Griffin v. Wade

¶1dissenting.

¶2I respectfully dissent. In my opinion the trial court’s dismissal of Mr. Wade’s motion to modify based on a finding that Missouri is an inconvenient forum was an abuse of dis*337cretion. I would reverse and remand for evidentiary hearing on the merits.

¶3The majority opinion recites the explanation of the abuse of discretion standard that appears in Anglim v. Missouri Pacific Railroad Co., 832 S.W.2d 298 (Mo. banc), cert. denied, 506 U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701 (1992). That explanation includes, “Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration;.... ” 832 S.W.2d at 303.

¶4I believe the circumstances of this case are such that the trial court’s ruling defies logic; that the ruling is so arbitrary and unreasonable that it is an affront to any sense of justice; that it demonstrates a complete lack of consideration of existing circumstances. In my opinion, under the circumstances that appear from the record before this court, the trial court’s action denies Mr. Wade administration of prompt justice, a right guaranteed the citizens of this state by Art. I, § 14 of the Missouri Constitution.1See Loftus v. Lee, 308 S.W.2d 654, 660 (Mo.1958).

¶5At the time the trial court dismissed the motion to modify, the children were ages 14 and 13. The son, Michael, was a high school freshman; the daughter, Amanda, an eighth-grader. There had never been a proceeding in the court of any other state directed to custody of the children or the visitation rights of their parents. The ages of the children are significant. They are in their formative years. How will an extensive delay in adjudicating their parents’ custody rights affect them? By the time a new action is commenced in another state and tried, will either or both have attained the age of majority?

¶6The purpose of the Uniform Child Custody Jurisdiction Act (the UCCJA) was discussed in Lydic v. Manker, 789 S.W.2d 129 (Mo. App.1990):

¶7Writers addressing the purposes of the UCCJA have suggested that its drafters, in including the part of the act which Missouri has enacted as § 452.450.1(2) [RSMo 19862], intended for a state which enters an original custody decree to maintain jurisdiction of subsequent proceedings so long as that state continues to have significant contacts with a party or the child who is the subject of the proceeding. It has been suggested that:

Where a custody decree is entered in Missouri, and the child and a parent move to another state, Missouri continues to have preferential jurisdiction to hear subsequent custody and visitation matters, so long as one parent continues to reside in Missouri.

¶8Kruger [Jurisdiction Under the Uniform Child Custody Jurisdiction Act, 44 J.Mo. Bar 467, 469 (1988)]; In Kumar v. Superior Court of Santa Clara Cty., 32 Cal.3d 689, 186 Cal.Rptr. 772, 776, 652 P.2d 1003, 1007 (Sup.1982), a California court stated this principle as follows:

Exclusive continuing jurisdiction is not affected by the child’s residence in another state for six months or more. Although the new state becomes the child’s home state, significant connection jurisdiction continues in the state of the prior decree where the Court record and other evidence exists and where one parent or another contestant continues to reside.

¶9Id. at 131 [footnote omitted].

¶10The children and their mother resided in Missouri at the time of the dissolution of marriage. They continued residing there after the dissolution for a period of time before moving to Florida. They returned to Missouri and again resided there before moving to Colorado to be with the mother’s present husband. After moving to Colorado, the children visited father in Missouri on numerous *338occasions pursuant to his “reasonable visitation privileges.”

¶11Mr. Wade based his request for modification, to some extent, on an event that occurred in Missouri (details of which are not in the record). He sought joint legal and physical custody with the children’s mother, primary custody of Amanda, and specific custodial periods with Michael.

¶12Under these circumstances, in my opinion, the trial court’s finding that the Missouri court was an inconvenient forum was an abuse of discretion. If the determination stands, the children will be subjected to an extended delay before their custodial circumstances are decided; Mr. Wade will be subjected to additional delay and, most likely, duplicative expenses in conjunction with orienting new counsel on the facts of the case and arranging for evidence available in Missouri to be available in Colorado. Such a result promotes a belief sometimes attributed to the public that legal proceedings take too long, cost too much and never end.

¶13I fail to see how the trial court’s dismissal of the motion to modify based on a finding that Missouri is not the convenient forum is anything but arbitrary, unreasonable and unjust. The application of the UCCJA forum non conveniens statute, § 452.470, RSMo 1994, under these facts is contrary to the purpose of the act as identified in Lydic v. Manker, supra.The trial court’s ruling thwarts its responsibility to administer justice without delay.

¶14I deem the majority opinion to be contrary to this- court’s ascertainment in Lydic v. Manker, swpra, of the purpose of the UC-CJA. The majority opinion is in conflict with and contrary to that decision in the respect stated. Pursuant to Rule 83.01, I certify the case for transfer to the Supreme Court of Missouri.