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In re S. J. M.

Court of Appeals of Missouri, Eastern District, Fifth Division

January 20, 2015

IN THE MATTER OF S. J. M

Page 341

Appeal from the Circuit Court of St. Charles County. Honorable Phillip Ohlms.

Benjamin T. Aranda, Saint Louis, MO, for Appellant.

Lorna L. Frahm, St. Peters, MO, for Respondent.

Angela T. Quigless, C.J., Glenn A. Norton, J., Concurs in the opinion of Chief Judge Quigless and the separate concurring opinion of Judge Richter. Roy L. Richter, J., Concurs in separate opinion.

OPINION

Angela T. Quigless, C.J.

Page 342

I. INTRODUCTION.

Nicholas Malawey (father) appeals the judgment of the Circuit Court of St. Charles County granting mother Margaret Kosowski's petition for appointment of guardianship of their son, S.M. In his sole point on appeal, father contends the probate court erred in entering the guardianship order when another circuit court had already exercised its authority to enter a judgment regarding the same issues and parties in a divorce proceeding. Father argues the guardianship order resulted in wasteful or inconsistent judgments. We reverse and remand for further proceedings.

II. FACTUAL AND PROCEDURAL BACKGROUND

Mother and father's marriage was dissolved in August of 2007. During their marriage, they had a son, S.M., who was born with Down Syndrome. In its judgment of dissolution, the Circuit Court of St. Louis County granted mother and father joint legal custody of their son.

S.M. turned eighteen on February 7, 2013. On that same day, mother and stepfather, Karson Kosowski, filed a petition for appointment of guardian and conservator to obtain letters of guardianship for S.M. in the Probate Division of St. Charles County. Father filed a motion to dismiss for lack of subject matter jurisdiction. After hearing argument, the court denied the motion. Father filed a cross-petition for appointment of guardian and conservator.

On February 3, 2014, a bench trial was held at which all parties stipulated S.M. had a disability under the Probate Code and a need existed for guardianship. At the commencement of trial, father again raised the court's lack of subject matter jurisdiction and the court heard argument. Father alleged the parenting plan in the St. Louis County dissolution remained in full force and effect and, therefore, the entry of a judgment by the probate court could create conflicting orders. The court overruled the motion.

At the hearing, neither party produced a copy of the divorce decree to the court. However, details of the custody arrangement were outlined and uncontested: mother and father had joint legal custody; no modifications had been made to the custody portion of the decree; S.M. lived with his mother on weekdays and every other weekend; and, S.M. stayed with father on Wednesday evenings, every other weekend and for six weeks during the summer. Both parents made decisions for S.M.'s care. In addition, at the time of the hearing, although S.M. turned eighteen, he was currently in high school.

The court entered a judgment and order declaring S.M. a disabled and incapacitated person and appointed mother as S.M.'s guardian. The court denied step-father's petition and father's cross-petition for guardianship. It found there was no need for letters of conservatorship at that time. This appeal by father followed.

III. STANDARD OF REVIEW

" In a court-tried case, we will affirm the judgment below if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law." Reppy v. Winters, 351 S.W.3d 717, 720 (Mo. App. W.D. 2011) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We view

Page 343

the evidence in the light most favorable to the trial court's judgment, disregarding all contrary inferences and evidence. Woods ex rel. Woods v. Cory, 192 S.W.3d 450, 458 (Mo. App. S.D. 2006). Although we give deference to the probate court's factual determinations, our review of any error in applying the law ...


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