428 S.W.3d 655
Mo. Ct. App.2013Background
- Husband and Wife married in 1993 and had three children (2001 son, 2004 twins).
- Wife alleged in dissolution that children were born during the marriage but not of the marriage; she claimed D.L.T. was the biological father.
- Wife and Husband separated in October 2011; dissolution petition filed February 2013 with custody requests by Husband.
- Paternity testing ordered; tests excluded Husband as biological father.
- Wife filed a paternity action naming D.L.T. as respondent and Husband as third-party respondent; Husband then sought dismissal and to intervene for third-party custody/visitation.
- Court denied Husband’s motions in dissolution and granted dismissal from the paternity action; issue on appeal is whether Husband could intervene.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Husband could intervene as a matter of right | Husband argues he has a direct interest in custody, warranting intervention. | Wife contends no direct interest since paternity is the sole issue and custody not raised. | No; no direct, immediate interest entitling intervention. |
| Whether custody/visitation issues were properly at stake in the paternity action | Paternity proceedings inherently affect custody and visitation. | Paternity petition raised only paternity, not custody. | Custody/visitation were not raised in the paternity action; court limited to paternity. |
| Whether Husband may pursue third-party custody via an independent action | Husband cannot pursue in dissolution; seeks independent action under T.Q.L. | Dissolution cannot adjudicate custody of non-marital children; independent action permissible. | Independent action for third-party custody permissible; denial of intervention affirmed. |
Key Cases Cited
- Allred v. Carnahan, 372 S.W.3d 477 (Mo.App.2012) (standard for intervention; liberal view toward allowing intervention)
- In re Clarkson Kehrs Mill Transp. Dev. Dist., 308 S.W.3d 748 (Mo.App.2010) (intervention—direct, immediate interest required; broad but limited)
- State ex rel. Nixon v. Am. Tobacco Co., 34 S.W.3d 122 (Mo.banc 2000) (definition of interest and relation to action)
- DeWitt v. Lechuga, 393 S.W.3d 113 (Mo.App.2013) (UPA action may include custody provisions only if raised; not standalone authority)
- In re T.Q.L., 386 S.W.3d 135 (Mo.banc 2012) (independent action available for third-party custody claims)