DeGennaro v. Alosi

• Decision Date: 08 January 2013
• Docket Number: No. WD 73854.,WD 73854.
• Citation: 389 S.W.3d 269
• Parties: Kimberly DeGENNARO, Respondent, v. Theodore ALOSI, Appellant.
• Court: Missouri Court of Appeals

389 S.W.3d 269

Kimberly DeGENNARO, Respondent,

v.Theodore ALOSI, Appellant.

No. WD 73854.

Missouri Court of Appeals, Western District.

Jan. 8, 2013.

Nancy A. Garris, Blue Springs, MO, for respondent.

Allen S. Russell, Jr., Kansas City, MO, for appellant.

Before Division Two: LISA WHITE HARDWICK, Presiding Judge, and JAMES M. SMART, JR., and KAREN KING MITCHELL, Judges.

KAREN KING MITCHELL, Judge.

Theodore M. Alosi appeals the judgment of the trial court that denied his motion to modify child support and awarded $15,000 in attorney's fees to Kimberly DeGennaro. Because no final appealable judgment was entered, this appeal is dismissed.

Factual and Procedural Background

Alosi and DeGennaro were never married. They have two children, Jacob (born in October 2002) and Emma (born in August 2004). A judgment determining custody for Jacob was entered in Solano County, California, in November 2003. ¹ A judgment determining custody for Emma and support for both children was entered in Carroll County, Missouri, in September 2005. Currently, Alosi lives in California, and DeGennaro lives with both children in Missouri. Alosi filed a motion to modify custody and support on August 23, 2007. DeGennaro filed a motion for attorney's fees. The court held a hearing on May 12, 2009, at which time, Alosi testified and presented evidence in support of his motion. At the next scheduled hearing, on July 13, 2009, the court did not take additional evidence but, instead, heard argument on DeGennaro's motion to dismiss filed earlier that day. The court ultimately overruled the motion to dismiss and scheduled a hearing for DeGennaro to present her evidence on January 27, 2010.

On the January hearing date, Alosi and DeGennaro spent most of the day negotiating custody. The parties edited and marked up a draft parenting plan prepared by the appointed guardian ad litem (GAL), eventually reaching an agreement on the terms for custody (proposed parenting plan). The court questioned both Alosi and DeGennaro on the record, and both acknowledged that they had reviewed the proposed parenting plan individually and with counsel and that they agreed to and understood its terms. They further acknowledged that they understood the trial court's intent to enter a judgment and order modifying custody consistent with the proposed parenting plan. The court noted that the issue of child support and DeGennaro's request for attorney's fees had not yet been resolved and requested that additional documents be submitted, without further hearing or argument, so that the court could rule on the remaining issues. The parties acknowledged this request for additional information and did not request any additional hearing dates.

On January 27, 2010, both parties signed one original draft of the proposed parenting plan. The plan was still in rough form, with handwritten edits appearing throughout the document. The proposed parenting plan was not admitted into evidence while the court was making a record; rather, the court directed the parties to make copies and to deposit the original with the court. Specifically, after the attorneys informed the court that both parties had signed the original proposed parenting plan, the court stated: “If we find a copier, let's get copies, or all copies; then, if you will, deposit the original with the court file before we leave this afternoon.”

The court summarized the day's proceeding and the next steps for the parties:

It's my understanding of the procedure here [that the guardian ad litem] will ... endeavor to duplicate [the proposed parenting plan] exactly as you all have agreed to it today, but smoothing it up from where we made any pending changes and the like, and submit [it to] both Counsel for approval as to form. It will then be forwarded to me.

I might—well, I can prepare a judgment, covered judgment to go with that approval. I think I can handle that.

As I said, I will ask Counsel to forward all of your responses to discovery at least dealing with financial matters, tax returns, employment records, all those matters as opposed to filing them with the case where they would be public record. If you would send those to my chambers ... I will review those and endeavor to address the remaining issues as promptly as I can.

Both attorneys and the GAL stated that there was nothing further to address, and the court adjourned.

The record does not reflect that the original draft of the proposed parenting plan was ever deposited with the court, as directed. Nor does the docket sheet indicate that a finalized version of the parenting plan was ever filed with the court. One copy of the proposed parenting plan, a typed document with handwritten edits, marked as “GAL Exhibit 4,” is included in the appendix of both parties' briefs on appeal. The proposed parenting plan, however, is not included in either the legal file or as an exhibit in the record on appeal.

The docket entry dated January 27, 2010, states in pertinent part:

It is therefore: ORDERED that previous provisions in this Court and, to the extent still operative, in the earlier judgment of the California court, herein registered, pertaining to custody, visitation, parenting time, support, and all other financial matters touching on the welfare of the minor children are set aside. In there [sic] stead, the Court approves the Parenting Plan submitted and directs that forthwith and hereafter the parties comply with the provisions of the same. Counsel are to provide the Court, in chambers, all responses to discovery requests heretofore provided or received such that the Court can prepare an appropriate Form 14 for the purpose of establishing child support and for the additional purpose of ruling on the remaining issue of Petitioner's request for attorney's fee[s]. Upon receipt of the aforesaid material and review by the Court a formal judgment entry will be made. Case taken under advisement for the last stated limited purposes.

David H. Miller, Judge.

The proposed parenting plan was not attached to the order, and, as noted above, there is nothing in the record to indicate that it had been filed with the court.

Alosi provided the requested discovery documents on or about January 29, 2010. DeGennaro provided a statement of attorney's fees on or about December 13, 2010. Thereafter, on December 31, 2010, approximately eleven months after the agreement was reached regarding the proposed parenting plan, the court entered a “Judgment Entry” (judgment).

In the second paragraph of the judgment, the court stated:

[T]he cause came before the Court on 27 January 2010 at which time the parties, following prolonged negotiations of that date, presented a parenting plan which the Court approved and which resolved all outstanding issues between the parties excepting proposed modification of the level of child support paid or to be paid by [Alosi] and [DeGennaro's] request for attorney's fees. Leave was granted to counsel to supplement the file with discovery previously provided and it was stipulated by the parties that the Court would resolve these remaining issues without additional evidence or argument.

The judgment denied Alosi's request for modification of child support and awarded DeGennaro $15,000 in attorney's fees.²

Other than mentioning the parenting plan in the second paragraph, the court did not address custody and failed to attach any parenting plan to the judgment. Alosi filed a Motion for New Trial and/or Motion to Amend Judgment on January 28, 2011, requesting that the trial court grant a new trial on the issues of child support and attorney's fees and that the court amend its judgment to include the parenting plan. The trial court did not rule on the motion, and, therefore, it is deemed denied. Alosi filed a timely appeal.

Analysis

Alosi raises three points on appeal. First, he argues that the trial court erred by failing to include the parenting plan or an order related to custody modification in the judgment. Second, he argues that the trial court erred in denying his motion to modify child support in that the court failed to either reject the Form 14 filed by either party or prepare its own Form 14. Finally, he argues that there was insufficient evidence to support the award of attorney's fees to DeGennaro.

Before we consider the merits, we must first address jurisdiction, as “[w]e have a duty to determine sua sponte whether we have jurisdiction over the appeal.” Melson v. Traxler, 356 S.W.3d 264, 268 n. 9 (Mo.App. W.D.2011). Because we conclude that there is no final appealable judgment, we must dismiss this appeal without addressing the merits of Alosi's arguments.

The right to an appeal is statutory, and, absent one of the exceptions expressly stated in section 512.020, a final judgment is a prerequisite to appellate review. City of St. Louis v. Hughes, 950 S.W.2d 850, 852 (Mo. banc 1997) (citing Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995)). None of the statutory exceptions apply in the present case; therefore, a final judgment is required. See§ 512.020.³ “A final and, therefore, appealable judgment disposes of all issues for all parties in the case and leaves nothing for future determination.” Collins v. Collins, 923 S.W.2d 487, 489 (Mo.App. S.D.1996).

In some instances, “if the combined effect of several orders entered in a case, including an order denominated ‘final judgment,’ is to dispose of all issues as to all parties, leaving nothing for future determination, then the collective orders combine to form the final judgment' from which an appeal can be taken.” RLI Ins. Co. v. S. Union Co., 341 S.W.3d 821, 828 (Mo.App. W.D.2011). In other words, if an interlocutory order fully disposes of an issue, then the subsequent entry of a final order that incorporates the interlocutory order by reference can constitute a final judgment for purposes of appeal, so long as the final order is denominated a “judgment” or “decree,” it fully disposes of all...