Supreme Court sends custody dispute back to closed courthouse

In a ruling that was both a long time coming and unexpectedly fast, a narrowly divided Missouri Supreme Court ruled March 31 that a Jackson County judge must hold a hearing before awarding temporary child custody in a divorce case.

But with courthouses now closed until at least early May due to the COVID-19 pandemic, when that hearing will take place is anyone’s guess.

Judge Sandra Midkiff had faced competing motions for temporary custody from Kelsey and Ryan Koehler for legal and physical custody of the couple’s toddler son. Midkiff sided with the father without conducting an evidentiary hearing but granted the mother supervised visitation.

Last November, the mother fought that decision by filing a writ petition in the Court of Appeals Western District, which considered the petition for more than a month before denying it in early January. The mother then turned to the Supreme Court, which accepted an oppositional filing from the father but took no other action on the case before issuing its 4-3 opinion last week.

In a footnote, the court cited a rule allowing it to dispense with normal appellate procedures “as is necessary in the interest of justice.” Still, Jonathan Sternberg, a Kansas City-based appellate attorney who represented the mother, said he’d never seen an appellate court make such an immediate decision on anything but the most straightforward issues.

“The notion that the Supreme Court, without briefing or argument, would issue a published opinion 4-3 on something like this — that was a little foreign to me,” he said.

The legal dispute centered on whether the mother had actually contested the father’s request for custody. The statute governing temporary custody says the parties’ motions “must be supported by an affidavit.” The mother’s motion didn’t include an affidavit, though her factual allegations were verified by her notarized signature under oath.

The father argued that the verification wasn’t good enough under the statute, but the Supreme Court’s majority disagreed. In an unsigned opinion, Chief Justice George W. Draper III and Judges Mary R. Russell, Patricia Breckenridge and Laura Denvir Stith said Midkiff had exceeded her authority.

“Given the contentious nature of the custody dispute and Mother’s requests for a hearing to determine temporary custody, the record establishes Mother objected to temporary custody being awarded solely on the basis of the motions,” the court said. “Accordingly, the circuit court was required to conduct a hearing before awarding temporary custody of Son.”

In a dissent, Judge W. Brent Powell, joined by Judges Zel M. Fischer and Paul C. Wilson, said the mother should have pursued other remedies in the circuit court. Following her initial custody decision, Midkiff had ordered the parties to reach a stipulated modification of the temporary custody order. But Powell said nothing indicated those negotiations had taken place.

Powell — a former Jackson County circuit judge — also noted a practical difficulty: At the time of the decision, the case’s April 20 trial date was “quickly approaching.”

“The circuit court’s and the parties’ availability, especially in light of the disruptions caused by the COVID-19 pandemic, may not permit the court to conduct a hearing on this matter before the case goes to trial,” Powell wrote. He added that it would be better simply to allow the circuit court to determine custody at trial, as any new temporary custody order “will, at best, be of limited value to the parties at this advanced stage of the litigation.”

The day after the opinion was issued, the court extended its statewide ban on most in-person court hearings until May 1. Previously, it was set to expire April 17.

Sternberg said he had no idea when a hearing would take place.

“I did not expect this to take quite so long,” he said. “I don’t think my trial counsel did,  either. I don’t think my opposing counsel did,  either.”

Nancy Garris, an attorney in Blue Springs representing the father, disagreed with the ruling but also said that a hearing is unlikely anytime soon.

“With the court closures, as soon as they open back up again their dockets are going to be jammed,” Garris said. “I doubt very seriously that she’ll be able to get a hearing on the motion for temporary custody any time before the fall. In which case, we might as well get our trial date.”

The case is State ex rel. Koehler v. Midkiff, SC98308.