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Bowers v. Bowers

Supreme Court of Missouri, En Banc

April 3, 2018

JASON BOWERS, Respondent,
v.
JESSICA BOWERS, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable Elizabeth B. Hogan, Judge

          GEORGE W. DRAPER III, JUDGE.

         Jessica Bowers (hereinafter, "Jessica")[1] 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.[2]

         Factual and Procedural History

         In 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.

         Child 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.[3] Jessica and Jason wed in April 2010 and continued to reside as a family until the parties separated in August 2012.

         In May 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.

         Jason 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.

         In 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.

         In 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.

         Although 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.

         In his 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, [4] in 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.

         The 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.

         The 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.

         The 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.[5] 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.

         Jessica 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.

         Jessica 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 83.03.

         Standard of Review

         This 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 evidence. Id.

         Third-Party Designation

         Jessica 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).

          The 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 ...


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