State ex rel. Moore v. Sharp

• Decision Date: 13 December 2004
• Docket Number: No. 26089.,26089.
• Citation: 151 S.W.3d 104
• Parties: STATE of Missouri ex rel., Tisha Joy MOORE, Relator, v. Honorable Stephen R. SHARP, Respondent.
• Court: Missouri Court of Appeals

151 S.W.3d 104

STATE of Missouri ex rel., Tisha Joy MOORE, Relator, v. Honorable Stephen R. SHARP, Respondent.

No. 26089.

Missouri Court of Appeals, Southern District, Division Two.

December 13, 2004.

Thomas R. Carnes, St. Louis, for relator.

No Brief filed for respondent.

KENNETH W. SHRUM, Judge.

PRELIMINARY ORDER MADE ABSOLUTE

This is an original action in prohibition in which Relator seeks to prohibit the Honorable Stephen R. Sharp (Respondent) from taking further action in a dissolution of marriage case filed in the circuit court of Stoddard County, Missouri, and a declaration that the circuit court case was dismissed December 18, 2003. The circuit court case is Tisha Joy Moore v. Scott Lynn Moore, case No. 02CV762553.¹ Relator is the petitioner in that case. A preliminary order was entered by this court. See Rule 97.04.² For the reasons that follow, the preliminary order is made absolute.

On July 1, 2002, Relator filed her petition for dissolution of marriage in case No. 02CV762553. A November 20, 2002, docket entry in that case recites:

"By agreement of the parties, Commissioner Phillip Britt is designated to conduct proceedings and make findings and recommendations to the undersigned. Case set for trial at 9:00 a.m. January 6."³

The case was continued from its January 6, 2003, setting and rescheduled twice. Then, a June 2, 2003, docket entry reads:

"Hearing Held

"Parties appear in person and with counsel. Guardian ad litem, James Tweedy, also appears. Evidence adduced.

"Cause Taken Under Advisement

"Cause taken under advisement for submission of findings and recommendations to Hon. Stephen Sharp."

While the case was thus pending — without Commissioner Britt having submitted findings and recommendations to Respondent — the state Division of Child Support Enforcement ("DCSE") filed a motion to intervene in the dissolution case. The motion was granted August 20, 2003.

Next, Relator's dissolution action was consolidated for trial with an action for judicial review of an administrative child support enforcement action the DCSE brought against Scott Lynn Moore. See n.1. That case is Stoddard County circuit court case No. 03MC761242-02.

With Relator's case in this posture, i.e., consolidated for purpose of trial with the DCSE review action, but without any cross-claim for relief filed by Relator's spouse, Relator filed a voluntary dismissal of No. 02CV762553, without prejudice. This was filed December 18, 2003.

On February 5, 2004, the circuit court of Stoddard County entered the following order:

"By reason of the Court's earlier order consolidating [case No. 02CV762553] with 03MC761242-02, [Relator in this action for prohibition] may not voluntarily dismiss [case No. 02CV762553] without consent. It is therefore ordered that the case not be dismissed. Case is set for trial at 9:00 a.m. Monday, February 23, 2004."

Relator thereafter filed this action in prohibition.

Relator's point relied on contends she is entitled to an order prohibiting Respondent from taking further action in the Stoddard County dissolution action; that "[R]espondent is without jurisdiction in that action, notwithstanding the fact that the dissolution action had been consolidated with a separate petition for review of a child support enforcement order, in that [R]elator dismissed the dissolution action without prejudice on December 18, 2003." This court agrees.

Rule 67.02(a)(2) provides that, with exceptions not present here, "a civil action may be dismissed by the plaintiff without order of the court anytime ... [i]n cases tried without a jury, prior to the introduction of evidence." (Emphasis supplied.) As explained in P.R. v. R.S., 950 S.W.2d 255[1,2] (Mo.App.1997):

"Once a plaintiff dismisses a case pursuant to Rule 67.02(a), `it is as if the suit were never brought.' The trial court may take no further action as to the dismissed action and any step attempted is a nullity. The trial court loses jurisdiction at the time of dismissal and no appeal can be taken from the dismissal."

Id. at 256 (citations omitted). Moreover, "[a] voluntary dismissal is effective on the date it is filed with the court." Kirby v. Gaub, 75 S.W.3d 916, 917 (Mo.App.2002).

In refusing to recognize Relator's claimed right to voluntarily dismiss her case without consent, Respondent appears to rely on State ex rel. Keeling v. Randall, 386 S.W.2d 67 (Mo.banc 1965). There, a wife's action for personal injuries was consolidated by the trial court with her husband's derivative suit for loss of his wife's services. Husband then attempted to dismiss his case without his wife also dismissing. That effort was rejected by the Supreme Court of Missouri. In so holding, the court noted that consolidation there had occurred under Rule 66.01(b)(1965) (a rule allowing consolidation of actions involving a "common question of law or fact"), and not per Rule 67.01 (1965)(predecessor to Rule 67.02(a)).⁴ Continuing, the court wrote:

"As said in Sec. 941, Federal Practice and Procedure, Barron and Holtzoff: `It is obviously in the interests of justice not to try issues piecemeal whenever it is reasonably possible to do otherwise.' We consider this particularly applicable in husband and wife suits based on the same single occurrence which are so necessarily interrelated and dependent.

... Our ruling in this case is confined to the situation presented, in which one spouse has sued for personal injuries and the other for loss of services, and we hold that after such an order of consolidation has been made by the court and while it remains in effect one plaintiff may not be allowed to dismiss without prejudice."

Id. at 68-69 (emphasis supplied).

To recount the limited scope of the Keeling case is to demonstrate its inapplicability here. The claims in the consolidated cases here do not stem from a "single occurrence;" they are not "necessarily interrelated and dependent;" the facts to be proven are different in each case; and separate trials will not result in trying issues piecemeal.

Thus, in Relator's case she was seeking dissolution of her marriage and custody and support for the parties' minor children, whereas in the administrative agency review case Relator's husband was challenging an administrative agency's order that directed him to pay Relator a child support amount and maintain health insurance for two children, beginning August 15, 2002. The administrative order which Relator's husband wanted reviewed was authorized by section 454.470. That section is implicated when, as here, "a court order has not been previously entered." Id. The fact that an administrative agency order was entered, however, did not deprive the thirty-fifth judicial circuit from determining the support obligation of Relator's husband. See section 454.501. The court's adjudication of child support would "supersede the director's order as to support payments due subsequent to the entry of the order by the court, but ... not affect any support arrearage which may have accrued under the director's order." Id. Since the two actions are, for the most part, separate and not intertwined, the Keeling case and the principle espoused therein are inapposite. Respondent's announced reason for refusing to recognize Relator's voluntary dismissal is flawed.

We turn now to another question, namely, whether Relator was precluded by Rule 67.02(a)(2) from voluntarily dismissing her dissolution of marriage case without consent of the circuit court because of the June 2, 2003, proceeding at which evidence was adduced before drug court commissioner Britt. This court answers that question in the negative.

First, we note that the only evidence adduced (before Relator dismissed her petition) was that placed before Commissioner Britt. He is neither an associate circuit nor circuit court judge.⁵ For reasons given below, we conclude Respondent lacked authority to assign Relator's case to the thirty-fifth judicial circuit's drug court for any purpose, including receipt of evidence. We further find that the drug court commissioner lacked authority to hear this dissolution of marriage case under any circumstance, no matter what procedure was followed.⁶ If Sooch v. Director of Revenue, 105 S.W.3d 546 (Mo.App.2003), was rightly decided (as we believe it was) it follows that any dissolution decree entered by the circuit court based upon a drug court commissioner's findings and recommendations could have no legal effect when, as here, the commissioner's authority to act was timely challenged.⁷

Having concluded that Respondent could not enter a valid decree based on evidence heard by Commissioner Britt, it follows that evidence was never "introduced" within the meaning of Rule 67.02(a)(2); consequently, Relator was entitled to voluntarily dismiss her case without Respondent's consent.

The general assembly's statutorily-declared aim in authorizing the establishment and use of drug courts was to "provide an alternative for the judicial system to dispose of cases which stem from drug use." § 478.001. Additionally, drug courts were directed to "combine judicial supervision, drug testing and treatment of drug court participants." Id. These statements, albeit brief, are explicit expressions of legislative intent to limit the scope of authority of drug courts.

In making this observation, we do not ignore the following language in section 478.003:

"The Commissioner shall have all the powers and duties of a circuit judge, except that any order, judgment or decree of the commissioner shall be confirmed or rejected by an associate circuit or circuit judge by order entered within the time the judge could set aside such order, judgment or decree had the same been made by the judge. If so confirmed, the order, judgment or decree shall have the same effect as if made by the judge on the date of its confirmation." (Emphasis supplied.)

Even though section 478.003 contains broad language (as italicized), we reject any...