J.M.Z. v. D.L.M.

• Decision Date: 28 August 2018
• Docket Number: No. ED 105986,ED 105986
• Citation: 559 S.W.3d 19
• Parties: J.M.Z., Respondent, v. D.L.M., Appellant.
• Court: Missouri Court of Appeals

559 S.W.3d 19

J.M.Z., Respondent,

v.D.L.M., Appellant.

No. ED 105986

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: August 28, 2018

CORRECTED September 4, 2018

FOR APPELLANT: Mary Ann Weems, Eric M. Tuncil, 7751 Carondelet Ave., Ste. 505, Clayton, Missouri 63105-3316.

For Respondent: Arthur H. Nissenbaum, 2016 S. Big Bend Blvd., St. Louis, MO 63117.

ROY L. RICHTER, Presiding Judge

D.L.M. ("Father") appeals from the trial court's judgment ordering Father to pay to the guardian ad litem ("GAL") the sum of $5,500 "for his reasonable GAL fees" from the GAL's appointment to a Motion to Modify the Paternity Judgment action that was voluntarily dismissed without prejudice. We reverse and remand.¹

I. Background

A Judgment Pursuant to Uniform Parentage Act was entered on August 24, 2012, regarding one minor child between Father and J.M.Z. ("Mother"). Approximately four years later, on May 4, 2016, Father filed a Motion to Modify Paternity Judgment. During the pendency of the Motion to Modify Paternity Judgment, on July 18, 2016, GAL was appointed for the minor child involved in the case. First, Mother was ordered to pay $200 and Father was ordered to pay $500 for costs and fees for GAL. On September 6, 2016, Mother was ordered to pay $1,000 and Father was ordered to pay $2,000 to GAL "as a deposit toward GAL fees on or before November 1, 2016."

On February 24, 2017, Father filed a Memorandum of Voluntary Dismissal of his motion, which was entered on February 28, 2017, and dismissed the pending matter.

On April 6, 2017, GAL filed his motion for remaining fees. Father filed a Motion in Opposition to GAL's request for fees based on a lack of jurisdiction of the court to grant judgment on behalf of GAL. That motion was heard on April 27, 2017, and a stipulation was entered by the parties on May 18, 2017. The parties stipulated that the sum of $5,550 in GAL fees remained unpaid, inclusive of $2,000 previously ordered to be paid by Father on September 6, 2016; and GAL fees were incurred prior to the filing of Father's voluntary dismissal of this matter.

On June 14, 2017, the court granted GAL's request for fees and ordered Father to pay the sum of $5,500² , which represented the $3,500 in outstanding fees due to GAL in addition to $2,000 in fees already awarded to GAL prior to the dismissal of the case.

On June 29, 2017, Father filed a Motion for Rehearing, requesting that the matter be reheard by a judge of the family court. On July 14, 2017, the family court judge entered a Judgment and Order, denying GAL's Motion for Fees. However, on July 21, 2017, GAL filed a Motion for Rehearing and/or Motion to Set Hearing Date. After the parties appeared through counsel with GAL and argument was heard, the trial court entered a Judgment on August 21, 2017, which ordered Father to pay to GAL the sum of $5,500 for his reasonable GAL fees.

Father filed his timely notice of appeal on September 29, 2017. This appeal follows.

II. Discussion

Father raises two points on appeal. First, he alleges the trial court erred in entering a judgment affirming an award of GAL fees against Father because it was a misapplication of Missouri law and interpretation of the Missouri statute in that the award was pursuant to a motion for GAL fees filed 41 days after the voluntary dismissal of the underlying cause of action and was not for payment of statutorily authorized costs/fees.

Second, Father alleges the trial court erred in entering a judgment affirming an award of GAL fees against Father because it was a misapplication of Missouri law in that the GAL did not file his motion for fees until 41 days after the voluntary dismissal of the underlying cause of action, thus, even if the court retained jurisdiction as to an award of GAL fees as costs post-voluntary dismissal, the court lost jurisdiction over its judgment thirty days after the entry of the judgment/dismissal as no timely post-trial motion was filed.

A. Standard of Review

A trial court's judgment is reviewed under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Paradise v. Midwest Asphalt Coatings, Inc., 316 S.W.3d 327, 329 (Mo. App. W.D. 2010). We will affirm the judgment of the trial court unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court erroneously declared or applied the law. Murphy, 536 S.W.2d at 32. We will accept all evidence and inferences favorable to the judgment and disregard all contrary evidence. 8000 Maryland, LLC v. Huntleigh Fin. Servs. Inc., 292 S.W.3d 439, 445 (Mo. App. E.D. 2009).

Additionally, "[t]he determination of attorney fees, including those incurred by a GAL, is within the sound discretion of the trial court and should not be reversed unless the award is arbitrarily arrived at or is so unreasonable as to indicate indifference and lack of proper judicial consideration." Gross v. Jackson County, Missouri, 537 S.W.3d 393, 397 (Mo. App. W.D. 2018) (internal citations omitted). But the question of "[w]hether a trial court has authority to award attorneys' fees is a question of law [that] we review de novo. " Id. (internal citations omitted).

B. Analysis

Whereas jurisdiction is a threshold matter, we first discuss Father's alleged errors with regard to jurisdiction. If there is no final judgment, we lack jurisdiction and may not consider the merits. Superlube, Inc. of Camdenton v. Innovative Real Estate, Inc., 147 S.W.3d 880, 881 (Mo. App. S.D. 2004). Under Rule 67.02(a), a plaintiff's voluntary dismissal of a civil action without an order of the court:

is effective on the date [the dismissal] is filed with the court." State ex rel. Fortner v. Rolf, 183 S.W.3d 249, 251 (Mo. App. 2005) (citing Grady v. Amrep, Inc., 139 S.W.3d 585, 590 (Mo. App. 2004) ). Moreover, once a case has been dismissed under Rule 67.02, "it is as if the suit were never brought." Givens v. Warren, 905 S.W.2d 130, 132 (Mo. App. 1995). Consequently, a trial court loses jurisdiction to enter any subsequent orders regarding the dismissed action. Kirby v. Gaub, 75 S.W.3d 916, 917 (Mo. App. 2002). No appeal can be taken from the dismissal. State ex rel. Moore v. Sharp, 151 S.W.3d 104, 107 (Mo. App. 2004). "The circuit court may take no further steps as to the dismissed action, and any step is viewed a nullity." State ex rel. Rosen v. Smith, 241 S.W.3d 431, 433 (Mo. App. 2007).

State ex rel. Frets v. Moore, 291 S.W.3d 805, 812 (Mo. App. S.D. 2009) (footnote omitted).

The General Assembly has mandated exceptions to the general rule that the trial court loses jurisdiction to enter any subsequent orders regarding the dismissed action:

Upon the plaintiff dismissing his suit, ... the defendant shall recover against the plaintiff his costs; and in all other cases it shall be in the discretion of the court to award costs or not, except in those cases in which a different provision is made by law.

Section 514.170, RSMo. 1994.

"[T]here is a dearth of cases regarding the time frame for awarding costs with a statutory exception to the general rule...." Matter of Gurgel, 543 S.W.3d 135, 139-40 (Mo. App. S.D. 2018) (denying the claim that a probate court lost jurisdiction and therefore erred in awarding attorney fees after the parties had entered into a joint dismissal and more than 30 days had lapsed). Our appellate court has previously been faced with a consideration of whether guardian ad litem fees may be assessed after thirty days from the dismissal of the action. In re Marriage of Roberts, 989 S.W.2d 272, 276 (Mo. App. S.D. 1999). In Roberts, a case of first impression, the appellate court found that the trial court had jurisdiction³ to award guardian ad litem fees that required judicial investigation and determination even more than three months after voluntary dismissals of a modification proceeding under a chapter 452 statute that authorized the fee to be taxed as costs. Id. The Southern District found that the version of Section 452.423.4 in effect when the issue of guardian ad litem fees was presented to the trial court mandated the awarding of such fees because the statute’s requirement that the court award a "reasonable fee ... to be set by the court" indicated that the court was to utilize discretion in doing so and the statute specifically permitted the exercise of discretion in determining whether to award the fees as part of the costs or as a judgment, and against parties or from public funds. Id. Notably, the court explained,

There is no indication in the statute that the legislature intended that the trial court would lose jurisdiction to award such fees upon the voluntary dismissal by a party seeking relief. Likewise, there is no indication that the legislature intended that the parties could defeat a claim for guardian ad litem fees simply by dismissing their claims before a motion for such fees could be heard and determined.

Id.

The version of Section 452.423.4 in effect in April 1997 when the appellant filed his motion for GAL fees prior to the dismissals provided:

The guardian ad litem shall be awarded a reasonable fee for such services to be set by the court. The court, in its discretion, may award such fees as a judgment to be paid by any party to the proceedings, or may tax such fees as costs to be paid by the party against whom costs are taxed, or from public funds. Such an award of guardian ad litem fees shall constitute a final judgment in favor of the guardian ad litem. Such final judgment shall be enforceable against the parties in accordance with chapter 513, R.S.Mo.

This statute was amended, effective July 1, 1997, to remove the language stating that the court "may tax such fees as costs to be paid by the party against whom costs are taxed."

The Roberts court analyzed the decision in Givens v. Warren, 905 S.W.2d 130, 132 (Mo. App. E.D. 1995), noting that the court "retains jurisdiction with respect to costs specifically taxable against the plaintiff under [ Section] 514...