In the Matter of: B.R.R., a minor child, JOANNA DENICE ROGERS and TRACY W. ROGERS v. MISSOURI DEPT. OF SOCIAL SERVS., CHILDREN'S DIVISION and TENA WENDERSKI, Petitioners-Respondents. ( 2016 )

In thee Matter of: )
B.R.RR., a minor child,
c )
)
JOAN
NNA DENICCE ROGERS and )
TRACY W. ROG
GERS )
Peetitioners-Apppellants, )
)
v. ) N
No. SD337114
) F
Filed: Aprill 26, 2016
MISS
SOURI DEP
PT. OF SOCIIAL SERVS S., )
CHIL
LDREN’S DIVISION
D annd )
TENA
A WENDERRSKI, )
Peetitioners-Reespondents. )
APPEA
AL FROM THE
T CIRCUIIT COURT OF PEMISC
COT COUN
NTY
Honorablee W. Keith Currie,
C Assocciate Circuitt Judge
AFFIIRMED
Tracy and
d Joanna Rog
gers, husban
nd and wife ((the Rogers)), appeal from
m a judgmennt
entered by the probate diivision of the
t circuit court appoointing Tena Wenderskki
(Wen
nderski) guardian of B.R
R.R. (Child)). Relying uupon § 211..093, the Roogers contennd
the trrial court laacked “statu
utory jurisdicction” to ennter its judggment becauuse a juvenille
proceeeding involv w pending.1 Finding nno merit in thhis contentioon, we affirm
ving Child was m.
1
All statu
utory referen
nces are to RSMo
R (20000). All rule rreferences arre to Missouuri
Courtt Rules (2015).
Factual and Procedural Background
Child was born in April 2014 and tested positive for methamphetamine. The next
day, the Missouri Department of Social Services, Children’s Division (the Children’s
Division), filed a petition for protective custody in the juvenile division of the Circuit
Court of Pemiscot County (hereinafter referred to as the juvenile case).2 The case was
assigned to the Honorable W. Keith Currie, who entered an order removing Child from
his mother’s custody. At that time, Kevin Rash (Rash), Joanna Roger’s brother, was
believed to be Child’s father. Acting upon that belief, the Children’s Division placed
Child in the physical custody of the Rogers upon Child’s discharge from the hospital.
In May 2014, Judge Currie ordered that Child be placed in the legal custody of the
Children’s Division and gave it the authority to make an appropriate physical placement.
Mounting doubt as to Child’s paternity prompted the Children’s Division to order a
paternity test. On August 27, 2014, before the test was conducted, the Children’s
Division informed the Rogers that it intended to place Child in the physical custody of
Wenderski. She was Child’s maternal aunt and had physical custody of two of Child’s
half-siblings. That same day, the Rogers filed a petition in the probate division of the
Circuit Court of Pemiscot County (the guardianship case) seeking to have them appointed
as Child’s co-guardians. The guardianship case also was assigned to Judge Currie.
In response to the Roger’s petition, the Children’s Division filed a motion to
dismiss or continue the guardianship case based upon the pendency of the juvenile case.
The Rogers filed written objections. After hearing argument on the motion, the
2
Pursuant to this Court’s order, the Children’s Division filed a supplemental
legal file containing certified copies of documents from the juvenile case that are relevant
to this appeal. See In re T.L.F., 184 S.W.3d 642, 643 n.1 (Mo. App. 2006) (utilizing the
same procedure to obtain relevant documents in an appeal involving competing adoption
petitions brought in separate cases).
2
guardianship case was continued. After a paternity test revealed that Rash was not
Child’s biological father, the Children’s Division filed its own petition in the
guardianship case requesting that Judge Currie appoint Wenderski as Child’s guardian.
In December 2014, a consolidated hearing was held on the parties’ competing
petitions. On December 22, 2014, Judge Currie entered a judgment in the guardianship
case appointing Wenderski as Child’s guardian. Two days later, the Children’s Division
filed a motion asking Judge Currie to terminate the juvenile case due to the entry of the
judgment in the guardianship case. The juvenile case was terminated that day. The
Rogers now appeal from the judgment entered in the guardianship case.
Discussion and Decision
The Rogers contend that the judgment entered in the guardianship case was null
and void because the trial court lacked “statutory jurisdiction” to appoint Wenderski as
guardian for Child so long as the juvenile case was pending. This contention lacks merit
because it improperly conflates the separate legal concepts of jurisdiction and statutory
authority.
The nub of the problem lies with the Rogers’ description of the legal issue in this
appeal as a lack of “statutory jurisdiction[.]” As applied to cases brought in circuit court,
this phrase is an oxymoron and provides no basis for relief. In J.C.W. ex rel. Webb v.
Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), our Supreme Court explained that:
Missouri courts recognize two kinds of jurisdiction: subject matter
jurisdiction and personal jurisdiction. These two kinds of jurisdiction—
and there are only two for the circuit courts—are based upon
constitutional principles. Personal jurisdiction is, for the most part, a
matter of federal constitutional law. Subject matter jurisdiction is
governed by article V of the Missouri Constitution.
3
Id. at 252. The Rogers do not contend the trial court in the guardianship case lacked
either subject matter or personal jurisdiction. Instead, their appeal is based upon the
language in § 211.093, which states:
Any order or judgment entered by the court under authority of this chapter
or chapter 210 shall, so long as such order or judgment remains in effect,
take precedence over any order or judgment concerning the status or
custody of a child under age twenty-one entered by a court under authority
of chapter 452, 453, 454 or 455, but only to the extent inconsistent
therewith.
Id. The Rogers argue that, so long as the juvenile case was pending, this statute
precluded the trial court from proceeding in the guardianship case and rendered all
actions taken therein null and void. As our Supreme Court explained in J.C.W., however,
the granting of relief not authorized by statute is not jurisdictional in nature. J.C.W., 275
S.W.3d at 254. Rather, “[w]hen a statute speaks in jurisdictional terms or can be read in
such terms, it is proper to read it as merely setting statutory limits on remedies or
elements of claims for relief that courts may grant.” Id. at 255.3
Because the Rogers’ claim of error is not jurisdictional, we can review for legal
error only. See In re Marriage of Hendrix, 183 S.W.3d 582, 590 (Mo. banc 2006);
Schmidt v. State, 292 S.W.3d 574, 576-77 (Mo. App. 2009). The Rogers, however, are
precluded from advancing a legal-error-argument in this appeal for two reasons. First,
the legal issue they have briefed on appeal was not presented to or decided by the trial
3
The Rogers support their “statutory jurisdiction” argument with citations to
several cases that were decided before J.C.W. See State ex rel. Dubinsky v. Weinstein,
413 S.W.2d 178 (Mo. banc 1967); In re the Marriage of Denton, 169 S.W.3d 604 (Mo.
App. 2005); Ogle v. Blankenship, 113 S.W.3d 290 (Mo. App. 2003); Miller v. Russell,
593 S.W.2d 598 (Mo. App. 1979); State ex rel. McCarty v. Kimberlin, 508 S.W.2d 196
(Mo. App. 1974). To the extent these cases described statutory noncompliance as a
jurisdictional defect, that analysis is no longer valid in light of J.C.W. See Schmidt v.
State, 292 S.W.3d 574, 576-77 (Mo. App. 2009).
4
court. Therefore, it is not preserved for appellate review. See Brown v. Brown, 423
S.W.3d 784, 787-88 (Mo. banc 2014); Welch v. Dir. of Revenue, 465 S.W.3d 550, 553
(Mo. App. 2015); Rule 78.09. Second, when the Children’s Division filed a motion to
dismiss the guardianship case based upon § 211.093, the Rogers opposed the motion.4
We will not permit a party to: (1) take a position on a matter that is directly contrary to,
or inconsistent with, one previously assumed; or (2) complain on appeal about an alleged
error in which he joined, acquiesced or invited by his conduct at trial. See Klineline v.
Klineline, 481 S.W.3d 551, 554 (Mo. App. 2015); Ard v. Shannon Cty. Comm’n, 424
S.W.3d 468, 476 (Mo. App. 2014).
The Rogers’ point is therefore denied, and the trial court’s judgment is affirmed.
JEFFREY W. BATES, J. – OPINION AUTHOR
NANCY STEFFEN RAHMEYER, J. – CONCUR
GARY W. LYNCH, J. – CONCUR
4
Given the basis for our disposition of this appeal, we express no opinion on
whether § 211.093 applies to this § 475.030 guardianship proceeding, as the Children’s
Division argued below. It is worthy of note, however, that § 211.093 expressly limits its
application to inconsistencies involving “any order or judgment concerning the status or
custody of a child under age twenty-one entered by a court under authority of chapter
452, 453, 454 or 455 ….”
5