Elnicki v. Caracci

• Decision Date: 03 June 2008
• Docket Number: No. ED 89669.,ED 89669.
• Citation: 255 S.W.3d 44
• Parties: Jeffrey K. ELNICKI, Appellant, v. Michelle D. CARACCI, Respondent.
• Court: Missouri Court of Appeals

255 S.W.3d 44

Jeffrey K. ELNICKI, Appellant, v.Michelle D. CARACCI, Respondent.

No. ED 89669.

Missouri Court of Appeals, Eastern District, Division Two.

June 3, 2008.

James J. Leightner, Diekman & Leightner, St. Louis, MO, for Appellant.

Stefan J. Glynias, Matthew S. McBride, Lashly & Baer, P.C., St. Louis, MO, for Respondent.

Before LAWRENCE E. MOONEY, P.J., BOOKER T. SHAW, J., and KURT S. ODENWALD, J.

KURT S. ODENWALD, Judge.

Introduction

Jeffrey K. Elnicki(Father) appeals from the trial court's judgment modifying a decree of dissolution of marriage (Judgment), inter alia, awarding Michelle D. Caracci(Mother) temporary child support and medical expenses for the parties' minor child not covered by Mother's insurance policy, half of the post-secondary expenses for the minor child, the dependency exemption for the child, and attorney's fees and costs.We reverse and remand to the trial court for a hearing on the motion for change of judge filed by Father prior to the hearing on the modification request.

Background

On October 19, 1990, the trial court entered a decree of dissolution of marriage between Father, an attorney, and Mother, a paralegal.¹On September 17, 1992, the parties tendered an Amended Settlement and Separation Agreement, which became part of their decree of dissolution, granting Mother with the care, custody and control of the minor child, A.C.Additionally, Father agreed to pay $600 per month in child support, representing 74 percent of A.C.'s average monthly expenses.Father agreed to pay 74 percent of all expenses not paid through insurance or health plan coverage provided by his employer, and Father received the dependency exemption for A.C. for tax purposes.

On November 20, 1996, the parties executed another agreement and the court entered a Judgment Modifying Decree of Dissolution.Father agreed to pay $800 per month as child support for A.C. from November 20, 1996 through September 1, 1997, and $736 per month thereafter.Father would cover A.C.'s health insurance through his employer and pay 100 percent of all uncovered medical, dental, and psychiatric care expenses, including co-pays.

On August 9, 2000, the parties executed another agreement and the trial court entered a judgment incorporating its terms.The court deemed Father's obligation for child support current through July 31, 2000, and abated his child support for two months, after which time Father would again pay $736 per month in child support.Father and Mother would claim the dependency exemption in alternate years.Additionally, the parties established a procedure regarding submission of medical expenses to Father for Mother's reimbursement.

On June 30, 2005, Mother filed a motion to modify the court's previous orders(Motion to Modify), asking the court to increase child support; require both parties to obtain health insurance coverage for the minor child and incorporate the amounts paid into Form 14, still requiring Father to pay 100 percent of all non-covered medical, dental and psychiatric expenses; award the dependency exemption for all years to Mother; require a new Qualified Medical Child Support Order for Father's present and future employers; and order Father to pay Mother's attorney fees and costs of the modification.The motion alleged a change of circumstances so substantial and continuing as to make the terms of the Judgment unreasonable.Among the changes, Mother contended that A.C. incurs increased costs now that she is older, and that Father's income has increased substantially since the date of the last modification.

Motion for Change of Judge

Father filed an Application for Change of Judge on June 30, 2006.In his motion, Father alleged that the trial judge demonstrated "systematic and continuing hostility and prejudice" toward Father during conferences and settings on January 18, March 15, April 4, May 24, and June 20, 2006.Father alleged that the trial judge demonstrated his hostility and prejudice toward him by prohibiting Father from stating his positions and supporting facts on a Motion for Contempt and Motion to Modify, prohibiting Father from fully answering questions posed by the trial court, and making a statement from the bench on June 20, 2006, in "an extremely hostile tone," without having heard any evidence, that Father"dodged a bullet" by settling with Mother on the Motion for Contempt.Further, Father alleged that because of the trial judge's systematic and continuing prejudice, he could not have a fair trial on the Motion to Modify.

On July 19, 2006, before hearing the Motion to Modify, the trial court took up Father's Application for Change of Judge.Father argued that under Section 508.090,²the trial court's duty was to determine whether the motion met the statutory scheme, and if so, to then transfer the case.Father stated that the trial court could not decide whether it was prejudiced.He added the "straw that broke the camel's back" that caused him to file the Application for Change of Judge was the trial judge's statement that Father dodged a bullet.

Mother argued that the motion for change of judge should be denied because it was filed out of time under Missouri Supreme Court Rule 51.05.³

The trial court responded that it would proceed under Section 508.090.It then explained:

And the first process, with respect to case law, is to address this issue.The first step in this whole process is to determine if the motion that was filed by the petitioner in this case is procedurally accurate . . .

So we go to the second step . . . . to determine if the petition for application [for change] of judge is substantially adequate. . . .And by that, does the petition allege certain facts which warrant disqualification for cause pursuant to 508.090. . . .And if it is determined by the Court that the petition is substantially adequate, then there's two options before the Court.Number one is to grant a hearing, or to recuse himself, and therefore it goes to — the change of judge is granted.

If the Court determines, from reading the petitioner's application for change of judge is inadequate, then that's where the process ends.In other words, if it fails to state a cognizable reason for recusal the judge at that point denies the motion to disqualify and we proceed on the case.

The trial court found that Father's Application for Change of Judge was not substantially adequate because it did not allege certain facts that would warrant disqualification.The trial court concluded that Father's motion "hasn't met that second step in the process.In other words it's not substantially adequate, that alleges certain fact[s] which would warrant the disqualification."In finding that Father's motion for change of judge failed to allege facts warranting disqualification, the trial court stated the prejudice forming the basis of the disqualification must arise from an extra-judicial source, and that it knew nothing of the case outside of what it learned from the previous court appearances, did not know the parties, and that all previous matters addressed were procedural issues and discovery issues.

Motion to Modify

The trial court heard Mother's Motion to Modify on July 19, August 22, and September 28, 2006.During trial, Mother discussed 34 exhibits, but offered none into evidence.Additionally, Father discussed 19 exhibits, but also offered none into evidence.The trial court entered its Judgment on February 9, 2007.

The trial court entered its Findings of Fact and Conclusions of Law and found that the evidence was "clear and convincing that there exists sufficient, substantial and continuing changes of circumstances to justify modification of the dissolution of marriage as previously modified."Therefore, the trial court entered its Judgment and Decree, modifying the prior dissolution decree and modification decree requiring the payment of increased child support from Father, payment of expenses for A.C.'s involvement in the People to People Ambassador Program, requiring proportionate payment of post-secondary education, granting the dependency exemption to Mother, and requiring Father to pay Mother's reasonable attorney's fees totaling $25,958.50, plus costs.

Points on Appeal

Father raises seven points on appeal.First and foremost, in Point VI, Father alleges the trial court erred, abused its discretion and misapplied the law in denying Father's motion for change in judge because the court improperly determined that the motion was substantially inadequate and did not allege certain facts that would warrant disqualification.Specifically, Father's motion recited seven reasons for disqualification, alleging that the trial court systematically prohibited Father from stating his positions in support of his motion, systematically prohibited Father from answering questions at court appearances and hearings, made statements regarding the previous motion for contempt filed by Mother, and demonstrated escalating hostility and prejudice against Father throughout the proceedings.

Among Father's other points on appeal, he claims error in the trial court's award of child support, attorney's fees, and extraordinary expenses.Because we reverse and remand for a hearing on the motion for change of judge, the Judgment is a nullity and the six remaining points are moot.

Discussion

We begin our discussion with Father's Point VI, whether the trial court erred in denying Father's motion for a change of judge.Father's motion was the trial court's first order of business before the parties argued the motion to modify.

In reviewing the trial court's denial of a motion for change of judge, the appellate court presumes that a trial judge will not preside over a proceeding in which the judge cannot be impartial.Williams v. Reed,6 S.W.3d 916, 920(Mo.App. W.D.1999).Appellate review of a decision on a motion to disqualify is limited to deciding whether the trial court's ruling on the...