State ex rel. Dept. of Soc. Serv. V. Hudson

• Decision Date: 29 March 2005
• Docket Number: No. WD 64345.,WD 64345.
• Citation: 158 S.W.3d 319
• Parties: STATE of Missouri ex rel. DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, and Khaleb Lee Holder, by Karen Louise Salmon as next friend, and Karen Louise Salmon, Relator, v. The Honorable Stephen HUDSON, Associate Circuit Judge, Third Circuit of Grundy County, Respondent.
• Court: Missouri Court of Appeals

158 S.W.3d 319

STATE of Missouri ex rel. DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, and Khaleb Lee Holder, by Karen Louise Salmon as next friend, and Karen Louise Salmon, Relator, v. The Honorable Stephen HUDSON, Associate Circuit Judge, Third Circuit of Grundy County, Respondent.

No. WD 64345.

Missouri Court of Appeals, Western District.

March 29, 2005.

Kris Teena Daniel, Brookfield, for appellant.

Jack N. Peace, Trenton, for respondent.

Before JAMES M. SMART, JR., P.J., ROBERT G. ULRICH, and LISA WHITE HARDWICK, JJ.

JAMES M. SMART, JR., Judge.

This is an original action in prohibition in which the Missouri Department of Social Services, Division of Child Support Enforcement, seeks to prohibit the Honorable Stephen Hudson from proceeding further on a counter-petition brought by Delbert Jackson. The counter-petition was filed in response to the State's petition to establish paternity and child support, brought on behalf of the minor child Khaleb Lee Holder and his mother Karen Salmon. Because we hold that the court lacks subject matter jurisdiction to proceed on the counter-petition, we order that the preliminary order in prohibition be made absolute.

Factual and Procedural Background

The background facts are not disputed. In October 1987, Karen Salmon (Mother) lived and worked in Grundy County, Missouri. During that time period, Mother and Delbert Jackson (Father) engaged in a sexual relationship. As a result, the minor child at issue here, Khaleb Holder, was born in July 1988. Mother later moved to Texas with Khaleb.

In September 2003, pursuant to the Uniform Interstate Family Support Act (UIFSA), codified at §§ 454.850-454.997,¹ the Missouri Division of Child Support Enforcement (DCSE) brought a "Uniform Support Petition" in Grundy County Circuit Court. The petition named Father as the respondent and requested the establishment of paternity and an order for child support, medical coverage, and additional costs. The uniform support petition form, which Mother completed while living in Texas, indicated that Khaleb was born in Missouri, but that he had been living in Texas since October 1992.

Father filed a motion to dismiss the petition. The court denied the motion to dismiss and ordered Father to file an answer within twenty days. In the interim, the court ordered blood tests to determine paternity. According to Father's affidavit, the blood tests established that Delbert Jackson (Father) is the child's father. Father timely filed his answer and included a counter-petition in which he requested that the court: (1) establish paternity; (2) grant him sole care, custody and control of the minor child, with reasonable visitation rights to Mother; and (3) order Mother to pay child support retroactive to the filing of the counter-petition.

DCSE filed a motion to dismiss the counter-petition on the ground that the court had no personal jurisdiction over Mother with regard to the claims in the counter-petition. After a hearing, the court determined that the court did have personal jurisdiction over Mother because she had submitted to jurisdiction by filing the Uniform Support Petition in the court. The court held that Father could proceed with his counter-petition in the underlying action.

DCSE then filed a petition for writ of prohibition in this court, seeking to prevent Judge Hudson from proceeding further with the claims in Father's counter-petition on the grounds that the court lacked personal jurisdiction over Mother pursuant to section 454.912 of the UIFSA. This court ordered Respondent to file suggestions in opposition showing why the requested relief should not be granted. Following receipt of the suggestions in opposition, a temporary writ of prohibition was granted.

The cause was briefed and argued before this court for a determination as to whether the temporary writ should now be made permanent.

Writs of Prohibition

An extraordinary writ of prohibition may be granted when it is clear that a trial court is exceeding its jurisdiction. See State ex rel. Mo. Gaming Comm'n v. Kinder, 896 S.W.2d 514, 516 (Mo.App.1995). The primary function of prohibition is to limit judicial activities to those within the bounds of "authority, preventing actions in want or in excess of the court's jurisdiction." State ex rel. Lopp v. Munton, 67 S.W.3d 666, 670 (Mo.App.2002). Prohibition is an appropriate remedy where the lower court lacks either personal or subject matter jurisdiction to proceed. Id.; State ex rel. Havlin v. Jamison, 971 S.W.2d 938, 939 (Mo.App.1998).

Arguments

The parties argue primarily about issues of personal jurisdiction rather than subject matter jurisdiction. DCSE's primary argument in favor of the writ is that the court lacks personal jurisdiction over Mother to proceed on the counter-petition based on the limited immunity provided to her by section 454.912(a) of the UIFSA. That section provides in relevant part that "[p]articipation by a petitioner in a [UIFSA] proceeding ... does not confer personal jurisdiction over the petitioner in another proceeding" (emphasis added). DCSE contends that the claims in Father's counter-petition constitute "another proceeding." While we assume that DCSE's interpretation of the language "another proceeding" is correct,² we need not decide the issue of personal jurisdiction because we determine that the trial court lacks subject matter jurisdiction of the custody and visitation claims asserted by Father.

Subject Matter Jurisdiction

In Father's counter-petition, he requested that the court: (1) establish paternity; (2) give him sole care, custody, and control of the minor child, with reasonable visitation rights to Mother; and (3) order Mother to pay child support retroactive to the filing of Father's counter-petition.

DCSE has also requested establishment of paternity. Both DCSE (in behalf of Mother and Khaleb) and Father seek to establish Father's parentage of the minor child.³ Thus, we assume there is both subject matter jurisdiction and personal jurisdiction over Mother as to the declaration of paternity.⁴

Next, Father requests child support from Mother "retroactive to the filing of the counter-petition." Because Mother has had and continues to have sole custody of the child (at least until a custody determination can be made in the proper forum), there is no subject matter jurisdiction by which to award Father child support, retroactive or otherwise. The issue of personal jurisdiction over Mother is moot as to that point.

We turn, then, to the issue of whether the circuit court has subject matter jurisdiction over the child custody claim in Father's counter-petition. In Missouri, subject matter jurisdiction over child custody disputes, including modification motions, is governed by the Uniform Child Custody Jurisdiction Act (UCCJA), §§ 452.440 to 452.550. Steele v. Steele, 978 S.W.2d 835, 837 (Mo.App.1998); State ex rel. Laws v. Higgins, 734 S.W.2d 274, 277 (Mo.App.1987). The provisions of the UCCJA dictate which State has jurisdiction over a child to establish or modify child custody orders. The UIFSA deals strictly with child support and paternity/parentage issues.

It is implicit in the UCCJA that the trial court is to make an initial determination of jurisdiction by express findings of fact before proceeding to the substantive issue of custody. Piedimonte v. Nissen, 817 S.W.2d 260, 266 (Mo.App.1991). The authority of a court under the UCCJA to hear a particular custody determination is a matter of subject matter jurisdiction. Laws, 734 S.W.2d at 279. Such jurisdiction may not be waived, may not be conferred by consent of the parties, must be based upon the circumstances at the time the jurisdiction is invoked, and may be raised at anytime. Id.; Lavalle v. Lavalle, 11 S.W.3d 640, 651 (Mo.App.1999).

To determine if a Missouri court has subject matter jurisdiction over a custody proceeding, we look to section 452.450 of Missouri's version of the UCCJA. McClain v. Chaffee, 894 S.W.2d 719, 721 (Mo.App.1995). Section 452.450.1 provides four bases for jurisdiction to determine child custody. It states:

A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) This state:

(a) Is the home state of the child at the time of commencement of the proceeding; or

(b) Had been the child's home state within six months parent continues to live in this state; or

(2) It is in the best interest of the child that a court of this state assume jurisdiction because:

(a) The child and his parents, or the child and 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; or

(3) The child is physically present in this state and:

(a) The child has been abandoned; or

(b) It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse, or is otherwise being neglected; or

(4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.

§ 452.450.1. Because the various bases of jurisdiction are stated in the disjunctive, jurisdiction may be predicated on any of the four subsections. McClain, 894 S.W.2d at 721. According to Father, the Missouri court has jurisdiction under section 452.450.1(2), and perhaps also under subsection (4). Those subsections are commonly referred to, respectively, as the "significant connection" basis and the "default or vacuum" basis. See Wheeler v....