SUGGESTIONS IN SUPPORT OF RESPONDENT’S MOTION TO DISMISS

 

            This Court lacks subject matter jurisdiction to because (1) Illinois is the home state of both minor children, (2) Respondent filed a petition for dissolution of marriage in Illinois prior to the time when Petitioner filed this cause of action, and (3) Illinois has assumed jurisdiction.

 

1.  Missouri Courts lack jurisdiction because Illinois is the home state of both minor children.

Petitioner, represented by law firm Owens & Robinson, presented testimony in Illinois stating that both minor children resided with Respondent continuously beginning in February of 2008.  Please see Exhibit A, attached.  Petitioner waited until January 30, 2009, to file this cause of action.  Even if Petitioner’s testimony is accurate, more than six months elapsed between the date of filing this cause of action, and the date when the minor children began residing in Illinois.  Consequently, Missouri courts lack jurisdiction to enter any order or decree with relation to custody and support of the minor children.

Here, none of the conditions in R.S.Mo. §452.450 are satisfied.  Both children resided in Illinois during the entire six-month period preceding the filing of this cause of action.  Additionally, there is no evidence than the elements of R.S.Mo. §452.450.1(2) or (3) are satisfied.

 

2.  Missouri lacks jurisdiction because Respondent filed a petition for dissolution in Illinois prior to the time when Petitioner filed this cause of action.

Petitioner and Respondent both filed their petitions on January 30, 2009.  Respondent filed her petition at 9:24 a.m. in Illinois, while Petitioner filed his petition in Missouri at 4:14 p.m.  Please see Exhibits B and C, attached.

Under these circumstances, the filing in Missouri must be dismissed.  R.S.Mo. §452.465.1 states that a Missouri court shall not exercised jurisdiction if “at the time of filing the petition” a proceeding concerning custody is pending in another state.  Because Respondent’s cause of action was pending in Cook County, Illinois, prior to the filing of this cause of action, this action must be dismissed.              

 

3.  Missouri Courts lack jurisdiction because a proceeding concerning the custody of the children is pending in Illinois.

R.S.Mo. §452.500 provides that Missouri courts “shall recognize and enforce an initial or modification decree of a court of another state which has assumed jurisdiction” of a custody proceeding.

On April 22, 2009, the Circuit Court of Cook County, Illinois, entered an order assuming jurisdiction of the dissolution of marriage of the parties.  The order further states that Illinois is the home state of both minor children.

Pursuant to R.S.Mo. §452.500, Missouri courts are required to recognize and enforce the order relating to the dissolution and custody.  Because Illinois has assumed jurisdiction, Petitioner is not afforded a right, under Missouri law or otherwise, to litigate in a different state.

 

 

Respectfully Submitted,

                                                                                    THE SMITH LAW FIRM, LLC

 

 

                                                                                    __________________________

                                                                                    Neil Smith, MBN 56789

                                                                                    225 S. Meramec, Suite 532

                                                                                    Clayton, MO 63105

                                                                                    (p) 314-725-4400

                                                                                    (f) 800-805-4563

                                                                                    neil@neilsmithlaw.com

 

CERTIFICATE OF SERVICE

 

            The undersigned certifies that a copy of the foregoing was sent via facsimile (to 314-361-6561) and first-class U.S. Mail, postage prepaid, on this day, May 20, 2009, to ______________, Attorney for Petitioner, ________________, Saint Louis, Missouri 63108.