Dunkle v. Dunkle

• Decision Date: 29 March 2005
• Docket Number: No. ED 84272.,ED 84272.
• Citation: 158 S.W.3d 823
• Parties: Dirk A. DUNKLE, Respondent, v. Jacqueline S. DUNKLE, Appellant.
• Court: Missouri Court of Appeals

158 S.W.3d 823

Dirk A. DUNKLE, Respondent, v. Jacqueline S. DUNKLE, Appellant.

No. ED 84272.

Missouri Court of Appeals, Eastern District, Division Five.

March 29, 2005.

Daniel R. Schramm, Chesterfield, MO, for appellant.

Daniel P. Card II, Jefferson City, MO, for respondent.

Michael C. Todt, St. Charles, MO, co-counsel for respondent.

OPINION

GLENN A. NORTON, Presiding Judge.

Jacqueline Dunkle ("Mother") appeals the trial court's judgment of dissolution that awarded Dirk Dunkle ("Father") sole physical and legal custody of their two children. We affirm in part and reverse in part.

I. BACKGROUND

Mother and Father were married and had two children. They lived with their children in the St. Louis area, but eventually they separated and Father filed a petition for dissolution. Before trial, the trial court entered two successive pendente lite ("PDL") judgments that set forth shared custody arrangements, the first requiring Mother's periods of custody to be supervised and the second allowing unsupervised custody. Father filed a motion to modify the second PDL judgment, indicating that he had already accepted a new job in Columbia, Missouri, that he planned to move there with the children in a few days and that he sought to modify the existing PDL judgment "so that visitation with [Mother] continues in accordance with the new location of the children's residence."

Three weeks later, which was about one month before trial, and by consent of the parties, the court entered an amended PDL judgment that gave Father custody of the children during the week, while Mother had custody on all but one weekend up until the time of trial. The judgment stated that "[t]he parties stipulate that this amended PDL judgment shall not be precedent in the trial of the dissolution. The court shall not consider this in making its decision relative to custody."

The dissolution case was tried before a family court commissioner, who heard evidence from numerous witnesses including Mother, Father and the children's guardian ad litem. According to the guardian, both parents were capable of exercising physical custody, but in light of Father's move the guardian did not make a recommendation to the court regarding physical custody. The guardian generally expressed some concern about whether Father would be cooperative if given sole custody, given his move to Columbia and his position that joint legal custody was not appropriate. But the guardian also had reservations about Mother's continuing need to properly take medication and be monitored. Both parties agree that Mother, who took primary responsibility for child care until the onset of her illness, suffers from bipolar personality disorder and must take certain medications regularly. The commissioner found that Mother's disorder did not interfere with her parenting abilities and that Father's attempts to portray her as mentally unbalanced were "pathetic." There was also sharply disputed evidence regarding whether Mother had coached her daughter to make allegations of sexual abuse against the son of Father's girlfriend.

The circuit court entered a judgment of dissolution confirming the commissioner's findings on December 4, 2003. After noting that the issue of custody was "a close one," the court awarded Father sole physical and legal custody of the children and gave Mother visitation on alternating weekends and holidays and for one-half of the summer. The court mailed notice of the judgment to the parties on December 8, 2003. On December 30, 2003, Mother filed a "Motion to Amend the Judgment or, in the Alternative, for a New Trial." The court denied her motion on March 3, 2004, treating it as an untimely motion for rehearing under Rule 129.13(a)¹ because it was not filed within 15 days of the court's mailing.² On March 12, 2004, Mother filed her notice of appeal.

II. DISCUSSION

A. Jurisdiction

Father moves to dismiss this appeal for lack of jurisdiction, arguing that Mother's notice of appeal was untimely filed. We disagree. Whether this court has jurisdiction is a question of law that we review de novo. Bounds v. O'Brien, 134 S.W.3d 666, 670 (Mo.App. E.D.2004).

Under the normal civil procedure rules, a motion for new trial and a motion to amend the judgment are both considered "authorized after-trial motions," which, if timely filed, extend a trial court's control over its judgment from 30 days up to 90 days. See Puisis v. Puisis, 90 S.W.3d 169, 171-72 (Mo.App. E.D.2002) (citing Rule 78.06, Rule 81.05 and Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 393 n. 1 (Mo. banc 1993)). Rule 78.04, formerly Rule 73.01(a)(4)-(5) (1999), permits the filing of a motion for new trial or a motion to amend the judgment within 30 days after the judgment is entered. If filed within that time, the court has up to 90 days in which to rule on those motions, after which they are deemed overruled. Rule 78.06; Rule 81.05(a)(2).

But special rules exist for certain juvenile and family law matters tried before a family court commissioner, and these rules supersede all inconsistent statutes and court rules. Rule 129.01; Rule 129.02. In such cases, a party "may file a motion for rehearing by a judge of the court" within 15 days from when the court mailed notice of its judgment. Rule 129.13(a).³ The judge is then obligated to rule on the motion for rehearing promptly, otherwise it is deemed overruled after 45 days. Rule 129.13(b).

Here, Mother's "Motion to Amend the Judgment or, in the Alternative, for a New Trial" was filed more than 15 days after the court mailed its notice of the judgment but less than 30 days after the judgment was entered. Father contends that Rule 78.04 only applies in cases heard before an Article V judge and that Rule 129.13 applies here because it is inconsistent with and therefore supersedes Rule 78.04 in its entirety. If Father is correct, then a motion seeking the relief authorized by Rule 78.04 would have no effect and Mother's motion would be treated as an untimely motion for rehearing under Rule 129.13. There being no other basis for extending the time for appeal, the judgment would have become final 30 days after it was entered and her notice of appeal, which was filed more than ten days later, would be untimely. See Rule 75.01; Rule 81.05(a)(1); Rule 81.04(a). An untimely notice of appeal would require us to dismiss the appeal for lack of jurisdiction. Rogiers v. Boatmen's Trust Co., 918 S.W.2d 285, 286 (Mo.App. E.D.1996).

Mother argues, on the other hand, that there is no inherent inconsistency between the "permissive right" to seek a rehearing under Rule 129.13 and the "alternative remedy" of asking the judge to amend the judgment or order a new trial under Rule 78.04. She contends, therefore, that her motion seeking an amended judgment or a new trial was timely filed and extended the court's jurisdiction over the matter for up to 90 days. See Rule 78.04; Rule 81.05(a)(2). Since the court ruled on her motion within that time, the judgment became final upon the court's ruling and her notice of appeal, which she filed within ten days of that ruling, would have been timely filed, giving this Court jurisdiction over the appeal. See Rule 81.05(a)(2)(B); Rule 81.04(a).

No court has squarely addressed the issue presented here: whether the deadlines applicable to motions for rehearing under Rule 129.13 are inconsistent with, and therefore supersede, the normal deadlines applicable to motions for new trial and other authorized after-trial motions under Rule 78.04, Rule 78.06 and Rule 81.05. Prior decisions, however, have implicitly found the two sets of rules to be inconsistent insofar as they relate to a motion for new trial. We take this opportunity to expressly articulate the inconsistency that until now has only been implicitly recognized. Still, we find no inconsistency with respect to a motion to amend the judgment.

In Washington v. Washington, this Court used Rule 129.13, not Rule 78.04, to analyze a motion similar to the one here, finding it untimely. 18 S.W.3d 44, 45-46 (Mo.App. E.D.2000). Although the motion in that case was styled as a motion for new trial and the trial court purported to grant a new trial, on appeal this Court treated it as a motion for rehearing in order to be "[c]onsistent with Rule 129." Id. at 45 n. 1. The motion had been filed more than 15 days after notice of the court's original judgment was sent to the parties, so this Court found the motion untimely under Rule 129.13(a). Id. at 46. And even if the motion for rehearing had been timely filed, it would have been deemed overruled for all purposes once the court failed to rule on it within 45 days. Id. (citing Rule 129.13(b)).

The Court specifically did not reach the issue of whether the trial court could have granted a rehearing or new trial on its own motion within 30 days of the judgment under Rule 75.01. Washington, 18 S.W.3d at 46 n. 2. Nor did the opinion mention Rule 78.04, Rule 78.06, or Rule 81.05. But Washington implicitly found the two sets of rules to be at least somewhat inconsistent. Had the Court treated the motion in Washington as a motion for new trial under Rule 78.04, its analysis of the jurisdictional question would have been different because the motion was timely filed under that rule,⁴ and as a timely authorized after-trial motion it would have extended the trial court's jurisdiction enough to allow the trial court to properly grant the "rehearing."⁵ See Rule 81.05(a)(2). By expressly treating the motion as one for rehearing in order to be "[c]onsistent with Rule 129," the Court implicitly recognized that the normal civil procedure rules are inconsistent with Rule 129.13 as to the filing of a motion for new trial. See id. at 45 n. 1.

We also find guidance in another case that applied the deadlines of Rule 129.13 instead of the normal civil procedure rules. See State ex rel. Harper v. Goeke, 12 S.W.3d 717, 718-20 (Mo.App. E.D.1999). In Harper, this Court...