Kelly J. Blanchette v. Steven M. Blanchette , 2015 Mo. LEXIS 251 ( 2015 )

SUPREME COURT OF MISSOURI
en banc
KELLY J. BLANCHETTE, )
)
Appellant, )
)
v. ) No. SC95053
)
STEVEN M. BLANCHETTE, )
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
Honorable John N. Borbonus III, Judge
Opinion issued December 22, 2015
Kelly Blanchette appeals from the circuit court's judgment in favor of her former
spouse, Steven Blanchette. The circuit court registered the couple's foreign judgment of
dissolution and two subsequent judgments modifying custody visitation and support, all
issued in West Virginia. The circuit court's judgment dismissed Kelly's motion to modify
custody in St. Louis County, Missouri, for lack of jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA). After opinion, the court of
appeals transferred this case to this Court pursuant to Rule 83.02. The circuit court's
judgment is affirmed.
Factual and Procedural History
The parties were residents of West Virginia when they had a son in November
2003 and were married in March 2004. Steven filed a petition for dissolution in Berkeley
County, West Virginia, in February 2005. Shortly thereafter, and with the Berkeley
County Family Court's consent, Kelly, then pregnant, and Son moved to Missouri, and
the couple's daughter was born in St. Louis in July 2005.
In January 2006, the parties appeared before the Berkeley County court in person
and by counsel and presented their settlement agreement, and related testimony as to all
issues, for the court's approval. Relevant here, the Berkeley County court found that
jurisdiction and venue were proper as to all matters contained in the petition (including
custody, visitation, and support of both children), that both parties resided in West
Virginia for more than a year preceding the filing of the dissolution petition, and that
there were two children born of the marriage. There is no evidence in the record to
suggest either party requested, or the court considered or contacted, St. Louis County as
an alternative or preferable forum. The Berkeley County court entered judgment of
dissolution, awarded Kelly "primary" physical custody of the children, and ordered
Steven to pay child support of $1,500 per month. In 2008, Steven filed a motion to
modify, seeking additional custodial time. At a hearing on that motion, Kelly appeared
by telephone and by counsel, and the Berkeley County court granted Steven's motion.
In July 2013, after a custodial visit in West Virginia, Steven sent the children (then
eight and nine years old) back to Missouri via commercial airliner unaccompanied, over
Kelly's vehement protest. On September 6, 2013, Kelly filed in St. Louis County a
petition to register the West Virginia dissolution judgment and first modification,
combined with a motion to modify the existing parenting plan to require Steven to
accompany the children on air travel for visitations. Around the same time, Steven filed
in Berkeley County another motion to modify, seeking to increase his custodial time from
one week to six weeks in the summer. Kelly received notice of a hearing on that motion
on September 30, eight days before the scheduled date of the hearing. She did not
request a continuance and did not appear at the hearing in any manner. In October 2013,
the Berkeley County court granted Steven's motion, awarded him six consecutive
custodial weeks in the summer, and specified that Kelly could either allow the children to
fly unaccompanied or pay half the cost of the accompanying parent's airfare. The order
also reduced Steven's child support obligation to $947 per month to reflect the shift in
custodial time.
Kelly asked the St. Louis County court not to register this latest West Virginia
modification but to grant her proposed modification instead. Steven responded with a
motion to dismiss for lack of jurisdiction under the UCCJEA. After extensive briefing
and argument, the circuit court issued its judgment registering all three West Virginia
judgments (i.e., the original dissolution decree and two subsequent modifications) and
dismissing Kelly's competing motion to modify for lack of jurisdiction because West
Virginia retained exclusive continuing jurisdiction. The circuit court explained:
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. Ct. App. 2003). The issue in
this interstate child custody dispute is whether the Uniform Child Custody
Jurisdiction Enforcement Act (UCCJEA), Mo. Rev. Stat. §§ 452.700 to
452.930 (2013) et seq., confers jurisdiction upon this Missouri court to
modify a West Virginia judgment as it relates to custody issues.
The UCCJEA states in pertinent part:
3
Except as otherwise provided in section 452.755, a court of this state
shall not modify a child custody determination made by a court of
another state unless a court of this state has jurisdiction to make an
initial determination under subdivision (1) or (2) of subsection 1 of
section 452.740 and:
(1) The court of the other state determines it no longer has
exclusive continuing jurisdiction under section 452.745 or
that a court of this state would be a more convenient forum
under section 452.770; or
(2) A court of this state or a court of the other state
determines that neither the child, nor a parent, nor any person
acting as a parent presently resides in the other state.
Mo. Rev. Stat. § 452.750 (2013).
In this case, Petitioner does not assert the provisions of Mo. Rev. Stat.
§ 452.755 apply. Thus, for this Court to have jurisdiction to modify the
West Virginia judgment as it relates to custody issues, the two-prong test
set forth in Mo. Rev. Stat. § 452.750 (2013) must be satisfied. It is not.
While this Court does have "jurisdiction to make an initial determination
under subdivision (1) or (2) of subsection 1 of section 452.740," the West
Virginia court has not "determine[d] it no longer has exclusive continuing
jurisdiction under section 452.745" nor has the West Virginia court
determined that "a court of this state would be a more convenient forum
under section 452.770." Mo. Rev. Stat. § 452.750 (1) (2013). Further,
neither this Court nor the West Virginia court has "determine[d] that neither
the child, nor a parent, nor any person acting as a parent presently resides in
the other state." Mo. Rev. Stat. § 452.750 (2) (2013). In fact, Petitioner
concedes Respondent still resides in West Virginia. Accordingly, assuming
Missouri continues to have jurisdiction to make an initial determination
under subdivision (1) or (2) of subsection 1 of Mo. Rev. Stat. § 452.740,
until such time as a West Virginia court determines it no longer has
exclusive continuing jurisdiction under section 452.745, OR a West
Virginia court determines Missouri would be a more convenient forum
under section 452.770, OR Respondent no longer resides in West Virginia,
this Court specifically lacks the jurisdiction necessary to modify the
custody provisions of the West Virginia judgment.
Kelly appeals and asserts the circuit court erred by: (1) registering the foreign
judgments as to Daughter because she has always resided in Missouri, so West Virginia
4
lacked subject matter jurisdiction as to her custody, and (2) giving full faith and credit to
the second modification because Kelly did not receive adequate notice of the hearing.
Standard of Review
A circuit court's decision whether to register a foreign judgment is a legal
conclusion, so this Court's review is de novo. Peoples Bank v. Frazee, 318 S.W.3d
121, 127 (Mo. b a n c 2010). Whether Missouri has jurisdiction to determine custody
under the UCCJEA is also a legal question this Court reviews de novo. Id. The
circuit court's judgment will be affirmed unless there is no substantial evidence to support
it, it is against the weight of the evidence, or it erroneously declares or applies the law. 1
Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
In a proceeding to register a foreign judgment, there is a strong presumption the
rendering court had jurisdiction and entered a valid judgment, and the party asserting the
invalidity of the foreign judgment has the burden of overcoming the presumption of
jurisdiction and validity. Peoples Bank, 318 S.W.3d at 127.
Kelly Has Standing to Appeal
As a preliminary matter, Steven urges this Court to dismiss Kelly's appeal on the
theory that Kelly is not an "aggrieved" party under § 512.020 2 (governing who may
appeal and what may be appealed) because the circuit court granted the relief she sought
1
Conflicting evidence will be reviewed in the light most favorable to the circuit court's
judgment. In re Adoption of C.M.B.R., 332 S.W.3d 793, 815 (Mo. banc 2011). This Court
defers to the circuit court's credibility assessments. Id. When the evidence supports two
reasonable but different inferences, this Court is obligated to defer to the circuit court's
assessment of the evidence. Id.
2
Missouri statutory citations are to RSMo Supp. 2013, unless otherwise indicated.
5
in her petition, namely registration of the West Virginia judgments. A party is not
aggrieved by, and cannot appeal, a judgment that grants all relief sought by the party, but
a party can appeal a judgment that grants only part of the relief sought. Smith v. City of
St. Louis, 395 S.W.3d 20, 27 (Mo. banc 2013). A party is aggrieved when, as an
immediate consequence, the judgment operates prejudicially and directly on her rights or
interests. Hertz Corp. v. State Tax Comm'n, 528 S.W.2d 952, 954 (Mo. banc 1975).
Kelly responds that the circuit court did not grant all the relief she sought; rather, she is
aggrieved by the circuit court's registration of the second modification, which she did not
request and the validity of which she challenges, and by its dismissal of her motion to
modify. Insofar as the circuit court did not grant all the relief sought, and because Kelly's
custodial rights are immediately and directly affected by the registration of custody
orders that she challenges as void, Kelly is sufficiently aggrieved to bring this appeal. 3
West Virginia's Jurisdiction as to Daughter
Kelly contends the Berkeley County court lacked subject matter jurisdiction as to
Daughter because Missouri is Daughter's home state, making the West Virginia custody
orders void as to her. Typically, collateral attacks on final judgments are impermissible,
but this rule does not apply when the original judgment was void. La Presto v. La Presto,
285 S.W.2d 568, 570 (Mo. 1955). A judgment is void if the issuing court "did not have
jurisdiction over the parties, over the subject matter, or in some rare instances where due
process rights have been violated." In re Expungement of Arrest Records Related to
Brown v. State, 226 S.W.3d 147, 150 (Mo. banc 2007). Subject matter jurisdiction
3
Steven's motion to dismiss is, therefore, overruled.
6
cannot be waived or conferred by consent of the parties. Hightower v. Myers, 304
S.W.3d 727, 733 (Mo. banc 2010). It can be raised "at anytime by any party or court,
even in a collateral or subsequent proceeding." Id. Consequently, despite Kelly's
participation in the dissolution and first modification proceedings in Berkeley County,
this Court will review the merits of her challenge to them now. Steven correctly notes
that, in light of J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009),
Missouri courts interpret the UCCJEA jurisdictional provisions to dictate whether a
Missouri court has the statutory authority to grant relief in a particular matter, not
whether a Missouri court has subject matter jurisdiction. Hightower, 304 S.W.3d at 733.
Accordingly, if Kelly were challenging the subject matter jurisdiction of a Missouri court
in this case, her challenge would fail. See id. at 733–734. In West Virginia, however, no
such distinction exists, and the UCCJEA is interpreted to confer actual subject matter
jurisdiction. See In re K.R. and P.R., 735 S.E.2d 882, 888–89 (W. Va. 2012).
In both West Virginia and Missouri, child custody jurisdiction (or authority) is
governed by the UCCJEA. Relevant to the Berkeley County court's jurisdiction in the
underlying case, West Virginia Code § 48-20-201 provides:
(a) Except as otherwise provided in section 20-204 [temporary emergency
jurisdiction], a court of this state has jurisdiction to make an initial child
custody determination only if:
(1) This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the child
within six months before the commencement of the proceeding, and
the child is absent from this state but a parent or person acting as a
parent continues to live in this state;
7
(2) A court of another state does not have jurisdiction under
subdivision (1) of this subsection, or a court of the home state of the
child has declined to exercise jurisdiction on the ground that this
state is the more appropriate forum under section 20-207
[inconvenient forum] or 20-208 [jurisdiction declined by reason of
conduct], and:
(A) The child and the child's parents, or the child and at least
one parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence;
and
(B) Substantial evidence is available in this state concerning
the child's care, protection, training and personal
relationships;
(3) All courts having jurisdiction under subdivision (1) and (2) of
this subdivision have declined to exercise jurisdiction on the ground
that a court of this state is the more appropriate forum to determine
the custody of the child under section 20-207 or 20-208; or
(4) No court of any other state would have jurisdiction under the
criteria specified in subdivision (1), (2) or (3) of this subsection.
(b) Subsection (a) of this section is the exclusive jurisdictional basis for
making a child custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is
not necessary or sufficient to make a child custody determination. 4
A child's home state is defined as follows:
"Home state" means the state in which a child lived with a parent or a
person acting as a parent for at least six consecutive months immediately
before the commencement of a child custody proceeding. In the case of a
child less than six months of age, the term means the state in which the
child lived from birth with any of the persons mentioned. A period of
temporary absence of any of the mentioned persons is part of the period.
4
Missouri's version of this section of the UCCJEA, codified in § 452.740, is substantively
identical.
8
W. Va. Code § 48-20-102(g).
Kelly argues the Berkeley County court lacked jurisdiction to determine custody
of Daughter because Daughter's home state is Missouri. But jurisdiction under the
UCCJEA attaches when a custody proceeding commences, i.e., when the first pleading is
filed. W. Va. Code § 48-20-102(e); see also In re K.R., 735 S.E.2d at 893 n.22
(recognizing that jurisdiction under the UCCJEA is determined at the time of the
commencement of a child custody proceeding). In this case, the first pleading was filed
when Steven submitted his dissolution petition to the Berkeley County court in February
2005. Clearly, the court acquired jurisdiction to determine custody of Son at that time.
Though neither party suggests the UCCJEA confers jurisdiction over fetuses (and courts
in sister states have held that it does not—see, e.g., Ark. Dep't of Human Servs. v. Cox, 82
S.W.3d 806, 812–13 (Ark. 2002)), logically any dissolution action involving minor
children must necessarily determine custody of all children of the marriage, including
those born after the initial filing. 5 Respecting this imperative, even accepting that the
present proceedings did not "commence" as to Daughter until her birth five months after
that initial filing, this Court nonetheless cannot construe the home state provisions of the
UCCJEA to prescribe the impractical result of bifurcation or transfer of the case midway
through litigation. The UCCJEA is intended to avoid jurisdictional competition and
5
In West Virginia, a court must determine custody and support of a child with whom the mother
is pregnant during the pendency of the dissolution and when judgment is entered. See Mitchell v.
Mitchell, 517 S.E.2d 300, 305 n.8 (W. Va. 1999). Similarly, in Missouri, a petition must name
each child of the marriage and must state whether the wife is then pregnant (§ 452.310.2(5)), and
the resultant decree must resolve the issue of custody in order to be deemed a final judgment.
Glick v. Glick, 372 S.W.2d 912, 915 (Mo. 1963).
9
conflict. Al-Hawarey v. Al-Hawarey, 388 S.W.3d 237, 245 (Mo. App. 2012). The home-
state basis for jurisdiction under the UCCJEA is simply inapplicable to Daughter given
the facts of this case.
The second and third bases for UCCJEA jurisdiction may have required the
Missouri court to have declined jurisdiction on the ground that West Virginia was the
more appropriate forum. 6 Nevertheless, at the time of the initial dissolution, Missouri
never declined jurisdiction (or, rather, never ceded its authority to hear the case) because
Kelly never asked either court to consider until 2013 which forum was more appropriate.
See RSMo §§ 452.730, 452.735; W. Va. Code §§ 48-20-110, 48-20-112. Even if Kelly
had raised the issue immediately after Daughter's birth, the St. Louis County court
would have most likely declined jurisdiction because the parties' dissolution was already
pending in West Virginia. See § 452.765. Under the facts of this case, neither the
second nor third bases apply to defeat West Virginia's jurisdiction over the initial custody
determination as to Daughter during the parties' pending dissolution proceedings in
Berkeley County. By process of elimination, jurisdiction over Daughter's custody,
visitation, and support necessarily falls into the fourth category: no other state satisfied
the criteria for jurisdiction under the preceding alternatives.
Both West Virginia and Missouri have enacted the policy of "one family, one
court." See W. Va. Code § 51-2A-2; § 487.080, RSMo Noncum. Supp. 2014. The
logical construction of the UCCJEA, as applied to these particular facts, means the
6
A child's physical presence is neither necessary nor sufficient to make a child-custody
determination. W. Va. Code § 48-20-201(c); § 452.740.3, RSMo.
10
Berkeley County court of West Virginia had subject matter jurisdiction to determine
custody of Daughter. Therefore, the West Virginia judgment of dissolution and both
subsequent modifications were not void for lack of jurisdiction, and the St. Louis
County court did not err in registering them in Missouri.
Due Process Was Satisfied Concerning the Second Modification
and Full Faith and Credit is Required
Kelly contends the St. Louis County circuit court should not have granted full faith
and credit to the Berkeley County court's second custody modification because she
received inadequate notice of the modification hearing. Under Article IV, § 1 of the
United States Constitution and 28 U.S.C. § 1738, Missouri is required to give full faith
and credit to judicial proceedings in other states unless there was: (1) lack of jurisdiction
over the subject matter; (2) failure to give due notice to the defendant; or (3) fraud in the
procurement of the judgment. In re Storment, 873 S.W.2d 227, 230 (Mo. banc 1994).
Under the UCCJEA, persons living outside the forum state can be served in
accordance with the laws of either the forum state or the state where service is made.
W. Va. Code § 48-20-108(a); § 452.762.1, RSMo. Notice must be given in a manner
reasonably calculated to give actual notice. W. Va. Code § 48-20-108(a); § 452.762.1,
RSMo. Kelly argues she was entitled to 30 days' notice under both West Virginia and
Missouri rules of civil procedure, specifically W. Va. Rules Civ. Proc. Rule 4(f) and Mo.
Rule 55.25. Steven counters that those rules only govern initial complaints and
responsive pleadings and do not apply to subsequent modification proceedings. He
asserts, rather, that eight days' notice is sufficient under the rules governing service on
11
motion hearings, specifically W. Va. Rules Civ. Proc. Rule 6(d) (requiring seven days'
notice by personal service or nine days' notice by mail). 7
But West Virginia's enactment of the UCCJEA does not contain this procedural
clarification, and this Court's own research has uncovered no clear directive on the
matter. 8 Absent a definitive statute or court rule prescribing a particular timeframe for
notice of custody modifications, West Virginia precedent instructs this Court to simply
follow the fundamental principle that due process requires reasonable notice and an
opportunity to be heard. See, e.g., Brittany S., 753 S.E.2d at 750. For that inquiry, notice
required by due process is fact-specific and will vary with the circumstances and
conditions presented. State v. Elliott, 225 S.W.3d 423, 424 (Mo. banc 2007).
7
Missouri's version of the UCCJEA provides that service of any petition for modification "shall
be obtained and responsive pleadings may be filed as in any original proceeding." § 452.747.1,
RSMo. Respondents have 30 days after the date of service to file an answer. § 452.747.2,
RSMo.
8
West Virginia divorce actions are commenced by the filing of a petition. W. Va. Family Court
Rule 9(a). Those involving children must be accompanied by a child support enforcement form.
Id. The summons must be served on the respondent within 20 days of the filing of the
petition. W. Va. Family Court Rule 9(b). The respondent has 20 days to file an answer.
W . V a . Family Court Rule 9(c); W. Va. Rules Civ. Proc. Rule 12. Respondents served outside
the state have 30 days to appear and defend or be deemed in default. W. Va. Rules Civ. Proc.
Rule 4(f). Motion hearings require seven days' notice by personal service or nine days' notice
by mail. W. Va. Rules Civ. Proc. Rule 6(d). Various versions of West Virginia's modification
statute (previously § 48-2-15 and now § 48-9-401) have required that custody modification
be requested by motion or petition. See Brittany S. v. Amos F., 753 S.E.2d 745, 751 n.12 (W. Va.
2012) (noting historical evolution of the statute's pleading requirement). West Virginia Family
Court Rule 50 currently requires a petition, and Family Court Rule 2l(a) requires a hearing to be
held within 45 days of the filing. But nothing in the foregoing identifies the applicable service
rule or prescribes a specific timeframe for modifications. Even the state judiciary's pro se court
forms fail to illuminate the matter: although the initial divorce answer instructions alert
respondents to the 20-day deadline, the modification packet contains no answer form and
identifies no notice period or deadline for a responsive pleading, stating only that the petition
must be served on the opposing party before the hearing can be scheduled.
12
Kelly was no stranger to the Berkeley County Family Court. She was a West
Virginia resident when the divorce action commenced, she appeared in person and by
counsel at the original hearing, and she appeared telephonically and by counsel in the
first modification. Kelly was previously served in accord with the rules of West Virginia
and had the opportunity to participate in the hearing telephonically or at the very least to
request a continuance. She did neither and elected not to appear at all. Additionally,
Kelly has not moved to set aside the second order of modification or appealed it in West
Virginia. Given these particular facts, this Court determines Kelly received reasonable
notice and an opportunity to be heard sufficient to satisfy due process.
Conclusion
Steven's motion to dismiss is overruled. The circuit court did not err in
recognizing and registering the original judgment and both subsequent judgments
modifying custody, visitation and support; therefore, the judgment is affirmed.
Zel M. Fischer, Judge
All concur.
13