State ex rel. Nilges v. Rush, 37129

• Decision Date: 30 December 1975
• Docket Number: No. 37129,37129
• Parties: STATE ex rel. James W. NILGES, Relator, v. Hon. Fred RUSH, Circuit Court of St. Charles, Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 857

532 S.W.2d 857

STATE ex rel. James W. NILGES, Relator, v. Hon. Fred RUSH, Circuit Court of St. Charles, Respondent.

No. 37129.

Missouri Court of Appeals, St. Louis District, Division One.

Dec. 30, 1975.

William J. Fletcher, Clayton, for relator.

Ellsworth Cundiff, St. Charles, for respondent.

WEIER, Presiding Judge.

Relator seeks our peremptory writ of mandamus to compel respondent judge to accept for filing his notice of appeal and application for leave to file supersedeas bond as to the court's judgment with respect to support and maintenance payments in a dissolution of marriage action. The judgment was entered on April 28, 1975. No motion for new trial having been filed, relator filed his notice of appeal in the office of the circuit clerk on May 20, 1975. Relator also filed an application for leave to file the notice and for leave to file supersedeas bond on appeal on May 21, 1975.

In his return, respondent contends that the alternative writ of mandamus should be quashed for two reasons. First, he states that § 452.360, RSMo. 1969 (Laws 1973, p. 477, § 13) provides in part: '1. A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal.' Reading this section in conjunction with Rule 81.04, which provides that notice of appeal must be filed not later than ten days after the judgment or order appealed from becomes final, would, in the opinion of respondent, require relator's filing of his notice of appeal ten days after April 28, 1975, the date the court entered its order of dissolution.

We do not believe that it was the intent of the legislature by the language of § 452.360 to attempt to cut down the time that a court retains jurisdiction over its judgment during which it may change, modify or set aside the judgment for good cause under Rule 75.01. This provision of our statute is identical to § 314 contained in the Uniform Marriage and Divorce Act where it is designated subsection (a). In its comment on this clause, the editors state that subsection (a) abolishes interlocutory periods in those states which have them. In other words, the decree of dissolution or separation is immediately effective when entered rather than at a later time after the parties have had a chance to reconsider and reconcile. But this statute does not change the effect of Rule 75.01 which authorizes the trial court to retain control over judgments during a 30-day period after entry of judgment. So far as an appeal is concerned, a judgment does not become final until 30 days have expired after its entry absent the timely filing of a motion for new trial. Rule 81.05. And notice of appeal must be filed within 10 days after the judgment becomes final under Rule 81.05. Rule 81.04; Johnson v. State, 521 S.W.2d 479, 480 (Mo.App.1975). Such rules govern all civil actions. They are promulgated pursuant to authority granted to the Supreme Court by § 5, Art. 5, Const. of Mo., and they supersede all statutes and existing court rules inconsistent with them. Rules 41.01, 41.02. It should further be noted that in § 452.300, RSMo. 1969 (Laws 1973, p. 471, § 1) the legislature stated the rules of court should apply to all proceedings under the act concerning dissolution of marriage. Respondent's first reason for sustaining his position based upon the wording of § 452.360 is without merit.

We now consider the second ground upon which respondent based his ruling. He asserts correctly that Rule 81.05 provides: 'For the purpose of ascertaining the time within which an appeal may be taken, a judgment becomes final at the expiration of thirty days after the entry of such judgment, if no timely motion for a new trial is filed. In any such case, by leave of the trial court, a notice of appeal may be filed at any time after the expiration of the time for filing a motion for a new trial and within thirty days after entry of judgment.' (Emphasis supplied.) Respondent points out that no ...