Straight v. Straight

• Decision Date: 30 June 2006
• Docket Number: No. WD 65930.,WD 65930.
• Citation: 195 S.W.3d 461
• Parties: Jennifer A. STRAIGHT, Respondent, v. Scot E. STRAIGHT, Appellant.
• Court: Missouri Court of Appeals

195 S.W.3d 461

Jennifer A. STRAIGHT, Respondent, v. Scot E. STRAIGHT, Appellant.

No. WD 65930.

Missouri Court of Appeals, Western District.

June 30, 2006.

COPYRIGHT MATERIAL OMITTED

Leonard K. Breon, Warrensburg, MO, for appellant.

Jennifer A. Straight, Lakeland, MO, pro se.

Before ELLIS, P.J., LOWENSTEIN and SPINDEN, JJ.

FACTS

HAROLD L. LOWENSTEIN, Judge.

This appeal arises from the dismissal of a motion to modify child support for lack of subject matter jurisdiction. Although visitation was raised at the hearing, the sole point on appeal is whether Missouri has jurisdiction to modify an existing child support order. Only the appellant filed a brief.

The marriage of Scot E. Straight ("Father") and Jennifer A. Straight ("Mother") was dissolved in Missouri in 1999. The judgment in the dissolution (the "Missouri order") granted Mother primary physical custody¹ of the three children, and Father was to have visitation. Father was required to pay a total of $900 per month child support to Mother. Mother and children moved to Florida; Father remained in Missouri. In May, 2002, a Florida circuit court (the "Florida court") designated Father as the "primary residential parent" of the oldest child. In that same order, the Florida court modified the child support payment, requiring Father to pay Mother $450 per month for the two children still with the mother. Six months later, the same court designated Father as the "primary residential parent" for the remaining two children.² Under a stipulation filed by the parties, the Florida court granted custody of the children to father and terminated his child support obligation. The stipulation stated in part:

[M]inor children will . . . reside with [Father] . . .

[H]er visitation with minor children will take place in Missouri, unless [Mother] agrees to pay child support determined by the statutory guidelines in which event [Mother] may have visitation with the minor children in Florida . . .

[Father] will not seek child support from [Mother],

[Mother] will no longer receive child support from [Father].

Father remained in Missouri with the children and Mother remained in Florida.

PROCEDURAL POSTURE

In 2005, Father filed a motion to modify (or establish) a support order in Missouri. Mother was served with a summons. Mother sent a "Written Response to Summons" to Father's counsel who tendered a copy to the trial court. In that document, Mother requested that the amount of support sought by Father reflect her current earnings and that the court modify the visitation provision per the Florida stipulation. The trial court dismissed the motion to modify the child support and visitation for lack of subject matter jurisdiction. This appeal by Father followed.

DISCUSSION

Father's sole point on appeal is whether Missouri has subject matter jurisdiction to modify the child support order or whether Florida has assumed jurisdiction.³ Subject matter jurisdiction is a question of law subject to de novo review by this court.

Subject matter jurisdiction exists only when a court has the right to proceed to determine the controversy at issue or grant the relief requested. Garcia-Huerta v. Garcia, 108 S.W.3d 684, 686 (Mo.App. 2003). Subject matter jurisdiction over child support orders is governed by the Uniform Interstate Family Support Act ("UIFSA"), sections 454.850 et seq. UIFSA became effective as of July 1, 1997. Section 454.850 RSMo. UIFSA's purview extends only to child support and issues of paternity and parentage. State ex rel. Dept. of Social Serv. v. Hudson, 158 S.W.3d 319, 323 (Mo.App.2005). UIFSA is predicated on a one-order system where only one state's child support order governs at any time, and, unless the first state has lost jurisdiction, no other state may modify the order. Superior Court v. Ricketts, 153 Md.App. 281, 836 A.2d 707 (Md. 2003). By providing a single tribunal with continuing and exclusive jurisdiction to establish or modify a support order, UIFSA seeks to avoid problems that arise from multiple orders in multiple states. Reis v. Zimmer, 263 A.D.2d 136, 141, 700 N.Y.S.2d 609 (N.Y.App.Div.1999).

UIFSA is codified in Missouri at sections 454.850 to 454.997.⁴ Modification of child support orders is addressed in section 454.867(a) that provides:

(a) A tribunal of this state issuing a support order consistent with the law of this state has a continuing, exclusive jurisdiction over a child support order:

(1) as long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or

(2) until each individual party has filed a written consent with the tribunal of this state for a tribunal of another state to modify the order and assume exclusive, continuing jurisdiction.

In this case, the Missouri order was issued subject to the UIFSA provisions. The decree of dissolution incorporating the custody order and the original support order was issued in January 1999. Because the original support order was issued after UIFSA became effective, the provisions of UIFSA apply to this order. Under UIFSA, Missouri established its continuing, exclusive jurisdiction over the child support when it entered the order in 1999. The question then becomes whether Florida properly claimed jurisdiction in 2002. If Florida established jurisdiction to modify the Missouri order under 454.867(b)⁵, Florida then, and now has exclusive and continuing jurisdiction and Missouri is precluded from modifying either the original order or the order as modified by Florida. If Florida did not have jurisdiction to modify the Missouri order, the Florida judgment affecting child support would be a nullity. Krasinski v. Rose, 175 S.W.3d 202, 204 (Mo.App.2005).

Florida's version of UIFSA is found in sections 88.1011 et seq. Like the Missouri statute, it provides that: "A tribunal of this state shall recognize the continuing exclusive jurisdiction of a tribunal of another state which has issued a child support order pursuant to this act or a law substantially similar to this act." Fla. Stat. § 88.2051(4) (2006). Missouri entered the original support order pursuant to UIFSA and established continuing exclusive jurisdiction over the support order in 1999. Florida could only modify the Missouri order in 2002 if Missouri lost jurisdiction.

Here the dissolution and original child support order were entered in Missouri. Father was a Missouri resident and remains a Missouri resident. As Father, a party to the original support order, remained a Missouri resident, Florida did not acquire jurisdiction under 454.867(a)(1). Jurisdiction could, therefore, only be conferred on Florida through consent of the parties.

Consent to confer subject matter jurisdiction over child support under Missouri's UIFSA requires that each party consent in writing and that writing be filed with a tribunal of this state. Specifically, the statute provides that Missouri's continuing, exclusive jurisdiction to modify the order continues "until each party has filed a written consent with the tribunal of this state." Section 454.867(a)(2), RSMo. Under the facts of this case, written consent was not filed with the Missouri court before the Florida court entered its 2002 orders.

Although Father concedes that "someone" filed the Florida stipulation with the Missouri court in 2003, over a year after the Florida orders, at the time the Florida court entered its order, it was without jurisdiction to modify the Missouri Support order. Missouri law and the UIFSA are very clear that Missouri's jurisdiction continues until the consent is filed with the state. "Until" is defined as "[u]p to the time of. A word of limitation used ordinarily to restrict that which precedes to what immediately follows it." Black's Law Dictionary, 1540(6th Ed.1991). Thus, Florida could not obtain jurisdiction until consent is filed in Missouri. Even if filing the stipulation in Missouri in 2003 amounts to consent pursuant 454.867(a), at the time Florida acted in 2002, Missouri still had continuing, exclusive jurisdiction over any modification of the original support order.

As a basis of its ruling that the Florida court had jurisdiction over the child support matter, the Missouri trial court stated that "the Florida court expressly stated that it assumed jurisdiction of this matter from the State of Missouri." However, a ruling of jurisdiction by a court that is merely conclusory or that assumes jurisdiction, but is tacit as to the factual basis for that adjudication, does not meet the objectives of uniform acts designed to avoid jurisdictional disputes. Piedimonte v. Nissen, 817 S.W.2d 260, 266 (Mo.App.1991) (citing Lynch v. Lynch, 770 P.2d 1383, 1385 (Colo.App.1989)). Under both UIFSA and the UCCJA, the Florida court could not have assumed jurisdiction by simply stating that it had jurisdiction. The Florida court did not meet the statutory requirements of UIFSA; Florida did not have authority to modify the Missouri Support order.

The trial court in this case relied on a recent eastern district decision, State ex rel. Ferrara v. Neill in dismissing Father's motion to modify. 165 S.W.3d 539 (Mo. App.2005). In Ferrara, husband and wife were married in Missouri but subsequently moved to New Mexico with their only child. The marriage was dissolved under New Mexico law. The decree gave primary physical custody of the child to the husband who moved back to Missouri. The ex-wife remained in New Mexico. The ex-husband registered the New Mexico decree as a foreign judgment in a Missouri court and filed a motion to modify both the custody and support provisions of the New Mexico order. The ex-wife filed for a writ of prohibition after the trial court denied her motion to dismiss. The writ was made permanent.

Ferrara, however, only addresses jurisdiction over child custody and visitation under the Missouri version of the Uniform Child Custody Jurisdiction Act, Sections 452.440 et seq., ("...