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Terrill v. Young

Court of Appeals of Missouri, Southern District, Second Division

November 23, 2015

CRYSTAL KAY TERRILL, Petitioner/Counter-movant-Respondent,
v.
SHANE CHRISTOPHER YOUNG, Respondent/Movant-Appellant

          APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY. Honorable R. Craig Carter, Circuit Judge.

         Appellant Acting Pro se - Shane C. Young of Licking, MO.

         Attorney for Respondent (No brief filed.) -- Christopher D. Wade of Ava, MO.

         Don E. Burrell, P.J. - Concurs, Gary W. Lynch, J. -- Concurs.

          OPINION

Page 377

         Nancy Steffen Rahmeyer, J.

          Shane Christopher Young (" Father" ) appeals from the trial court's judgment dismissing his motion for modification of his right to visitation with his child with Crystal Kay Terrill[1] (" Mother" ) because the motion failed to state a cause of action. We reverse and remand for further proceedings. The motion stated a cause of action for modification of Father's right to visitation with the child under section 452.400.2(1), RSMo Cum.Supp. 2013, and for enforcement of a paternity, custody and child support judgment's clause that, by its terms, requires Mother to provide Father with written notice of " any proposed relocation of the principal residence" of the child.

         Standard of Review

" [A] motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition." Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002). A court reviews the petition " in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). In so doing, a court takes a plaintiff's averments as

Page 378

true and liberally grants plaintiff all reasonable inferences. It will not weigh the credibility or persuasiveness of facts alleged. Id. Accord, Reynolds, 79 S.W.3d at 909.
An appellate court reviews a trial court's grant of a motion to dismiss de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). It will consider only the grounds raised in the motion to dismiss in reviewing the propriety of the trial court's dismissal of a petition, and, in so doing, it will not consider matters outside the pleadings. Brennan By and Through Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo.App.1997). Here, the merits of Lake St. Louis's declaratory judgment claims regarding its boundaries were not a ground of the motion to dismiss and, therefore, are not reached on this appeal. See Rule 55.27(a). This Court considers solely whether the grounds raised in the motion supported dismissal.

City of Lake Saint Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010).

         Facts and ...


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