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Johnson v. Riley

Court of Appeals of Missouri, Western District, Fourth Division

April 16, 2019

ERIKA JOHNSON, Appellant,
v.
ZJOHN RILEY, Respondent.

          Appeal from the Circuit Court of Jackson County, Missouri The Honorable Sandra Midkiff, Judge

          Before Karen King Mitchell, Chief Judge Presiding, Mark D. Pfeiffer, and Thomas N. Chapman, Judges

          THOMAS N. CHAPMAN, JUDGE

         Erika Johnson appeals from the judgment of the circuit court, challenging the circuit court's modification of custody and child support. For the reasons explained herein, we reverse the circuit court's judgment modifying child custody and child support.

         Facts & Procedure

         Erika Johnson (Mother) and Zjohn Riley (Father) have one son together, E.J.R. (born June 22, 2006). In April of 2008, an administrative order was entered requiring Father to pay child support to Mother in the amount of $2.00 per month (Father was incarcerated at the time).

         In April of 2015, Mother filed a Petition to Determine Paternity, Custody, and Child Support. On March 30, 2017, the circuit court entered an "Order and Judgment of Default for Petition for Determination of Father Child Relationship, Child Custody, and Modification of Child Support" (Original Judgment). In its judgment, the circuit court determined that a substantial and continuing change of circumstances had occurred since the entry of the original child support order, and ordered Father to pay support in the amount of $307.00 per month.[1]Mother was awarded sole legal and physical custody of E.J.R., and Father was allowed to make arrangements for supervised visitation.

         In August of 2017, Father filed his Motion to Modify (the instant action), requesting that the parties be granted joint legal and physical custody of their minor child. In December of 2017, Father filed a Request for Service by Publication; and notice was published for four consecutive weeks, beginning on January 5, 2018. Mother did not file an Answer to Father's Motion to Modify and did not appear at trial.

         At trial, on March 16, 2018, Father submitted a proposed parenting plan and a Form 14 into evidence, and testified that he wanted to be able to see E.J.R. and wished to share joint legal and physical custody with Mother. In its judgment, the circuit court ordered that the parties would share joint legal and physical custody of E.J.R., that Mother's residence would be E.J.R.'s residence for mailing and educational purposes, and that Father would have unsupervised parenting time.[2] The circuit court modified Father's child support downward to the presumed level of $188.00 per month.[3] Father's child support payments were in arrears at the time of trial, and the circuit court ordered him to pay an additional $25.00 per month (for a total of $213.00 per month) until he satisfied the full amount of the arrearage ($700.78).[4]

         Mother timely appeals.

         Discussion

         Mother raises three points on appeal. In her first point, Mother argues that the circuit court erred in granting Father joint legal and physical custody "in that [Father] did not provide evidence that there were substantial and continuing changes in circumstances warranting a change in custody." Mother argues in her second point that the circuit court erred in modifying the child support order set forth in the Original Judgment because there was insufficient evidence of a substantial and continuing change in circumstances that would render the prior award unreasonable. In her third point, Mother argues that Father's notice of service by publication was defective and that the circuit court therefore did not acquire personal jurisdiction over Mother.

         Because it presents a threshold issue, we begin by addressing Mother's third point on appeal. "[A] circuit court's determination of personal jurisdiction is a legal conclusion … subject to a de novo review on appeal." Peoples Bank v. Frazee, 318 S.W.3d 121, 127 (Mo. banc 2010) (internal citation omitted).

         Mother argues that the notice of service by publication in this matter was defective because (1) it did not adequately describe the nature of the action commenced by Father, and (2) it did not provide Father's attorney's name. See Rule 54.13(c)(3).[5] Absent a showing to the contrary, this Court must presume that the circuit court had jurisdiction over both the subject matter of the present action and the parties. Ray v. Ray, 50 S.W.2d 142, 144 (Mo. 1932) ("The presumption in favor of the jurisdiction of a court of ...


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