Pollard v. Pollard

• Decision Date: 28 February 2012
• Docket Number: No. WD 73305.,WD 73305.
• Citation: 363 S.W.3d 386
• Parties: Margaret A. POLLARD, Respondent, v. D.L. POLLARD, Appellant.
• Court: Missouri Court of Appeals

363 S.W.3d 386

Margaret A. POLLARD, Respondent,

v.D.L. POLLARD, Appellant.

No. WD 73305.

Missouri Court of Appeals, Western District.

Feb. 28, 2012.

Appeal from the Circuit Court of Ray County, Missouri, David Harrison Miller, Judge.Kimberly Gray, Kansas City, MO, for Appellant.

Bruce Brown, Kearney, MO, for Respondent.

Before JAMES M. SMART, JR., P.J., VICTOR C. HOWARD, and JAMES EDWARD WELSH, JJ.

JAMES EDWARD WELSH, Judge.

D.L. Pollard (Husband) appeals the circuit court's judgment dissolving his marriage to Margaret A. Pollard (Wife). Because the circuit court failed to address and distribute marital debt, the court's judgment is neither final nor appealable. We, therefore, dismiss this appeal for lack of jurisdiction.

Husband and wife were married in 1976 and separated in 2009. There were no children of the marriage. Shortly after separation, Wife filed a petition for dissolution of marriage and Husband filed an answer and counter-petition. The court heard evidence and ultimately entered a judgment on August 24, 2010, dissolving the marriage, dividing property and awarding maintenance to Wife. While the judgment ordered the parties “to pay the debts as set forth in the Court's Judgment and Decree,” debts were not elsewhere classified, assigned, or divided in the decree. Husband filed a “Motion for New Trial/Motion to Reconsider” the court's judgment, to which Wife filed a response. Neither Husband's motion nor Wife's answer addressed the court's failure to allocate marital debt. In November of 2010, the court heard evidence regarding Husband's motion and, thereafter, modified its original judgment and eliminated Wife's award of maintenance.

While Husband asserts six points on appeal, we dismiss without addressing the merits of Husband's claims.¹ In Husband's sixth point on appeal, Husband alleges that the circuit court erred by not dividing the marital debt because marital debt was in evidence and section 452.330.1, RSMo Cum.Supp.2011, requires that all marital property and debt be divided. ² Husband asks that the court's judgment be reversed for division of the marital debt. While we agree with Husband's conclusion that section 452.330.1 mandates the division of marital debt, we dismiss Husband's appeal for lack of jurisdiction.

If [ ] undistributed property is discovered before the time for appeal has run, the appellate court, when presented with an appeal raising the issue of undistributed property, must dismiss the appeal because the trial court has not exhausted its jurisdiction and has not rendered a final judgment from which an appeal can be taken.Meltzer v. Meltzer, 775 S.W.2d 120, 120–21 (Mo. banc 1989). Dismissal is “equally applicable” where there is undistributed debt and we must dismiss “an appeal where marital debts known to the [circuit] court are not addressed in its decree.” Rogers v. Rogers, 253 S.W.3d 134, 137 (Mo.App.2008). Here, Wife submitted evidence of debt via Exhibit 1, her “Second Amended Property/Debt List and Valuation.” ³ The court's judgment ordered the parties “to pay the debts as set forth in the Court's Judgment and Decree” but did not otherwise assign, divide, or classify the debt as marital or non-marital. Consequently, the court's judgment is not final or appealable, and this appeal must be dismissed. Id. at 138.

The effect of this dismissal is to recognize the jurisdiction of the trial court to enter a new judgment covering the entire case. Because the trial court has not been divested of jurisdiction, that court retains control over every phase of the case so that it may correct errors, or, in its discretion, modify or set aside orders or judgments until its jurisdiction is extinguished by the judgment becoming final and appealable. Either or both parties will then have the right to appeal the circuit court's new...