Payne v. Weker

• Decision Date: 12 March 1996
• Docket Number: Nos. WD,s. WD
• Citation: 917 S.W.2d 201
• Parties: Robert J. PAYNE, Appellant, v. Susan E. WEKER, Respondent. Robert J. PAYNE, Appellant, v. Susan E. WEKER, Respondent. 51159, WD 51160.
• Court: Missouri Court of Appeals

Page 201

917 S.W.2d 201

Robert J. PAYNE, Appellant, v. Susan E. WEKER, Respondent.

Robert J. PAYNE, Appellant, v. Susan E. WEKER, Respondent.

Nos. WD 51159, WD 51160.

Missouri Court of Appeals Western District.

March 12, 1996.

Appeal from the Circuit Court of Jackson County, Missouri; The Honorable Justine E. Del Muro, Judge.

Daniel H. Bowers, Kansas City, for appellant.

James C. Welch, Raytown, for respondent.

Before FENNER, C.J., P.J., and LOWENSTEIN and BRECKENRIDGE, JJ.

FENNER, Chief Judge.

Robert J. Payne, father, appeals the dismissal of his Motion to Modify Decree of Dissolution--Change of Custody and Motion for Contempt and Order to Show Cause by the Circuit Court of Jackson County based on a finding that it was in the best interests of the child for a court in the state of Maryland to assume jurisdiction and that Missouri was an inconvenient forum to make a custody determination under the circumstances of the case.

Father and Susan E. (Payne) Weker, mother, are the parents of Courtney Elizabeth Payne, born August 14, 1987, in Kansas City, Missouri. In July 1990, mother left Missouri along with Courtney to visit Courtney's maternal grandmother in Maryland. Thereafter, mother determined she would not return to Missouri or to Courtney's father.

Father then initiated a divorce proceeding in Jackson County, Missouri, at about the same time mother initiated a similar proceeding in Maryland. Both filed motions to dismiss the other's petition. The Maryland courts dismissed mother's petition for lack of jurisdiction and the Jackson County, Missouri Circuit Court assumed jurisdiction over the dissolution proceedings.

The parties eventually reached a settlement and a Marital Dissolution Agreement was executed by both parties on August 21, 1991. A Decree of Dissolution was entered in the Circuit Court of Jackson County on the same day.

Pursuant to the Decree of Dissolution, the parties were awarded joint legal custody of Courtney, with mother designated as the primary physical custodian. Provisions specifying father's custodial periods with Courtney were set forth in the decree. Courtney's Christmas vacation period each year was to be divided between the parents. Additionally, father was awarded temporary custody for an eight week period during the summer months, which was expanded to nine weeks in 1994. The Thanksgiving holiday was to alternate between the parents and father was given temporary custody during Courtney's spring break from school.

In 1992, the original decree was modified pursuant to a motion by father. The parties entered into a stipulation relating to matters within father's Motion for Contempt and modifying certain terms in the initial decree, including provisions relating to transportation to facilitate father's custodial periods and the extension of the summer period of temporary custody to ten weeks.

Since the date of the original decree, father has continued to reside in the former marital home in Missouri while mother and Courtney have continuously resided in Maryland, subject to the periods in which father has temporary custody of Courtney.

On February 3, 1995, father filed a Motion for Contempt and Show Cause Order alleging that mother had violated the decree of dissolution by refusing to permit father to exercise visitation during the 1994 Christmas vacation period. Father also alleged problems related to previous visitation periods and that mother had failed to provide information concerning Courtney's school progress, extra-curricular activities, and health care. An order to show cause was entered on February 24, 1995, directing mother to appear before the court to respond to father's motion.

Father also filed a Motion to Modify Decree of Dissolution--Change of Custody on February 3, 1994, with nearly identical allegations to those contained in his motion for contempt, claiming that it was in the best interest of Courtney that primary physical custody be transferred to him.

Mother chose not to submit to the jurisdiction of the Jackson County Circuit Court and, instead, filed a motion to dismiss, together with suggestions in support thereof, alleging Missouri lacked subject matter and personal jurisdiction to proceed upon appellant's motions.

Representatives of the parties appeared before the court on April 24, 1995. Counsel for mother presented her motion to dismiss to the court. The court gave counsel for father the opportunity to request time to respond to the motion, but counsel chose instead to argue the case. The suggestions in support of the motion alleged that Maryland was Courtney's home state, and as such, Maryland had the most significant connections with the child and the litigants. In support of father's position, it was argued that because he still resides in Missouri and Courtney still has some significant contacts to Missouri, our courts retained subject matter jurisdiction in modification and enforcement proceedings.

The court heard no evidence other than the statements of counsel on mother's motion to dismiss. After listening to the arguments and presumably reviewing the case file, the trial court granted mother's motion to dismiss, dismissed father's motion for contempt and motion to modify, and dissolved the show cause order. The trial court found that Maryland was the child's home state and that Courtney's best interests were served if Maryland assumed jurisdiction. Additionally, the court determined that Missouri was an inconvenient forum under § 452.470, RSMo 1994. ¹ Finally, the court found that father was attempting to obtain custody of Courtney and that the motion for contempt was merely a disguise for a request for modification of custody. Appellant timely appealed the trial court's decision to this court.

I. STANDARD OF REVIEW

The standards set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) govern our review of this matter. We must affirm the order of the trial court unless: (1) there is no substantial evidence to support the determination by the court that it did not have jurisdiction to hear father's motion for modification and motion for contempt; (2) the determination by the trial court that it did not have jurisdiction was against the weight of the evidence; or (3) the determination by the trial court that it did not have jurisdiction was an erroneous declaration of the law or erroneously applied the law. Lydic v. Manker, 789 S.W.2d 129, 130 (Mo.App.1990).

II. CHANGE OF CUSTODY--MODIFICATION JURISDICTION

A court may not modify a prior custody decree unless it has jurisdiction under the provisions of § 452.450, our state's codification of the Uniform Child Custody Jurisdiction Act ("UCCJA"). Two of the sets of circumstances prescribed in § 452.450 relate to situations like that before us in which the child who is the subject of a child custody proceeding no longer resides in the state. Lydic, 789 S.W.2d at 131.

Section 452.450.1(1) provides that Missouri courts have jurisdiction if Missouri is the "home state" ² of the child at the time of commencement of the proceeding or had been the child's home state within six months before commencement and the child is absent from Missouri for any reason. Id. Both parties concede in their briefs that Maryland, not Missouri, is the home state of Courtney. Consequently, jurisdiction will not lie under section 452.450.1(1).

Section 452.450.1(2) provides that a Missouri court has jurisdiction to make child custody determinations if it is in the best interest of the child that a Missouri court assume jurisdiction because: (a) the child and his parents, or at least one litigant, have a significant connection with this state; and (b) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships. Id. Under this provision, Missouri continues to have preferential jurisdiction to hear subsequent custody and visitation matters even if the child and a parent have moved to another jurisdiction. Stewart v. Stewart, 905 S.W.2d 114, 118 (Mo.App.1995); Dobbs v. Dobbs, 838 S.W.2d 502, 503 (Mo.App.1992). This is not, however, a conclusive determination of jurisdiction. See Stewart, 905 S.W.2d at 118. A court generally cannot make a custody determination if a child has lived out of the state for more than six months. Levis v. Markee, 771 S.W.2d 928, 931 (Mo.App.1989). In determining whether the trial court was correct in ruling that jurisdiction would not lie under this section, we are guided by the Commissioners Note to this section in the UCCJA, quoted by the Eastern District in Timmings v. Timmings, 628 S.W.2d 724, 726-27 (Mo.App.1982):

Paragraph (2) perhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes expressed in section 1. The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child's interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state. The submission of the parties to a forum, perhaps for purposes of divorce, is not sufficient without additional factors establishing closer ties with the state. Divorce jurisdiction does not necessarily include custody jurisdiction. UNIFORM CHILD CUSTODY JURISDICTION ACT § 3, 9 U.L.A. 124 (1969) (Commissioners' Note).

Under section 452.450.1(2)(a), the minimum requirement is that the child and at least one litigant have a significant connection with Missouri. Timmings, 628 S.W.2d at 727. It is...