Seitz v. Seitz
| Decision Date | 12 June 2003 |
| Docket Number | No. 25163.,25163. |
| Citation | 107 S.W.3d 478 |
| Parties | In re the Marriage of Joseph SEITZ, III, Petitioner-Appellant, v. Linda Sue SEITZ, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Michele Hammond, Cordell & Cordell, P.C., St. Louis, for Appellant.
Catherine L. Lange, C. William Lange, and Richard A. Hopkins, Lange and Lange, Cuba, MO, for Respondent.
In this case, Joseph Seitz, III, ("Appellant") attempts to appeal from a judgment of dissolution of marriage. The events leading up to this appeal include the following.
On March 21, 2002, the trial court entered a "Judgment of Dissolution of Marriage" ("Judgment"). In addition to dissolving the marriage of Appellant and Linda Sue Seitz ("Respondent"), the Judgment adjudicated the rights and responsibilities of the parties with respect to child custody, visitation, and support and adopted a parenting plan; adjudicated the rights and responsibilities of the parties with respect to the payment of medical, dental, orthodontic and vision expenses incurred for the parties' minor children and not covered by insurance; ordered both parties to maintain insurance on the minor children when available through their employment; awarded dependency deductions for the parties' minor children for tax purposes; ordered Appellant to pay spousal support and maintenance to Respondent; divided the parties' marital property and marital debts; set apart the nonmarital property of each party; awarded Respondent her attorneys fees; ordered each party to pay one-half of the Guardian Ad Litem's fees; and taxed costs to Appellant.
On April 12, 2002, the trial court, apparently sua sponte, filed a purported "Amended Judgment of Dissolution of Marriage" ("Amended Judgment"). The Amended Judgment differed from the original Judgment in only two discernible respects: (1) it modified the award of fees to the Guardian Ad Litem, and (2) it inserted language designating the maintenance award to Respondent as "modifiable."
Also on April 12, 2002, Appellant filed a "Motion for Reconsideration, Amendment of Judgment or New Trial" ("Motion for New Trial"). The motion contains various allegations of trial court error related to the Judgment. The motion does not make reference to the trial court's Amended Judgment.
On April 24, 2002, Appellant filed a notice of appeal ("the April 24th notice of appeal") in the trial court. The notice was filed in this court as Case No. SD24913.
That same day (April 24, 2002) Appellant filed a "Motion for Order Nunc Pro Tune." In the motion, Appellant asked the trial court to enter an order nunc pro tunc to correct the Amended Judgment "to reflect that the AMENDED JUDGMENT was entered by the Court on its own motion, was not in response to or to be considered a ruling on [Appellant's] MOTION FOR NEW TRIAL, and that such motion has yet to be ruled upon by the Court." The motion appears, for all purposes, to be within the purview of Rule 74.06(a).12
Also on April 24, 2002, Respondent filed "Respondent's Motion to Correct Amended Judgment and Decree of Dissolution of Marriage Nunc Pro Tunc." In the motion, Respondent asked the trial court to correct its judgment to reflect that Respondent was also awarded primary legal custody of the parties' children, rather than joint legal custody, as reflected by a stipulation of the parties and the parenting plan incorporated by reference into the trial court's original Judgment and Amended Judgment. The motion states that it is made pursuant to Rule 74.06. As with Appellant's "Motion for Order Nunc Pro Tunc," Respondent's motion appears, for all purposes, to be within the purview of Rule 74.06(a).
On May 20, 2002, the trial court filed a purported "Second Amended Judgment of Dissolution of Marriage" ("Second Amended Judgment"). The Second Amended Judgment was virtually identical to the Amended Judgment except that it also awarded primary legal custody of the parties' minor children to Respondent as requested in Respondent's Motion to Correct Amended Judgment and Decree of Dissolution of Marriage Nunc Pro Tunc.
On August 16, 2002, the trial court filed a purported "Third Amended Judgment of Dissolution of Marriage" ("Third Amended Judgment"). The Third Amended Judgment was virtually identical to the Second Amended Judgment except that it reduced the amount of child support to be paid by Appellant (per an "Amended Form 14") and contained additional findings to support the trial court's disproportionate division of marital property. Both changes addressed issues raised in Appellant's Motion for New Trial.
On September 3, 2002, Appellant voluntarily dismissed Case No. SD24913.3
Then, on September 12, 2002, Appellant filed a second notice of appeal in the trial court ("the September 12th notice of appeal"). The notice was filed in this court in the instant case, No. SD25163.
For ease of reference, the foregoing events and the dates of their occurrence are summarized below:
Date Event
03/21/02 Judgment filed
04/12/02 Amended Judgment filed
04/12/02 Appellant's Motion for New Trial filed
04/24/02 The April 24th notice of appeal filed in the trial court
04/24/02 Appellant's Motion for Order Nunc Pro Tunc filed
04/24/02 Respondent's Motion to Correct Amended Judgment and Decree of Dissolution of
Marriage Nunc Pro Tunc.
04/29/02 The April 24th notice of appeal received by this court and filed as Case No.
SD24913.
05/20/02 Second Amended Judgment filed.
08/16/02 Third Amended Judgment filed.
09/03/02 Case No. SD24913 voluntarily dismissed.
09/12/02 The September 12th notice of appeal filed in the trial court.
09/16/02 The September 12th notice of appeal received by this court and filed in this case,
No. SD25163.
Here, as in any case, the first duty of the court is to determine its jurisdiction. Cotter v. Miller, 54 S.W.3d 691, 693 (Mo.App. W.D.2001). "An appellate court must always consider, sua sponte if necessary, its jurisdiction." Logan v. Sho Me Power Electric. Co-op., 83 S.W.3d 109, 111 (Mo.App. S.D.2002).
As reflected above, Appellant filed two notices of appeal in this case. The first notice of appeal, the April 24th notice of appeal, was filed in this court in Case No. SD24913. Case No. SD24913 was voluntarily dismissed on September 3, 2002. Once this court dismissed the appeal per Rule 84.09, this court lost all jurisdiction over the case. See State ex rel. McMullin v. Satz, 759 S.W.2d 839, 840 (Mo. banc 1988).
The second notice of appeal, the September 12th notice of appeal, is the basis for the present appeal. The September 12th notice of appeal clearly states that the appeal is taken from the "Third Amended Judgment of Dissolution of Marriage" dated "8-16-02." Because Case No. SD24913 was dismissed (and the April 24th notice of appeal along with it), the court's jurisdiction in the present case, if any, is dependent upon the validity of the September 12th notice of appeal.
The court is obligated "ex mero motu to inquire into the timeliness of the notice of appeal because in the absence of a timely filed notice we have no appellate jurisdiction." In re Marriage of Grigery, 818 S.W.2d 738, 739 (Mo.App. S.D.1991). Rule 81.04(a) provides that "[n]o ... appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final." Thus, "[a] prerequisite to appellate review is that there be a final judgment." Committee for Educational Equality v. State, 878 S.W.2d 446, 450 (Mo. banc 1994).
Under these authorities, in order for jurisdiction to exist in this case, the September 12th notice of appeal must have been filed not later than ten days after the trial court's judgment became final. Because the September 12th notice of appeal purports to appeal from the Third Amended Judgment, the court must initially determine whether the Third Amended Judgment was the trial court's "final judgment" in the case. This, in turn, requires that the court consider the validity of each of the prior "judgments" and their effect on the trial court's jurisdiction.
Rule 74.01(a) provides that a "[j]udgment' as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated `judgment' or `decree' is filed." "Under Rule 74.01(a), `a judgment must be (1) in writing, (2) signed by the judge, (3) denominated "judgment," and (4) "Grissum v. Soldi, 87 S.W.3d 915, 916 (Mo.App. S.D.2002) (quoting Chambers v. Easter Fence Co., Inc., 943 S.W.2d 863, 865 (Mo.App. E.D.1997)). Moreover, "[t]o constitute an appealable judgment, the judgment must dispose of all parties and claims in a case and leave nothing for future determination." L.R. Oth, Inc. v. Albritton, 90 S.W.3d 242, 243 (Mo.App. S.D.2002) (citing Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997)). See also Rule 74.01(b); City of St. Louis v. Hughes, 950 S.W.2d 850, 852 (Mo. banc 1997).
Here, the trial court's initial Judgment, entered March 21, 2002 was in writing, signed by the judge, denominated "judgment," and filed with the clerk of the trial court, all as required by Rule 74.01(a). Furthermore, the Judgment appears to dispose of all parties and issues in the case, leaving "nothing for future determination."4 L.R. Oth, Inc., 90 S.W.3d at 243. Thus, the trial court's March 21, 2002 Judgment appears to have been a "judgment" within the meaning of Rule 74.01.
Even so, "[t]he initial judgment entered by a trial court is not final." Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 391 (Mo. banc 1993). Under Rule 75.01:
The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good...
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