Neely v. Neely, WD 64075.

• Decision Date: 23 August 2005
• Docket Number: No. WD 64075.,WD 64075.
• Citation: 169 S.W.3d 577
• Parties: James W. NEELY, Respondent, v. Terri B. NEELY, Appellant.
• Court: Missouri Supreme Court

Page 577

169 S.W.3d 577

James W. NEELY, Respondent, v. Terri B. NEELY, Appellant.

No. WD 64075.

Missouri Court of Appeals, Western District.

August 23, 2005.

Christopher C. Fink, Cameron, MO, for appellant.

George A. Pickett, Plattsburg, MO, for respondent.

Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.

PATRICIA BRECKENRIDGE, Judge.

Terri B. Neely (Wife) appeals the trial court's judgment denying her motion to set aside the judgment dissolving her marriage to James W. Neely (Husband) as it relates to child support and the division of marital property. The appeal is dismissed for lack of a final judgment.

On October 22, 2002, following Husband's filing a petition for dissolution of the parties' marriage, Husband and Wife entered into a marital settlement agreement. In the settlement agreement, the parties agreed to joint legal and physical custody of the parties' two minor children, with Husband designated as the primary residential custodian, and each party receiving equal parenting time. The agreement provided that neither party would pay child support, but Husband was to pay all of the children's daycare expenses, medical insurance, and uninsured medical expenses. In addition, the agreement also provided for the distribution of the parties' marital property.

Following a November 5, 2002, hearing on Husband's petition, the trial court ruled from the bench that the marriage was irretrievably broken and ordered the marriage dissolved. The court also ruled that legal and physical custody of the children was awarded to both Husband and Wife; no child support would be awarded; Husband was to maintain health insurance on the children; and that maintenance was waived. The court further found that the property settlement agreement presented to the court was not unconscionable and, therefore, approved the agreement. Thereafter, the trial court entered a formal judgment dissolving the parties' marriage and ordering the parties to fully comply with the terms of the settlement agreement.

On September 29, 2003, Wife filed a five-count motion. In Count I, Wife sought to have the judgment set aside as to child support, under Rule 74.06(a), for inadvertence and mistake because neither party submitted a Form 14, the trial court did not calculate its own Form 14, and the court failed to consider the factors for awarding child support set forth in section 452.340, RSMo 2000. In Count II, Wife sought to have the judgment set aside as to the division of marital assets, under Rule 74.06(b), based on Husband's fraud.¹ In Count III, Wife sought to modify child custody based on a continuing and substantial change in circumstances since the judgment of dissolution. In Count IV, Wife sought to modify child support. Finally, in Count V, Wife sought to have Husband held in contempt for his contumacious and willful failure to abide by the terms of the joint parenting agreement.

On December 8, 2003, Husband filed an answer to Wife's five-count motion and filed a counter-motion to modify the judgment with respect to child custody and child support and a counter-motion for contempt. On March 16, 2004, a hearing was held by the trial court on Counts I and II of Wife's motion to set aside the judgment with respect to child support and the division of marital property. Prior to hearing any testimony, Husband orally moved that Wife's Counts I and II be dismissed for failure to state a claim. In particular, Husband argued that Wife's motion was an improper collateral attack on the trial court's judgment. Husband claimed that Rule 74.06 is not a proper vehicle to collaterally attack a judgment and, instead, Wife should have filed an appeal. In response, Wife argued that allegations in her motion asserted a case for fraud and were proper under Rule 74.06. After hearing arguments from both parties on Husband's oral motion, the trial court took the matter under advisement and concluded the hearing without adducing any evidence on the merits of any of the parties' outstanding motions.

On March 24, 2004, the court entered a "Judgment" denying Wife's motion to set aside the judgment. The trial court did not rule on Wife's motion to modify child custody, motion to modify child support, or motion for contempt. The trial court also made no ruling on Husband's counter-motion to modify child custody and child support or counter-motion for contempt. On April 21, 2004, Wife filed this appeal from the March 24, 2004 judgment.

This court has a duty to examine, sua sponte, the finality of the trial court's March 24, 2004, judgment because this court's jurisdiction extends only to appeals from a final judgment. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997); Section 512.020, RSMo Cum.Supp.2004. Without a final judgment, an appellate court lacks jurisdiction, and the appeal must be dismissed. Gibson, 952 S.W.2d at 244. A final judgment must resolve all issues in a case and leave...