Family Law

John W. Dennis, Jr., Esquire

Paternity action by Oklahoma resident for benefit of Oklahoma child against a resident of Spain brought in Missouri court confers subject matter and personal jurisdiction to determine child support and reimbursement for necessaries where child was conceived in the state of Missouri.  K.M.G v. M.A.J, No. 96677 (Mo. App. E.D., January 31, 2012), Dowd, J.

In June, 2010, Mother filed a paternity action in St. Louis County against Father for (a) declaration of paternity, (b) child support, and (c) reimbursement for necessaries. At the time the Mother and child were residents of the State of Oklahoma, the Father was a resident and citizen of Spain and he was served with process in the State of California. The petition alleged that the child was conceived in the State of Missouri.

In a bit of irony, the Mother had filed with her current Husband an action in Oklahoma for step-parent adoption and termination of the Father’s parental rights. The Oklahoma court did indeed terminate Father’s parental rights in August, 2010, and granted the adoption. Therefore, the opinion notes that the Mother’s action here would be limited to child support and necessaries predating the termination of Father’s parental rights.

The Father sought a summary dismissal of the Mother’s case for “lack of jurisdiction” citing the venue statute of § 210.829.4, RSMo. Under that statute the case must be brought only in the county where the child resides, the Mother resides, or where the Father resides or is found. None of those circumstances apply here and the trial court dismissed the Mother’s case. This appeal followed.

Held: Reversed and Remanded.

It should be noted that the opinion notes on numerous occasions that this case presents a unique set of facts. The court found that subject matter and personal jurisdiction existed here because:

It is a civil case and under Article V, Section 14 of the Missouri Constitution, “… the Circuit Courts shall have original jurisdiction over all cases and matters, civil; and criminal,” and,

The act of sexual intercourse in the State confers personal jurisdiction over the paternity matter under § 210.829.2, RSMo. See also § 454.857 of UIFSA echoing the same statement.

While it is true that § 210.829.1, requires venue for the action in places that do not apply to the extant circumstances, all is not lost because § 508.010.2(4), RSMo, provides that under such a case the lawsuit may be brought in any county in the State since the venue statute in the Uniform Parentage Act does not cover this factual situation, the general venue statute governs.

Sanctions of a party may only occur when that party has acted in bad faith, which is something more than bad judgment or negligence and there was no evidence that the actions of the attorneys were taken in bad faith. A.J.H. v. M.A.H.S v. Hais, No. 96873 (Mo. App. E.D., February 21, 2012), Romines, J.

This was an action to modify child custody, but the appeal was related to an ancillary matter of sanctions against attorneys for the Mother. The key elements are that the Mother acquired emails from Father to his attorney and brought them to her then attorney which were then reviewed by her attorney. The attorney sought counsel with an expert regarding its ethical obligation with respect to those emails and the use of same.

The attorney then advised the Mother that the attorney would not use the emails in the litigation. Upon learning that the Mother was separately attempting to use them as leverage directly with the Father, the attorney sought and obtained leave to withdraw as her legal counsel.

Father filed a motion for sanctions against the attorney and obtained an order for sanctions. This appeal of that judgment followed.

Held: Reversed.
The trial court made no finding that the attorney acted in bad faith and the Father failed to present evidence that the attorney had acted in bad faith. “The court may only sanction a party when that party has acted in bad faith. McPherson v. U. S. Physicians Mutual Risk Retention Group, 99 S.W.3d 462, 481.” None of the actions of the attorney were illegal.

Editor’s Note:
This case emphasizes the caution with which attorneys should proceed when provided with electronically stored information by a client. Fortunately for the attorney here, there was an effort to identify the ethical concerns and an unwillingness to use the information as a weapon in an inappropriate manner. Even so, it appears that the mere review of the electronically stored information raised concerns with the trial court that resulted in an order for sanctions. Although that decision was reversed, the time and trouble to litigate that result had to exact its own toll on the attorney.