Speir v. Speir (In re Speir), SD 35173
Decision Date | 06 February 2018 |
Docket Number | No. SD 35173,SD 35173 |
Citation | 538 S.W.3d 396 |
Parties | IN RE the MARRIAGE OF Mackenzie Everett SPEIR and Jessica Lynn Speir Mackenzie Everett Speir, Petitioner–Appellant, v. Jessica Lynn Speir, Respondent–Respondent. |
Court | Missouri Court of Appeals |
Attorney for Appellant—Jonathan Sternberg of Kansas City, MO
Attorney for Respondent—Chaste S. Higgins of Harrisonville, MO
Attorney for Minor Children—Katie J. Evans of Appleton City, MO
Mackenzie Everett Speir ("Appellant") and Jessica Lynn Speir ("Respondent") were divorced by entry of a dissolution judgment in September 2013, with the Honorable Michael Dawson presiding. The dissolution docket notes that Judge Dawson was "No Longer in Office/Position" as of December 31, 2014, and the "Judge Jerry Rellihan [was] assigned to the case." Nothing was pending at that time. On September 28, 2016, three years after the dissolution was entered, Respondent filed a motion to modify the dissolution judgment. Appellant was served on October 5, 2016, with the modification summons.
Respondent also filed a Writ of Habeas Corpus on October 14, 2016, in the same case.1 The hearing date was set for October 24, 2016, on the Writ of Habeas Corpus. Appellant was served on October 18, 2016, with the writ. Appellant's attorney appeared for the habeas corpus hearing on October 24 th and the docket reflects it was reset for the following day. On that same day, and just nineteen days after service on Appellant, Appellant filed a motion pursuant to Rule 51.052 for a change of judge. The motion was denied as "untimely." The transcript regarding the application for change of judge is set forth below:
Appellant brings this appeal with his sole point being that the denial of his motion for change of judge was error as it was timely filed.4 We agree.
We review the interpretation of the Supreme Court's rules de novo. State v. Ford , 351 S.W.3d 236, 238 (Mo.App. E.D. 2011). The Supreme Court's intent is determined from the rule's language, with words used given their plain, ordinary meaning. Id. If the application for the change of judge is proper and timely, the judge shall promptly grant the application and recuse him or herself. State ex rel. Riggleman v. Briscoe , 203 S.W.3d 239, 240 (Mo.App. E.D. 2006) ; see also Charron v. Mo. Bd. Of Probation & Parole , 373 S.W.3d 26, 29 (Mo.App. W.D. 2012) ( . "A ‘trial’ within the meaning of Rule 51.05(b) means a full trial on the merits." State ex rel. Stockman v. Frawley , 470 S.W.3d 401, 404 (Mo.App. E.D. 2015). The trial court has no authority to act further in the case after the change of judge is filed except to grant the application. State ex rel. Cohen v. Riley , 994 S.W.2d 546, 547 (Mo. banc 1999).
The trial court interpreted Rule 51.05(b) to mean that an application for a change of judge must be filed prior to any appearance before the trial judge. The trial court is mistaken. We commence with Rule 51.05(b). Rule 51.05(b), regarding the procedure for change of judge, states:
(b) The application must be filed within 60 days from service of process or 30 days from the designation of the trial judge, whichever time is longer. If the designation of the trial judge occurs less than thirty days before trial, the application must be filed prior to any appearance before the trial judge.
Here, the trial judge was designated when the modification summons was issued. Therefore, Appellant was entitled to the longer 60–day period from service of process to file his application for change of judge. See Beckwith v. Giles , 32 S.W.3d 659, 662 (Mo.App. W.D. 2000). The trial court, however, based its decision on the second clause of the second sentence, completely omitting the conditional clause. There was no trial set for the modification at the time that the motion for change of judge was filed.5 The condition precedent of the second sentence—that the trial judge be designated less than thirty days before trial—was not met, therefore, the subsequent clause regarding the application being filed prior to any appearance before the trial judge was not...
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