Tice v. Tice, s. 18169
| Decision Date | 12 April 1993 |
| Docket Number | 18186,Nos. 18169,s. 18169 |
| Citation | 850 S.W.2d 419 |
| Parties | Vanessa R. TICE, Petitioner-Respondent, v. Scott A. TICE, Respondent-Appellant, Jason Robert Tice and Peggy Virginia Tice, Intervenors-Appellants. |
| Court | Missouri Court of Appeals |
Andrew K. Bennett, Gannaway, Fiorella, Cummings & Bennett, Springfield, for petitioner-respondent.
Scott B. Tinsley, P.C., Springfield, for respondent-appellant.
Nancy Steffen Rahmeyer Pratt & Fossard, Springfield, for intervenors-appellants.
The marriage of Vanessa R. Tice and Scott A. Tice was dissolved by a dissolution decree entered April 14, 1992. In that decree Vanessa R. Tice was granted primary physical custody of the male child born of the marriage. The decree provided for visitation of the child by Scott A. Tice and his parents, Jason Robert Tice and Peggy Virginia Tice.
By order made May 18, 1992 the visitation arrangements were changed. Scott A. Tice, Jason Robert Tice and Peggy Virginia Tice appeal from the latter order. In their joint brief appellants contend that the trial court no longer had jurisdiction to make the order of May 18 and did not give the parties an opportunity to be heard before entering the order.
The petition for dissolution was filed by Vanessa R. Tice on March 22, 1991. Appellant Scott A. Tice filed an answer and counterclaim on May 2, 1991. On February 21, 1992, Jason Robert Tice and Peggy Virginia Tice, grandparents of the child born to the marriage, filed a motion to intervene, seeking "orders of specific visitation rights" with the child. That motion was sustained on March 5, 1992.
All parties participated in person and by attorney at the trial on March 17, 1992. A decree of dissolution of marriage was entered on April 14, 1992. On May 7, 1992, Jason Robert Tice and Peggy Virginia Tice filed a motion to amend the decree pertaining to visitation. On May 13, 1992, Vanessa R. Tice filed a motion to amend the decree regarding the amount of child support, health insurance and medical expenses of the child.
The trial court then entered an "Amended Decree of Dissolution of Marriage" following the requests made by Vanessa R. Tice in her motion to amend the decree. This amended decree recites that it occurred "on this 13th day of May, 1992", however, a stamp of the circuit clerk states that it was filed "May 18, 1992". The docket sheet recites that on The docket sheet also reflects a hearing that day on Jason Robert Tice's and Peggy Virginia Tice's motion to amend the decree. Their motion was taken under advisement.
On May 18, 1992, the court made certain modifications in intervenors' visitation with the child. It is that order which appellants contest. Appellants state that the trial court lost jurisdiction May 14, 1992, because there were no timely after-trial motions filed and under Rule 75.01 the trial court retains jurisdiction to amend the original decree for only thirty days after its entry.
Because the after-trial motions were not filed within fifteen days after the entry of the judgment, the trial court had authority to change the judgment for only thirty days as provided in Rule 75.01. AGC Ins. Fund v. Jetco Heating & Air Conditioning, Inc, 815 S.W.2d 141, 142 (Mo.App.1991); Rule 73.01(a)(3).
Not being made within fifteen days, the motions to amend are treated as suggestions to the court that it amend its decree under the authority granted to the court by Rule 75.01. Caldwell Paint Mfg. Co. v. LeBeau, 591 S.W.2d 1, 5 (Mo.App.1979).
If the amendment on petitioner's motion was made within thirty days, then under Rule 75.01 the trial court had an additional thirty days from that amendment to make other changes as the effect of that amendment was the entry of a new judgment. Moyer v. Walker, 771 S.W.2d 363, 365 (Mo.App.1989); Daniels v. Daniels, 675 S.W.2d 29, 32 (Mo.App.1984).
The amendment on petitioner's motion recites that it occurred on May 13, 1992, and the docket sheet confirms that order and a hearing on intervenors' motion on that date. No transcript of that hearing was filed here and whether its proceedings were preserved is not shown in the record.
The stamp of the clerk showing the date of filing does not conclusively establish that it was "filed" on that date. See Lewis v. State, 845 S.W.2d 137, 138-139 (Mo.App.1993); Euge v. Golden, 551 S.W.2d 928, 931 (Mo.App.1977); 66 Am.Jur.2d Records § 4, p. 344 (1973); 76 C.J.S. Records § 6, p. 116 (1952). Cf. also Brissette v. Brissette, 471 S.W.2d 691, 693 (Mo.App.1971); Mirax Chemical Products Corp. v. Tarantola, 268 S.W.2d 71, 73 (Mo.App.1954).
If the trial judge rendered the decision on May 13, 1992, as he indicated in the order and docket sheet, then its validity is not affected by a delay of the court clerk in entering it into the court records, if such occurred. See Fleming v. Clark Township of Chariton County, 357 S.W.2d 940, 942 (Mo.1962).
There is a distinction between the judicial act of rendering a judgment or an order and the ministerial act of entering it upon the record. See Allen v. Gibbons, 425 S.W.2d 243, 245-246 (Mo.App.1968); Rehm v. Fishman, 395 S.W.2d 251, 255 (Mo.App.1965). See also In re Marriage of Huey, 716 S.W.2d 479, 481 (Mo.App.1986) (Prewitt, C.J., dissenting). If the amended judgment was rendered within thirty days of the trial court's initial judgment, under Rule 75.01 it is valid, even if entered after such time has expired. In re Marriage of Brooke, 773 S.W.2d 496, 498 (Mo.App.1989).
It is easy to conceive of a situation where the trial court executes a document but the circuit clerk's office is not aware of it until days later. Absent some specific showing to the contrary, we must presume that the document was entered on the date it recites, particularly where, as here, it is confirmed by the docket sheet.
The decree was first amended on May 13, 1992, thus the trial court had an additional thirty days under Rule 75.01 to change the judgment. The trial court therefore had jurisdiction over the matter at the time of the order made May 18, 1992, modifying intervenors' visitation.
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Tice v. Tice, 18584
...the visitation arrangements, and Scott and the grandparents appealed from that order. This court affirmed the order. Tice v. Tice, 850 S.W.2d 419 (Mo.App.1993). The instant appeal, by Scott and the grandparents, is from the trial court's order of December 4, 1992, which awarded attorney's f......
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...amended judgment is entered during the thirty day duration, "the effect of the amendment is to enter a new judgment." Tice v. Tice, 850 S.W.2d 419, 420 (Mo.App. S.D.1993); Moyer v. Walker, 771 S.W.2d 363, 365 (Mo.App.1989); Daniels v. Daniels, 675 S.W.2d 29, 32 (Mo.App.1984). Here, the amen......
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...that asks the trial court to amend a judgment pursuant to Rule 75.01 is treated as a suggestion to the trial court. Tice v. Tice, 850 S.W.2d 419, 420 (Mo.App.1993). A trial court proceeding under Rule 75.01 acts on its own initiative. An attempt by a trial court to amend a judgment more tha......
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...between the judicial act of rendering a judgment or an order and the ministerial act of entering it upon the record. Tice v. Tice, 850 S.W.2d 419, 420 (Mo.App. S.D.1993) (internal citations omitted). In Tice, the docket entry reflected that an order of the court was filed four days after th......