In re the Marriage of: Lewis Hendrix and Kimberly Ann Hendrix. Lewis Hendrix, Petitioner/Respondent v. Kimberly Ann Hendrix, Respondent/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: In re the Marriage of: Lewis Hendrix and Kimberly Ann Hendrix. Lewis Hendrix, Petitioner/Respondent v. Kimberly Ann Hendrix, Respondent/Appellant. Case Number: 26470 Handdown Date: 06/29/2005 Appeal From: Circuit Court of Webster County, Hon. Daniel Max Knust Counsel for Appellant: Mark J. Murphy, J. Michael Murphy Counsel for Respondent: James R. Royce Opinion Summary: None Citation: Opinion Author: Nancy Steffen Rahmeyer, Judge Opinion Vote: AFFIRMED. Prewitt, J., concurs in J. Rahmeyer's opinion and concurs in the separate concurring opinion of J. Shrum. Shrum, J., concurs in result in a separate opinion. Bates, C.J., and Rahmeyer, J., concur in J. Shrum's opinion. Garrison, P.J., dissents in separate opinion. Barney, J., concurs in dissenting opinion of P.J. Garrison. Parrish, P.J., dissents in a separate opinion and concurs in dissenting opinion of P.J. Garrison. Opinion:

On May 27, 2003, (FN1) following requests by Lewis Hendrix ("Father") and Kimberly Hendrix ("Mother") to modify the dissolution decree, the trial court entered a judgment purporting to modify the decree as to child custody. (FN2) The modification came about when the parties, their attorneys, and the guardian ad litem agreed on the day of trial to enter a stipulation which settled the custody issues. The stipulation, which was drafted by the guardian ad litem, was signed by the parties, their respective attorneys, and the guardian ad litem. The parties agree that the trial court did not take any testimony on the matter but simply entered judgment on the written stipulation and subsequently attached parenting plan. On December 11, 2003, Mother filed a motion to set aside the judgment purporting to modify the dissolution. Mother cited Rule 74.06(b) (FN3) and claimed the judgment was entered through fraud, mistake, inadvertence, or excusable

neglect; she asserted she had not seen the parenting plan that was attached to the judgment of May 27, 2003, nor had she ever agreed to the parenting plan. (FN4) Mother further averred that the court conducted no hearing and made no findings based upon any evidence regarding the custody of the children. On July 6, 2004, after the court conducted a hearing with the parties, their attorneys, and the guardian ad litem, the court denied Mother's motion to set aside the judgment. (FN5) It is the denial of the motion to set aside the judgment that is the subject of this appeal. In Mother's sole point on appeal, she avers the trial court erred in failing to set aside the judgment modifying the custody provisions because the trial court lacked jurisdiction to modify the prior custody judgment because 1) there was no evidentiary hearing and 2) there was no evidence received to show that there was a change of circumstances to warrant a modification. Mother states the issue is a simple one, whether a trial court can "modify a custody decree and transfer primary physical custody of minor children from one party to the [sic] another, without holding a hearing or hearing any evidence, even if the parties stipulate to the transfer." If this were a direct appeal from the judgment modifying the decree, that may well be the issue; however, this case is before us on a motion to set aside a judgment pursuant to Rule

Rule 74.06(b) provides: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is irregular; (4) the judgment is void; or (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment remain in force. Mother relies upon "(4)," that the judgment is void, to support her claim that the judgment should be set aside; she relies upon her claim that the failure to hold a hearing is "jurisdictional." Mother does not argue in this appeal that the trial court erred in refusing to set aside the judgment based upon her claims of fraud, mistake, and excusable neglect. As such, that claim is abandoned and our analysis focuses on whether the judgment of the court is void for lack of jurisdiction. It is said that the jurisdiction of a court to adjudicate a controversy rests on three essentials: (1) jurisdiction of the subject matter; (2) jurisdiction of the res or the parties; (3) and jurisdiction to render the particular judgment in the particular case. Charles v. White, 112 S.W. 545, 549 (Mo. 1908). The first two are the grand subdivisions of jurisdiction. While jurisdiction is often used ambiguously, "in its stricter sense, it means judicial authority over the subject matter and

parties; in its broader sense, it includes the power to grant specific relief in cases within such authority." In re Marriage of Neal, 699 S.W.2d 92, 94 (Mo. App. S.D. 1985). Jurisdiction of the subject matter is derived from the law and cannot be conferred by consent. Dept. of Social Services v. Branch, 929 S.W.2d 875, 881 (Mo. App. S.D. 1996). A court has jurisdiction if it has judicial authority over the subject matter acted upon, judicial authority to act as to the persons before it, and judicial authority to render the order which it enters. State Family Services v. Bullock, 904 S.W.2d 510, 512 (Mo. App. S.D. 1995). Therefore, subject matter jurisdiction does not turn upon the specific case. State ex rel. Laws v. Higgins, 734 S.W.2d 274, 280 (Mo. App. S.D. 1987). "It is authority to determine the general question involved; if a petition states a case belonging to a general class over which the authority of the court extends, that court has 'subject matter jurisdiction.'" Id. (citing Neal, 699 S.W.2d at 94). The specific issue before us is whether the alleged failure to comply with section 452.410, (FN6) deprived the court of subject matter jurisdiction, thus making the judgment void. We find that it does not. It is clear that the Circuit Court of Webster County had jurisdiction over modification of dissolution actions. What Mother is challenging, despite her assertions to the contrary, is the court's jurisdiction over her particular case. Lack of jurisdiction of the particular case, as opposed to lack of jurisdiction of the class of cases to which this case belongs, is a defect which must be timely raised or is waived. Neal, 699 S.W.2d at 94. In the present case, Mother made no objection at the time the stipulation was entered and no objection at the time the judgment was entered. She did not challenge the jurisdiction of the trial court to hear the matter until her motion to set aside the judgment several months later. We reject Mother's claim that the trial court lacked subject matter jurisdiction to modify the dissolution. The dissent argues that the failure of the trial court to conduct a hearing with the "presentation of facts" constitutes a judgment in excess of the court's jurisdiction and a void judgment. The dissent cannot be arguing that the court did not make a finding of a substantial and continuing change of circumstances because the court made that specific finding. To argue that would invalidate any judgment that did not strictly comply with the mandates of a particular statute. For instance, section 452.305 states the court must make numerous findings regarding the residency of the parties, that thirty days have elapsed since the filing of the petition, there is no reasonable likelihood that the marriage can be preserved, and that the court has considered and made provisions for child custody, support of each child, maintenance, and disposition of property. A failure to enter one of those findings in the decree surely does not void the decree and make it subject to attack as void at any time in the future. Likewise, section 452.312 mandates that social security numbers, if disclosed by the pleadings, must be present in a decree dissolving a marriage, modifying a decree, or ordering child

support. There are numerous other "findings" the court "shall" make that certainly involve the appropriateness of custody orders or child support. See section 452.375. A failure to include all of the findings pursuant to the statute has not been held to render the judgment "void" for lack of subject matter jurisdiction. The dissent must be maintaining that, even though the statute does not specifically state that a hearing must be held and evidence formally adduced, it is implied in public policy. Apparently, as part of the public policy, the parties cannot agree on facts through a written stipulation. Despite the fact that normally a stipulation to any fact relieves the other party from the burden of proving that fact, the dissent would hold any stipulation to be invalid in a modification hearing. See Hagedorn v. Adams, 854 S.W.2d 470, 477 (Mo. App. W.D. 1993) (finding that a valid stipulation dispenses with the necessity of proof of matters stipulated). Such a holding would make a nullity of local court rules which allow for entry of judgment upon an affidavit and void all judgments that have been entered by affidavit. (FN7) The dissent does not answer the question as to how much evidence is sufficient. Would there be sufficient evidence if the parties had verbally stated their exact written agreement? Can the sufficiency of the evidence at the hearing render the judgment void? We think not. As noted in In re Marriage of Boston, 104 S.W.3d 825 (Mo. App. S.D. 2003): We said that jurisdiction involves the right, power and authority of a court to act, and '[t]he issuing court has jurisdiction if it has judicial authority over the subject matter, judicial authority over the parties, and judicial authority to render the judgment entered.' Significantly, we said that '[o]nce a court has jurisdiction over the subject matter and the parties in a given case, it is virtually impossible to distinguish acts in excess of jurisdiction from mere error or abuse of discretion.' We concluded that if the trial court had made a mistake, it was a mistake of law which did not deprive it of jurisdiction and, as a mistake of law, it should have been addressed on direct appeal.

Id. at 834-35 (citations omitted) (quoting Valdez v. Thierry, 963 S.W.2d 459, 460-61 (Mo. App. S.D. 1998)). We do not believe the failure to hold an evidentiary hearing after a written stipulation was filed in this case deprived the court of subject matter jurisdiction. The issue before this court was whether this judgment of modification was void for lack of subject matter jurisdiction. We answer that it was not. The judgment is affirmed. (FN8)

Footnotes:

FN1. The file stamp on the judgment is July 22, 2003; attached to the judgment is the stipulation entered on May 27, 2003, a parenting plan, and a Form 14. FN2. In actuality, the parties were awarded joint legal and joint physical custody in the dissolution and in the modification; however, the merits of the modification are not at issue in this appeal. Mother testified at the hearing on the motion to set aside the judgment that the only provision in the parenting plan that she did not agree to and that was different from the signed stipulation was that Father's address was to be used for educational, mailing and religious purposes. FN3. All rule references are to Missouri Court Rules (2005), unless otherwise stated. FN4. That claim was disputed by her former attorney at the later hearing. Mother testified she received the judgment, which contained the parenting plan, in August 2003 from the court and consulted her attorney at that time. FN5. At the hearing on the motion, the court heard the testimony of Mother and received into evidence the depositions of Mother's earlier trial counsel and his paralegal. The evidence indicated that on the morning that the stipulation was drafted it was clear the guardian ad litem was favoring granting physical custody to the father because of the serious concerns about Mother, particularly the facts that Mother worked nights and had various inappropriate "gentlemen" in life. One of the gentlemen was arrested at her home and another was a mental patient that was "freeloading" off her. There were allegations that Mother was denying visitations and arbitrarily leaving the children with men that were not well known to her. At that time, Mother's counsel advised Mother that he feared that the court might put restrictions on Mother's visitation. There was further evidence that from January 2003, when Mother left the family home, until Mother filed a motion to enforce the property judgment of the original decree and foreclosed on the home, the children primarily resided with Father in the family home where they had resided throughout their lives. The children continued to reside with Father when Mother moved to Kansas City, Missouri, in September 2003. Apparently, there was no problem with implementation of the parenting plan until after Mother moved to Kansas City, Missouri, from Marshfield, Missouri.

FN6. Section 452.410.1 states: Except as provided in subsection 2 of this section, the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. Notwithstanding any other provision of this section or sections 452.375 and 452.400, any custody order entered by any court in this state or any other state prior to August 13, 1984, may, subject to jurisdictional requirements, be modified to allow for joint custody in accordance with section 452.375, without any further showing. While we acknowledge there are cases which indicate the court is obligated to receive evidence in a custody proceeding, Riley v. Riley, 643 S.W.2d 298, 300 (Mo. App. W.D. 1982), we note that section 452.410 does not specifically state that a court must hold a hearing in order to modify custody. Compare section 452.410 with statutes that specifically set forth a hearing or evidence requirement: section 452.180 (court may order sole use and benefit of real estate "on due proof of such facts"); section 452.200 (court may enjoin spouse from squandering property "upon the hearing of the case"); section 452.310.8 (court authorized to enter a temporary order "upon motion of either party and an opportunity for the parties to be heard"). All statutory references are to RSMo 2000 unless otherwise indicated. FN7. In fact, the Thirtieth Judicial District, Rule 68.10, now allows for an entry of judgment upon affidavit when both parties have entered a written agreement determining custody and child support. FN8. As an alternative basis for affirming the judgment, I also concur in the concurring opinion of Judge Shrum. I further emphasize that this opinion in no way addresses whether an evidentiary hearing is required in a child custody case if that issue was properly before this Court.

Separate Opinion:

Originally, I shared the view that the case should be reversed because the judgment was a nullity; that it was a nullity because no evidence was put before the trial judge to support a finding that the modification was in the best interests of the children. However, upon further reflection and additional research, I have changed my vote. I have done so because I believe Mother is estopped from successfully claiming that the judgment of modification was a nullity. As authority for that proposition, I rely upon State ex rel. York v. Daugherty, 969 S.W.2d 223 (Mo.banc 1998). Preliminarily, I acknowledge that estoppel was not a theory argued to the trial judge or to this court. However, this is a Rule 74.06(b) case in which Mother attempts to set aside the modification judgment. The trial judge denied Mother's Rule 74.06(b) motion summarily, without assigning reasons for his ruling. Under the circumstances, this court is to affirm the trial court's judgment if there is any basis to do so in the record. Puisis v. Puisis, 90 S.W.3d 169, 173 n.7 (Mo.App. 2002). This standard of review attends when, inter alia, we find the trial court reached the right result, even if it be for the wrong reasons. In re D.M.S., 96 S.W.3d 167, 171-172 (Mo.App. 2003); Anderson v. Anderson, 869 S.W.2d 289, 292 (Mo.App. 1994). The factual background of this case includes the following. Mother, Father, their respective lawyers, and the children's guardian ad litem all appeared in open court on May 27, 2003, and announced a settlement of child custody and visitation issues. The agreement reached was put in writing by the guardian ad litem. Thereafter, a parenting plan was prepared in accordance with the stipulation. This parenting plan was filed when the judgment was ultimately entered. The parenting plan recited, among other things, that the proposed settlement was in the children's best interests, albeit without evidence to support that conclusion. (FN1) At the Rule 74.06(b) hearing, Mother's lawyer testified that when the agreement was made on May 27, 2003, Mother fully understood the stipulation and the terms of a proposed parenting plan; that he discussed this with her extensively before the stipulation was presented to the trial judge. Based on the stipulation, the trial judge signed a judgment dated May 27, 2003, and entered it July 22, 2003; thereafter Mother accepted the benefits of the judgment. This she did by adhering to the custody arrangement and visitation schedule set forth in the judgment. (FN2) Under the circumstances, Mother should be estopped from successfully claiming the judgment of modification was a nullity. See Daugherty, 969 S.W.2d 223. The Daugherty case arose after the respondent circuit judge began entering "final judgments" in family court actions. He was doing this in cases originally decided by commissioners without the benefit of circuit court confirmation via order and judgment (as required by '  487.030 (RSMo Supp. 1995)). Id. at 224. This action by Judge Daugherty was in response to Slay v. Slay, 965 S.W.2d 845 (Mo.banc 1998), and was based on his justifiable concern that the hundreds of

dissolution cases purportedly resolved by family court commissioners were not final judgments. Daugherty, 969 S.W.2d at 224. (FN3) The Supreme Court of Missouri dealt with Judge Daughtery's concerns and the need he perceived to enter belated judgments, as follows: "The parties to a void judgment are estopped from raising a lack of jurisdiction to enter a judgment in some circumstances. '"It has often been said that a void judgment is no judgment; that it may be attacked directly or collaterally. . . . It neither binds nor bars anyone. . . . [Y]et, notwithstanding, a party to such judgment may voluntarily perform it, by paying the amount adjudged against him and, when paid, no inquiry will be made as to the validity of the judgment; or he may perform the acts required by a void decree, or accept its benefits, and thereby estop himself from questioning the decree. In other words, a party to a void judgment or decree may be estopped from attacking it, either directly or indirectly."' Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W.2d 935, 936 (1928) (quoting Mohler v. Shank, 93 Iowa 273, 61 N.W. 981, 984 (1895)); see also RCA Mut. Ins. Co. v. Sanborn, 918 S.W.2d 893, 897 n.6 (Mo.App. 1996), and Matter of Estate of Tapp, 569 S.W.2d 281, 285 (Mo.App. 1978) (one accepting and retaining benefits of a void judgment is estopped to deny the validity of any part thereof, or any burdensome consequences, even where invalidity arises from want of subject matter jurisdiction). In nearly all classes of cases acted on by a family court commissioner, the judgment carries with it both burdens and benefits for each party." Id. at 225[5]. I view Daugherty and its reasoning sufficiently analogous to be dispositive of Mother's claims in this case. It is not speculative to say that out of the hundreds of potentially invalid commissioners' reports referenced in Daugherty, many would have dealt with child custody issues, yet that did not appear to be an impeding factor for the Daugherty court. Nor did the absence of evidence that a party accepted the benefits of a commissioner's findings seem to bother the Daugherty court. This is true even though many of the Slay/Daugherty type cases inferably dealt with child custody issues. Because Daugherty postdates the cases cited by Judge Garrison, I am persuaded that it governs. Based on Daugherty, I believe Mother is now estopped from attacking the modification judgment, either directly or indirectly. This is so even if the subject modification judgment was a nullity when entered.

Footnotes: FN1. Rule 68.10 promulgated by the Thirtieth Judicial Circuit (which includes Webster County) authorizes entry of judgment in certain domestic relations cases based solely upon affidavits. The rule encompasses motion to modify cases, including those where child custody and support issues are resolved. In the latter instance, written agreement of the parties is required. Moreover, the affidavit must contain "factual averments sufficient to support the relief requested." Rule 68.10(2). The Thirty-First Judicial Circuit (Greene County) has a similar rule, specifically Rule 2.3(c). However, the affidavit subdivision of that rule, i.e. Rule 2.3(c)(2), directs the use of form affidavits prescribed by the court. Those forms only require conclusory statements supportive of the proposed decree. Illustrative is Form 4, designed for modification by affidavit. In part, it reads: "12. Custody : Upon the basis of facts that have arisen since the prior judgment, or that were unknown to the Court at the time of the prior judgment, a change has occurred in the circumstances of the child(ren) or his/her/their custodian and the modification requested herein is necessary to serve the best interests of the child(ren)." It is noteworthy that 26 out of 45 Missouri circuits have rules that authorize submission of domestic relation cases to their respective courts on affidavits, without an oral evidentiary hearing. FN2. For instance, Mother testified she moved to Kansas City in September 2003, but did not take the children with her because it was not allowed via the judgment and parenting plan. She also complained that the parenting plan differed from the stipulation in the way it operated in everyday life. From this and other like testimony it is reasonable to infer Mother exercised her rights to visit per the modified decree, even though it did not turn out the way she had originally envisioned. FN3. The effect of Judge Daugherty's belated judgment confirming and adopting the findings and recommendations was that the judgment in Relator York's dissolution of marriage case became effective April 9, 1998, rather than June 10, 1996, when the Commissioner had originally entered the purported judgment. Id.

* * * * * * * *

Kimberly Ann Hendrix ("Mother") appeals from the trial court's denial of her motion to set aside a judgment granting a motion to modify child custody filed by her former husband, Lewis Hendrix ("Father"). On this appeal, Mother contends that the trial court lacked jurisdiction to modify the custody provisions of the original custody judgment. The original dissolution decree in this case, entered on March 19, 1999, awarded the parties joint legal custody and Mother "primary physical custody" of the two minor children born of their marriage, with Father to have parenting time as set out in an attached "Parenting Plan." (FN2) According to that "Parenting Plan," the physical placement of the children was to be with Mother, and Father was to have custody every other weekend, a minimum of one night per week, four non-

consecutive weeks during the summer, and on alternating holidays. A subsequent pleading indicated that the parties, along with the children, resumed living together in May 1999. Father's motion to modify, which led to the judgment under consideration, was filed on January 17, 2003. The pleadings indicate that the parties again separated in January 2003, and that Father had exercised actual physical custody of the children since then. Mother also filed a counter motion to modify on March 31, 2003, in which she requested a modification so that she would have physical custody of the children but with changed visitation by Father. The case was set for trial on May 27, 2003. The parties and their counsel, along with the court appointed guardian ad litem, appeared in court that day, but instead of having a trial, they entered into a written stipulation, the pertinent parts of which stated: The parties do hereby agree and stipulate to the following conditions regarding custody and support of their minor children:

1. The parties shall share joint legal and joint physical custody.

. . . .

1. Parenting time with the children shall be as follows:

Parties will prepare a parenting plan, which will maximize the time each parent spends with the children during that parent's non-working hours. As closely as possible the parties will alternate weekends and holidays and shall each have available to them one uninterrupted two-week period of parenting time in the summer;

1. Parties shall allow phone contact with the non-custodial parent;
2. Parties will communicate with each other regarding the health,

education and schedule of the children;

1. The non-custodial parent shall be the first option for a baby-sitter

should the need arise. Only if the non-custodial parent is unavailable should a baby-sitter be consulted.

No evidence was presented to the trial court then or at any time with reference to the motions to modify filed by Mother or Father. In its judgment bearing the date May 27, 2003, but file-stamped July 22, 2003, the trial court stated that "[t]he parties announce to the Court that an agreement has been reached resolving all issues in controversy," and "[t]he

parties executed a Stipulation which is attached hereto as Exhibit A, and incorporated herein by reference." The judgment provided, in pertinent part:

1. That there has been a substantial and continuing change of circumstances which include, but are not limited to the

following: a. That the minor children have lived continuously with [Father] since the date of the dissolution of marriage; b. [Mother] no longer resides with [Father], and the parties and children desire to change the provisions of the custody plan; and c. The circumstances of the parties and the unemancipated minor child (FN3) have changed to make the present order for custody and support unreasonable.

1. That the substantial and continuing change of circumstances noted above justifies a modification of Judgment and

Decree of Dissolution of Marriage as entered previously by this Court on March 1, 1999.

1. That the Parenting Plan, attached hereby as Exhibit B and incorporated herein by reference is in the best interest

of the minor children of the parties, and the parties should be ordered to comply with the terms contained therein. . . . .

THEREFORE IT IS ORDERED ADJUDGED AND DECREED THAT:

1. The parties are awarded the joint legal care, custody and control of the children, pursuant to the Parenting Plan

attached hereto. Said Parenting Plan is in the best interest of the minor children, and the parties are ordered to comply with the terms contained therein.

The "Parenting Plan" attached to the judgment provided that the primary physical residence of the children would be with Father rather than Mother. With this factual backdrop, Mother filed a motion pursuant to Rule 74.06(b) seeking to have the judgment set aside. At a hearing on that motion it was established that the "Parenting Plan" attached to the judgment was not signed by the parties and was not attached to the stipulation when the parties signed it. Mother testified that she did not agree to the terms of the "Parenting Plan," did not authorize her attorney to agree to it, and, in fact, did not see it until receiving a copy of the judgment after its entry. The record also indicates that the judgment entered by the trial court, as well as the "Parenting Plan" attached to it, was prepared by Father's attorney. While the paralegal for Mother's trial attorney (FN4)

testified that she sent Mother a copy of the judgment and "Parenting Plan" before it was signed by the court, she was unable to produce a file copy of any letter indicating that was done. Mother's motion was denied by the trial court. This appeal followed. Mother contends in her one point on appeal that the trial court erred in failing to set aside the judgment modifying the custody provisions of the original custody judgment because the trial court lacked jurisdiction to modify the prior custody judgment in that (1) no evidentiary hearing was ever conducted upon a motion modifying custody and, (2) there was no evidence received to show that there was any change in circumstances to warrant a modification or that a change in custody was in the best interests of the children. "It is a well-recognized principle that in order for a court to acquire jurisdiction to adjudicate, it must have jurisdiction of the subject matter, jurisdiction of the res or the parties, and jurisdiction to render a particular judgment in a particular case." Jenkins v. Craft, 63 S.W.3d 710, 712 (Mo.App. S.D. 2002) (quoting from Schneider v. Sunset Pools of St. Louis, Inc., 700 S.W.2d 137, 138 (Mo.App. E.D. 1985)). It has been held that a trial court must have all three in order to save a judgment from being void. Travis v. Contico Int'l., Inc., 928 S.W.2d 367, 370 (Mo.App. E.D. 1996). The trial court here had subject matter jurisdiction in that the motions to modify stated claims belonging to a general class over which the authority of the court extended. In re Marriage of Neal, 699 S.W.2d 92, 94 (Mo.App. S.D. 1985). In other words, the trial court generally had authority to decide motions to modify. It also had jurisdiction over the parties. The issue here is whether the trial court here had jurisdiction to enter the judgment in question or whether that judgment has any validity. With reference to jurisdiction to render the particular judgment in the particular case, the Supreme Court of Missouri said in State ex rel. Lambert v. Flynn, 154 S.W.2d 52, 57 (Mo. banc 1941), that it [p]artakes of the character of one or the other of the first two. Where the lacking element of jurisdiction goes to the personal privilege of the litigant, it may be waived. But when it depends on the power of the court under a public policy established by statute or otherwise, it cannot be waived. 'If the court cannot try the question except under particular conditions or when approached in a particular way, the law withholds jurisdiction unless such conditions exist or unless the court is approached in the manner provided, and consent will not avail to change the provisions of the law in this regard.' (citations omitted). In State ex rel. King v. Kinder, 690 S.W.2d 408, 409 (Mo. banc 1985), the court held that when a court of general jurisdiction engages in the exercise of special statutory power, its authority is strictly confined to that provided in the statute, and an order in excess of that jurisdiction is void. This court has cited King with approval in State ex rel. Laws v. Higgins, 734 S.W.2d 274, 279 (Mo.App. S.D. 1987).

The Supreme Court of Missouri has also said: A court's authority to adjudicate a controversy is based on three essential elements; the court must have jurisdiction of the subject matter, jurisdiction of the res or the parties, and jurisdiction to render the particular judgment in the particular case. Subject-matter jurisdiction concerns "the nature of the cause of action or the relief sought" and exists only when the court "has the right to proceed to determine the controversy or question in issue between the parties, or grant the relief prayed." In other words, subject-matter jurisdiction is "the power to hear and determine cases of the general class to which the proceedings in question belong. . . ." "A court obtains jurisdiction of the subject matter by operation of law. . . .' And, although a court may be a court of general jurisdiction, when it engages in the exercise of a special statutory power, the court is confined strictly to the authority given by the statute. Missouri Soybean Ass'n v. Missouri Clean Water Comm'n, 102 S.W.3d 10, 21-22 (Mo. banc 2001) (citations omitted). Modification of child custody decrees are governed by section 452.410.1, which provides, in part, that a court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. As this court said in In re D.M.S., 96 S.W.3d 167, 171 (Mo.App. S.D. 2003), "[t]here is a presumption that the party awarded custody in the original decree is a suitable custodial parent, and the party seeking a change of custody bears the burden of proving a change in circumstances requiring modification. A change of circumstances that warrants modification must be substantial or significant . . ." (citations omitted). This leads to the rhetorical question of how can there be a finding based on facts sufficient to meet this test when there is no evidence before the court? The trial court "derives its jurisdiction" to determine custody from section 452.410 and "is without jurisdiction to modify an original custody decree on a stipulation entered into by the parties but must conduct a hearing and can only act upon presentation of facts from which it may be determined that a change in custody would be in the best interests of the children." Riley v. Riley, 643 S.W.2d 298, 300 (Mo.App. W.D. 1982). There, the court said that an order "based as it was on an agreement by the parties and not on evidence of changed circumstances submitted to the court for evaluation, did not alter the custody provisions of the original decree. That order, at least as respects custody in decretal form, was a nullity." Id. This court followed Riley in State ex rel. Perrella v. McGuire, 757 S.W.2d 223, 225-26 (Mo.App. S.D. 1988), where

we said that a stipulation by divorced parents with respect to the modification of a child custody decree is insufficient and the trial court is not authorized to modify an original decree without holding a hearing and receiving evidence in support. We concluded in that case that the failure to hold a hearing and receive evidence was a jurisdictional defect that was fatal to the purported order. Id. at 226. Likewise, in Collet v. Collet, 759 S.W.2d 876, 877 (Mo.App. E.D. 1988), the Eastern District of this court held that an order purporting to rule on a motion to modify custody without a hearing at which evidence was adduced was in excess of the court's jurisdiction. See also M.F.M. v. J.O.M., 889 S.W.2d 944, 955-56 (Mo.App. W.D. 1995) (The father contended that the mother had made admissions establishing a change of circumstances. The court, noting the necessity of a finding that changes had occurred and that modification was necessary to serve the best interests of the child required by section 452.410, followed Riley and Perrella in holding that the court was without jurisdiction to modify a custody decree on a stipulation, it must conduct a hearing, and it could only act upon the presentation of facts from which it may be determined that a change in custody would be in the b est interests of the children.). Flickinger v. Flickinger, 494 S.W.2d 388, 390 (Mo.App. K.C. 1973), is significantly similar to the instant case in important respects. It was a modification action in which the parties entered into a stipulation that the court order the juvenile officer to make an investigation and that his report could be considered as evidence in the case. Id. As in the instant case, neither party testified and no evidence was heard. Id. The juvenile officer later sent a report to the court which, in camera, entered a modification judgment. Id. Over six months later, the mother moved to set the judgment aside (FN5) contending that she never agreed that the report would be the only evidence considered and that she had not seen it prior to the judgment. Id. at 390-91. The appellate court acknowledged that the trial court had general jurisdiction over the matter of child custody, but said that such proceedings are "deeply impregnated by public interest" and that "proceedings for change of a custody order are not and never should be cursory or perfunctory." Id. at 391. In ordering the judgment set aside, the court held that the moving party's burden to show by substantial evidence of new facts and changed conditions to authorize any modification "cannot be met without a regular hearing, with notice to the parties." Id. at 392. Citing Wood v. Wood, 400 S.W.2d 431, 437 (Mo.App. St.L. 1966), the Flickinger court said, "[i]t was the duty of the court below to receive evidence and to inquire into the propriety of the stipulation as to whether the same served the best interests of the children." Id. at 394. In response to the father's contention that the issue should have been raised in a motion for new trial, rather than a motion to set aside the judgment, the court said: An order purporting to rule on a motion to modify custody provisions in a divorce decree on the ground of changed conditions made without a hearing at which evidence is adduced has been held to be in excess of the court's jurisdiction,

and such jurisdictional defect can be raised at any time. Id. at 394. The court set aside "and for naught held" the judgment modifying the custody decree and remanded the case for a full hearing. Id. In the instant case, Mother filed the motion to set aside the judgment sooner than a similar motion was filed in Flickinger. Fleming v. Fleming, 562 S.W.2d 168, 169 (Mo.App. K.C. 1978), also involved a motion to modify custody where the trial court entered judgment based on a stipulation of the parties. The mother filed a petition for habeas corpus alleging that the judgment transferring custody was illegal because it was entered pursuant to a stipulation and not following a hearing at which evidence was produced from which the court could make the requisite findings required by section 452.410. Id. The court said that the question presented was the validity of a judgment entered on a stipulation without any evidence as to the best interests of the children being presented, noting that section 452.410 prohibits a court from modifying a custody decree unless it finds on the basis of facts that have arisen since the prior decree that a change has occurred and that modification is necessary to serve the best interests of the child. Id. at 170. The Fleming court concluded: it is clear the court was unauthorized to modify the original decree which vested custody in [mother] without a hearing. Such result is further dictated by section 452.410. Before modifying the decree the court was required to find from facts produced at a hearing that a modification to change the custody of children is necessary to serve the best interest. Id. In responding to the father's contention that the judgment was at most irregular and not subject to collateral attack, the court held that it resulted from an excess of jurisdiction and that its illegality resulted from a custody order that was changed only on a stipulation and agreement between the parties without a hearing and without evidence being adduced from which the court was justified in finding a change would serve the best interest of the child. Id. at 171. The requirement that the trial court have evidence before it supporting a finding of a change of circumstances and the best interests of the children is consistent with the fact that the parties may not enter into a separation agreement in a dissolution proceeding regarding custody, support and visitation of children that binds the trial court. section 452.325.2; Williams v. Cole, 590 S.W.2d 908, 911 (Mo. banc 1979). "[O]rders pertaining to the custody of minor children become the special obligation of the judge who must act upon evidence adduced in the case." Id. As decided by the cases cited above, a modification of custody entered upon an agreement or stipulation of the parties and not on evidence of changed circumstances is a "nullity," Riley, 643 S.W.2d at 300, and is "for naught held," Flickinger, 494 S.W.2d at 394. A party's right to contest a void judgment cannot be waived because it is a legal nullity from inception and is subject to a direct or collateral attack at any time. In re Marriage of Boston, 104 S.W.3d 825, 831

(Mo.App. S.D. 2003). A judgment modifying a custody decree based on a stipulation of the parties without a hearing and without evidence, and therefore in excess of jurisdiction, has even been held to be subject to attack in a habeas corpus proceeding. Fleming, 562 S.W.2d at 170-71. It is consistent, therefore, that one basis for setting aside a judgment under Rule 74.06(b), relied upon by Mother in this case, is that "the judgment is void." Father cites Blackburn v. Mackey, 131 S.W.3d 392, 394 (Mo.App. W.D. 2004), a modification action in which the entire agreement of the parties was placed upon the record by way of stipulation made in open court, counsel's statements and submission of a proposed judgment. The father contended on appeal that the trial court erred in denying him abatement of child support and in allocating mediation fees to him. Id. at 398. Specifically, he argued these portions of the judgment were not consistent with their agreement, and there was no independent evidence to support the court's findings. Id. Noting that the trial court had ample evidence by reason of the mother's income and expense statement as well as her Form 14 concerning abatement of the child support, the appellate court said: The court in a dissolution or modification case is not bound by the terms of an agreement between the parties with regard to custody, support, or visitation of children. Stipulations regarding child support are advisory only; the court alone bears the ultimate responsibility of ensuring that a child support decree reflects the best interests of the child. Id. at 399 (citations omitted). In Blackburn, the court did not discuss any of the several cases cited above establishing that a modification of custody based on a stipulation or without factual evidence is void and a nullity. The majority opinion in this case implicitly accepts the fact that the judgment in this case was void, but, drawing on State ex rel. York v. Daugherty, 969 S.W.2d 223 (Mo. banc 1998), applies an estoppel theory to conclude that the judgment must be affirmed. This is notwithstanding the fact that the trial court did not enter judgment on that basis and Respondent does not contend in this case that this theory should be applied. While Daugherty applied an estoppel theory under the facts of that case, I do not believe it applies here. Daugherty relied on Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W.2d 935, 936 (1928), for the proposition that while a void judgment is no judgment and may be attacked directly or collaterally, a party to a void judgment "may voluntarily perform it, by paying the amount adjudged against him and, when paid, no inquiry will be made as to the validity of the judgment; or he may perform the acts required by a void decree, or accept its benefits, and thereby estop himself from questioning the decree." Daugherty, 969 S.W.2d at 225. The premise there seems to be the voluntary nature of the performance of a judgment or decree, or acceptance of its benefits. Here, the majority opinion relies on Appellant moving to Kansas City without taking the children with her to apply estoppel to her attack on the judgment of modification. According to the parenting plan adopted by the trial court here,

Appellant was entitled to have the children on alternating weekends and major holidays. When asked why she did not "take the children with [her]" when she moved to Kansas City, she replied: Because I have a stipulation or I have a parenting plan and because I had received written documentation from [Respondent] saying that I couldn't have my children for various reasons according to the parenting plan. Applying Daugherty to find an estoppel here would require that Appellant, in order to avoid such a result, violate the court's judgment, even if it meant creating a breach of the peace, and take the children with her when she moved to Kansas City. The question also remains as to how her move to Kansas City without taking the children with her, presumably to live, is any more evidence of acquiescence in the judgment than if she moved to an adjoining town, across the street or merely stayed in the same house she had previously occupied without taking control of the children contrary to what was contained in the judgment. I do not believe that under these facts Daugherty would require that, in order to contest a modification judgment entered with no evidence to support it, a parent must either (1) abandon the rights of being with her children that were conferred by the contested judgment until the validity of that judgment could be adjudicated; or (2) violate the limitations of contacts with the children set by the judgment just so there could be no claim of acceptance of the judgment. Under the Daugherty theory applied by the majority opinion, those would seem to have been Appellant's only alternatives. See State ex rel. Soc. & Rehab. Serv. v. R.L.P., 157 S.W.3d 268, 273 (Mo.App. S.D. 2005). Additionally, unlike the situation in Daugherty, here there was no failure to apply statutory remedies to test the correctness of the judgment. Rather, Appellant utilized a procedure to attack the judgment, recognized in Flickinger as appropriate. The majority opinion also states that the "parenting plan was prepared in accordance with the stipulation." The stipulation stated only that the "[p]arties will prepare a parenting plan, which will maximize the time each parent spends with the children during that parent's non-working hours. As closely as possible the parties will alternate weekends and holidays and shall each have available to them one uninterrupted two-week period of parenting time in the summer." Even though there is substantial evidence that Appellant had not agreed to the contents of the parenting plan that was later filed, it is true that Appellant's attorney testified that she had agreed to the terms that were ultimately incorporated into the plan. With reference to that testimony, even if Appellant had agreed to those terms, that is still nothing more than an agreement of the parties which the cases cited earlier in this opinion say cannot be the basis of a modification. The majority also references the fact that a number of circuits have adopted local court rules relating to modifications. Local court rules are not authorized to permit something that Supreme Court rules prohibit. State ex rel. State v. Riley, 992 S.W.2d 195, 196 (Mo. banc 1999). It would seem that the same would be true concerning local court rules that permit

a procedure which the appellate courts have said is not authorized under our statutes. I would hold that the judgment modifying custody is void because it was in excess of the trial court's jurisdiction to enter such a judgment under these circumstances. It is significant that aside from the judgment being based solely on the stipulation in this case, that stipulation did not even purport to contain facts establishing a change of circumstances or that the change would be in the best interests of the children. I would also not hold that Daugherty requires us to affirm the judgment. Accordingly, I would reverse the judgment and remand the case to the trial court for further proceedings, including the reception of evidence on the issue raised in the motions to modify.

Footnotes: FN1. Judges Shrum and Rahmeyer have each authored opinions in this case. While both would result in affirmance of the judgment, the only one receiving concurrences by a majority of the court was Judge Shrum's. For that reason, the opinion by Judge Shrum will be referred to herein as the majority opinion.

FN2. Section 452.375.1(1) defines child "custody" as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof." It does not provide for "primary physical custody."

FN3. One child was ten and the other was nine when this judgment was entered. There is no issue on this appeal as to whether the phrase "unemancipated minor child" indicates that there was a change of circumstances as to one but not both of the children, and if so, which one.

FN4. Mother's counsel on this appeal is not the same attorney who represented her in the modification proceedings.

FN5. That motion was based on Rule 74.32 as it existed in 1973. That rule was the predecessor of Rule 74.06(b) relied on in this case by Mother. See In re Nelson, 119 S.W.3d 197, 201, n.4 (Mo. App W.D. 2003); Buford v. Ray, 950 S.W.2d 666, 667 (Mo.App. E.D. 1997).

* * * * * * *

and concur in the dissenting opinion of Garrison, J. I would reverse the judgment and remand. Furthermore, I deem the opinions by which this court has affirmed the judgment modifying child custody in this case to be contrary to cases that have held child custody cannot be modified without a hearing at which evidence is adduced. Cases that have so held include Collet v. Collet, 759 S.W.2d 876, 877 (Mo.App. 1988); State ex rel. Perrella v. McGuire, 757 S.W.2d 223, 225-26 (Mo.App. 1988); and Riley v. Riley, 643 S.W.2d 298, 300 (Mo.App. 1982). For the

foregoing reason, pursuant to Rule 83.03, I request that this case be transferred to the Supreme Court of Missouri. I further suggest that the importance of child custody issues deserve more consideration by trial courts than is afforded by a cold paper trail provided by litigants.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.