State ex rel. Mary Renee Palmer v. Goeke

• Decision Date: 07 December 1999
• Citation: State ex rel. Mary Renee Palmer v. Goeke, 8 S.W.3d 193 (Mo. App. 1999)
• Parties: (Mo.App. E.D. 1999) State ex rel. Mary Renee Palmer, a minor by her Next Friend David D. Palmer, and David D. Palmer, Individually, Relators, v. The Honorable Joseph A. Goeke, III, Judge, Division 34 Circuit Court, St. Louis County, Missouri, Respondent. Case Number: ED76977 Missouri Court of Appeals Eastern District Handdown Date:
• Court: Missouri Court of Appeals

8 S.W.3d 193 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

State ex rel. Mary Renee Palmer, a minor by her Next Friend David D. Palmer, and David D. Palmer, Individually, Relators, v. The Honorable Joseph A. Goeke, III, Judge, Division 34 Circuit Court, St. Louis County, Missouri, Respondent.

Case Number: ED76977

Missouri Court of Appeals Eastern District

Handdown Date: 12/07/99

Appeal From: Writ of Prohibition

Counsel for Appellant: Greg L. Roberts and Eric S. Christensen

Counsel for Respondent: R. Scott Harness

Opinion Summary: The father and mother filed twin civil actions, each naming the other as defendant.Both actions sought a declaration of paternity together with orders of child custody and child support with respect to their infant daughter.The father filed his action first, in St. Louis County, where he resided at the time.The mother filed her action approximately a week later, in Jefferson County, where she and the daughter resided.The father moved to Jefferson County, and the mother filed a motion to have the father's action transferred to Jefferson County on grounds of forum non conveniens.The respondent judge granted the motion.The father filed a petition for writ of prohibition, seeking to restrain the judge from taking any further action in the matter other than to vacate his transfer order and exercise jurisdiction over the cause.

PEREMPTORY WRIT ISSUED.

Writ Division One holds: Venue is proper in St. Louis County.The judge's sole basis for granting the mother's motion for transfer was forum non conveniens.However, the Supreme Court has held that the doctrine of inconvenient forum has no intrastate application in Missouri, and a trial judge is without discretion to disturb a plaintiff's proper choice of venue within this state.

Opinion Author: Richard B. Teitelman, Presiding Judge

Opinion Vote: PEREMPTORY WRIT ISSUED.Crahan and Simon, JJ., concur.

Opinion:

Father("Relator") and Mother filed virtually identical civil actions, each naming the other as defendant; both actions sought a declaration of paternity as well as orders of child custody and child support concerning their infant daughter.Relator filed his action first, in St. Louis County, where he lived at the time.Mother filed her action approximately a week later, in Jefferson County, where she and daughter lived.Relator moved to Jefferson County shortly after filing his action.Mother then filed a motion, based solely on grounds of forum non conveniens, to have Relator's action transferred to Jefferson County and consolidated with her action.Respondent judge, the Honorable Joseph A. Goeke III("Respondent"), granted Mother's motion.Relator filed a petition for writ of prohibition with this Court seeking to prohibit Respondent from enforcing his order of transfer.Mother has filed suggestions in opposition to issuance of the writ on behalf of Respondent.

The facts and law are clear.Relator is entitled to the relief he seeks.In the interest of justice and as permitted by Rule 84.24(j), we dispense with a preliminary order, answer, further briefing and oral argument, and now issue our peremptory writ of prohibition.

FACTUAL BACKGROUND

On December 24, 1998, a female child, Mary Renee Palmer, was born to Jessica M. Balfanz("Mother" herein) and Relator, David D. Palmer.Following the birth of their child the parents resided together for a period of time in Jefferson County and then in St. Louis County, but subsequently separated.

On September 9, 1999, Relator filed in the circuit court of St. Louis County his "Petition for Declaration of Paternity, Order of Custody, and Order of Child Support."This petition was given CauseNo. 99FC-007816 and assigned to the Respondent herein, Judge Goeke.It is undisputed that at the time Relator filed this petition he resided in St. Louis County and had resided there for more than six months.Shortly after he filed his petition, however, Relator moved to, and currently resides in, Jefferson County.On September 15, 1999, without prior knowledge of Relator's earlier filed petition and before being served in that matter, Mother filed her "Petition for Declaration of Paternity, Child Custody and Support" in the circuit court of Jefferson County, where she and child resided.This petition was assigned CauseNo. CV199-5309.

Though each requests slightly different relief with respect to child support and custody arrangements, Relator's and Mother's respective petitions are virtually identical in substance and subject matter.Both are paternity actions brought under the Uniform Parentage Act, Sections 210.817 through 210.852, RSMo 1994 and RSMoCum. Supp. 1998.

On October 6, 1999, Mother entered her appearance and filed a "Motion Forum Non Conveniens" in Relator's paternity action in St. Louis County.Mother's motion requested that Relator's action be transferred to Jefferson County and consolidated with Mother's paternity action there.Mother's motion based this request on the fact that all parties currently resided in Jefferson County, contending that Jefferson County would therefore be a more convenient forum for judicial disposition of the underlying dispute between the parties.On October 18, 1999, Mother's motion was called, heard and granted by Respondent, over the objection of Relator's counsel.Physical transfer of the file to Jefferson County occurred on or about November 1, 1999.Relator seeks prohibition to prevent Respondent from enforcing his order.

DISCUSSION

Venue in Missouri is determined solely by statute.Rothermich v. Gallagher, 816 S.W.2d 194, 196(Mo. banc 1991).Section 210.829.4 RSMo 1994 is the venue provision of Missouri's Uniform Parentage Act.It provides, in pertinent part: "An action brought under sections 210.817 to 210.852 may be brought in the county in which the child resides, the mother resides, or the alleged father resides. . . ."In construing this statutory provision Missouri courts have held that it assigns no venue preference or priority, as among the three potential venue sites in which such an action may be filed.State ex rel. Watts v. Hanna, 868 S.W.2d 549, 551-52(Mo. App. S.D.1992).Thus, there is no doubt in the instant case that venue is proper in St. Louis County, and was proper at the time Relator filed his action.¹

Also significant to our decision is the fact that Relator's paternity action was filed before Mother's action.As noted earlier, the two actions are identical in substance and subject matter.When two suits are filed relating to a dispute involving the same subject matter between the same parties in two Missouri circuit courts of proper venue and concurrent jurisdiction, the court in which the first petition is filed becomes vested with exclusive jurisdiction over the matter to the exclusion of all other courts.SeeState ex rel. Kincannon v. Schoenlaub, 521 S.W.2d 391, 394(Mo. banc 1975);Baker v. Baker, 804 S.W.2d 763, 767(Mo. App. E.D.1990).It follows that if venue was proper in St. Louis County, and exclusive jurisdiction over the subject matter vested in that circuit court when Relator filed his paternity action there, then Respondent acted in excess of his jurisdiction by transferring Relator's case to Jefferson County.²

Respondent argues that the doctrine of forum non conveniens should apply in this case, and that it justifies his order transferring Relator's action, since all parties currently reside in Jefferson County and hence that venue would be a more convenient forum for adjudication of the matter.³However, our state's Supreme Court has consistently held that although the doctrine may sometimes apply in cases that involve out-of-state parties and causes that accrue outside the state of Missouri, Missouri's venue statutes do not permit an intrastate application of the doctrine of inconvenient forum.State ex rel. Sharp v. Romines, 984 S.W.2d 500, 500(Mo. banc 1999);Anglim v. Missouri Pacific R. Co., 832 S.W.2d 298, 302(Mo. banc 1992);see alsoState ex rel. Meek v. Smith, 974 S.W.2d 656, 657 n.1(Mo. App. E.D.1998).This is because statutory designation of a site where venue is proper "presupposes legislative determination that it cannot be overly inconvenient for a defendant to appear in that location."Willman v. McMillen, 779 S.W.2d 583, 586(Mo. banc 1989).A trial judge is therefore "without discretion to disturb a plaintiff's choice of proper venue within the State."Jones v. Overstreet, 865 S.W.2d at 718.Hence, all...