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Blanchette v. Blanchette

Court of Appeals of Missouri, Eastern District, First Division

June 2, 2015

KELLY J. BLANCHETTE, Appellant,
v.
STEVEN M. BLANCHETTE, Respondent.

Appeal from the Circuit Court of St. Louis County Honorable John N. Borbonus III

OPINION

CLIFFORD H. AHRENS, JUDGE

Kelly Blanchette appeals from the trial court's judgment in favor of her former spouse, Steven Blanchette. The court registered the couple's foreign judgment of dissolution and two subsequent custody modifications, all issued in West Virginia, and dismissed Kelly's motion to modify custody for lack of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Kelly presents an issue of first impression in Missouri: whether the home-state basis for jurisdiction under the UCCJEA controls as to children born after the commencement of an initial custody proceeding. We conclude that it does not and would affirm the trial court's judgment. However, given the general interest and importance of the question, we transfer the case to the Supreme Court of Missouri pursuant to Rule 83.02.

Background

The parties were residents of West Virginia when they had a son in November 2003 and married in March 2004. Steven filed a petition for dissolution in Berkeley County, West Virginia, in February 2005. Shortly thereafter, and with the 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 Family Court in person and by counsel and presented their settlement agreement, and related testimony as to all issues, for the court's approval. As relevant here, the court found that jurisdiction and venue were proper, as both parties resided in West Virginia for more than a year preceding the filing of the petition, and that there were two children born of the marriage. There is no evidence in the record to suggest that either party 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. 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 court granted Steven's motion.

In July 2013, after a custodial visit in West Virginia, Steven sent the children (then 8 and 9) 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 eight days beforehand. She could not secure local counsel to represent her at the hearing, 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 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 trial 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 in that West Virginia retained exclusive continuing jurisdiction.

Kelly appeals and asserts that the trial court erred by: (1) registering the foreign judgments as to Daughter because she has always resided in Missouri, so West Virginia lacked subject matter jurisdiction as to her custody, and (2) giving full faith and credit to the second modification because Kelly didn't receive adequate notice of the hearing.

Standard of Review

We affirm the trial court's decision 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Coughlin v. Coughlin, 823 S.W.2d 73, 75 (Mo. App. E.D. 1991). 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. 2010). Whether Missouri has jurisdiction to determine custody under the UCCJEA is also a legal question that we review de novo. Al-Hawarey v. Al-Hawarey, 388 S.W.3d 237, 241 (Mo. App. E.D. 2012).

Analysis

Kelly's 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 (governing who may appeal and what may be appealed) because the trial court granted the relief she sought in her petition, namely registration of the West Virginia judgments. "A party cannot be aggrieved when the court has granted all of the relief sought." Klagge v. Hyundai Motor Am., 148 S.W.3d 857, 859 (Mo. App. E.D. 2004). Kelly responds that the trial court did not grant all the relief she sought; rather, she is aggrieved by the trial 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. "A party is aggrieved when the judgment operates prejudicially and directly on her rights or interests as an immediate (rather than possible or remote) consequence. In re Knichel, 347 S.W.3d 127, 130 (Mo. App. E.D. 2011). Insofar as the trial court did not grant ...


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