Witherspoon v. Thurmond, SD 37131

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGARY W. LYNCH, C.J.
Citation642 S.W.3d 784
Parties Megan B. WITHERSPOON, Respondent, v. Juan THURMOND, Appellant.
Docket NumberSD 37131
Decision Date29 March 2022

642 S.W.3d 784

Megan B. WITHERSPOON, Respondent,
Juan THURMOND, Appellant.

No. SD 37131

Missouri Court of Appeals, Southern District, Division Two.

FILED: March 29, 2022
Rehearing and/or Transfer Denied April 20, 2022

Appellant's attorney: Nathaniel Diekman.

Respondent's attorney: Brian D. Risley, Springfield.


Juan Thurmond ("Father") appeals from the circuit court's judgment on his amended motion to terminate and abate child support and determine his child support arrearages (the "Motion for Determination") under the child support order in the paternity judgment entered against him on November 20, 1998 (the "Paternity Judgment"). In a single point, Father claims that the circuit court erred in determining that Father owed past due child support because the Paternity Judgment ordering Father to pay such child support was void ab initio in that the circuit court lacked personal jurisdiction over Father at the time the Paternity Judgment was entered.1 Because the trial court did not misapply the law in determining that Father waived that claim, we affirm the trial court's judgment.

Factual and Procedural Background

Megan B. Witherspoon ("Mother") filed in the circuit court a Petition for Determination of Father-Child Relationship, Order of Child Custody and Visitation, Order of Child Support, and Reimbursement of Birthing Expenses ("Petition"). Personal

642 S.W.3d 786

service on Father of the summons and Petition was unsuccessful, so Mother filed a Rule 54.17, Missouri Court Rules (1998), application for service by publication stating under oath by affidavit that personal service was not obtained on the Father. Mother's affidavit stated Father "absconded or absented himself so that ordinary process of law [could] not be personally served upon him and [Father]’s present address is unknown and [Father] has concealed himself as to avoided [sic] service." The court ordered service by publication on Father and proof of publication of such service was thereafter filed with the court.

On November 17, 1998, Mother appeared with her attorney on her petition before the court. Father did not appear and was found to be in default. Three days later, on November 20, 1998, the court entered the Paternity Judgment finding Father to be the natural father of Kylei Jordan Witherspoon ("Child"). Mother was awarded sole legal and physical custody with Father receiving periods of supervised visitation. Father was ordered to pay $537.00 per month in child support to Mother and to reimburse Mother $967.60 in birthing costs and $172.20 in medical expenses incurred on Child's behalf.

Between 1998 and March 2019 Father took no action in the case. In March 2019, Father filed his initial Motion for Determination in the circuit court and then filed his amended Motion for Determination in July 2020. Both parties filed and responded to discovery requests and participated in case management conferences. A trial was held on Father's amended Motion for Determination on February 2, 2021. After the close of the evidence, the court left the record open for the parties to submit legal briefing regarding the retroactive application of statutory college expense requirements.

On February 23, 2021, the court sua sponte , in a docket entry, raised concerns that the Paternity Judgment was entered without personal jurisdiction over Father because there was no service on him other than by publication. The court ordered the parties to submit written legal briefs on the personal jurisdiction issue.2

Thereafter, on April 20, 2021, the circuit court entered its judgment on Father's amended Motion for Determination. In its judgment, the court found that Father was entitled to certain credits in calculating the amount of past-due child support owed under the Paternity Judgment, and that Father owed $2,852.72 for reimbursement to the State of Missouri. Additionally, the court found and stated in its Judgment:

4. It is well settled that service by publication does not result in personal jurisdiction over the [Father] but the acting [c]ourt would have in rem jurisdiction. The law is clear that a [d]efendant may consent to the personal jurisdiction of the [c]ourt. Missouri Supreme Court Rule 55.27 provides instruction to a [d]efendant wishing to assert an objection based on lack of personal jurisdiction. Supreme Court Rule 55.27(g)(1) provides details on the waiver or preservation of such a defense. To be clear, the waiver provisions as to jurisdiction over the person set forth in Rule 55.27(g)(1) do not apply when a [d]efendant does not appear as in the present case. However, the [d]efendant may consent to personal jurisdiction if the [d]efendant appears before the Court and has not timely raised the issue.
642 S.W.3d 787
5. In the present case [Father] clearly learned of the judgment against him in 1999 as payments were being made either voluntarily or otherwise. At no time did [Father] contest his paternity of [Child] and [Father] made some attempts to establish a relationship with said [Child]. On March 8, 2019, [Father] filed his [Motion for Determination] [on] his child support obligation and filed his Amended [Motion for Determination] on

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