Opinion
No. 58816
OPINION Filed: June 26, 2001
APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY, MISSOURI THE HONORABLE JAMES E. WELSH, JUDGE
John R. Shank, Kansas City, MO for Respondent,
James Cary Thompson, Richmond, MO for Appellant,
Steven M. Petry, Kansas City, MO Guardian ad litem.
Before: Ulrich, P.J., and Smith and Newton, JJ.
Peter Beyersdorfer appeals the judgment of the Probate Division of the Circuit Court of Clay County appointing the respondent, Gloria Kupneski, guardian and conservator of the estate of her daughter and the appellant's wife, Catherine Beyersdorfer (Catherine), who was found by the court to be totally incapacitated and disabled as a result of an automobile accident.
The appellant raises two points on appeal. In Point I, he claims that the probate court of Clay County erred in failing to transfer Catherine's guardianship and conservatorship proceeding to Ray County, finding that venue was proper in Clay County, because in doing so, it misapplied § 475.035.1, which governs venue for the appointment of a guardian or conservator. In Point II, he claims, in the alternative, that, even if venue was proper in Clay County, the probate court erred in appointing the respondent as Catherine's conservator because the record would not support the requisite finding that her appointment was in the best interests of the estate.
All statutory references are to RSMo 2000, unless otherwise indicated.
We reverse and remand.
Facts
The appellant and Catherine were married on April 8, 1987. There was one child born of the marriage, Katrina Beyersdorfer. At all times after their marriage, the appellant and Catherine lived together as husband and wife. During the ten years prior to Catherine's accident, they resided together at 16351 Joy Drive, Lawson, Ray County, Missouri. The residence was a mobile home, which they owned.
On February 1, 2000, Catherine was seriously injured in a car-train collision at a railroad crossing in Clay County. The couple's daughter, Katrina, was killed in the collision. As a result of the accident, Catherine sustained a severe head injury, which resulted in brain damage and other bodily injuries. Catherine was taken to North Kansas City Hospital for emergency treatment and care. She remained in a coma there for some time. After awakening from the coma, she was transferred to the Mid-America Rehabilitation Institute in Overland Park, Kansas. At some point, she was transferred to St. Luke's Northland Hospital located in Smithville, which is in Clay County. Catherine was released sometime in mid-May 2000 and went to live with the respondent, whose residence was located in Clay County.
In mid-March 2000, the appellant rented a two-bedroom apartment in Clay County, signing a one-year lease in both his and Catherine's names. However, Catherine never signed the lease. His purpose in renting the apartment was so that he could be closer to her while she was in the hospital. He also intended to live with Catherine in the apartment after her release from the hospital. However, after heated arguments with Catherine's family, he consented to her staying with the respondent when she was first released from the hospital. When he moved into the apartment, he moved most of the couple's personal belongings with him, but left some clothes, a bed, a television and all of Katrina's belongings at the Ray County residence. He did not disconnect the utilities and stayed there two or three times per week. At the time of the filing of this appeal, both the appellant and Catherine were living at the residence in Ray County.
On April 5, 2000, the respondent filed an application for appointment as Catherine's guardian and conservator in the Probate Division of the Clay County Circuit Court. She alleged in the application that Catherine was totally incapacitated and disabled as a result of the accident. She also alleged that Catherine was domiciled in Clay County, but was currently "in the custody of the Mid-America Rehabilitation Institute in Overland Park, Kansas." On April 19, 2000, the appellant filed his application to be appointed Catherine's guardian and conservator in the Probate Division of the Circuit Court of Ray County, alleging that she was domiciled in Ray County. Shortly thereafter, on May 3, 2000, he filed a motion in the Clay County Circuit Court to transfer Catherine's guardianship and conservatorship proceeding to Ray County, claiming that venue was improper in Clay County. In support of his motion, he alleged, inter alia, that, under the applicable law, if the alleged incapacitated and disabled person is domiciled in a county in Missouri, venue would lie exclusively in that county.
The appellant's motion to transfer was heard on May 3, 2000, in the Probate Division of the Circuit Court of Clay County before the Honorable Michael J. Maloney. Having taken the motion under advisement, the court denied the appellant's motion on May 9, 2000, finding, inter alia, that Catherine was domiciled in Ray County, but that she had personal property in Clay County, such that, pursuant to § 475.035.1, venue was proper in both counties. Judge Maloney then assigned the matter to the Honorable James E. Welsh for a trial on the merits.
On July 5, 2000, the respondent's petition was heard by Judge Welsh. Prior to the presentation of evidence, counsel for the appellant advised the court on the record that by presenting evidence it was not waiving "any claim of improper venue or jurisdiction from the original pleadings." At the trial, evidence was presented as to Catherine's inability to care for herself and her inability to manage her financial affairs, rendering her totally incapacitated and disabled. Catherine was present at the trial and was represented throughout the proceedings by her guardian ad litem (GAL).
The appellant stipulated to the appointment of the respondent as Catherine's guardian. However, he contested the respondent's appointment as conservator. Instead, he asked the court to appoint a disinterested party, attorney Ronald C. Mullennix, whose practice focused on "estate planning, trust work, and probate administration." The appellant argued that the respondent was not qualified to act as Catherine's conservator because "there was nothing in her background or experience that qualified her to make major financial decisions for Catherine." At the conclusion of the trial, Judge Welsh found that Catherine was totally incapacitated and disabled; that she was in need of a guardian and conservator; and that the respondent was a suitable person to act as guardian and conservator. Accordingly, the court ordered that the respondent be appointed Catherine's guardian and conservator.
This appeal follows.
Motion to Dismiss
We first must address the respondent's motion to dismiss this appeal, which was taken with the case and in which she alleged two alternative grounds for dismissal. First, she alleged that because the appellant was not a party to this action, he had no right or standing, pursuant to § 512.020, to appeal the probate court's order appointing her guardian and conservator. The respondent contends that § 512.020, the general statute governing who may appeal in civil cases, speaks strictly in terms of a "party to a suit" and that because the appellant was never made a party to the action below, he had no standing to appeal. The respondent's reliance on § 512.020 is misplaced.
"Venue refers to the situs in which a court of competent jurisdiction may adjudicate an action." State ex rel. Ford Motor Co. v. Westbrooke , 12 S.W.3d 386, 390 (Mo.App. 2000) (citation omitted). "Venue is determined solely by statutes, and the primary purpose of such statutes is to provide a convenient, logical and orderly forum for the resolution of disputes." Id . Contrary to the respondent's contention, venue in cases involving an adjudication of the mental condition of any person alleged to be incapacitated or disabled, as in our case, is controlled by § 472.170.1, not § 512.020. Section 472.170.1 provides, in pertinent part:
Appeals shall be allowed from the probate division of the circuit court to the appropriate appellate court in any case in which a final adjudication in an investigation of the mental condition of any person alleged to be disabled, incapacitated, or mentally ill has been made. The appeal may be made by the petitioner who applied for such adjudication, or by the person alleged to be disabled, incapacitated, or mentally ill, or by any relative of such person, or by any reputable citizen of the county in which the hearing occurred, or by an attorney for any of the foregoing persons.
(Emphasis added.) Section 475.020 provides that the "provisions of chapter 472, RSMo, unless therein restricted to decedents' estates, apply to guardianships and conservatorships." Under this section, any relative, which logically would include a spouse, would have standing to appeal a final adjudication of a probate court appointing a guardian and conservator. Thus, pursuant to § 472.170.1, the appellant, as the spouse of Catherine, would have standing to bring this appeal.
As to her second ground alleged for dismissal, the respondent contends that even if the appellant initially had standing to appeal, he waived it by consenting to her appointment as Catherine's guardian. In this regard, she argues that the appellant not only waived his right to appeal the probate court's order appointing her guardian by consenting to her appointment as such, but that he also waived his right to appeal the court's order appointing her conservator of Catherine's estate, inasmuch as the qualifications for both are the same under § 475.055. Given our discussion, infra, in which we hold that the probate court of Clay County erred in failing to transfer venue of Catherine's guardianship and conservatorship proceeding to Ray County upon the appellant's motion heard by Judge Maloney and that as such, the subsequent proceedings in Clay County were void, we need not address the respondent's waiver argument inasmuch as it would be moot. See State ex rel. Monsanto Co. v. Pub. Serv. Comm'n of Mo . , 716 S.W.2d 791, 793 (Mo. banc 1986) (citations omitted) (defining mootness as "when circumstances change so as to alter the position of the parties or subject matter so that the controversy ceases and a decision can grant no relief") ; see State ex rel. Myers Mem'l Airport Comm., Inc. v. City of Carthage , 951 S.W.2d 347, 352 (Mo.App. 1997) (holding that when it is evident, because of the appellate court's resolution of a case, that an issue raised on appeal is moot, we will decline to address that issue).
I.
In Point I, the appellant claims that the probate court of Clay County erred in failing to transfer Catherine's guardianship and conservatorship proceeding to Ray County, finding that venue was proper in Clay County, because in doing so, it misapplied § 475.035.1, which governs venue for the appointment of a guardian or conservator. Specifically, he claims that contrary to the court's interpretation of § 475.035.1 as authorizing venue in multiple counties without preference, the statute should be interpreted as establishing a "hierarchical order" for determining venue such that, if the alleged incapacitated and disabled person is domiciled in this state, venue would be exclusively in the county of domicile. Applying this interpretation of the controlling statute to the evidence in the record, he claims that venue, at the time the Clay County proceeding was filed, was exclusively in Ray County, Catherine's county of domicile. Because we find this point to be dispositive of the appeal, we address it alone.
Review of a probate court's rulings in a proceeding to appoint a guardian or conservator is governed by Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). In re Turnbough , 34 S.W.3d 225, 226 (Mo.App. 2000). Under this standard, we are to affirm the judgment of the probate court unless: (1) there is no substantial evidence to support it; (2) it is against the weight of the evidence; or (3) it erroneously declares or applies the law. Id .
As noted in the facts, supra, the respondent filed a petition for appointment as Catherine's guardian and conservator, pursuant to § 475.060, in the Probate Division of the Circuit Court of Clay County on April 5, 2000, while the appellant filed his petition in Ray County on April 19, 2000, such that there were two guardianship and conservatorship proceedings concerning Catherine pending in more than one county. In this situation, § 475.035, governing venue for the appointment of a guardian or conservator, provides that such proceedings "shall be stayed except in the county where first commenced until final determination of venue in the county where first commenced. The proceeding is deemed commenced by the filing of a petition[.]" § 475.035.3. Thus, alleging that venue was proper in Ray County, but not in Clay County, the appellant filed a motion, purportedly pursuant to "Supreme Court Rule 51," in the probate court of Clay County to transfer the case to Ray County. Although Rule 51.045 does presently provide for such a transfer when venue is found to be improper, it was not in effect at the time the appellant filed his motion. The version of Rule 51 in effect at the time the appellant filed his motion did not contain any provisions similar to Rule 51.045. However, § 476.410, which was in effect at the time, provides that the "division of a circuit court in which a case is filed laying venue in the wrong division or wrong circuit shall transfer the case to any division or circuit in which it could have been brought." Thus, pursuant to § 475.035 and § 476.410, the appellant's motion to transfer venue from Clay County to Ray County was properly before the probate court in Clay County.
All rule references are to the Missouri Rules of Civil Procedure (2001), unless otherwise indicated.
Rule 51.045 was adopted on May 26, 2000, and became effective on January 1, 2001.
We note that § 475.040 provides for a change of venue in guardianship and conservatorship proceedings. However, that statute only applies after a guardian or conservator has been appointed, and, thus, is inapplicable to our case.
Pursuant to § 475.035.3, while the proceedings were stayed in the probate court in Ray County, Judge Maloney of the Circuit Court of Clay County heard the appellant's motion to transfer on May 3, 2000. Having taken the matter under advisement, the court, on May 9, 2000, overruled the appellant's motion, finding that "Catherine Beyersdorfer was domiciled in Ray County and had property in Clay County on the date the application was filed herein . . . Both counties are a proper venue and have jurisdiction to handle the first filed application." In finding and ruling as it did, the court necessarily interpreted § 475.035.1 as providing alternative venue sites without assigning priorities, which the appellant asserts was an erroneous declaration and application of the law. Because Judge Maloney's order denying the appellant's motion to transfer was not a final judgment subject to appeal, Wirthlin v. Wirthlin , 662 S.W.2d 571, 572 (Mo.App. 1983) (holding that the denial of a pretrial order relating to a procedural matter, such as a motion to transfer, is not a final judgment which can be appealed), his order and findings could only be challenged in connection with our determination of Judge Welsh's authority to enter his judgment, which was subject to appeal. Having filed his motion to transfer and having objected to venue in Clay County at the July 5, 2000, hearing before Judge Welsh, the appellant did not waive his objection to venue in Clay County. See Keltner v. Keltner , 950 S.W.2d 690, 691 (Mo.App. 1997) (holding that "[i]mproper venue is only waived when the party entitled to assert it takes some affirmative act recognizing or accepting the court's jurisdiction," and that "participation in the trial, after objecting to venue at every opportunity does not constitute a waiver").
The court made its finding concerning venue relative to April 5, 2000, the date the first application was filed, since "venue is determined as the case stands when brought , not when a motion challenging venue is decided." State ex rel. DePaul Health Ctr. v. Mummert , 870 S.W.2d 820, 823 (Mo. banc 1994).
As noted, supra, in proceedings to appoint a guardian or conservator under the probate code, venue is determined pursuant to § 475.035, which provides, in pertinent part:
1. The venue for the appointment of a guardian or conservator shall be:
(1) In the county in this state where the minor or alleged incapacitated or disabled person is domiciled; or
(2) If the minor or alleged incapacitated or disabled person has no domicile in this state, then in the county in which the minor or alleged incapacitated or disabled person actually resides, or if he or she does not reside in any county, then in any county wherein there is any property of the minor or alleged incapacitated or disabled person; or
(3) In the county, or on any federal reservation within the county, wherein the minor or alleged incapacitated or disabled person or his or her property is found; or
(4) In a county of this state which is within a judicial circuit which has prior and continuing jurisdiction over the minor pursuant to subdivision (1) of subsection 1 of section 211.031, RSMo.
The appellant contends that this section should be interpreted as creating a "hierarchical order" for determining venue in proceedings to appoint a guardian or conservator, with preference being given to the county of domicile of the alleged incapacitated or disabled person, such that if that person is found to be domiciled in a county of this state at the time the proceeding is filed, venue would lie exclusively in that county. The respondent contends, however, that the statute should be read, as was done by Judge Maloney as providing for alternative venues, with no preference for one county over another. Thus, the appeal in this case turns on our interpretation of § 475.035.
"Statutory construction is a matter of law, not a matter of discretion . . . and no deference is given to the trial court's determination." Sloan v. Bankers Life Cas. Co . , 1 S.W.3d 555, 561 (Mo.App. 1999) (citations omitted). When construing statutes, courts must endeavor to ascertain the intent of the legislature from the language used, and, if possible, give effect to that intent. State v. Williams , 24 S.W.3d 101, 115 (Mo.App. 2000). Legislative intent should be determined by first considering the plain and ordinary meaning of the terms in the statute. Id . ( citing State v. Lanier , 985 S.W.2d 377, 379 (Mo.App. 1999)). "Courts look elsewhere for interpretation only when the meaning is ambiguous or would lead to an illogical result defeating the purpose of the legislature." State ex rel. Md. Heights Fire Prot. Dist. v. Campbell , 736 S.W.2d 383, 387 (Mo. banc 1987). When interpreting statutes, we must attempt to harmonize all provisions if possible. Snyder v. Dep't of Elementary and Secondary Educ . , 952 S.W.2d 764, 768 (Mo.App. 1997) ( citing Mo. Hosp. Ass'n v. Air Conservation Comm'n , 874 S.W.2d 380, 397 (Mo.App. 1994)). As a general rule, the court, in interpreting a statute:
may not take, strike, or read anything out of a statute, or delete, subtract, or omit anything therefrom. To the contrary, it is a cardinal rule of statutory construction that significance and effect should, if possible, be accorded to every word, phrase, sentence, and part of an act. However, there are cases in which words of a statute are so meaningless or inconsistent with the intention of the legislature otherwise plainly expressed in the statute, that they may be rejected as surplusage, and omitted, eliminated, or disregarded.
City of Kirkwood v. Mo. State Bd. of Mediation , 478 S.W.2d 690, 697 (Mo.App. 1972) ( quoting Leibson v. Henry , 204 S.W.2d 310, 315 (Mo. banc 1947) (citation omitted)) (emphasis added) ; see also State ex rel. McClellan v. Godfrey , 519 S.W.2d 4, 9 (Mo. banc 1975). With these principles to guide us, we turn to the statute in question.
Section 475.035.1(2) begins, " If the minor or alleged incapacitated or disabled person has no domicile in this state, then. . . ." (Emphasis added.) "If" expresses a condition or limitation. Naylor v. Koeppe , 686 S.W.2d 47, 50 (Mo.App. 1985). Hence, giving the language of § 475.035.1(1) and (2) its plain and ordinary meaning, it is clear and unambiguous that the legislature intended that if the alleged incapacitated or disabled person is domiciled in a county in this state, venue would lie in that county, and the alternative counties of venue provided in § 475.035.1(2) would not lie. In addition to venue in the counties specified in § 475.035.1(2) being conditioned on there being no county of domicile in this state, it is also clear and unambiguous from these subdivisions of the statute that the legislature intended that venue in the county where there is property of the alleged incapacitated or disabled person would lie only if the person is first found not to reside in this state. We glean this from the fact that § 475.035.1(2) expressly provides that " if [the minor or alleged incapacitated or disabled person] does not reside in any county, then [venue will lie] in any county wherein there is any property of the minor or alleged incapacitated or disabled person." (Emphasis added.) Thus, based on our reading of § 475.035.1(1) and (2) alone, the legislature, with respect to venue in the appointment of guardians and conservators, established a hierarchy such that venue would first lie in the county of domicile; if the person is not domiciled in this state, then in the county of residence; and if the person does not reside in this state, then in the county wherein there was any property of the person.
Although when reading § 475.035.1(1) and (2) alone there can be no doubt about the legislative intent to establish a hierarchical order for determining venue in a proceeding to appoint a guardian or conservator, when reading those subdivisions together with subdivision (3) of § 475.035.1, the subdivision on which the Clay County probate court relied in denying the appellant's motion to transfer, ambiguity does result as to the legislature's intent in that regard. This is so in that, unlike subdivision (2), subdivision (3) does not contain any language conditioning its application. Section 475.035.1(3) simply provides that venue will lie "[i]n the county, or on any federal reservation within the county, wherein the minor or alleged incapacitated or disabled person or his or her property is found," suggesting that it is to apply without condition or limitation. As such, contrary to the clear intent of subdivisions (1) and (2), looking at § 475.035.1(3) in isolation, the argument could be made that the legislature did not intend to establish a hierarchical order for determining venue in proceedings to appoint a guardian and conservator. Of course, a provision or provisions of a statute cannot be read in isolation to determine legislative intent, but must be read in the context of the entire statute. State ex rel. Casey's Gen. Stores, Inc. v. City of West Plains , 9 S.W.3d 712, 717 (Mo.App. 1999) (citation omitted). When that is done in our case, we are convinced that the legislature could not have logically intended for subdivision (3) to apply without being limited by the provisions of subdivisions (1) and (2).
Although it is the legislature's prerogative to write a statute as it sees fit, in construing an ambiguous statute, we are to presume that the legislature did not intend an absurd and illogical result. Kansas City Star Co. v. Fulson , 859 S.W.2d 934, 938 (Mo.App. 1993) (citations omitted). In that regard, in our view, it would be illogical and absurd for the legislature to have gone to the trouble in subdivisions (1) and (2) of the statute to expressly set up a hierarchical order in determining venue and then essentially destroy that hierarchy by authorizing the venue of subdivision (3) without limitation. It also seems illogical and absurd to us to believe that the legislature intended in subdivision (3) to make any county wherein the alleged incapacitated or disabled person could be found a venue option without limitation, when in subdivision (2) it makes it perfectly clear that the county of residence of the person would not be an option, unless it was first found that the person was not domiciled in this state. To read subdivision (3) literally then would have the effect, for purposes of determining venue, of equating the person's mere presence in the county with his or her domicile and elevating mere presence over the person's county of residence. This, in our view, is illogical and flies in the face of the primary purpose of a venue statute, "to provide a convenient, logical and orderly forum for the resolution of disputes." Ford Motor Co . , 12 S.W.3d at 390 . Logically, it would seem that a county of mere presence should be subservient to the county of residence for purposes of venue. That, of course, could be accomplished by interpreting the statute such that the provisions of subdivision (3) would not apply, unless it was first found that venue would not lie in any other county by virtue of having applied the hierarchical venue provisions of subdivisions (1) and (2). Such an interpretation, however, would still not address another glaring contradiction between subdivisions (1) and (2), and subdivision (3). The express language of subdivision (2) makes its clear that venue will not lie in any county wherein there is property of the alleged incapacitated or disabled person, unless it is first determined that the person is not domiciled or does not reside in the state. However, as discussed, supra, subdivision (3) on its face appears to provide that venue will lie, without limitation, in any county wherein property of the person can be found. Thus, the two subdivisions are contradictory as to when venue is proper in a county wherein the property of the alleged incapacitated or disabled person can be found.
In cases where there are contradictory provisions of a statute, in one or more respects, such as those we have enumerated between subdivisions (1) and (2), and subdivision (3) of § 475.035, in order to harmonize them with the plain intent of the legislature and the apparent purpose of the statute, it is appropriate to modify the literal meaning of the words of the statute and to strike words or clauses deemed improvidently inserted. Tadrus v. Mo. Bd. of Pharmacy , 849 S.W.2d 222, 226 (Mo.App. 1993). Given our discussion, supra, we believe that the plain intent and apparent purpose of the legislature in § 475.035 was to establish a hierarchy of alternative venue sites in proceedings to appoint a guardian or conservator. Thus, in order to harmonize the various contradictory provisions cited with the plain intent and apparent purpose of the statute, we would modify the language of subdivision (3) to include conditional language such as that found in subdivisions (1) and (2), and would strike the language, "or his or her property," as improvidently inserted surplusage, such that subdivision (3) would be read as providing that venue would lie in a county in which the alleged incapacitated or disabled person can be found, provided it is first determined that he was not domiciled in this state; was not a resident of this state; and had no property in this state.
The respondent argues that if the legislature had intended for the venue provisions of § 475.035.1 to be read as establishing a hierarchy, it would not have placed "or" between the subdivisions of the subsection in the 1983 Revision of the Probate Code, which term it points out has previously been interpreted by the Missouri Supreme Court as meaning "either," indicating an alternative. Boone County Court v. State , 631 S.W.2d 321, 325 (Mo. banc 1982) (citation omitted). In support of her argument, she cites us to State ex rel. Watts v. Hanna , 868 S.W.2d 549, 551-52 (Mo.App. 1994). Her reliance on Hanna is misplaced. In Hanna , the court was required to interpret § 210.829.4, governing venue for purposes of the Uniform Parentage Act (UPA). The statute read, in pertinent part: "An action brought under sections 210.817 to 210.852 may be brought in the county in which the child resides, the mother resides, or the alleged father resides. . . ." § 210.829.4. The respondent argued in Hanna that the statute should be read as giving a priority to the county where the child and mother resided, relying, in part, on the fact that the UPA was remedial in nature, based on a need to protect minor children, and the fact that the county of residence of the father was listed last. Hanna , 868 S.W.2d at 551 . The court, first recognizing that the term "or" appearing between the three venue options listed in the statute indicated that they were to be viewed in the alternative, held that there was nothing in the statute from which it could be found that the legislature intended for prioritization of the three alternatives. Id . at 551-52. However, unlike the statute in Hanna , here, as discussed, supra, § 475.035.1 contains express language establishing conditional alternatives for venue, not equally available or absolute alternatives.
As further support for our interpretation of § 475.035.1, we cite to the comments thereon by the Honorable John A. Borron, Jr., Circuit Judge of the Probate Division of the Circuit Court of Jackson County, Missouri, in 4B, MISSOURI PRACTICE, PROBATE SURROGATE LAWS MANUAL (1995), which he authored. Judge Borron has been previously recognized by our appellate courts as a leading probate authority in this state, and as a result, his comments have been given some weight in determining the legislative intent of probate statutes in cases of first impression where the legislative intent of the statute in question is not facially clear and unambiguous. State ex rel. Baumbach v. Kamp , 922 S.W.2d 411, 417 (Mo.App. 1996); In re Estate of Lucas , 909 S.W.2d 365, 366 (Mo.App. 1995). In his comments regarding § 475.035, Judge Borron states that the "Guardianship Code establishes a hierarchial [ sic] order for the purpose of establishing proper venue." PROBATE SURROGATE LAWS MANUAL at 32. Under the statute, "[v]enue is determined in accordance with the following order: (1) County of domicile; (2) If no domicile exists in Missouri, in county of actual residence; (3) If no domicile or actual residence exists in Missouri, then the county where the alleged incapacitated person is found." Id . at 31. Given this hierarchy, Judge Borron concludes in his comments that under the statute, "if an individual is domiciled in this state, venue is exclusively in the county of his domicile." Id . Unlike the hierarchy established by our interpretation of the statute, Judge Borron's hierarchy makes no provision for venue being established in any county in which the alleged incapacitated and disabled person has property. In this regard, he states, with respect to the Guardianship Code Revision of 1983:
Although the 1983 version of the statute on which Judge Borron was commenting was subsequently amended in 1999 to add subdivision (4) to § 475.035.1, subdivisions (1), (2) and (3) of the 1983 version are identical to those subdivisions in the present version of the statute.
Although the Revision also contains a provision similar to the 1955 Probate Code fixing venue in any county where the alleged incapacitated person owns property, it is doubtful that that provision would be constitutionally sufficient, on due process grounds, to fix venue for the appointment of a guardian of the person.
Id . Given our resolution of this appeal, we need not address this issue and leave it for another day.
In contending that § 475.035.1 does not evince an intent to establish a hierarchy for determining venue, the respondent also cites us to In re Estate of Potashnick , 841 S.W.2d 714 (Mo.App. 1992). In Potashnick , the court was called upon to decide whether venue was proper under § 475.035 in Cape Girardeau County, which the probate court found was the county of domicile of Potashnick, for whom a conservator had been appointed. Id . at 720-21. The appellant asserted on appeal that Potashnick was not domiciled in this state at the time the conservatorship proceeding was commenced, but in Florida, and thus, venue was not proper as found by the court, depriving the court of jurisdiction to enter its order appointing a conservator. Id . at 720. The Potashnick court affirmed, finding that Potashnick was domiciled in Cape Girardeau County, as the probate court had found. Id . at 721. The court went on to state:
In any event, even if Potashnick were a domiciliary of Florida, the trial court had venue pursuant to § 475.035.1(2) or (3). Potashnick owned a house in Cape Girardeau County. He also owned a business and business property in Cape Girardeau County. Therefore, venue was proper in Cape Girardeau County and the trial court had jurisdiction to hear the conservatorship proceedings.
Id . The respondent argues that this indicated that the "court clearly recognized the possibility of venue in alternative counties, in the county of domicile and where the person's property can be found." The respondent misreads Potashnick .
The respondent contends that the statute should be read without giving priority to the various alternative counties of venue enumerated therein such that where an alleged incapacitated and disabled person was domiciled in a county of this state and at the same time had property in another county of this state, venue would lie simultaneously in both counties — resulting in a "dealer's choice" situation as to venue. That was not the factual situation presented in Potashnick . Venue there was only determined by the court by hypothesizing two situations: one where Potashnick was a domiciliary of this state; and the other where he was not, but had property here. Thus, the court was never presented with and did not decide the issue presented here, that whether, under § 475.035.1, there is to be given a priority to competing Missouri counties when determining venue in cases involving the appointment of a guardian and conservator. In fact, it should be noted, that the holding in Potashnick , with respect to venue, squares with our interpretation of the statute.
Finally, in arguing against an interpretation of the statute finding a hierarchy for determining venue, the respondent points out that in 1999, which would have been after Judge Borron's comments referred to, supra, § 475.035 was amended to add § 475.035.1(4), which reads: "In a county of this state which is within a judicial circuit which has prior and continuing jurisdiction over the minor pursuant to subdivision (1) of subsection 1 of section 211.031, RSMo." The respondent contends that this subdivision does not fit within a hierarchical scheme such that we can infer that the legislature did not intend to give priority to the various venue alternatives enumerated in the other subdivisions of the statute. In this regard, the respondent asserts, "[b]y clear expression, the Legislature has determined that venue may be in more than one county." We disagree.
Section 211.031.1(1) reads, in pertinent part:
1. Except as otherwise provided in this chapter, the juvenile court or the family court in circuits that have a family court as provided in sections 487.010 to 487.190, RSMo, shall have exclusive original jurisdiction in proceedings:
(1) Involving any child or person seventeen years of age who may be a resident of or found within the county and who is alleged to be in need of care and treatment. . . .
Unlike the venue provisions of subdivision (3), which were found to be in clear contradiction of the express provisions of subdivisions (1) and (2), no such contradiction is apparent with respect to the provisions of subdivision (4). As such, it is unnecessary to modify or delete language of that subdivision in order to reconcile it with subdivisions (1) and (2), and their clear intent and apparent purpose of establishing a hierarchy for determining venue. Rather, the intent of subdivision (4) is clear and unambiguous on its face, that with respect to guardianship and conservatorship proceedings involving minors under the jurisdiction of the juvenile court, pursuant to § 211.031.1(1), venue is proper either in a county determined pursuant to the hierarchy of subdivisions (1), (2) and (3), as we interpret them, or in a county as determined in subdivision (4). § 475.035.1(4). As such, we recognize that the language of subdivision (4) creates an exception to the hierarchy of the first three subdivisions, but it does not persuade us that it evinces an intent not to create the hierarchy, given the obvious contradictions between subdivisions (1) and (2), and subdivision (3), as discussed, supra.
Given our interpretation of the statute, Judge Maloney, having found on May 9, 2000, that Catherine's domicile was in Ray County at the time the probate proceeding in question was filed, should have granted the appellant's motion to transfer the proceeding to Ray County. Thus, the Probate Division of the Circuit Court of Clay County, thereafter, lacked authority to take any further action in the case other than to transfer it to Ray County. Keltner , 950 S.W.2d at 690; see also State ex rel. DePaul Health Ctr. v. Mummert , 870 S.W.2d 820, 823 (Mo. banc 1994); Ford Motor Co . , 12 S.W.3d at 390; State ex rel. Quest Communications Corp. v. Baldridge , 913 S.W.2d 366, 368 (Mo.App. 1996); State ex rel. Drake Publishers, Inc. v. Baker , 859 S.W.2d 201, 203 (Mo.App. 1993). As such, the proceeding before Judge Welsh on July 5, 2000, and his orders resulting therefrom were null and void, requiring us to reverse and remand so that the case can be transferred to Ray County, based on Judge Maloney's finding that Catherine was domiciled in that county. Ford Motor Co . , 12 S.W.3d at 390; Neosho R-V School Dist. v. McGee , 979 S.W.2d 537, 540 (Mo.App. 1998).
Judge Maloney's finding, that Catherine was domiciled in Ray County for purposes of venue, was not challenged by the respondent on appeal. Even if she had, however, a careful review of the record discloses that there was abundant evidentiary support for Judge Maloney's finding. In that regard, domicile, for venue purposes, has been determined to be:
that place where a person has his true, fixed and permanent home and principal establishment to which, whenever he is absent, he has the intention of returning. A person can have but one domicile, which, when once established, continues until he renounces it and takes up another in its stead. In determining whether a person has the requisite intent to remain at a place either permanently or for an indefinite period of time, the court should consider the declarations of the person and the acts done before, at, and after the time the domicile is in dispute. For a person to change domicile, there must be presence in a new domicile and present intent to remain there indefinitely and make that location one's permanent address.
Paulson v. Mo. Dept. of Revenue , 961 S.W.2d 63, 66 (Mo.App. 1998) (citations omitted). "When the facts are conflicting as to a person's intent, his [or her] original domicile is favored as his [or her] legal domicile." Fritzshall v. Bd. of Police Comm'rs , 886 S.W.2d 20, 27 (Mo.App. 1994) (citation omitted). Given these principles, the evidence favorable to Judge Maloney's finding that Catherine's domicile was in Ray County was that immediately prior to the accident, the appellant and Catherine had a home in Ray County and had resided there for ten years. Although there was some evidence presented by the respondent at the hearing as to whether the appellant had changed his domicile to Clay County after the accident, he testified that he had no such intention. Obviously, given her condition, there was no evidence that Catherine intended to change her domicile. This evidence was sufficient for Judge Maloney to find that Catherine was domiciled in Ray County at the time the respondent filed her petition to appoint her Catherine's guardian and conservator.
Conclusion
The judgment of the Probate Division of the Circuit Court of Clay County appointing the respondent guardian and conservator of Catherine Beyersdorfer is reversed as being void and the case remanded to the court for the sole purpose of the court's entering its order transferring the cause to the Probate Division of the Circuit Court of Ray County.