Witherspoon v. Thurmond
Decision Date | 29 March 2022 |
Docket Number | SD 37131 |
Parties | Megan B. WITHERSPOON, Respondent, v. Juan THURMOND, Appellant. |
Court | Missouri Court of Appeals |
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.
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 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:
Father filed a motion to amend the court's judgment, which was never ruled upon by the court. Father timely appeals.
The Court defers to the circuit court's factual findings and will reverse the judgment only if it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Hope's Windows, Inc. v. McClain , 394 S.W.3d 478, 481 (Mo. App. 2013) (citing Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) ). "If the issue is one of law, this Court reviews de novo to see if the circuit court misapplied the law." JAS Apartments, Inc. v. Naji , 354 S.W.3d 175, 182 (Mo. banc 2011).
In his argument supporting his point, however, Father concedes that the circuit court, in its judgment, "determined that [Father] had waived his claim that the [Paternity Judgment] is void because he did not act or raise the issue earlier." Father then shifts his claimed circuit court error from that asserted in his point relied on—the Paternity Judgment was void ab initio—to "[t]he trial [c]ourt, however, did err when it determined that [Father] nevertheless waived the issue by not acting sooner or raising the issue earlier." " ‘Arguments advanced in the brief but not raised in the point relied on are not preserved, and will not be addressed by this court.’ " Ziade v. Quality Bus. Sols., Inc. , 618 S.W.3d 537, 544 (Mo. App. 2021) (quoting Burg v. Dampier , 346 S.W.3d 343, 354 (Mo. App. 2011) ) (citing Rule 84.04(e)). Nevertheless, even if preserved for appellate review, Father's claim of circuit court legal error in making its waiver determination because the Paternity Judgment was void ab initio misses the mark and has no merit.
"A claim of lack of personal jurisdiction may be waived when a defendant makes no motion or pleadings on the issues but otherwise subjects himself to the jurisdiction of the court."
C.J.G. v. Missouri Dept. of Soc. Servs. , 219 S.W.3d 244, 248 (Mo. banc 2007). In C.J.G. , our Supreme Court recognized and held that a waiver of personal jurisdiction may occur after a personal judgment is entered, even if the circuit court lacked personal jurisdiction at the time the judgment was entered. Id. at 249. In support, the C.J.G. court cited to In re Marriage of Dooley , 15 S.W.3d 747 (Mo. App. 2000) for the proposition in Dooley that " and also cited to Wood v. Wood , 716 S.W.2d 491, 494 (Mo. App. 1986) for the proposition that " ‘by a general appearance entered after judgment personal jurisdiction can be waived and can no longer be questioned[.]’ " Id.
Here, Father entered his general appearance in the trial court and otherwise subjected himself to the circuit court's jurisdiction when he filed his initial Motion for Determination on March 8, 2019. In that motion, he affirmatively asserted that the Paternity Judgment awarded child support "to Mother payable from Father in the amount of $537.00 a month," without raising any personal jurisdiction challenge to the entry of that judgment or seeking in any manner...
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