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Defendant's Attorney: appeals the trial court’s judgment modifying an Illinois court’s child
custody

Description:

St. Louis, MO - Divorce lawyer represented Defendant appealing a child custody order.

Introduction

Kimberly Guinn (“Mother”) appeals the trial court’s judgment modifying an Illinois
court’s child custody judgment and giving Michael Ball (“Father”) sole physical custody of their
daughter, MB. Mother raises eight Points on appeal. In Point I, Mother challenges the trial
court’s “jurisdiction” to modify an Illinois court’s dissolution judgment. In Point II, Mother
argues the trial court improperly entered a temporary custody order without a hearing and
delegated its judicial authority to enter a custody order to a guardian ad litem (“GAL”). In Points
III-IV, Mother argues the trial court erred by awarding the parties joint legal custody, giving
Father final decision-making authority, and awarding Father sole physical custody of MB. In
Point V, Mother argues the trial court uncritically “rubber stamped” Father’s proposed findings
of fact and conclusions of law. In Point VI, Mother argues the trial court lacked jurisdiction to
amend the Illinois judgment’s award of a tax credit to her. In Point VII, Mother argues the trial
2
court erred by dismissing her motion for new trial as untimely. In Point VIII, Mother argues the
trial court lacked jurisdiction to amend the child support order because it was not registered for
modification.
We affirm.

Factual and Procedural Background

The parties’ relationship began in 2008. They had one child together in March of 2010,
MB. The parties married in July of 2010 and divorced in Illinois on June 28, 2017. They lived
in both Missouri and Illinois at different points during the marriage and were twice separated
pending divorce in 2012-2013 and 2015-2017.
The 2017 Illinois dissolution judgment provided Mother would receive sole physical and
legal custody of MB and Father would receive visitation on the Illinois equivalent of a
Siegenthaler schedule.1
In July 2019, Father attempted to register the dissolution judgment in
Missouri and sought to modify it under the Uniform Child Custody Jurisdiction and Enforcement
Act (“UCCJEA”), RSMo § 452.810.12
and Missouri Supreme Court Rule 74.14.3
Section 452.810.1 permits registration of another state’s child custody determination in
Missouri courts. The registration may include a simultaneous request for enforcement. As
relevant here, to register a foreign judgment, section 452.810.1(2) provides the registering party
must send (1) two copies, including one certified copy, of the determination sought to be
registered and (2) a statement under penalty of perjury that to the best of the knowledge and
belief of the person seeking registration the order has not been modified.

1 Siegenthaler visitation schedules generally provide the non-custodial parent with visitation on designated
weekends, weekdays, holidays, and longer periods during the summer. See White v. White, 616 S.W.3d 373, 384
(Mo. App. E.D. 2020).
2 All statutory citations are to RSMo (2019), unless otherwise indicated.
3 All Rule citations are to the Missouri Supreme Court Rules (2019), unless otherwise indicated.
3
Rule 74.14 controls registration of foreign judgments in Missouri courts generally and
contains filing rules pertaining to properly authenticating the foreign judgment seeking
registration. Rule 74.14(b) provides:
A copy of any foreign judgment authenticated in accordance with the act of
Congress or the statutes of this state may be filed in the office of the clerk of any
circuit court of this state. The clerk shall treat the foreign judgment in the same
manner as a judgment of the circuit court of this state. A judgment so filed has the
same effect and is subject to the same procedures, defenses, and proceedings for
reopening, vacating, or staying as a judgment of a circuit court of this state and
may be enforced or satisfied in like manner.
The trial court conducted a hearing on the motion to modify on October 15-16, 2020.
Whether Father properly registered the judgment in Missouri was not an issue raised. On
December 16, 2020, the trial court raised the issue of its jurisdiction over the Illinois judgment
sua sponte. The trial court’s jurisdiction concerns did not include the authentication of the
Illinois judgment; they were limited to the court’s ability to modify a foreign judgment without
first consulting the issuing state’s court.4
On January 7, 2021, the trial court held a jurisdictional
conference with the Illinois court under Mo. Rev. Stat. 452.730.5
Both parties participated in the
conference and submitted written arguments to the Illinois court about which court should have
jurisdiction over the modification motion.

4 The trial court determined it was required to conduct a “jurisdictional hearing” with the Illinois court under section
452.750 before modifying the parties’ Illinois judgment.
5 Section 452.730 provides Missouri courts may communicate with courts of other states regarding jurisdictional
issues in cases involving dissolution of marriage, custody, and support under sections 452.700-452.930.
4
On January 29, 2021, the Illinois court entered a written judgment finding it had no
continuing interest in retaining jurisdiction over the parties. Specifically, the Illinois court
found:
Based on the evidence, neither the child, the child’s parents, nor any person acting
as a parent have a significant connection with this State and that substantial
evidence is no longer available in this State concerning the child’s care,
protection, training, and personal relationships. The Court, therefore, no longer
has exclusive, continuing jurisdiction over the issue of child custody [. . . .]
Based upon the evidence, even if the Court were to find that it has exclusive,
continuing jurisdiction, Illinois is an inconvenient forum for the parties to litigate
the issue of modification of this Court’s judgment and the Court would decline to
exercise jurisdiction.
The Illinois court further emphasized Illinois was an inappropriate forum because (1) MB
lived in Missouri “the majority of the time since entry of the Illinois judgment;” (2) the distance
between the parties did not create an undue burden; (3) the parties “essentially agreed to the
jurisdiction of the Missouri court by litigating the entire case [in Missouri];” and (4) the Missouri
court was in a better position to decide the case and consider witness credibility because the
Missouri court heard the evidence and the Illinois court did not.
The Missouri court accepted the Illinois court’s findings and retained jurisdiction. On
February 8, 2021, the Missouri court entered its findings of fact and conclusions of law,
modifying the Illinois judgment (1) granting joint legal custody to both parents; (2) granting sole
physical custody to Father; (3) eliminating Father’s child support obligations; and (4)
purportedly transferring child tax benefits to Father.
5
The Illinois and Missouri trial courts are to be commended for their efforts to address
their continuing jurisdiction over this factually complicated matter.
This appeal follows. Additional factual and procedural history will be provided as
necessary to address Mother’s claims.
Standard of Review
A. Jurisdiction
“Whether to register a foreign judgment and the propriety of the foreign judgment are
legal conclusions that we review de novo.” Ramalingam v. Kumaresan, 603 S.W.3d 323, 325
(Mo. App. E.D. 2020). Whether Missouri has jurisdiction to determine custody is also a legal
question this Court reviews de novo. Blanchette v. Blanchette, 476 S.W.3d 273, 277 (Mo. banc
2015).
B. Dissolution and Child Custody
We will affirm the judgment unless there is no substantial evidence to support it, it is
against the weight of the evidence, or it erroneously declares or applies the law. Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will not review the trial court’s decisions
regarding the weight of the evidence, resolving conflicting evidence, and witness credibility.
Sulkin v. Sulkin, 619 S.W.3d 155, 159 (Mo. App. E.D. 2021). If the trial court has made no
specific findings on a factual issue, such findings are interpreted as having been found in
accordance with the judgment. Id.
The trial court’s custody determinations are afforded greater deference than other
decisions. Thorp v. Thorp, 390 S.W.3d 871, 877 (Mo. App. E.D. 2013). We presume the trial
court reviewed all the evidence and based its decision on the child’s best interests. Id. We view
the evidence and any reasonable inferences in the light most favorable to the judgment and will
6
not reweigh the evidence. Id. The trial court had a superior opportunity to observe the sincerity
and character of the witnesses; thus, we defer to the court’s credibility determinations. Mehler v.
Martin, 440 S.W.3d 529, 534 (Mo. App. E.D. 2014).
Discussion
Point I: “Jurisdiction” and Authority
Mother claims the trial court had no jurisdiction to modify the Illinois judgment under the
UCCJEA because Father did not include an authenticated, certified copy of the entire judgment
in his petition to register the judgment. She points out Father only filed non-authenticated, noncertified copies of the four-page Illinois dissolution judgment and twelve-page parenting plan,
omitting the parties’ marital settlement agreement and support order. Mother argues Father’s
attempt to register the judgment violated Missouri’s general foreign judgment registration
statute, section 511.760(3);6
section 452.810.1(2) of the UCCJEA; and Rule 74.14. Mother
reasons Father had to file an authenticated, certified copy of the Illinois judgment with the trial
court and his failure to do so was fatal to the trial court’s subject matter jurisdiction.
Father “disputes” Mother’s claim he failed to properly register the judgment in Missouri
but cites no authority supporting his position. Instead, Father notes Mother correctly registered
the entire judgment in Missouri in a separate action and argues Mother’s registration cured any
jurisdictional defect.7


6 Section 511.760(3) provides in relevant part: A verified petition for registration shall set forth a copy of the
judgment to be registered, the date of its entry and the record of any subsequent entries affecting it, all authenticated
in the manner authorized by the laws of the United States or of this state, and a prayer that the judgment be
registered. Mother cites no authority supporting her claim Father had to register the Illinois judgment under both
section 511.760(3) and section 452.810.1(2). Because this issue is unimportant to our discussion and holding we do
not address it further.
7 Mother registered the Illinois judgment in a separate action in Missouri on March 15, 2021, more than one month
after the trial court entered its modification judgment. We fail to see how Mother’s separate registration is relevant
to this appeal.
7
Both parties’ positions are incorrect. Authentication of a foreign state’s judgment does
not impact a court’s jurisdiction; authentication involves the court’s authority to act under the
statute.
A. Subject Matter Jurisdiction
To have jurisdiction over a case, a court must have personal jurisdiction over the parties
and subject matter jurisdiction over the issues to be litigated. J.C.W. ex rel. Webb v. Wyciskalla,
275 S.W.3d 249, 251 (Mo. banc 2009) (citing In re marriage of Hendrix, 183 S.W.3d 582 (Mo.
banc 2006)). Subject matter jurisdiction of Missouri courts is governed by Article V, section 14
of the Missouri Constitution, which provides: “the circuit courts shall have original jurisdiction
over all cases and matters, civil and criminal.” This is a civil case. The UCCJEA as codified in
section 452 can give a Missouri court jurisdiction over foreign states’ child custody judgments in
certain circumstances.
In Wyciskalla, the Missouri Supreme Court examined the breadth of trial courts’
constitutional subject matter jurisdiction. 275 S.W.3d 249, 252-54 (Mo. banc 2009). The Court
observed trial courts sometimes conflated subject matter jurisdiction with their authority to act in
a particular case. Id. The source of the confusion was the concept of “jurisdictional
competence,” a quasi-jurisdictional justification for barring litigants from relief in “situations in
which there is no question as to the court’s authority to decide the general issue before it, but
there is a question whether the issue or parties affected by the court’s judgment are properly
before it for resolution at that time.” Id.
Wyciskalla changed how we analyze trial courts’ jurisdiction over cases with threshold
filing defects. Before Wyciskalla, statutory filing rules were considered jurisdictional; that is, a
litigant’s failure to follow statutory prerequisites deprived trial courts of subject matter
8
jurisdiction. See, e.g., McMinn v. McMinn, 884 S.W.2d 277, 279-80 (Mo. App. W.D. 1994)
(holding the trial court was deprived of subject matter jurisdiction over a foreign judgment
because the filing party failed to file an authenticated copy of the judgment with the court).
After Wyciskalla, statutory prerequisites became a question of the trial court’s authority
to enter judgment, not subject matter jurisdiction. Gray v. Missouri Dep’t of Corr., 577 S.W.3d
866, 868 (Mo. App. W.D. 2019). In Gray, the Court of Appeals for the Western District
acknowledged statutory prerequisites were traditionally considered a jurisdictional matter, but
noted Wyciskalla clarified they are properly analyzed as a question of the trial court’s authority
to enter judgment. Id. at 868-67. The trial court therefore had subject matter jurisdiction to
address the Illinois judgment. Gray, 567 S.W.3d at 868-69; Mo. Const. art. V, § 14. Mother’s
position is based on a statutory filing defect, which raises the court’s authority to act, not subject
matter jurisdiction.
B. Challenges to the Trial Court’s Authority to Act are Unpreserved
Mother never challenged the trial court’s authority to enter judgment. She first raised the
court’s subject matter jurisdiction – an issue that cannot be waived and may be raised at any time
– in her untimely motion for new trial. See Point VII, infra. Challenges to the trial court’s
statutory authority over a child custody matters are waived if not timely and properly asserted.
Schaeffer v. Schaeffer, 471 S.W.3d 367, 371-72 (Mo. App S.D. 2015). Unpreserved authority
arguments framed as jurisdictional arguments are waived. Hightower v. Myers, 304 S.W.3d 727,
733 (Mo. banc 2010). Failure to raise the court’s authority in the initial proceeding or
subsequent modification proceedings leave the issue unpreserved for review. Id.
9
In Hightower, the Missouri Supreme Court explained non-waivable jurisdictional
arguments are distinct from waivable statutory authority arguments under its then-recent holding
in Wyciskalla. Id. The Court noted:
It was crucial that Mother successfully frame her claim for relief in terms of
subject matter jurisdiction because subject matter jurisdiction may not be waived,
may not be conferred by consent, and can be raised at any time by any party or
court, even in a collateral or subsequent proceeding. Mother did not raise a
challenge properly to the authority of the trial court in the initial paternity
proceeding or the modification proceeding, so her claims of error . . . are
unpreserved. Because the trial court had subject matter jurisdiction and any
unpreserved claims are waived, she is not entitled to relief.
Id. (internal citations omitted). Like in Hightower, Mother cannot bootstrap unpreserved
non-jurisdictional claims to a jurisdictional argument. We will not convict a trial court of error
for an issue not presented for its determination. Fouts v. Regency N. Acquisition, LLC, 569
S.W.3d 463, 466 (Mo. App. W.D. 2018). The trial court’s authority over the judgment was not
challenged; we decline to act as an advocate for the parties and consider the issue for the first
time on appeal.
Point I is denied.
Point II: The Temporary Custody Order
On August 30, 2019, the trial court appointed a GAL to represent MB’s interests. The
court entered a temporary custody order, which stated: “The Court orders that [MB] shall
continue to attend school from Father’s residence. The Court appoints Joshua Knight as GAL.
The GAL shall implement a visitation schedule for [Mother].”
10
Mother asserts in conclusory fashion the trial court’s order exceeded its subject matter
jurisdiction and was an abuse of discretion.8
As explained in Point I, supra, the trial court had
subject matter jurisdiction over this matter. Mother claims she objected to the temporary custody
order and was therefore entitled to a hearing under section 452.380(1) before the order could be
entered. Further, Mother claims the trial court’s instruction, “[t]he GAL shall implement a
visitation schedule” violated Missouri Supreme Court Rule 2-2.2(A), but offers no citations to
authority nor analysis of her claim.9
Mother also contends the GAL’s investigation into MB’s
preferences and best interests was not thorough enough, but cites no authority establishing the
GAL’s investigation was insufficient.
Father argues the August 30, 2019 temporary custody order was a consent order and no
hearing was required. Father argues Mother’s claimed objection to the order is “completely
fabricated,” is unpreserved because it was not raised at the trial court, and is moot.
We agree with Father: Mother’s argument is unpreserved. Section 452.380(1) provides:
“A party to a custody proceeding may move for a temporary custody order. The motion must be
supported by an affidavit. The court may award temporary custody after a hearing or, if there is
no objection, solely on the basis of the affidavits.” Nothing in the record supports Mother’s
claim she objected to the temporary custody order. We are therefore not “firmly convinced that
the judgment is wrong.” Meseberg v. Meseberg, 580 S.W.3d 59, 65 (Mo. App. W.D. 2019).
Point II is denied.

8 Mother’s argument is multifarious and violates Rule 84.04(d). Distinct claims of error must be asserted in separate
Points. Rule 84.04(d); Librach v. Librach, 575 S.W.3d 300, 307 (Mo. App. E.D. 2019). We nevertheless exercise
our discretion to review Mother’s claims ex gratia to the extent we understand them. We exercise this discretion
with caution, because each time we review a noncompliant brief ex gratia, we imply substandard briefing is
acceptable. It is not. See Scott v. King, 510 S.W.3d 887, 893 (Mo. App. E.D. 2017).
9 Rule 2-2.2(A) provides: “A judge shall uphold and apply the law, and shall perform all duties of judicial office
promptly, efficiently, fairly and impartially.”
11
Point III-IV: Physical and Legal Custody of MB
In Points III-IV, Mother asserts the trial court erred by awarding the parties joint legal
custody and awarding Father sole physical custody of MB. Mother claims the judgment
contradicted the “credible testimony of the witnesses” and argues the trial court erred by finding
MB’s best interest would be served by awarding Father sole physical custody. Specifically,
Mother disputes the trial court’s finding “Mother has not made a significant effort to maintain
her relationship with [MB] since her move. In addition to failing to maintain phone contact or
attend any activities, she has taken no initiative to learn where [MB] was attending school; has
made little to no contact with the school.”
Regarding joint legal custody, Mother contests the trial court’s order: “If a disagreement
arises as to a decision on a legal issue above, and the parties are unable to reach an agreement
within forty-eight hours, Father shall have final decision-making authority.” In Point IV, Mother
argues such an arrangement violates the State’s public policy interest in encouraging parents to
share decisions affecting their children’s health, education, and welfare and diminishes her role
as MB’s parent.
Father argues the trial court did not err and its findings regarding Mother’s lack of
participation in MB’s life were supported by the evidence. Father notes the evidence established
Mother demonstrated little interest in communicating with or visiting MB while she was in
Father’s custody and was unwilling to communicate directly with Father, instead using Father’s
parents as an intermediary.
Regarding the trial court’s award of final decision-making authority to Father on disputed
legal custody issues, Father argues such arrangements are permitted when the parties
demonstrate an inability to agree. Father relies on this Court’s decision in Rallo v. Rallo to argue
12
final authority should rest with one parent when the other parent failed to timely respond to
custody issues and communicated through an intermediary such as the child’s grandparents. 477
S.W.3d 29, 34 (Mo. App. E.D. 2015).
We agree with Father. A trial court’s custody determination is afforded greater deference
than other decisions and we will not reweigh the evidence or credibility of the witnesses. Thorp,
390 S.W.3d at 877. Mother’s claims ignore our standard of review and are replete with
speculation about facts outside the record. We are therefore not “firmly convinced” the trial
court’s judgment was wrong. Murphy, 536 S.W.2d at 32; Meseberg, 580 S.W.3d at 65.
Points III and IV are denied.
Point V: Adoption of Father’s Proposed Judgment
The trial court ordered the parties to submit proposed findings of fact and conclusions of
law. In finding for Father, large portions of the trial court’s judgment adopted Father’s proposed
findings verbatim. Mother notes such a practice by trial courts is disfavored and, though not per
se reversible error, “it is unwise in a contested case and this Court and the Supreme Court of
Missouri have repeatedly warned against it.” Tribus, LLC v. Greater Metro, Inc., 589 S.W.3d
679, 699 (Mo. App. E.D. 2019). Mother claims the judgment is internally inconsistent,
confusing, prejudicial, and unsupported by substantial evidence, indicating the trial court did not
carefully consider the issues.
Father argues the portions of the judgment adopted verbatim from his proposed findings
of fact and conclusions of law were not prejudicial, noting the judgment materially differs from
his proposed judgment. Specifically, Father notes the trial court did not adopt his proposed
custody and visitation schedules, attorney fee requests, and financial support proposals.
13
This Court “does not condone [verbatim adoption of proposed findings] by a trial court,
and strongly encourage[s] all trial courts to avoid such a practice.” Arcese v. Daniel Schmitt &
Co., 504 S.W.3d 772, 778 n.7 (Mo. App. E.D. 2016) (citing State v. Griffin, 848 S.W.2d 464
(Mo. banc 1993)). We agree with Father the judgment is not a “rubber stamp” of his proposed
findings of fact and conclusions of law. Here, the trial court’s partial adoption of Father’s
proposed findings did not indicate a lack of careful consideration because the court modified the
proposed findings to reflect its view of the evidence. Tribus, LLC, 589 S.W.3d at 699.
Point V is denied.
Point VI: Tax Benefits
In the parties’ underlying dissolution judgment and settlement agreement, they agreed to
claim MB on their taxes in alternating years. The Illinois settlement agreement further provided
Father would waive his right to claim MB on his taxes for four years as consideration for settling
the distribution of the parties’ other assets. In its modification judgment, the Missouri trial court
stated, “Father shall be entitled to the tax exemption for the child as set forth in the previous
judgment” and “In all other respect[s] not specifically modified herein, the provisions of the
[Illinois Judgment] . . . shall remain in full force and effect.”
Mother asserts the modification judgment violated principles of res judicata by
permitting Father to relitigate the Illinois trial court’s judgment of the parties’ division of tax
benefits. Specifically, Mother contends she is entitled to a 2021 tax benefit for MB under the
Illinois judgment, but the modification judgment improperly transferred the benefit to Father.
She claims the modification judgment ignored the settlement agreement by effectively returning
the right to claim MB to Father.
14
Father argues Mother’s claim is moot because the trial court’s order did not return the tax
exemption to him; it simply reaffirmed the parties’ arrangement in the underlying judgment. We
agree. The underlying judgment and settlement had two parts: (1) the parties’ right to claim the
tax benefit alternates every year and (2) Father agreed to waive his right to the benefit for four
years. Nothing in the Missouri modification judgment contradicted the agreement the parties
reached in their Illinois settlement. Mother concedes her claim about the trial court’s alleged
modification of the tax benefit is speculation. We disagree with her characterization of the
modification judgment: it specifies the Illinois judgment still controls the parties’ tax exemption.
Point VI is denied.
Point VII: Mother’s Motion for New Trial
The trial court entered its judgment on February 8, 2021. On February 25, 2021, Father
moved to amend the judgment. On March 13, 2021, Mother moved for a new trial. The trial
court dismissed Mother’s motion for new trial as untimely under Rule 78.04, which provides:
“Any motion for new trial and any motion to amend the judgment or opinion shall be filed not
later than thirty days after the entry of the Judgment.”
Mother moved for a new trial over thirty days after the judgment was entered. She
appears to argue she can extend her deadline to file a post-trial motion by bootstrapping it to
Father’s timely post-trial motion. Mother cites no authority supporting her position. Her posttrial motion was untimely and the trial court did not err by dismissing it.
Point VII is denied.
Point VIII: Child Support
Before the modification judgment, Father paid $312 per month in child support. In its
modification judgment, the trial court found Father earns $10,093 per month and Mother earns
15
$2,100 per month. The court also found Father pays $410 per month for MB’s health insurance.
Using a Form 14, the trial court found Mother’s presumed monthly child support obligation was
$86, but did not order her to pay support because of the parties’ disparate incomes.
Mother claims the trial court erred by modifying the child support judgment under the
Uniform Interstate Family Support Act (“UIFSA”), section 454.1500. Mother claims in
conclusory fashion (1) personal jurisdiction was not established over her or (2) even if personal
jurisdiction was established, the trial court lacked authority to modify the support order.
Mother’s claims are unpreserved.10
Unlike subject matter jurisdiction, personal jurisdiction
objections can be waived if not timely and properly raised. Interest of A.R.B., 586 S.W.3d 846,
859 (Mo. App. W.D. 2019). Similarly, as explained in Point I, failure to timely challenge the
trial court’s statutory authority also waives the issue. Hightower, 304 S.W.3d at 733.
Mother appears to argue the trial court abused its discretion by no longer requiring Father
pay child support to Mother, despite physical custody transferring to Father. Mother cites no
authority supporting this position. Mother also claims the court overestimated her monthly
income and overestimated the cost of MB’s health insurance, concluding the court’s calculations
were against the weight of the evidence. Finally, Mother cites section 452.377.11(2) to argue the
trial court had to specify which party should pay for transporting MB between their residences.
Mother’s arguments essentially ask this Court to reweigh the evidence and conclude the
trial court abused its discretion by ending Father’s child support obligation. We find no abuse of
discretion and will not reweigh the evidence on appeal. Sulkin, 619 S.W.3d at 159. The
judgment favors Mother: she was presumed to owe child support to Father, but the court
eliminated her obligation to contribute. Regarding Mother’s transportation cost argument,

10 We note Point VIII violates Rule 84.04(e), which requires appellants to “include a concise statement describing
whether the error was preserved for appellate review; if so, how it was preserved; and the applicable standard of
review.” Mother included no preservation statement.
16
section 452.377.11 applies after the court approves the custodial parent’s relocation.11
Nothing
in the record indicates Father has relocated from his residence in St. Charles, Missouri, and
Mother cites no authority expanding the applicability of section 452.377.
Point VIII is denied.

Outcome: For the reasons stated above, we affirm.

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