Stucker v. Stucker
| Decision Date | 28 August 2018 |
| Docket Number | No. ED 106068,ED 106068 |
| Citation | 558 S.W.3d 119 |
| Parties | Karen E. STUCKER, Respondent, v. Dale E. STUCKER, Appellant. |
| Court | Missouri Court of Appeals |
FOR APPELLANT: Tom K. O’Loughlin II, 1736 N. Kingshighway, Cape Girardeau, Missouri 63701.
FOR RESPONDENT: Richard G. Steele, 3113 Independence, P.O. Box 1300, Cape Girardeau, Missouri 63702.
Dale E. Stucker (Father) appeals the trial court’s judgment that dissolved his marriage to Karen E. Stucker (Mother). Father claims that the trial court erred by (1) denying his request for equal, alternating week-long periods of custodial time in the summer and (2) ordering that he pay Mother child support in the amount of $98 per month. We are unable to reach the merits of this appeal because Father waived his right to appeal by stipulating to the entry of the judgment he now seeks to challenge. Appeal dismissed.
In Missouri, the right to appeal is purely statutory. Henze v. Schallert, 92 S.W.3d 317, 319 (Mo.App.E.D. 2002). One prerequisite to the right to appeal is that the party seeking to appeal must be "aggrieved by" the judgment. Id. at 319 (quoting § 512.0201 ). A party cannot be aggrieved within the meaning of § 512.020 when a court enters judgment pursuant to his express agreement. Nations v. Hoff, 78 S.W.3d 222, 223 (Mo.App.E.D. 2002), Indeed, it is generally held that a judgment, order, or decree entered by consent of the parties cannot be appealed, for it is not a judicial determination of rights, but a recital of an agreement. Henze , 92 S.W.3d at 319 ; State ex rel. and to Use of Fletcher v. New Amsterdam Cas. Co., 430 S.W.2d 642, 645 (Mo.App. 1968), So a party is estopped or is deemed to have waived his right to appeal when a judgment, order, or decree was entered at his request. Id. ; Segar v. Segar , 50 S.W.3d 844, 847 (Mo.App.W.D. 2001). And where the appellant lacks statutory authority to appeal, we lack jurisdiction and must dismiss the appeal. See Cook v. Jones , 887 S.W.2d 740, 741-42 (Mo.App.S.D. 1994) ; Segar , 50 S.W.3d at 846 ; Hagen v. Rapid Am. Corp. , 791 S.W.2d 452, 456 (Mo.App.E.D. 1990).
We find that the stipulation Father agreed to with Mother, which specifically "pray[ed] that the Court enter its Second Amended Judgment," results in the waiver of his right to appeal. A review of the record supports our conclusion as to the intent of the stipulation. The court held a bench trial on the parties' cross-petitions for dissolution of marriage. Following the bench trial, the court entered a judgment and then, after Father filed a motion to amend, the court entered a first amended judgment that, inter alia , denied Father’s request for equal, alternating summer custody and ordered that he pay child support in the amount of $98 per month. Mother filed a motion to reopen trial for additional evidence regarding certain tax consequences of the judgment, and at the hearing on that motion, Father filed a motion for new trial. The court denied Father’s motion, granted Mother’s, and scheduled a second bench trial exclusively to address the tax issues.
Before the second bench trial could be held, however, the parties entered into and filed the stipulation, which provided in toto , "Comes Now Petitioner, and Comes also Respondent, by their respective attorneys, and do stipulate and agree that all post-trial motions filed by either side are withdrawn and do pray that the Court enter its Second Amended Judgment, per the interlineations previously filed with the Court." The trial court cancelled the scheduled bench trial and entered the stipulated Second Amended Judgment, which like the previous judgment denied Father’s requested custody and ordered that he pay $98 monthly in child support. Father’s only subsequent filing was his notice of appeal, by which he now attempts to dispute the validity of the Second Amended Judgment’s custody and child support determinations to which he stipulated.
In light of these facts, we find that Father waived his right to appeal the Second Amended Judgment. He specifically "pray[ed]" for the entry of that judgment and consented to the withdrawal of all post-trial motions and thus cannot be held under § 512.020 to have been "aggrieved by" the Second Amended Judgment. New Amsterdam Cas. Co., 430 S.W.2d at 645 ; Nations, 78 S.W.3d 222, 223. If he wanted to dispute the validity of the Second Amended Judgment’s custody and child support determinations, he should not have stipulated to them...
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