and White guides our resolution of many of Melissa's claims, including her breach of contract claim. In White, plaintiff Leslea Diane White, alleged (among other things) that she and defendant Elizabeth Michelle White had agreed to jointly support their children, but that Michelle had refused to comply with that agreement. Id. at 23.

White held that Leslea had failed to adequately plead a claim for breach of a child support agreement, and had failed to preserve for appeal the argument that she had stated a claim for breach of such an agreement. White noted that Leslea “did not expressly denominate any count of her petition as seeking relief for breach of a contract for support,” and that “despite her copious briefing and argument in opposition to Michelle's motion to dismiss in the trial court, Leslea never explicitly invoked the express contract theory as a basis to sustain her claim for child support.” Id.White emphasized that, “[e]ven assuming that the allegations in the petition are sufficient to allege that Michelle entered into a contract with Leslea to provideon-going support ..., they still fail to state the length of time for such support to continue or that Michelle has failed to provide the financial support required by the agreement.” Id.

Melissa's motion suffers from the same sort of pleading inadequacies as the petition in White. The motion alleged that “[f]ormal mediation determined visitation” at the time of the parties' separation, and that “until June 13, 2013, Melissa and Angela followed a set visitation schedule, Melissa paid preschool tuition costs every other week and both parents shared equally in child-rearing activities and expenses.” The motion is silent, however, as to the terms of the separation agreement as they relate to visitation, or as to what the parties' “set visitation schedule” was. Moreover, the prayer of Melissa's motion did not seek to enforce any pre-existing agreement between the parties. Instead, she asked the court to determine her parentage of the children, and to “award the parties joint legal custody of their minor children, specify rights of visitation to the Plaintiff, award child support and enter such other orders as the court may deem just and necessary and in the best interests of the minor children.” The motion plainly asked the court to declare that she was a parent of the children, and based on that finding to order custody, visitation, and child support on terms the court deemed appropriate. The motion did not ask the court to enforce a preexisting agreement. In addition, as in Whi...