Marriage of Short, In re, No. 18078

• Citation: 847 S.W.2d 158
• Decision Date: 03 February 1993
• Docket Number: No. 18078
• Parties: In re the MARRIAGE OF Melody Renee SHORT and Arthur Bernard Short. Melody Renee SHORT, Appellant, v. Arthur Bernard SHORT, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 158

847 S.W.2d 158

In re the MARRIAGE OF Melody Renee SHORT and Arthur Bernard Short.

Melody Renee SHORT, Appellant, v. Arthur Bernard SHORT, Respondent.

No. 18078.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 3, 1993.

Robert R. Parrish, Joplin, for appellant.

Bruce A. Copeland, Joplin, for respondent.

CROW, Presiding Judge.

Melody Renee Short appeals from a decree dissolving her marriage to Arthur Bernard Short. In the record, the parties refer to each other as Renee and Barnie, respectively. For convenience and clarity, so shall we.

Renee, age 32 at time of trial, and Barnie (a dentist), age 44 at time of trial, were married September 7, 1984. The union produced two children: Brady Allan Short, born June 4, 1985, and Grant Noble Short, born December 14, 1988. The parties separated in May, 1990.

Renee's brief presents two points relied on; the first complains the child support awarded her is too low; the second avers the trial court erred by limiting the maintenance awarded her to one year.

Before confronting those issues, we must determine whether Renee's notice of appeal was timely. Barnie maintains it was not. Resolution of this question begins with a chronology of the litigation.

August 23, 1990. Parties appear in trial court with their respective lawyers. Docket sheet shows:

Trial by Court. The Court finds that both parties have been residents of this State for more than 90 days and that 30 days has [sic] elapsed since the filing of the petition. The Court finds that there remains no reasonable likelihood that the marriage can be preserved and that the marriage is irretrievably broken. That the wife is not now pregnant. Marriage ordered dissolved.

No other issues were adjudicated.

September 27, 1990. Parties reappear in trial court with their respective lawyers. Trial ensues, generating a 229-page transcript.

April 4, 1991. Trial court signs and files a two-page document stating, in pertinent part:

It is therefore ordered, adjudged and decreed ... that the parties hereto be and they are hereby granted a dissolution of their marriage and restored to all rights and privileges of single and unmarried persons.

All issues except those stated above are taken under advisement.

As reported supra, the trial court had ostensibly dissolved the marriage seven months earlier, on August 23, 1990.

December 11, 1991. Trial court signs and files a 20-page "Decree and Findings of Fact and Conclusions of Law." It again orders the marriage dissolved and, among other subjects, addresses child custody and visitation, child support, division of marital property, allocation of debts, attorney fees, and maintenance.

December 26, 1991. Barnie files a "Motion to Amend Decree or, in the Alternative, for a New Trial." The motion alleges, inter alia: "The Decree fails to set aside to either party their respective separate properties." The motion lists 52 items (some being multiple) allegedly owned by Barnie as his separate property but omitted from the decree. The motion also lists 24 items (some being multiple) allegedly owned by Renee as her separate property but omitted from the decree.

March 12, 1992. Trial court signs and files a 23-page "Amended Decree and Findings of Fact and Conclusions of Law." It covers the same subjects as the decree of December 11, 1991. Additionally, it sets apart to Renee, as her separate property, 26 items (some being multiple) catalogued in Barnie's motion of December 26, 1991, and sets apart to Barnie, as his separate property, 44 items (some being multiple) catalogued in his motion of December 26, 1991. The amended decree also awards Renee, as marital property, two of the items identified in Barnie's motion of December 26, 1991. Besides these additions, the amended decree varies in some respects from the December 11, 1991, decree. As these differences are immaterial to the issue of timeliness of Renee's notice of appeal, we need not detail them.

March 19, 1992. Renee files a "Motion to Amend the Amended Decree, or in the Alternative, for a New Trial or a Motion to Modify Said Decree." The motion alleges the evidence showed Barnie maintains health insurance on the parties' children and is willing to continue doing so, and is also willing to provide dental care for them. The motion prays the trial court to order Barnie "to pay all medical expenses of the ... children, plus maintain a medical insurance policy and to provide said children with dental care, all at [his] expense."

March 27, 1992. Trial court signs and files a one-page "Amended Decree" which reads, in pertinent part:

... [Barnie] is ordered to maintain medical insurance, as it now exists, on the ... children born to the marriage at the expense of [Barnie] and to provide said children with dental care, all at [Barnie's] expense. [Renee] shall pay all deductibles.

The decree addresses nothing else.

March 31, 1992. Trial court signs and files a 23-page "Second Amended Decree and Findings of Fact and Conclusions of Law." It recites: "... the Court enters this Second Amended Decree, nunc pro tunc, to correct a clerical mistake in the Amended Decree." The "clerical mistake" is unidentified in the second amended decree. The decree covers the same subjects as the decree of March 12, 1992, but says nothing about the medical insurance and dental care addressed in the decree of March 27, 1992.

April 6, 1992. Renee files notice of appeal.

Barnie's theory that Renee's notice of appeal was untimely is based on this reasoning:

A. Upon entry of the March 12, 1992, decree, "the trial court's judgment became final and appealable and therefore the trial court lost jurisdiction to control the case."

B. Rule 81.04(a) ¹ reads, in pertinent part: "No ... appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment ... appealed from becomes final."

C. Renee filed her notice of appeal 25 days after March 12, 1992.

Implicit in Barnie's logic is the premise that the trial court lacked jurisdiction to enter the decrees of March 27, 1992, and March 31, 1992. Obviously, if either of those decrees be valid, Renee's notice of appeal was timely.

Barnie correctly points out that the timely filing of a notice of appeal is a jurisdictional requirement. Goldberg v. Mos, 631 S.W.2d 342, 345 (Mo.1982). If a notice of appeal is untimely, the appellate court is without jurisdiction and must dismiss the appeal. Boyer v. Shay, 675 S.W.2d 147, 148 (Mo.App.1984); Dombroski v. Cox, 431 S.W.2d 680, 681 (Mo.App.1968).

We begin our analysis of the timeliness issue by recognizing that a notice of appeal must be filed not later than ten days after the judgment appealed from becomes final. Rule 81.04(a); Kohl v. Safeco Insurance Co., 755 S.W.2d 314, 315 (Mo.App.1988); LeGrand v. LeGrand, 663 S.W.2d 339, 340 (Mo.App.1983). As a general rule, for purpose of appeal a judgment must be a final judgment and must ordinarily dispose of all parties and all issues in the case. Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 695 (1952); Wilson v. Mercantile Bank of Springfield, 791 S.W.2d 497, 500 (Mo.App.1990). That is, to be a final judgment, subject to appeal, a judgment must fully determine the rights of the parties to the action. Lacher v. Lacher, 785 S.W.2d 78, 80 (Mo. banc 1990).

Here, one of the issues at trial was whether Barnie should be ordered to maintain medical insurance for the children at his expense and provide their dental care. Renee's testimony:

Q. You're asking the Court ... to have Dr. Short carry the two children on the medical insurance; is that correct?

A. That is correct.

Barnie also testified on the issue:

Q. What would you pose as far as medical insurance for the children?

A. To cover the children.

Q. You would provide that insurance?

A. Medical insurance and have her pay the deductibles on it.

Q. And would you provide the dental work free of charge?

A. Yes, I do.

This issue was not addressed by the trial court until March 27, 1992. On that date, as we have seen, the trial court entered a one-page "Amended Decree" adjudicating the issue. The relevant portion of the decree is quoted supra.

While Rule 74.01(b) authorizes a trial court to enter judgment on fewer than all of the claims upon an express determination that there is no just reason for delay, none of the decrees here contain any such determination. Consequently, we hold no final judgment for purpose of appeal was entered in the instant case until March 27, 1992, when the trial court resolved the medical insurance and dental care questions, thereby determining the final issue between the parties. Kahn v. Royal Banks of Missouri, 790 S.W.2d 503, 511 (Mo.App.1990); Ahern v. Turner, 732 S.W.2d 261, 262 (Mo.App.1987).

Although there was no single document adjudicating all issues, the decrees of March 12, 1992, and March 27, 1992, collectively, did so. Separate entries can result in a "judgment" from which an appeal may be taken. Kilmer v. Browning, 806 S.W.2d 75, 78 n. 1 (Mo.App.1991). See: Wood v. Wood, 716 S.W.2d 491, 495 (Mo.App.1986).

Renee's notice of appeal was filed on the tenth day following entry of the amended decree of March 27, 1992. It was therefore timely. Barnie's contention that it was not is denied.

However, there is another appealability problem. On March 31, 1992, four days after the trial court completed its adjudication of all the issues, the trial court signed and filed the second amended decree, apparently attempting to consolidate all the rulings in one correct and complete document. Unfortunately, that decree ignored the medical insurance and dental care issues. Nothing in that decree indicates the trial court intended to incorporate in it the decree of March 27, 1992.

Consequently, if the trial court had authority on March 31, 1992, to enter the second amended decree, we are once again left without a decree adjudicating all the issues. This...