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A.R.J. v. C.M.L.

Court of Appeals of Missouri, Eastern District, Fourth Division

April 2, 2019

A.R.J., Appellant,
v.
C.M.L., Respondent.

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

          KURT S. ODENWALD, PRESIDING JUDGE

         Introduction

         A.R.J. ("Mother") appeals from the trial court's judgment (the "2016 Judgment") granting sole legal custody of minor child ("Child") to C.M.L. ("Father"). On appeal, Mother argues that the trial court lacked personal jurisdiction to enter the 2016 Judgment because service was improper. Because service on Mother was proper, we refuse to void the 2016 Judgment for lack of personal jurisdiction. We affirm the trial court's judgment.

         Factual and Procedural History

         Mother and Father had Child, now age six, together; Mother and Father never married. After substantial litigation and various temporary orders, the trial court entered a consent judgment of paternity and custody on December 12, 2014 ("2014 Paternity Judgment"). The 2014 Paternity Judgment provided Mother and Father joint legal and physical custody of Child.

         On May 12, 2015, Father moved for a temporary restraining order ("TRO") and a motion for preliminary injunction seeking immediate legal and sole physical custody of Child following Mother's failure to return Child to Father's custody as required by the 2014 Paternity Judgment. Father subsequently filed a separate motion seeking to modify the provisions of child custody and child support set forth in the 2014 Paternity Judgment.[1] Father alleged in the motion to modify that Mother failed to return Child to his custody, told Father via telephone that she and Child were in California, and Mother and Child were not planning to return to Missouri. Further, Father claimed that Mother prevented Father from speaking with Child and refused to give Father the address where Child resided. On May 27, 2015, the trial court granted the preliminary injunction and TRO in favor of Father.

         Subsequently, on June 15, 2015, Mother moved to dismiss the preliminary injunction and TRO. On June 26, 2015, Mother's counsel entered a limited entry of appearance, attached to a motion to set aside the preliminary injunction and TRO.

         Father's process server made eight attempts to serve his motion to modify between July 6, 2015 and July 25, 2015. However, Mother was not able to be located or served. On August 27, 2015, Mother's counsel moved to withdraw her limited appearance. Father served Mother's counsel with a copy of the motion to modify and required forms on September 2, 2015 and also mailed a copy of the motion to modify and required forms to Mother's last known address in Missouri and Mother's P.O. Box in California, as well as emailed the same to Mother's personal email address. The trial court granted Mother's counsel's withdrawal on September 4, 2015.

         Father also moved for an order of publication, but subsequently dismissed said motion after receiving a letter from the California Secretary of State's Safe at Home Program on September 16, 2015. The letter designated the Safe at Home Program as Mother's agent for services of process and mail receipt, effective September 16, 2015. Father then requested appointment of special process servers, providing five names in San Diego, California who all worked for CalExpress Attorney Services ("CalExpress"): James Koontz, Kevin Veasley, Tom Reinhardt, Michael Walker, and Carl Walker. On September 29, 2015, Mary Nicolai from CalExpress served the summons for the motion to modify upon the Safe at Home Program. Mary Nicolai's affidavit acknowledging service was not notarized.

         The trial court set a settlement conference hearing for November 4, 2015; Mother failed to appear. The trial court set the matter for trial on December 11, 2015. Mother again failed to appear. The trial court requested the parties submit proposed findings no later than January 10, 2016. On December 12, 2015, Mother filed a writ of habeas corpus, a request for temporary stay, an objection to the motion to modify, and a motion to quash for lack of jurisdiction. In her writ of habeas corpus, Mother contested the trial court's authority to exercise personal jurisdiction over her in this matter.

         On January 11, 2016, the trial court issued the 2016 Judgment modifying the terms of the 2014 Paternity Judgment and awarding Father sole physical and legal custody of Child with Mother having supervised visitations. In the 2016 Judgment, the trial court noted that between May 11, 2015, when Father alleged Mother left for California, and May 23, 2015, when Mother was arrested in California, Child and Mother's whereabouts were unknown and undiscoverable. On February 11, 2016, Mother moved for a new trial or to amend the preliminary injunction, TRO, and custody judgment, which was denied as untimely filed. The 2016 Judgment became final on May 11, 2016. Subsequently, Mother moved to set aside and declare the 2016 Judgment as void for lack of personal jurisdiction, which the trial court also denied. Mother now appeals.[2]

         Standard of Review

         We review an appellant's challenge to whether the trial court's order is void for lack of personal jurisdiction de novo. Bate v. Greenwich Ins. Co., 464 S.W.3d 515, 517 (Mo. banc 2015). "Finality of judgments is favored and the concept of a void judgment is narrowly restricted." ...


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