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Nestle v. Johns

Court of Appeals of Missouri, Eastern District, Fourth Division

January 20, 2015

FALLON R. NESTLE, Respondent,
v.
BRANDON E. JOHNS, Appellant

Appeal from the Circuit Court of Washington County. 13WA-CC00416. Honorable Troy K. Hyde.

FOR APPELLANT: Daniel E. James, Imperial, MO.

FOR RESPONDENT: Michael Patrick Kelly, Potosi, MO.

ROBERT M. CLAYTON III, Judge. Patricia L. Cohen, P.J., and Roy L. Richter, J., concur.

OPINION

ROBERT M. CLAYTON III, Judge.

Page 754

Brandon E. Johns (" Father" ) appeals the denial of his motion to set aside default judgment registering the foreign judgment of Fallon R. Nestle (" Mother" ) from the state of New York concerning the custody of their child (" Child" ). We affirm.

Page 755

I. BACKGROUND

This case has a complex factual and procedural history. Child was born out of wedlock to Mother and Father on February 27, 2009 in the state of New York. On July 15, 2009, Mother, Father and Child moved to St. Louis County, Missouri and began living in the home of Father's grandmother. On December 16, 2009, approximately five months later, Mother took Child back to New York, but did not tell Father they were not returning to Missouri. Father continued to live in Missouri. Shortly thereafter, Father learned that Mother would not be returning to Missouri with Child.

On March 31, 2010, Father filed a petition for paternity and custody of Child in the Circuit Court of St. Louis County (" the St. Louis County court" ), however, Father was unable to serve Mother with the petition until almost one year later. Mother failed to appear for any of the scheduled hearings, and, on July 12, 2011, the St. Louis County court entered a default judgment awarding Father full custody of Child with supervised visitation to Mother (" the Missouri custody judgment" ). Father traveled to New York and presented the Missouri custody judgment to Mother demanding Child return to Missouri, and Mother refused to comply. On August 22, 2011, Father filed a petition to register the Missouri custody judgment in the Family Court of the State of New York, County of Montgomery (" the New York court" ) pursuant to the terms of the Uniform Child Custody Jurisdiction and Enforcement Act (" U.C.C.J.E.A." ).[1] However, before Father's petition to register the Missouri custody judgment was adjudicated, on October 3, 2011, Mother filed her own petition for custody of Child in the New York Court and in November of 2011, Mother filed a motion to modify the Missouri custody judgment in the New York court. The New York court consolidated all actions.

While the consolidated cases were pending, the New York court made repeated attempts to contact the St. Louis County court regarding the Missouri custody judgment.[2] Specifically, the New York court asserted in its communications that New York, not Missouri, had the authority to make the initial child custody determination. The New York court requested further information regarding the basis for Missouri jurisdiction,[3] or, in the alternative, that the St. Louis County court set aside the Missouri custody judgment so the matter could proceed in New York. The St. Louis County court did not respond to the New York court's communications.

On April 25, 2012, the New York court took up the initial question of the validity and effect of the prior Missouri custody ...


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