T.Q.L. ex rel. M.M.A. v. L.L.

Citation291 S.W.3d 258
Decision Date23 June 2009
Docket NumberNo. SD 29293.,SD 29293.
PartiesT.Q.L., by his next friend, M.M.A. and M.M.A. individually, Appellants, v. L.L., Respondent.
CourtCourt of Appeal of Missouri (US)
291 S.W.3d 258
T.Q.L., by his next friend, M.M.A. and M.M.A. individually, Appellants,
v.
L.L., Respondent.
No. SD 29293.
Missouri Court of Appeals, Southern District, Division One.
June 23, 2009.

[291 S.W.3d 259]

Jack Cochran, Blue Springs, Jay P. Cummings, Gannaway & Cummings, Springfield, Edward D. Robertson, Jr., Mary Doerhoff Winter, and Anthony L. DeWitt, Bartimus, Frickleton, Robertson & Gorney, P.C., Jefferson City, for Appellant.

Richard L. Schnake & Thom G. Field, Neale & Newman, L.L.P., Springfield, for Respondent.

Linda K. Thomas, Springfield, for Guardian Ad Litem.

[291 S.W.3d 260]

ROBERT S. BARNEY, Judge.


Appellant M.M.A. ("Father"), individually and as next friend of T.Q.L. ("Child"), appeals from a judgment entered by the trial court on August 27, 2008, which sustained a motion to dismiss his paternity cause of action and denied his request to file a second amended petition. He also seeks to appeal from a September 2, 2008, purported judgment which set aside a previously entered "First Amended Interim Judgment Finding Paternity, And Order Restricting Travel" ("the First Amended Interim Judgment"), dated July 18, 2007, which found, inter alia, paternity in Father and reaffirmed its prior order for the parties to submit to blood test for the purpose of paternity testing. He now raises four points of trial court error.

The record reveals Child was born on July 29, 2003, to L.L. ("Mother").1 Prior to 2003, Mother and Father had been in an ongoing romantic relationship. During Mother's pregnancy, the parties entered into an "Agreement" relating to Mother's pregnancy and the birth of Child wherein Father agreed to provide certain ongoing support for Child throughout his life; to provide portions of Mother's prenatal medical care; and to provide Mother with other remuneration.2 This Agreement, however, was apparently silent as to the issues of custody and visitation.

On January 11, 2007, Father filed a "Petition for Declaration of Paternity, Custody and Visitation." On May 15, 2007, Father filed a "Motion for Interim Order Finding Paternity on the Part of [Father] and Preventing Removal of [Child] from a Distance Greater than 50 miles from Greene County, Missouri." In its June 5, 2007, "Judgment Finding Paternity and Order Restricting Travel," the trial court declared Father was "the biological father of [Child];" ordered Child's name be changed to include Father's last name in addition to Mother's last name; and further ordered that neither party could travel with Child without the approval of the other party. This judgment made no determination relative to custody, visitation or support of the Child nor did it contain a parenting plan. Thereafter, on July 18, 2007, the trial court entered a First Amended Interim Judgment which reiterated the terms of its prior judgment and corrected a misspelling of Child's name.

Father then filed his "First Amended Petition for Declaration of Paternity, Custody and Visitation" ("the First Amended Petition") on November 29, 2007. In addition to the requests stated in the original petition relating to paternity, support, custody and visitation, this petition also included a request that the trial court find

291 S.W.3d 261

the Agreement entered into by the parties prior to Child's birth be declared void because Mother had recently informed Father that "he is not the biological father of [Child] or alternatively, that there is a strong likelihood that he is not the biological father of [Child.]"

In her "Answer to First Amended Petition ..." Mother requested DNA testing to determine Child's paternity. After much legal wrangling and objections by Father, on March 10, 2008, the trial court entered an "Order for Testing Pursuant to the Uniform Parentage Act." Additionally, the trial court appointed a Guardian ad Litem ("the GAL") on Child's behalf. Thereafter, based on motions and argument, the trial court entered a docket entry order on April 22, 2008, which set out that Father "shall immediately comply with prior court order for DNA testing."3

On April 29, 2008, Father then filed a motion asking the trial court to set aside the order requiring DNA testing. On May 22, 2008, Mother filed her "Motion to Set Aside First Amended Interim Judgment." On May 27, 2008, in a docket entry, the trial court ordered that the First Amended Interim Judgment "be set aside...."

On June 16, 2008, Father filed his "Motion for Leave to Amend [the] First Amended Petition for Declaration of Paternity, Custody." In this motion, Father sought to raise "alternative theories of custody" based on the fact that Mother had led Father to believe Child was his biological son since the time of her pregnancy and if Father was not allowed to be part of Child's life the result would "obviously [be] extremely detrimental to the best interests of [Child]." In this motion Father also questioned Mother's parental fitness.

On July 1, 2008, the GAL filed a "Motion to Dismiss Father's Petition for Declaration of Paternity." This motion, which quoted section 210.834.4,4 asserted that because Father was determined not to be Child's biological father, then "`the court shall dismiss the action as to that party....'" On July 28, 2008, the trial court denied Father's motion for leave to file a second amended petition and sustained the GAL's motion to dismiss Father's paternity action. Father now seeks to appeal from the trial court's judgment of dismissal entered on August 27, 2008, as well as from the trial court's purported judgment entered on September 2, 2008.

Father raises four points of trial court error. In his first point, he maintains the trial court erred in setting aside the First Amended Interim Judgment because Mother's May 22, 2008, "Motion to Set Aside First Amended Interim Judgment" failed to comply with various Missouri Court Rules. Father's second point asserts the trial court erred in ordering DNA testing because the First Amended Interim Judgment "for which the time to appeal had run, was final and conclusive as to the issue of paternity in that it was a matter determined on the merits ... and never appealed." In his third point, Father maintains the trial court erred in setting aside the First Amended Interim Judgment because he was denied "the opportunity to be heard on issues related to the order setting aside the original judgment of paternity ..." in contravention of his constitutional rights. In Father's

291 S.W.3d 262

fourth point he asserts the trial court erred in granting the GAL's motion to dismiss and in failing to allow him to file his second amended petition.

Turning to Father's points of trial court error, we note at the outset that three of his four points relied on and their attendant arguments presuppose the trial court's First Amended Interim Judgment was a final judgment which was subject to appeal by Mother and was not modifiable by the trial court once it was entered. However, we determine that the First Amended Interim Judgment was merely an order of the trial court and not a final judgment. Our determination affects the entirety of this appeal.

Here, Father's "Petition for Declaration of Paternity, Custody and Visitation" was a two count petition requesting a determination that Child was Father's biological son; that a finding be made as to custody and visitation; that a support order be issued; and that Child's name and birth certificate be changed to reflect Father's paternity. Father then filed a "Motion for Interim Order Finding Paternity on the Part of [Father] and Preventing Removal of [Child] ...," on May 15, 2007, which requested a paternity determination and an order preventing either party from removing Child from the area without the permission of the other party.

Thereafter, on June 5, 2007, the trial court entered its "Judgment Finding Paternity and Order Restricting Travel." In this judgment the trial court found there was "no just reason for delay in entering its [j]udgment as to paternity;" declared Father was "the biological father of [Child];" ordered Child's name be changed to include Father's last name in addition to Mother's last name; and further ordered that neither party be permitted "to travel with [Child] for a distance greater than 50 miles [without permission of the other party] ... until a ... parenting plan [was] implemented...." Later, on July 18, 2007, the trial court entered its First Amended Interim Judgment which reiterated the terms of the June 5, 2007, judgment and corrected a misspelling of Child's name.

In our analysis, we initially observe that both of these judgments suffer from the same malady: they do not dispose of the entirety of Father's original two-count petition. Rule 74.01(b)5 sets out that:

w]hen more than one claim for relief is presented in an action ... the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

While it is clear that the trial court specifically set out "there is no just reason for delay in entering" the First Amended Interim Judgment, our analysis does not end there. As explained by the Supreme Court of Missouri:

Rule 74.01(b) provides an exception to th[e] `finality rule' for cases with multiple claims. A trial court may enter judgment on less than all claims and certify that there is `no just reason for delay.' The designation by a trial court that its order is final and appealable is not conclusive. It is the content, substance,

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