White v. White, WD 69580.

CourtCourt of Appeal of Missouri (US)
Citation293 S.W.3d 1
Docket NumberNo. WD 69580.,WD 69580.
PartiesLeslea Diane WHITE, individually and as next friend for C.E.W. and Z.A.W., Appellants, v. Elizabeth Michelle WHITE, n/k/a Elizabeth Michelle Crowe, Respondent.
Decision Date23 June 2009

Appeal from the Circuit Court of Boone County, Missouri, Cary G. Augustine, Judge.

Susan Sommer, for Appellants.

Melissa Faurot, for Respondent.

Before VICTOR C. HOWARD, Presiding Judge, JOSEPH M. ELLIS, Judge and ALOK AHUJA, Judge.


Leslea Diane White ("Leslea") appeals from a judgment entered in the Circuit Court of Boone County dismissing without prejudice her "Petition for Declaration of Maternity, For Order of Custody and For Order of Child Support" related to minors C.E.W. and Z.A.W. For the following reasons, the judgment is affirmed.

I. Factual Background

Leslea and Elizabeth Michelle White ("Michelle") were involved in a committed same-sex relationship for approximately eight years beginning in 1997. During the relationship, Michelle changed her last name to White, and she and Leslea each conceived a child through artificial insemination using the same anonymous sperm donor.1 Michelle is the biological mother of C.E.W., who was born December 15, 2001, and Leslea is the biological mother of Z.A.W., who was born July 27, 2004. Leslea and Michelle lived together with the children until their relationship terminated in November 2005. For the next several months, the children lived part of the time with Leslea and part of the time with Michelle. In late May 2006, Michelle refused to allow Leslea or Z.A.W. to have any contact with C.E.W., refused to accept Leslea's offers of financial support for C.E.W., and stopped seeking contact with Z.A.W. or contributing to his financial support. It appears that neither the children nor the women have had any contact with each other since that date.

On January 18, 2007, Leslea filed a "Petition for Declaration of Maternity, For Order of Custody and For Order of Child Support" in the Circuit Court of Boone County as an individual and as next friend for C.E.W. and Z.A.W. She asserted that neither child has a natural or presumed father and prayed for the court to declare both women to be the legal parents of both children based on their alleged joint decisions to conceive the children and their relationships with the children. She asked the court to enter an award of joint legal and physical custody2 as to both children and to order both women to pay reasonable child support.

Michelle subsequently filed a motion to dismiss the petition for lack of standing and failure to state a claim upon which relief may be granted. Michelle argued that Leslea is not biologically related to C.E.W., that no statute provides for declaration of "maternity" of a non-biologically related female, and that Leslea has no standing to assert a claim of parentage under the Uniform Parentage Act §§ 210.817-210.8523 ("the MoUPA"). Michelle further argued that the MoUPA is the exclusive means to determine parentage in Missouri and that the MoUPA does not provide for determination of a de facto, equitable, or psychological parent-child relationship.

In response to the motion to dismiss, Leslea argued that she has standing as an "interested party" concerning the parentage of both children under § 210.848 of the MoUPA, which she refers to as the "maternity provision." She further argued that she has standing because the MoUPA supplements the common law, which she asserts permits the court to exercise its parens patriae authority to protect the children's best interests by recognizing that Michelle and Leslea are de facto parents and stand in loco parentis to Z.A.W. and C.E.W., respectively. Finally, Leslea argued that, if the court refuses to recognize her as a parent under the MoUPA or under its parens patriae authority, she has standing as a third party under the common law exceptional circumstances doctrine.

After appointing a guardian ad litem to represent the children, holding several hearings, and considering numerous memoranda filed by the parties, a Family Court commissioner denied the motion to dismiss. Michelle requested and was granted a rehearing before a Family Court judge. After considering all of the pleadings filed by the parties, the court granted the motion and dismissed the petition without prejudice without indicating its reasoning. Leslea brings ten points on appeal from that judgment.4

II. Appealability

"`The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appealable.'" Jones v. Jackson County Circuit Court, 162 S.W.3d 53, 57 (Mo.App. W.D. 2005) (quoting Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997)). "Nevertheless, `[w]hen the effect of the order is to dismiss the plaintiff's action and not the pleading merely, then the judgment entered is final and appealable'" because the dismissal "`amounts to an adjudication on the merits.'" Id. at 57-58 (quoting Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503, 506 (Mo. banc 1991)).

In the case at bar, the trial court did not indicate the reasoning for its dismissal of Leslea's petition. Where the trial court does not state a basis for dismissal, we presume it was based on the grounds alleged in the motion to dismiss, and we will affirm if the dismissal is proper under any of the grounds stated in the motion. Dudley v. Southern Union Co., 261 S.W.3d 598, 601 (Mo.App. W.D.2008). As noted supra, Michelle moved to dismiss the petition for lack of standing and failure to state a claim upon which relief may be granted. "[D]ismissals without prejudice have been held appealable ... where the dismissal was based on ... a plaintiff's lack of standing [or] failure of the petition to state a claim where the plaintiff chose not to plead further[.]" Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo.App. E.D. 2000); see also Long v. Cross Reporting Servs., Inc., 103 S.W.3d 249, 252-53 n. 4 (Mo.App. W.D.2003). Thus, the dismissal of Leslea's petition is appealable even though it was without prejudice.

III. Standard of Review

Our review of a dismissal for failure to state a claim or for lack of standing is de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). When reviewing for failure to state a claim, we treat the facts contained in the petition as true and construe them liberally in favor of the plaintiffs. Id. The petition states a cause of action if it "sets forth any set of facts that, if proven, would entitle the plaintiffs to relief." Id. Similarly, "[t]his court determines standing as a matter of law on the basis of the petition, along with any other non-contested facts accepted as true by the parties at the time the motion to dismiss was argued, and resolve[s] the issue as a matter of law on the basis of the undisputed facts." State ex rel. Dep't of Soc. Servs., Family Support Div. v. K.L.D., 118 S.W.3d 283, 287 (Mo.App. W.D.2003).

IV. Standing

Leslea's first seven points generally address the issue of standing.5 In Point I, Leslea asserts that the trial court erred in dismissing the petition because she and the children have standing to bring an action to determine a mother-child relationship under the MoUPA. In Points II through VII, she contends that the court erred in dismissing the petition because, even if she and the children have no standing under the MoUPA, she has standing under common law and equitable principles.

"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)).

Appellate review of a trial court's determination regarding a litigant's standing is de novo, with no deference given to the lower court's decision. Blue Cross & Blue Shield of Mo. v. Nixon, 81 S.W.3d 546, 551 (Mo.App. W.D.2002). "We determine standing as a matter of law on the basis of the petition and the undisputed facts." Id.


Leslea's first point concerns the MoUPA. "When interpreting a statute, we are to determine the intent of the legislature, giving the language used its plain and ordinary meaning, and give effect to that intent, if possible." State v. Redifer, 215 S.W.3d 725, 732 (Mo.App. W.D.2006) (internal quotation omitted). "[T]he construction of statutes is not to be hyper-technical, but instead is to be reasonable and logical and to give meaning to the statutes." Gash v. Lafayette County, 245 S.W.3d 229, 232 (Mo. banc 2008) (internal quotation and brackets omitted). "[A] particular statutory phrase cannot be read in isolation," and "the provisions of a legislative act are construed together and read in harmony with the entire act." Id. (internal quotation, brackets, and ...

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