State ex rel. McClintock v. Black, 62162.

Decision Date15 December 1980
Docket NumberNo. 62162.,62162.
Citation608 S.W.2d 405
PartiesSTATE ex rel. Sharon Lynn McCLINTOCK, Relator-Petitioner, v. Honorable Gary R. BLACK, Sr., Circuit Judge, 24th Judicial Circuit, St. Francois County, Respondent.
CourtMissouri Supreme Court

Joseph S. Sanchez, Festus, for relator-petitioner.

James G. Freer, Farmington, for respondent.

DONNELLY, Judge.

This is mandamus.

Relator Sharon Lynn McClintock and Harry William McClintock were married in 1964. In November 1977, Sharon petitioned the St. Francois County Circuit Court for a dissolution of the marriage. Respondent Judge Black granted the dissolution after an uncontested hearing at which Sharon alone appeared.

Sharon and Harry had drawn up a separation agreement which purported to distribute all marital property. This agreement was incorporated into the dissolution decree by respondent.

In July 1978, some seven months after the decree of dissolution was entered, Sharon filed a motion to vacate the decree, contending that certain marital property (shares of stock in the closely held corporation which employed Harry and Harry's retirement fund with that corporation) had not been distributed by the decree and, thus, that the decree was not final.

Harry filed a motion to dismiss Sharon's motion, maintaining that under Rule 81.05(a) respondent no longer had jurisdiction to modify the decree because more than thirty days had passed since its issuance. Harry's motion was sustained by respondent on October 6, 1978.

Sharon then sought a writ of mandamus in the Eastern District of the Court of Appeals to compel respondent to assume jurisdiction in the case and divide the overlooked property. The Court of Appeals issued an alternative writ of mandamus, which it quashed by its opinion of April 15, 1980, and transferred the case to this Court "for the purpose of reexamining the law relative to finality of dissolution judgments." See Mo.Const. art. V, § 10.

We, too, quash the writ because we believe that Sharon has confused the concept of finality for purposes of appeal with the concept of res judicata. If the 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. On the other hand, once the time for appeal has run, the order of the trial court, although it has failed to divide all of the marital property, is res judicata and final as to the property with which it has dealt. As to this aspect of the case, Judge Crist, in the principal opinion in the Court of Appeals, poses the question squarely:

"There is rank confusion and disagreement regarding the status of property of the parties not disposed of by a dissolution court. There is a clamor for clarification and guidance. Our courts have indicated there is no appealable judgment where the trial court fails to set-off all marital and separate property of the parties appearing on the face of the trial record. Corder v. Corder, 546 S.W.2d 798 (Mo.App.1978); Pendleton v. Pendleton, 532
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60 cases
  • Murphy v. Murphy
    • United States
    • Missouri Court of Appeals
    • November 22, 1988
    ... ... In Missouri court cases that state that vested military pensions are marital property subject ... Appellant relies upon State ex rel. McClintock v. Black, 608 S.W.2d 405 (Mo. banc 1980), ... ...
  • Dukes v. Dukes
    • United States
    • Missouri Court of Appeals
    • August 19, 1993
    ... ... held that in a divorce case, federal law precluded a state court from dividing that type military pension pursuant to ... See §§ 452.330.4 and 452.360.2; State ex rel. McClintock v. Black, 608 S.W.2d 405, 407 (Mo. banc 1980) ... ...
  • Mings v. Mings
    • United States
    • Missouri Court of Appeals
    • October 14, 1992
    ... ... retirement pay was not subject to division by state courts as marital property. McCarty v. McCarty, 453 U.S ... , and similar cases, has been overruled in State ex rel. McClintock v. Black, 608 S.W.2d 405 (Mo. banc 1980). That ... ...
  • Doss v. Doss, 73640
    • United States
    • Missouri Supreme Court
    • January 28, 1992
    ... ... Chrun, 751 S.W.2d 752, 755 (Mo. banc 1988); State ex rel. McClintock v. Black, 608 S.W.2d 405, 407 (Mo. banc ... ...
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