Sumnicht, By and Through Sumnicht v. Sackman, s. WD

Decision Date21 April 1998
Docket NumberNos. WD,s. WD
Citation968 S.W.2d 171
PartiesWilliam Ray SUMNICHT, III, By and Through his Next Friend and Father, William SUMNICHT, II, Respondent, v. Julie SACKMAN, Appellant. 53494, WD 53567.
CourtMissouri Court of Appeals

Nancy Caviar, Leawood, for Appellant.

James T. Pietz, Independence, for Respondent.

Before EDWIN H. SMITH, P.J., and ELLIS and RIEDERER, JJ.

EDWIN H. SMITH, Presiding Judge.

Julie Sackman appeals from the judgment of the Circuit Court of Jackson County modifying the court's prior judgment of paternity and custody, which originally awarded her sole legal and physical custody of her son, William Ray Sumnicht, III (Liam). The trial court modified its original custody award by awarding the appellant and Liam's father, the respondent, William Sumnicht, II, joint legal custody of Liam. Several months after the original custody order was entered, the respondent moved to modify custody to provide for joint legal custody or, in the alternative, to award him sole custody. The trial court heard evidence and modified the original award, awarding the respondent sole legal and physical custody of Liam, which award was appealed to this court in Sumnicht v. Sackman, 906 S.W.2d 725 (Mo.App.1995) (Sumnicht I ). This court in Sumnicht I reversed and remanded, directing the trial court to reinstate the original custody arrangement. In doing so, this court's opinion included language which convinced the trial court that, on remand, it was to consider the appropriateness of an award of joint legal custody to the parties, even though this court had determined that there had not been a change of circumstances. And, on remand, the trial court did, in fact, award joint legal custody to the parties, precipitating this appeal.

The appellant raises three points on appeal. In her first point, she claims that the trial court erred in awarding the parties joint legal custody of Liam because such an award cannot be made unless there is substantial evidence of a commonality of beliefs between the parents and their willingness and ability to cooperate and function as a parental unit, and there was no such evidence of these factors here, and that, in fact, the clear weight of the evidence established the contrary. In her second point, she claims that the trial court erred and abused its discretion in ordering, as part of its joint legal custody award, that Liam be enrolled in public schools until the seventh grade because it was contrary to the provisions of § 167.031, 1 concerning home schooling as a legal alternative to public schooling, and § 452.405.1, concerning the custodial parent's right to determine a child's educational training, and that it was against the weight of the evidence in that the child was thriving in home schooling. In her last point, she claims the judgment of the trial court awarding joint legal custody is null and void because § 452.375.8 requires an award of joint legal custody to include a written custody plan, which the trial court failed to include.

Facts

William Ray Sumnicht, III (Liam), was born on February 24, 1987. His biological parents, appellant and respondent, were not married then and have never been married to each other. However, pursuant to the respondent's petition for declaration of paternity and the parties' stipulation and agreement thereon, the Circuit Court of Jackson County entered a judgment on June 15, 1992, wherein the respondent was declared the natural father of Liam, and his sole legal and physical custody was awarded to the appellant, with visitation to the respondent.

In November of 1992, the respondent filed a motion to modify Liam's custody, requesting the trial court to award the parties joint legal custody, or, in the alternative, to award him sole legal and physical custody. As part of his request for joint legal custody, the respondent also requested that the trial court order Liam to be placed in a public or private school. At the time, Liam was being home schooled by the appellant, a fact to which the respondent objected and which was the primary motivation for the filing of respondent's motion to modify. After a hearing, the trial court changed sole legal and physical custody of Liam to respondent. In Sumnicht I, the appellant appealed the trial court's grant of the respondent's motion to modify awarding the respondent sole custody.

In Sumnicht I, this court reversed the judgment of the trial court awarding sole legal and physical custody to the respondent and remanded the cause, instructing the trial court to reinstate the original custody arrangement where the appellant had sole legal and physical custody of Liam. In remanding the cause, this court stated as follows:

If the trial court concludes that a change in the decree is necessary in order to reach the schooling issue, the court could decide that it is appropriate to change to joint legal custody while leaving physical custody with Mother. If the parties are unable to agree about the schooling issue, the court will be able to address it.

Sumnicht, 906 S.W.2d at 728-29. Based on this language, the trial court proceeded on remand to not only reinstate custody to appellant, but determine whether joint legal custody should be awarded.

After a hearing, the trial court determined that an award of joint legal custody was in the best interests of Liam and ordered the same. In addition, it ordered that Liam be placed in public school until the seventh grade.

This appeal follows.

I.

Before addressing the merits of the appellant's claims, we first are required to determine, sua sponte, whether we have jurisdiction to hear this appeal. Peters v. United Consumers Club, 786 S.W.2d 192, 193 (Mo.App.1990). In this regard, "[a] judgment entered in excess of or beyond the jurisdiction of the trial court is void and an appellate court has no jurisdiction to review on the merits." Id. Any doubt concerning the authority or jurisdiction of the trial court to enter its judgment must be raised, sua sponte, by the appellate court where not raised with the trial court. Turner v. General Motors Corp., 750 S.W.2d 76, 77 (Mo.App.1988). It is well settled that a trial court, on remand, with respect to the issues addressed by the appellate court on appeal, only has that authority granted to it by the appellate court in its mandate. Howard Const. Co. v. Teddy Woods Const. Co., 844 S.W.2d 29, 30-31 (Mo.App.1992). And, if in entering its judgment, the trial court exceeds the authority of the appellate court's mandate, it is without jurisdiction to enter it, rendering it void. Id. And, logically, if the appellate court's judgment is void, any further proceedings thereon by the trial court would also be void and subject to attack on appeal. McIntosh v. Wiggins, 356 Mo. 926, 204 S.W.2d 770, 772 (1947).

Here, the record clearly indicates that the trial court, in awarding joint legal custody, was proceeding on what it believed was a mandate by this court in Sumnicht I to consider, on remand, the appropriateness of such an award. We glean this from the record, specifically from the following exchange between the parties' attorneys and the court during the August 22, 1996, hearing:

THE COURT: Now, the issue today or at this time is whether or not there should be joint custody.

MS. CAVIAR: Right.

THE COURT: I would assume, I mean, that's the first item that we will discuss--I'm not sure who should go first on that. You don't care whether there is any joint custody or not?

MS. CAVIAR: He did file his motion to modify, although he did not ask for joint custody, he asked for sole custody.

MR. GORACKE: We asked for joint custody in the initial order.

THE COURT: In view of the fact of what the appellate said, that this Court could, the Court can even without a change--

MR. GORACKE: We did ask for that in the '94.

THE COURT: I think, then, that issue would be--I suppose would be, the burden would be on the person asking for it.

MS. CAVIAR: On the record, Judge, I would like to say, technically, I believe Mr. Goracke and the petitioner should have filed a motion asking for joint custody pursuant to the remand instead of sole custody.

THE COURT: It's a procedural matter, maybe a technical procedural matter. When the appellate told me I could do that, they remanded to the Court to which it's remanded to make a decision about joint legal custody, I think, because I have to do that before we can even proceed, otherwise forget it.

In this respect, this court communicated to the trial court, through its mandate, what actions it wanted taken on remand. Parker v. Parker, 857 S.W.2d 873, 873-74 (Mo.App.1993). As to this court's mandate in Sumnicht I, it states, in pertinent part, as follows:

Now on this day the judgment is reversed, and the cause is remanded to the Circuit Court of Jackson County for further proceedings in conformity with the opinion of this Court.

This language of the mandate required the trial court to look to the opinion of this court to determine what it was being instructed to do on remand. Jerome v. Farmers Produce Exchange, 826 S.W.2d 3 (Mo.App.1991). In this regard, the opinion, in pertinent part, states:

We hold that the trial court erred in finding a 'change in circumstances' and in awarding sole custody to Father. We reverse the decision of the trial court and remand this case to the trial court with instructions to reinstate the original custody arrangement specifying Mother as the custodian of Liam. If the trial court concludes that a change in the decree is necessary in order to reach the schooling issue, the court could decide that it is appropriate to change to joint legal custody while leaving physical custody with Mother. If the parties are unable to agree about the schooling issue, the court will be able to address it. In view of the disposition of this matter, it is not necessary to address appell...

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