Smith v. Duesenberg (In re J.D.S.), WD 78318

• Decision Date: 26 January 2016
• Docket Number: WD 78318,C/w WD 78492
• Citation: 482 S.W.3d 431
• Parties: In re the Matter of: J.D.S. n/k/a J.G.S.; Mickie and Michael Smith, Appellants, v. Amy Duesenberg, Respondent.
• Court: Missouri Court of Appeals

482 S.W.3d 431

In re the Matter of: J.D.S. n/k/a J.G.S.;

Mickie and Michael Smith, Appellants,

v.Amy Duesenberg, Respondent.

WD 78318

C/w WD 78492

Missouri Court of Appeals, Western District.

OPINION FILED: January 26, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2016

Jason C. Conkright, Kansas City, MO, for appellants.

William M. Quitmeier, Kansas City, MO, for respondent.

Before Division Three: Joseph M. Ellis, Presiding Judge, Karen King Mitchell, Judge and Gary D. Witt, Judge

Gary D. Witt

, Judge

Appellants, Mickie and Michael Smith (the "Smiths"), are maternal grandparents of the minor child, J.S.¹ Respondent, Amy Duesenberg ("Duesenberg"), is the paternal grandmother of J.S. Both the Smiths and Duesenberg sought to adopt J.S. after the parental rights of her natural parents were terminated in a separate proceeding. Ultimately, Duesenberg dismissed her adoption petition, the Smiths were granted adoption of J.S., and Duesenberg filed a Petition for Grandparents Visitation ("Petition"). The Smiths failed to respond to the Petition and, following a default judgment, the Circuit Court of Platte County, Missouri, granted Duesenberg visitation time with J.S. The Smiths moved to set aside the default judgment. Following an in chambers conference, the circuit court denied the motion but entered an amended judgment still granting Duesenberg visitation but making some changes requested by Smiths. The Smiths now appeal alleging that the court erred in entering the judgment because Duesenberg lacked standing; in the alternative, the judgment should have been set aside because the Smiths had good cause for the default. We remand with instructions to vacate the judgment and dismiss the petition for lack of standing.

Factual and Procedural Background

Paternal rights of J.S.'s natural mother and father were terminated in a separate action. After the parental rights were terminated, both the Smiths and Duesenberg filed competing petitions to adopt J.S. in the Circuit Court of Platte County. The cases were consolidated. An adoption hearing was held in front of Judge Hansbrough on March 28, 2014, at which Duesenberg dismissed her adoption petition in open court but filed a Petition for Grandparents Visitation ("Petition") on the same day. It was docketed as a new case and assigned to Judge Hansbrough. A hearing was set for May 30, 2014. Duesenberg and the Guardian Ad Litem ("GAL") were present for the May 30, 2014 hearing but neither the Smiths nor their attorney appeared. Summonses were issued and a hearing was set for August 21, 2014.

The Smiths were served with the Petition on June 9, 2014, and testified that they immediately contacted their attorney. The attorney allegedly told the Smiths that the court could not act without the GAL contacting the Smiths, which had not occurred. He believed the Petition was just to "preserve it for the record." According to an affidavit to the court, the Smiths' attorney did not file an answer to the Petition to "keep the case as non-adversarial as possible." Neither the Smiths nor their attorney attended the hearing on August 21, 2014.

At the August 21, 2014 hearing, the court heard testimony from Duesenberg and the GAL. Duesenberg testified that she had an existing relationship with J.S. and desired to continue contact. The GAL testified that she believed it to be in J.S.'s best interest to have a continuing relationship with Duesenberg. Because no answer was filed and the Smiths did not appear, the circuit court granted default judgment to Duesenberg, found that visitation was in J.S.'s best interest, and entered a judgment establishing a visitation schedule between Duesenberg and J.S.

Five days after the judgment was entered, on August 26, 2015, the Smiths filed a Motion to Set Aside Judgment on Petition for Grandparents Rights and requested a hearing. Counsel and GAL met with Judge Hansbrough in chambers on September 4, 2014. Following the in chambers conference, the court entered an Amended Judgment on Petition for Third–Party Visitation ("Default Judgment"), denying the Smiths' motion to set aside but amended the judgment to address some concerns the Smiths raised regarding the visitation schedule. The amended judgment was entered September 14, 2014.

A Motion to Set Aside, Reopen, or Vacate Amended Judgment and an additional Motion to Set Aside Default Judgment were filed on October 17, 2014. The court heard argument on December 4, 2014, at which Duesenberg appeared pro se. The court denied the Smiths' motions on January 14, 2015.² This appeal followed.

Discussion

Both the Smiths and Duesenberg were parties to the adoption case that preceded this case; both parties sought to legally adopt J.S. On the day of the adoption hearing, just prior to the introduction of evidence Duesenberg voluntarily dismissed her petition seeking adoption in open court. On that same day she filed her Petition seeking grandparent visitation rights. When Duesenberg's counsel dismissed the adoption petition, the court responded:

I think we can make a docket entry showing that it is dismissed and I certainly recognize that a Petition for Grandparent Rights has been filed in the civil court so that those rights may be protected, but I will note that it is dismissed from the merged case file, but that your petition is dismissed.

The court also recognized "I understand that there [are] some other grandparent issues that we are going to address as things move along...." At the close of testimony and prior to entering judgment regarding the adoption the court further address the open visitation issue stating:

I further applaud the parties for getting to this point and I look forward to hopefully cooperation between the grandparents so that we can extend this entire family even further for this precious little child.

During the hearing the Smiths' attorney questioned the Smiths regarding their understanding of Duesenberg's right to visitation. Mr. Smith testified:

[Smiths' Attorney]: And you are aware that the paternal grandmother has dismissed her [adoption] petition here today?

[Mr. Smith]: Yes.

Q: You are also aware that she has filed a 452 action for grandparent visitation; you're aware of that?

A: Yes, sir.

Q: And you are aware that she is entitled to that visitation as determined by the court to be in the child's best interest?

A: Yes.

Q: And that is something that you understand?

A: Yes.

Q: And that is something that you are willing to make a good faith effort to participate in?

A: Yeah.³

Similarly, Mrs. Smith testified:

[Smith's Attorney]: You also understand that the paternal grandparent has filed her petition for 452 grandparent visitation rights and that she is entitled to those under the law; do you understand that?

[Mrs. Smith]: Yes, sir.

Q: Okay. And you understand that the court will make a determination as to what is in the best interest regarding that visitation?

A: Yes, sir.

It is clear from the entirety of the record that, at the time of the adoption, Duesenberg, the GAL, and the court all believed the Smiths would act in good faith to allow Duesenberg visitation if so ordered by the court and all believed that the court had the authority to order such visitation.⁴ The Petition was in substitution for the adoption petition which was dismissed in exchange for receiving grandparent visitation. A hearing date on the Petition was set for May 30, 2014, prior to the close of the adoption hearing and the Smiths' attorney was made aware of the hearing.

I.

The Smiths' first point on appeal challenges the validity of the circuit court's judgment arguing that it is void because Duesenberg lacked standing to bring her Petition. It is clear from the record that, at the time of the adoption proceeding, all parties—including the court—believed that Duesenberg's right to visitation was open to adjudication and the Smiths would accept the court's ruling on that issue. Despite this understanding, following the Judgment, the Smiths seek to challenge Duesenberg's standing to request visitation.

It is incumbent on this Court to determine whether Duesenberg had standing to bring her Petition.

"Standing is a jurisdictional matter antecedent to the right to relief." Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc 2002)

. Standing inquires into "whether the persons seeking relief have a right to do so." Id."Standing requires that a party seeking relief have a legally cognizable interest in the subject matter and that he has a threatened or actual injury." Eastern Mo. Laborers Dist. Council v. St. Louis County, 781 S.W.2d 43, 46 (Mo. banc 1989). "Where, as here, a question is raised about a party's standing, courts have a duty to determine the question of their jurisdiction before reaching substantive issues, for if a party lacks standing, the court must dismiss the case because it does not have jurisdiction of the substantive issues presented." Farmer, 89 S.W.3d at 451. That is to say, " ‘[r]egardless of the merits of appellants' claims, without standing, the court cannot entertain the action.’ " Pace Constr. Co. v. Missouri Highway & Transp. Comm'n, 759 S.W.2d 272, 274 (Mo.App. W.D.1988) (quoting Champ v. Poelker, 755 S.W.2d 383, 387 (Mo.App. E.D.1988) ). " ‘Lack of standing can not be waived....’ " Aufenkamp v. Grabill, 112 S.W.3d 455, 458 (Mo.App. W.D.2003) (quoting State ex rel. Mink v. Wallace, 84 S.W.3d 127, 129 (Mo.App. E.D.2002) ).

White v. White, 293 S.W.3d 1, 8 (Mo. App. W.D.2009)

. Review of a circuit court's determination as to party standing is de novo . Id.

The Missouri Supreme Court's decision in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009)

, left some question as to whether a plaintiffs lack of standing implicates the trial court's subject-matter jurisdiction. See Borges v. Mo. Pub. Entity Risk Mgmt. Fund, 358 S.W.3d 177, 183 (Mo.App. W.D.2012) ("It remains an open question whether a lack of standing implicates the court's jurisdiction or merely the court's authority...."). However, more...