Opinion
No. ED89632
May 6, 2008
Appeal from the Circuit Court of Jefferson County Honorable Lisa K. Page.
Jonathan D. Marks, St. Louis, MO, for appellant.
Julie Huffman McCarver, Kourtney E. Lamb, Hillsboro, MO, for respondent.
Joan Bryan, DeSoto, MO, Guardian ad Litem.
Mother appeals from certain portions of a January 25, 2007 judgment modifying an April 12, 2004 consent paternity judgment. As relevant to this appeal, the trial court granted the parties joint legal and joint physical custody of their two minor children and found that father had no child support arrearage. We reverse that part of the judgment modifying custody for the reasons that 1) the trial court did not have jurisdictional competence to proceed on father's motion to modify custody because he owed more than $10,000 in past-due child support at the time he filed his motion to modify, and he did not post the bond required by section 452.455.4 RSMo (2004 Supp.); and 2) the filing of a bond was jurisdictional and not waiveable. We also reverse that part of the trial court's judgment reducing father's past-due child support obligation to zero because the issue was not pleaded or tried by consent, and the trial court therefore did not have jurisdictional competence to rule on that issue. We remand with instructions to vacate those portions of the judgment that relate to child custody and the reduction of past-due child support.
FACTUAL AND PROCEDURAL BACKGROUND
On May 19, 2003, the trial court entered a default Order and Judgment of Paternity, Support and Custody declaring that T.D.W. and J.C.W., both born on June 18, 2002, were the natural children of mother, Kelly K. Webb, and father, Jason L. Wyciskalla, who had never been married to each other. The judgment awarded mother sole legal and sole physical custody of J.C.W. and T.D.W., with visitation to father. It ordered father to pay $1090 per month in child support and to pay retroactive child support in the amount of $10,928.75.
On April 12, 2004, after father filed a motion to modify, the parties entered into a consent modification agreement, which was adopted and confirmed by the trial court. The agreement modified the child custody to gradually increase father's visitation. It did not change the amount of child support.
On April 4, 2005, the trial court denied father leave to file an amended motion to modify the April 12, 2004 consent judgment and entered summary judgment in mother's favor on father's original motion to modify that consent judgment.
On September 16, 2005, father filed another motion to modify the April 12, 2004 consent judgment, alleging substantial and continuing changed circumstances since the entry of that consent judgment, including a reduction in father's income and an increase in mother's income. Father requested that the court award him sole legal and joint physical custody of the children, make-up time for lost visitation time, a change in child support pursuant to Rule 88.01 and Form 14, the tax exemptions for the children, attorney's fees, and costs. At the time father filed his motion to modify, he was in arrears on child support in the amount of $12,918.75. He did not post a bond with his motion to modify. He filed a statement of income and expenses on September 29, 2005. The motion was heard in July 2006.
On January 25, 2007, the trial court entered a judgment on father's motion to modify. It awarded the parties joint physical custody and joint legal custody of T.D.W. and J.C.W. The trial court further ordered that neither party pay child support to the other. It found that father had overpaid child support but "he had a large arrearage due since the original Judgment and throughout these proceeding. Therefore, the recalculated arrearage amount shall be $0.00, effective on the date of this Judgment." Mother appeals.
DISCUSSION
I. Jurisdiction
For her first point, mother asserts that the trial court lacked jurisdiction to modify the consent judgment of April 12, 2004 because father had a past-due child support arrearage in excess of $10,000 when he filed his motion, and section 452.455.4 RSMo (2004 Supp.) requires a party who owes past-due child support in excess of $10,000 to post a bond as a condition precedent to the filing of a motion for modification of custody or visitation. Mother argues that we must vacate the trial court's judgment as void for lack of personal jurisdiction as set out in Miller v. Miller, 210 S.W.3d 439, 444 (Mo.App. 2007).
Father responds that mother has failed to preserve this claim of error for review because she did not claim lack of personal jurisdiction in the trial court, thereby waiving it. It is well-settled that personal jurisdiction is a personal privilege that may be waived, In re Marriage of Hendrix, 183 S.W.3d 582, 588 (Mo. banc 2006), by not raising it by motion or in a responsive pleading, Rule 55.27(g)(1)(A), or by defending the case on the merits. Burke v. Hutto, 243 S.W.3d 431, 434 (Mo.App. 2007). See also Crouch v. Crouch, 641 S.W.2d 86, 90 (Mo. banc 1982).
Waiver would dispose of this point if the underlying premise, that the filing of a bond was required for personal jurisdiction, were correct. Since our jurisdiction is derivative of the trial court's jurisdiction, we are under an obligation to examine the trial court's jurisdiction. In re Marriage of Jeffrey, 53 S.W.3d 173, 175 (Mo.App. 2001). We have no jurisdiction to review a judgment entered in excess of or beyond the jurisdiction of the trial court. Id. If none of the parties has properly raised the issue of jurisdiction, we must address the issue sua sponte. In re Marriage of Werths, 33 S.W.3d 541, 542 (Mo. banc 2000). The scope of a trial court's subject matter jurisdiction is a question of law that we review de novo. Jeffrey, 53 S.W.3d at 175.
In Miller, the Western District held that absent the filing of the bond required by section 452.455.4 RSMo (2004 Supp.), a trial court lacks personal jurisdiction over the non-movant. 210 S.W.3d at 444. We disagree that the bond required by section 452.455.4 is a condition precedent to personal jurisdiction. Rather, for the reasons that follow, we conclude that the bond was required for the court to acquire jurisdictional competence to render a judgment on father's motion to modify, and this was not personal jurisdiction that could be waived.
"The essential bases of a court's authority to adjudicate a controversy are its jurisdiction over the subject matter of the controversy and jurisdiction over the parties." Hendrix, 183 S.W.3d at 587-88. "Personal jurisdiction" refers to a court's authority to render a judgment over a particular defendant. State ex rel. DePaul Health Ctr. v. Mummert, 870 S.W.2d 820, 822 (Mo. banc 1994). Personal jurisdiction over the defendant is obtained by proper service of a summons. Id. As a general rule, a defendant who is found within the territorial jurisdiction of the court is subject to that court's personal jurisdiction. Jenkins v. Croft, 63 S.W.3d 710, 712 (Mo.App.S.D. 2002).
On the other hand, subject matter jurisdiction is "`the power to hear and determine cases of the general class to which the proceedings in question belong.'" Missouri Soybean v. Missouri Clean Water, 102 S.W.3d 10, 22 (Mo. banc 2003) (quoting 21 C.J.S. Courts section 18 (1990)). It exists only when the court has the right to proceed to determine the controversy or grant the relief prayed. Missouri Soybean, 102 S.W.3d at 21. Subject matter jurisdiction is conferred by operation of law. Id. at 22. When a court "engages in the exercise of a special statutory power, the court is confined strictly to the authority given by the statute." Id. Subject matter jurisdiction "`cannot be conferred by consent.'" Hendrix, 183 S.W.3d at 588 (quoting State v. Flynn, 154 S.W.2d 52, 57 (Mo. banc 1941)).
In addition, when the parties are properly before the court and there is no question about the court's authority to decide the general issue before it, but there is a question about whether the issues or parties are properly before the court for resolution at that time, a party may attack the court's "jurisdictional competence" to "`render the particular judgment in the particular case.'" Hendrix, 183 S.W.3d at 588 (quotingMissouri Soybean, 102 S.W.3d at 21). In other words, if a court has subject matter jurisdiction to hear a particular type of case, but it cannot proceed until certain statutory conditions are complied with, the court has no power to proceed with the case until those conditions have been met. Hendrix, 183 S.W.3d at 588-89 (citing Flynn, 154 S.W.2d at 57; Bullmaster v. Krueger, 151 S.W.3d 380, 385 n. 4 (Mo.App. 2004)). Like subject matter jurisdiction, jurisdiction that depends on statutory conditions being met cannot be waived or conferred by consent. Hendrix, 183 S.W.3d at 588 (citing Flynn, 154 S.W.2d at 57).
One of the statutory conditions that limit a court's power to proceed with a case is the requirement to post a bond. See Ruddy v. Corning, 501 S.W.2d 537, 539 (Mo.App. 1973) (injunction bond required by section 526.070 RSMo (1969)); State v. Williams, 120 S.W. 740, 749-51 (Mo. 1909) (injunction bond required by section 3637 RSMo (1899)); State ex rel. Froidl v. Tillman, 662 S.W.2d 907, 908-10 (Mo.App. 1983) (bond required in attachment proceedings by section 521.050 RSMo); Eldridge v. Barnes, 189 S.W.3d 182, 183-84 (Mo.App. 2006) (appeal bond required by section 287.480.2). Each of these cases holds that posting a bond required by statute is a condition precedent to the court's exercise of jurisdiction. These cases represent examples of jurisdictional competence, as described in Hendrix, 183 S.W.3d at 588.
Section 452.455.4 requires that a parent who is in arrears on child support in excess of $10,000 "shall post a bond in the amount of past-due child support" "before the filing of the petition." This statutory provision limits a trial court's jurisdictional competence, that is its jurisdiction to render a particular judgment, and is not waiveable.
Father's own evidence showed that father owed in excess of $10,000 in past-due child support at the time he filed his motion to modify. The trial court had no jurisdiction to proceed on the motion to modify custody in the absence of the bond required by section 452.455.4. Point one is granted.
Because of our disposition of point one, points two through five, which raise alternative grounds to reverse the modification of the prior custody award, are denied as moot.
II. Modification of Child Support Arrearage (Point VI)
For her sixth point, mother contends that the trial court erred in modifying father's past-due child support arrearage from a figure in excess of $16,000.00 to $0.00. She argues that the relief granted was beyond the scope of the pleadings.
In his motion to modify, father did not pray for any relief with respect to his past-due child support. In the body of his motion, he alleged a series of changed circumstances, including the allegation that the child support arrearage he owed to mother "had never been determined" and should be determined. The trial court found:
21. The Court finds that Respondent has overpaid child support but that he had a large arrearage due since the original Judgment and throughout these proceeding. Therefore, the recalculated arrearage amount shall be $0.00, effective on the date of this Judgment.
This relief was not supported by the pleadings. Mother first points out that father did not pray for this relief. This argument is not dispositive because a prayer is not considered part of the petition. Sunbelt Envir. Serv. v. Rieder's Jiffy Mkt., 138 S.W.3d 130, 134 (Mo.App. 2004). A trial court may grant relief absent an express prayer when such relief is fully supported by the facts that were either pleaded or tried by consent. Id. However, facts supporting the relief granted were not pleaded and the issue was not tried by consent.
A motion to modify is subject to the pleading requirements of Rule 55.05. Derks v. Surface, 189 S.W.3d 692, 694 (Mo.App. 2006); Rule 41.01(a)(2). The motion must allege facts showing the movant is entitled to relief. Derks, 189 S.W.3d at 694-95. Father's sole allegation relating to the arrearage does not allege any facts supporting a reduction in the arrearage, much less the total elimination of the arrearage.
Father responds that the issue was tried by consent because mother testified at the hearing that the arrearage was $16,800 or $16,400, and father testified that the arrearage was $12,000 at the time of trial. He also refers to the admission of Exhibits 7 and HH, which were printouts of father's child support payment history. Exhibit HH showed that father made total lifetime payments of $32,565 on $49,613.75 owed, resulting in an arrearage of $17,048.75 as of March 2006. Exhibit 7 showed father had made total payments of $36,355 as of July 18, 2006.
An issue not raised by the pleadings may be tried by implied consent when evidence is offered without objection by another party and the evidence bears solely on the unpleaded issue. Melton v. Padgett, 217 S.W.3d 911, 913 (Mo.App. 2007). The evidence "`cannot be relevant to any other issue before the trial court.'" Id. (quoting City of St. Joseph v. St. Joseph Riverboat, 141 S.W.3d 513, 516 (Mo.App. 2004)).
The evidence cited by father does not demonstrate that the parties tried by consent the issue of whether father's child support arrearage should be reduced. One of the issues at trial was whether child support should be modified. Father had alleged that mother had a substantial income and he had no income. Mother testified on direct examination about her financial situation and the burden of her student loans. She identified the amount of past-due child support as an amount she hoped to collect to help pay off her student loans. Mother's attorney cross-examined father on his claim that he had no income with evidence suggesting that he had been meeting his financial needs, including paying some of the child support ordered. Father admitted having a $12,000 arrearage and the payments shown on Exhibit 7 in this context. On redirect, father's counsel introduced Exhibit HH and had father clarify his cross-examination testimony to show that he had been making some child support payments. In sum, all of the evidence on which father relies was offered as relevant evidence on other issues in the case. It was not exclusively relevant to computing a reduction in the child support arrearage. The reduction in child support arrearage was not tried by consent.
A court also lacks jurisdictional competence to rule on an issue that has not been raised by the pleadings or tried by consent. Hendrix, 183 S.W.3d at 588-89. Accordingly, the trial court did not have jurisdiction in this situation to determine father had no child support arrearage. Point VI is granted.
Conclusion
All portions of the judgment relating to child custody and the reduction of father's past-due child support are reversed, and we remand the case to the trial court with directions to vacate those portions of the judgment that relate to child custody and past-due child support. In all other respects, the judgment is affirmed.
Robert G. Dowd, Jr., J. and Kenneth M. Romines, J., concur.
OPINION SUMMARY
Mother appeals from certain portions of a January 25, 2007 judgment modifying an April 12, 2004 consent paternity judgment. As relevant to this appeal, the trial court granted the parties joint legal and joint physical custody of their two minor children and found that father had no child support arrearage.
REVERSED AND REMANDED IN PART WITH DIRECTIONS; AFFIRMED IN PART.
Division One Holds:
1. The trial court did not have jurisdictional competence to proceed on father's motion to modify custody because he owed more than $10,000 in past-due child support at the time he filed his motion to modify, and he did not post the bond required by section 452.455.4 RSMo (2004 Supp.).
2. The filing of a bond was jurisdictional and not waiveable.
3. The trial court did not have jurisdictional competence to reduce father's past-due child support obligation to zero because the issue was not raised by the pleadings or tried by consent.
Robert G. Dowd, Jr., J. and Kenneth M. Romines, J., concurring.