Rhodus v. McKinley, No. WD 59747.
| Court | Missouri Court of Appeals |
| Writing for the Court | Joseph M. Ellis |
| Citation | 71 S.W.3d 191 |
| Parties | David K. RHODUS, Respondent, v. Leslie R. McKINLEY, Appellant. |
| Decision Date | 19 March 2002 |
| Docket Number | No. WD 59747. |
v.
Leslie R. McKINLEY, Appellant.
[71 S.W.3d 192]
Richard J. Koury,II, Independence, for appellant.
David K. Holdworth, Liberty, for respondent.
Before JAMES M. SMART, JR., Presiding Judge, HAROLD L. LOWENSTEIN, Judge and JOSEPH M. ELLIS, Judge.
JOSEPH M. ELLIS, Judge.
Leslie R. McKinley appeals from the circuit court's judgment declaring that David K. Rhodus has satisfied the judgment ordering him to execute a promissory note in favor of McKinley in the amount of $33,205, pursuant to a dissolution decree. McKinley argues that Rhodus owes her more than $8,000 in interest and contends that the trial court used the wrong date in calculating the interest due on her judgment against Rhodus.
McKinley and Rhodus were married on October 17, 1992. On September 22, 1995, Commissioner Michael Walker entered a "Judgment of Dissolution" to dissolve the marriage and distribute property. The judgment included the following statement:
[T]hat to effectuate an equitable division of the marital property, Petitioner [Rhodus] shall execute a Promissory Note in favor of Respondent [McKinley], in the amount of $42,200.00; secured by a Deed of Trust on the former marital domicile. This promissory note shall bear interest at the judgment rate of 9% per annum. The Deed of Trust and Promissory Note shall be prepared by Respondent's (sic) attorney and delivered to Respondent's attorney within 30 days of the entry of these findings and recommendations.
Rhodus filed a motion for rehearing in circuit court. The circuit court denied the motion on October 20, 1995, and made the following docket entry: "Motion for rehearing taken up and denied. Findings
and recommendations adopted and confirmed."
Rhodus subsequently asked the circuit court to vacate the judgment, claiming discovery of assets not included in the dissolution decree. On February 14, 1996, Commissioner Walker "re-opened"1 the case to reconsider division of the parties' property and to address Rhodus' request for attorney fees. On December 30, 1996, Commissioner Walker issued a "judgment" awarding Rhodus attorney fees of $20,506.78 and an additional sum of $3,100, as his interest in McKinley's pension. The "judgment" stated, "in all other respects, the terms of the Judgment of Dissolution, entered 10-20-95, remain in full force and effect."2
Rhodus appealed and McKinley cross-appealed. We dismissed the appeal for lack of jurisdiction, because we have "no jurisdiction to consider appeal of a `judgment' signed by a court commissioner." Rhodus v. McKinley, 972 S.W.2d 557, 558 (Mo.App. W.D.1998) ("Rhodus I"). We also determined that the circuit court judge's docket entry dated October 20, 1995, was not a judgment because "the court did not denominate it a judgment, and the Supreme Court has interpreted its rules as prohibiting consideration of an order not denominated a judgment as a final, appealable judgment." Id. at 559.
On March 10, 1999, Rhodus filed a motion asking the circuit court to make a nunc pro tunc entry to denominate the docket entry of October 20, 1995, a "Judgment." Rhodus also asked the court to enter a judgment adopting and confirming the findings from the judgment dated December 30, 1996. The circuit court entered a judgment granting Rhodus' motion on April 21, 1999. Both parties filed timely appeals.
On February 8, 2000, this court handed down its opinion in Rhodus v. McKinley, 16 S.W.3d 615 (Mo.App. W.D.2000) ("Rhodus II ").3 In that case, we first determined that the commissioner's findings and recommendations had been adopted by the circuit court. "The circuit court issued judgments in which it adopted and confirmed Commissioner Walker's decisions of September 22, 1995, and of December 30, 1996." Id. at 618. In addition, we held that the trial court erred in valuing McKinley's remaining herd of cattle and, therefore, remanded the case "with instruction that [the trial court] reduce the value of `[McKinley's] herd' from $20,895 to $11,900, and that it reduce Rhodus' promissory note to McKinley by $8995 to $33,205." Id. at 619.
On June 20, 2000, the circuit court filed an Amended Judgment Pursuant to Appellate
Mandate. The amended judgment reduced the value of McKinley's herd of cattle and deleted the language regarding the promissory note, substituting the following paragraph:
[T]o effectuate an equitable division of the marital property, Petitioner to execute a Promissory Note in favor of Respondent in the amount of THIRTY-THREE THOUSAND TWO HUNDRED AND FIVE DOLLARS AND NO/100 ($33,205.00); secured by a Deed Of Trust on the former marital domicile. This Promissory Note shall bear interest at the judgment rate of nine percent (9%) per annum. The Deed of Trust and Promissory Note shall be prepared by Petitioner's attorney and delivered to Respondent's attorney within (30) days of the entry of this judgment.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Orders of the prior Judgments of this Court shall, pursuant to the Opinion and Mandate of the Western District Court of Appeals, remain in full force and effect.
On September 7, 2000, Rhodus deposited a payment of $8,671.18 with the Clerk of the Clay County Circuit Court, which he contended was the amount owed to McKinley. In making his calculations, Rhodus determined that the "judgment date" of the dissolution was January 6, 2000, the date on which the judgment entry was made while the appeal was pending. Rhodus then used that date to calculate the interest owed on McKinley's $33,211.55 judgment, determining that he owed $2,006.55 in interest, for a total of $35,211.55.
Rhodus then determined that he was entitled to a setoff in the amount of $26,540.37, which included his judgments for $3,100 and $20,506.78 in attorney fees, plus $2,933.59 in interest. Rhodus...
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McLean v. First Horizon Home Loan, Corp., No. WD 74025.
...as any other judge-tried case, under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).” Rhodus v. McKinley, 71 S.W.3d 191, 195 (Mo.App. W.D.2002). “As such, we will affirm the orders of the trial court unless there is no substantial evidence to support them, the......
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Medlin v. RLC, Inc., No. SD 33437
...as any other judge-tried case, under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).” Rhodus v. McKinley, 71 S.W.3d 191, 195 (Mo.App.2002). “As such, we will affirm the orders of the trial court unless there is no substantial evidence to support them, they are......
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Pavlica v. Director of Revenue, No. WD 59790.
...The appellant filed his memorandum in support of his application on January 25, 2001. The Director filed his memorandum in opposition 71 S.W.3d 191 to the application on the same day. On February 14, 2001, the trial court entered its judgment denying the appellant's application. A review of......
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Everest Reinsurance Co. v. Kerr, No. WD 68417.
...clerical errors in judgments, `relate back to the original judgment and do not constitute a new judgment.'" Rhodus v. McKinley, 71 S.W.3d 191, 195 (Mo.App. W.D. 2002) (quoting Pirtle v. Cook, 956 S.W.2d 235, 241 (Mo. banc 4. Appellant filed his notice of appeal a mere three days after ......
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McLean v. First Horizon Home Loan, Corp., No. WD 74025.
...as any other judge-tried case, under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).” Rhodus v. McKinley, 71 S.W.3d 191, 195 (Mo.App. W.D.2002). “As such, we will affirm the orders of the trial court unless there is no substantial evidence to support them, the......
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Medlin v. RLC, Inc., No. SD 33437
...as any other judge-tried case, under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).” Rhodus v. McKinley, 71 S.W.3d 191, 195 (Mo.App.2002). “As such, we will affirm the orders of the trial court unless there is no substantial evidence to support them, they are......
-
Pavlica v. Director of Revenue, No. WD 59790.
...The appellant filed his memorandum in support of his application on January 25, 2001. The Director filed his memorandum in opposition 71 S.W.3d 191 to the application on the same day. On February 14, 2001, the trial court entered its judgment denying the appellant's application. A review of......
-
Everest Reinsurance Co. v. Kerr, No. WD 68417.
...clerical errors in judgments, `relate back to the original judgment and do not constitute a new judgment.'" Rhodus v. McKinley, 71 S.W.3d 191, 195 (Mo.App. W.D. 2002) (quoting Pirtle v. Cook, 956 S.W.2d 235, 241 (Mo. banc 4. Appellant filed his notice of appeal a mere three days after ......