             In the Missouri Court of Appeals
                     Eastern District
                                         DIVISION FOUR

FALLON R. NESTLE,                               )      No. ED100902
                                                )
       Respondent,                              )      Appeal from the Circuit Court
                                                )      of Washington County
       vs.                                      )      13WA-CC00416
                                                )
BRANDON E. JOHNS,                               )      Honorable Troy K. Hyde
                                                )
       Appellant.                               )      Filed: January 20, 2015

       Brandon E. Johns (“Father”) appeals the denial of his motion to set aside default

judgment registering the foreign judgment of Fallon R. Nestle (“Mother”) from the state of New

York concerning the custody of their child (“Child”). We affirm.

                                    I.     BACKGROUND

       This case has a complex factual and procedural history. Child was born out of wedlock

to Mother and Father on February 27, 2009 in the state of New York. On July 15, 2009, Mother,

Father and Child moved to St. Louis County, Missouri and began living in the home of Father’s

grandmother. On December 16, 2009, approximately five months later, Mother took Child back

to New York, but did not tell Father they were not returning to Missouri. Father continued to

live in Missouri. Shortly thereafter, Father learned that Mother would not be returning to

Missouri with Child.
        On March 31, 2010, Father filed a petition for paternity and custody of Child in the

Circuit Court of St. Louis County (“the St. Louis County court”), however, Father was unable to

serve Mother with the petition until almost one year later. Mother failed to appear for any of the

scheduled hearings, and, on July 12, 2011, the St. Louis County court entered a default judgment

awarding Father full custody of Child with supervised visitation to Mother (“the Missouri

custody judgment”). Father traveled to New York and presented the Missouri custody judgment

to Mother demanding Child return to Missouri, and Mother refused to comply. On August 22,

2011, Father filed a petition to register the Missouri custody judgment in the Family Court of the

State of New York, County of Montgomery (“the New York court”) pursuant to the terms of the

Uniform Child Custody Jurisdiction and Enforcement Act (“U.C.C.J.E.A.”).1 However, before

Father’s petition to register the Missouri custody judgment was adjudicated, on October 3, 2011,

Mother filed her own petition for custody of Child in the New York Court and in November of

2011, Mother filed a motion to modify the Missouri custody judgment in the New York court.

The New York court consolidated all actions.

         While the consolidated cases were pending, the New York court made repeated attempts

to contact the St. Louis County court regarding the Missouri custody judgment.2 Specifically,

the New York court asserted in its communications that New York, not Missouri, had the

authority to make the initial child custody determination. The New York court requested further




1
  Both Missouri and New York have adopted the U.C.C.J.E.A. in nearly identical terms. Section 452.700 RSMo
Supp. 2010 et seq.; New York Domestic Relations Law section 75 (2002) et seq.
2
  The U.C.C.J.E.A. imposes a duty on courts from different states to communicate with each other regarding
simultaneous proceedings. Section 452.730 RSMo Supp. 2010; New York Domestic Relations Law section 75-i
(2007).

                                                      2
information regarding the basis for Missouri jurisdiction,3 or, in the alternative, that the St. Louis

County court set aside the Missouri custody judgment so the matter could proceed in New York.

The St. Louis County court did not respond to the New York court’s communications.

         On April 25, 2012, the New York court took up the initial question of the validity and

effect of the prior Missouri custody judgment with both Mother and Father participating. The

New York court’s Jurisdictional Order provides it is:

         ORDERED, the New York State retains jurisdiction of the subject child . . . as she
         was born and resides within New York State, and it is further

         ORDERED, that any order with regard to the subject child . . . made outside of
         New York State shall be null and void[.]

         On May 8, 2012, the New York court addressed the remaining issues in the case by

entering a judgment with the consent of the parties granting Mother physical custody of Child

and granting Father a set schedule of parental time (“the New York custody judgment”).

         In October 2013, when Father had scheduled parental time, he took Child back to

Missouri and told Mother he was not returning Child to New York, in violation of the terms of

the New York custody judgment. Mother traveled to Missouri and filed a petition to register the

New York custody judgment in the Circuit Court of Washington County (“the trial court”) as a

foreign judgment. Father was served with the petition but did not file a timely response. As a

result, the trial court entered a default judgment registering the New York custody judgment

(“the default judgment”). Subsequently, Father filed a motion to set aside the default judgment.

A hearing was held and the trial court denied Father’s motion with written findings of fact and



3
  Ordinarily, Missouri law does not recognize limitations on the jurisdictional competence of the courts to hear
cases. J.C.W. ex rel. Webb. v. Wyciskalla, 275 S.W.3d 249, 254 (Mo. banc 2009). When a statute speaks in
jurisdictional terms, it is properly read as merely setting limits on remedies or elements of claims that courts may
grant. Id. at 255. We use the term “jurisdiction” in this case because the statutes in question use it, and we interpret
it in the sense stated in Webb.

                                                           3
conclusions of law, finding that Father did not present a meritorious claim. This appeal

followed.

                                           II.      DISCUSSION

        In his sole point on appeal, Father asserts that the trial court erred in denying his motion

to set aside the default judgment because the Missouri custody judgment granting him custody of

the Child remained in effect establishing a meritorious defense to the registration of the foreign

judgment. We disagree.

        Rule 74.054 provides for an independent action through which a default judgment may be

set aside if the moving party presents facts demonstrating a meritorious underlying claim and

good cause for the default. Rule 74.05(d); McGee ex. rel. McGee v. City of Pine Lawn, 405

S.W.3d 582, 585 (Mo. App. E.D. 2013). We review a trial court’s decision on a motion to set

aside a default judgment for abuse of discretion. McGee, 405 S.W.3d at 585. A trial court

abuses its discretion when its ruling is clearly against the logic of the circumstances and is so

arbitrary and unreasonable as to shock our sense of justice and indicate a lack of careful

consideration. Doyle v. Fluor Corp., 400 S.W.3d 316, 324 (Mo. App. E.D. 2013).

        The Missouri custody judgment and the New York custody judgment govern the same

subject matter, the custody of Child, but the competing judgments arrive at opposite

conclusions.5 As a general rule, a judgment’s validity may only be reversed by formal appeal,

“the sole object of which is to deny and disprove” the judgment. Travis v. Contico Intern., Inc.,

928 S.W.2d 367, 369 (Mo. App. E.D. 1996) (quotations omitted). Thus, where two judgments

address the same subject matter with opposite results, and the first judgment is not appealed,


4
  All references to Rules are to Missouri Supreme Court Rules (2014).
5
  Mother also filed a motion to modify the Missouri custody judgment in New York. However, the New York court
presented its judgment as an original custody judgment nullifying the Missouri custody judgment. It did not frame
its ruling as a modification or address the motion to modify in its order.

                                                        4
ordinarily the first judgment controls. Curia v. St. Louis County, 645 S.W.2d 137, 138 (Mo.

App. E.D. 1982).

         However, Mother never appealed the Missouri custody judgment in this case, and the

action in New York functions as a collateral attack on the validity of the Missouri custody

judgment. Collateral attacks “are attempts to impeach a judgment in a proceeding not instituted

for the express purpose of annulling the judgment.” Travis, 928 S.W.2d at 369 (quotations

omitted).

         Typically, collateral attacks on final judgments are impermissible, but the rule prohibiting

collateral attacks does not apply where the original judgment is void. J.L.M. v. R.L.C., Jr., 132

S.W.3d 279, 284 (Mo. App. W.D. 2004). “A judgment which is void on the face of the record is

entitled to no respect, and may be impeached at any time in any proceeding in which it is sought

to be enforced or in which its validity is questioned by anyone with whose rights or interests it

conflicts.” Travis, 928 S.W.2d at 370 (quoting La Presto v. La Presto, 285 S.W.2d 568, 570

(Mo. 1955)) (emphasis in original). A judgment is void if the issuing court does not have subject

matter jurisdiction, personal jurisdiction, or jurisdiction to render a particular judgment in a

particular case. Id.

         The U.C.C.J.E.A. provides that the courts of a state have jurisdiction to make an initial

child custody determination if the state is the home state of the child at the commencement of the

proceedings or was the home state within six months before the commencement of the

proceeding, and the child is absent from the state but a parent continues to live in the state.

Section 452.740.1(1) RSMo Supp. 2010; New York Domestic Law section 76.1(a) (2002).6

Further, the U.C.C.J.E.A. defines “home state” as:


6
  This section also lists other conditions under which a court may exercise jurisdiction over a child custody case, but
those conditions were not raised in the instant case.

                                                           5
       [T]he state in which a child has lived with a parent or a person acting as a parent
       for at least six consecutive months immediately prior to the commencement of a
       child custody proceeding. In the case of a child less than six months of age, the
       term means the state in which the child has lived from birth with any of the
       persons mentioned. A period of temporary absence of any of the mentioned
       persons is part of such period[.]

Section 452.705.8 RSMo Supp. 2010; New York Domestic Law section 75-a(7) (2002).

       Father faces an uphill climb in establishing that Missouri was the appropriate state for the

initial custody determination. The Western District addressed a similar issue in Patel v. Patel,

380 S.W.3d 625 (Mo. App. W.D. 2012). In that case, a child was born to a husband and wife in

the state of Maryland. Id. at 628. The wife moved with the child to Missouri, and after five

months petitioned for divorce and child custody. Id. The husband failed to appear and the trial

court entered a default custody judgment in favor of the wife. Id. On appeal, the Western

District held that a Missouri court did not have statutory authority to enter a default child custody

judgment because the child lived in Missouri for less than six months prior to the

commencement of the custody action. Id. at 630-31; Section 452.740.1(1) RSMo Supp. 2010;

New York Domestic Law section 76.1(a) (2002) (providing when a state has initial jurisdiction

over an initial child custody determination).

       The circumstances tilt even farther in Mother’s favor here. When Father filed his initial

petition for custody in Missouri, Child had only lived in the state for five months of his thirteen

month old life, while living in New York for the first five months after his birth and the latter

three months following Mother’s return. By the time Mother was served with Father’s Missouri

petition, Child had lived in New York for fifteen consecutive months and had lived in New York

for twenty months of his twenty-five month life. At the time of the Missouri custody judgment,

three more months had passed, with Child living in New York eighteen consecutive months and

for a total of twenty-three months by the time he was aged two-and-a-half years.

                                                  6
       Moreover, considering twelve months elapsed between the filing of Father’s petition and

service upon Mother, Child’s connection to New York had grown stronger and the connection to

Missouri had weakened. At the time of entry of the Missouri custody judgment, another three

months had passed, with Child residing in New York for eighteen consecutive months, clearly

and firmly meeting the definition of home state and the criteria for an initial custody

determination. Section 452.740; section 452.705.8; Patel, 380 S.W.3d at 630-31.

       Furthermore, additional factors raise questions regarding the validity of the Missouri

custody judgment. After Mother filed her own petition for custody, the New York court

attempted to investigate the appropriate court for hearing the case by contacting the St. Louis

County court. See Section 452.730 RSMo; New York Domestic Relations Law section 75-i.

The New York court received no response from its inquiries to the St. Louis County court and

issued its Jurisdictional Order on April 25, 2012, expressly finding New York to be the

appropriate state for the initial custody determination and any other state’s custody judgment to

be “null and void.” Additionally, Father actively participated in the New York litigation and

consented to the subsequent issuance of the New York custody judgment dated May 8, 2012,

granting Mother custody and parenting time to Father. At that time, Child was thirty-eight

months old, had lived in New York for twenty-eight consecutive months and a total of thirty-

three months, compared to just five months in Missouri. Under these circumstances, the

collateral attack on the Missouri custody judgment in New York was appropriate. See Travis,

928 S.W.2d at 370.

       Therefore, in light of the foregoing, we cannot say that the trial court abused its discretion

in finding Father did not state a meritorious claim in his motion to set aside the default judgment.

Rule 74.05(d); McGee, 405 S.W.3d at 585.



                                                 7
                                    III.    CONCLUSION

       The trial court’s decision denying Father’s motion to set aside the default judgment is

affirmed.




                                                    ROBERT M. CLAYTON III, Judge

Patricia L. Cohen, P.J., and
Roy L. Richter, J., concur.




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