FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable
Elizabeth B. Hogan, Judge
W. DRAPER III, JUDGE.
Bowers (hereinafter, "Jessica") appeals the
circuit court's judgment dissolving her marriage to Jason
Bowers (hereinafter, "Jason") in which the circuit
court designated Jason was designated a third party in the
dissolution proceeding for purposes of determining custody of
J.B. (hereinafter, "Child"). The circuit court
awarded Jason sole legal and physical custody of Child after
finding it would not be in Child's best interest for
Jessica or Child's biological father, Stephen Nugent
(hereinafter, "Stephen"), to have sole physical or
legal custody because they were unfit custodians. Jessica
raises two points on appeal, challenging the circuit
court's designation of Jason as a third party in their
dissolution action and its custody award. The circuit
court's judgment is affirmed.
and Procedural History
2007, Jessica and Stephen were involved in a romantic
relationship. Jessica became pregnant, she informed Stephen
of the pregnancy, and they ended their relationship. Jessica
subsequently began a romantic relationship with Jason.
Jessica informed Jason she was pregnant with Stephen's
child. Jason and Jessica began cohabitating, decided to get
married, and agreed to have Jason raise Child as his own.
Jessica and Jason jointly informed Stephen of their decision
and asked Stephen to not become involved in Child's life.
Stephen acquiesced in this request and voluntarily permitted
Jason to act as Child's father.
was born in April 2008. Four days after Child's birth,
Jessica and Jason executed a Missouri Affidavit Acknowledging
Paternity (hereinafter, "paternity affidavit"). The
parties' execution of the paternity affidavit resulted in
the state issuing a birth certificate naming Jason as
Child's father. Jessica and Jason wed in April 2010 and
continued to reside as a family until the parties separated
in August 2012.
2013, Jason filed a petition for dissolution, alleging Child
was born of the marriage, indicating he executed the
paternity affidavit, and noting his name appeared on
Child's birth certificate. Jason requested an award of
joint legal and physical custody and child support. Jessica
filed an answer and cross-petition for dissolution. In her
initial pleading, Jessica denied Child was born of the
marriage and alleged Jason had no custody rights to Child.
Jessica alleged Jason was not Child's biological father
"due to a material mistake in fact or fraud" when
executing the paternity affidavit because another individual
was Child's biological father. Jessica requested a
declaration of non-paternity, sought DNA testing, and
appointment of a guardian ad litem for Child.
denied all of Jessica's allegations in his answer to her
cross-petition and filed a motion to dismiss Jessica's
claim of mistake or fraud in executing the paternity
affidavit for failure to state a claim. The circuit court
appointed a guardian ad litem and ordered therapy for Child.
The circuit court also ordered Jessica to respond to
Jason's motion to dismiss, indicating it would treat the
issue as one for summary judgment.
September 2013, Jessica filed an amended answer and
cross-petition for dissolution in lieu of responding to
Jason's motion to dismiss and complying with the circuit
court's order. Jessica again denied Child was born of the
marriage but admitted Jason was Child's "legal"
father because of the paternity affidavit. Jessica requested
sole physical and legal custody of Child. Jason also
requested sole physical and legal custody. Jason later filed
motions for temporary custody of Child due to Jessica's
attempts to alienate him from Child and withholding certain
periods of visitation.
December 2013, Jessica introduced Stephen to Child for the
first time and told Child he was her biological father. In
January 2014, Stephen filed a "Motion to Intervene,
Third-Party Respondent's Petition for Determination of
Father-Child Relationship and Judgment and Order of
Custody" in Jessica and Jason's dissolution action.
In his motion, Stephen acknowledged Jason was named as
Child's father on her birth certificate; however, Stephen
alleged he was Child's natural father. Stephen sought
intervention to assert his rights of parentage to Child
pursuant to the Missouri Uniform Parentage Act (hereinafter,
"UPA"), sought joint physical and legal custody of
Child to be shared with Jessica, and requested Child's
birth certificate be amended to name him Child's
biological father. The circuit court sustained Stephen's
motion to intervene in the dissolution action over
Jason's objections. The circuit court also ordered
Stephen to have no contact with Child, ordered Jessica to not
discuss with Child any issue related to the litigation,
including, but not limited to, parentage, and admonished all
of the parties not to discuss any aspect of the litigation
with Child. The circuit court further ordered Jessica not to
have her current boyfriend accompany her during custody
exchanges with Jason.
the circuit court did not grant any party's request for
DNA testing, Jessica and Stephen pursued their own testing,
which confirmed Stephen was Child's biological father.
Jessica subsequently filed a motion to dismiss Jason's
claims for custody and child support, arguing the circuit
court had no authority to determine custody in their
dissolution proceeding when Child was not born of the
marriage or adopted by Jason. Jessica also rescinded her
allegation Jason was Child's "legal" father.
response to Jessica's motion to dismiss, Jason alleged
she was barred statutorily from rescinding the paternity
affidavit. Alternatively, Jason filed a motion for third
party custody pursuant to section 452.375.5, RSMo 2000,
the event Jessica's motion to dismiss was sustained.
Jason continued to maintain he was Child's father due to
the paternity affidavit and the birth certificate. Jason
further averred Jessica and Stephen were unfit and unsuitable
to have sole legal and physical custody and it was in
Child's best interest he be awarded third-party custody.
Jessica and Stephen both filed motions to dismiss Jason's
third-party custody claim.
circuit court held a bench trial on the respective petitions
and motions filed by Jessica, Jason, and Stephen regarding
dissolution, paternity, custody, and visitation. All of the
interested parties were present and testified, along with
Child's therapist and guardian ad litem.
circuit court entered a detailed judgment, assessing
credibility and disposing of all of the issues. The circuit
court recognized if this case were solely a dissolution
proceeding, it would lack the authority to determine child
custody because Child was not born of the marriage or adopted
by Jason. However, because all interested parties were
present, the primary issue to be decided was custody and
because the biological parents requested a custody
determination in this proceeding, the circuit court
concluded, "In the interest of judicial efficiency this
[c]ourt should determine custody" within the dissolution
proceeding. The circuit court held Jason was to be treated as
a third party pursuant to section 452.375.5.
circuit court found Child's therapist and Jason were
credible witnesses. The circuit court found Jessica and
Stephen credible only to the extent they admitted they
repeatedly violated court orders during the
litigation. The circuit court determined Jessica's
testimony, actions, and pleadings, along with testimony from
Child's therapist, supported a conclusion Jessica was
unlikely to allow Child continuing and meaningful contact
with Jason without a court order. The circuit court found
Jessica and Jason could not co-parent, rendering an award of
joint custody not possible. The circuit court held Stephen
and Jessica were both unfit, unsuitable, and unable to be
Child's custodian. The circuit court further held it was
not in Child's best interest for Jessica or Stephen to
have physical or legal custody of Child. The circuit court
awarded Jason third-party custody, finding that arrangement
was in Child's best interest. The circuit court ordered
Child's birth certificate be amended to name Stephen as
Child's biological father.
filed a motion for new trial or to amend the judgment,
alleging the circuit court erred in allowing Jason to proceed
as both a party and a third party in the same proceeding.
Jessica also averred the circuit court failed to set forth
the relevant factors under section 452.375.2(1)-(8) in making
its custody determination, and the custody determination was
against the weight of the evidence. The circuit court
overruled Jessica's motion but issued an addendum to the
judgment in which it explained which section 452.375.2
factors it applied in reaching its custody determination.
timely appealed. The Eastern District affirmed the circuit
court's judgment. Judge Lisa Page dissented and certified
this case for transfer to this Court. See Rule
Court must affirm the circuit court's judgment
"unless there is no substantial evidence to support it,
unless it is against the weight of the evidence, unless it
erroneously declares the law, or unless it erroneously
applies the law." Brown v. Brown, 423 S.W.3d
784, 787 (Mo. banc 2014); Murphy v. Carron, 536
S.W.2d 30, 32 (Mo. banc 1976). This Court reviews conflicting
evidence in the light most favorable to the circuit
court's judgment. J.A.R. v. D.G.R., 426 S.W.3d
624, 626 (Mo. banc 2014). This Court defers to the circuit
court's credibility determinations, and when the evidence
poses two reasonable but different inferences, this Court
must defer to the circuit court's assessment of the
alleges the circuit court erred in designating Jason as a
third party in their dissolution proceeding and awarding him
third-party custody because such an award violates section
452.375.5(5). Jessica maintains the legislature did not
intend for a third party under section 452.375.5(5) to
include a party to a dissolution proceeding. Jason's
designation as a third party is a legal question this Court
reviews de novo. Pearson v. Koster, 367
S.W.3d 36, 43 (Mo. banc 2012).
legal quagmire this case presents gives this Court an
opportunity to reiterate the appropriate procedure to
adjudicate paternity actions when a related dissolution
proceeding is pending. Supreme Court Operating Rule 4.05.3
expressly provides, "Dissolutions and paternity actions
shall be filed separately. A separate case number shall be
assigned for each dissolution and each paternity action filed
and shall be related in the automated case management system
for scheduling and other processing." Operating Rule
4.05.3's plain and unambiguous language instructs circuit
courts to sever contested paternity actions from dissolution
proceedings so the proceedings are assigned different case
numbers. Had the parties ...