Wilson v. Sullivan, 73219
| Decision Date | 17 March 1998 |
| Docket Number | No. 73219,73219 |
| Citation | 967 S.W.2d 225 |
| Parties | Tresa Jo WILSON, Plaintiff/Appellant, v. Daniel Joseph SULLIVAN, Defendant/Respondent. |
| Court | Missouri Court of Appeals |
Michael B. Stern, St. Louis, for Appellant.
Edward C. Vancil, David G. Kullman, Creve Coeur, for Respondent.
This case involves a motion to modify custody. The sole issue is whether the special judge from outside the circuit who heard a previous motion to modify and entered judgment thereon in 1996 retains jurisdiction to hear a new motion filed in 1997. We hold that he does not. Accordingly, we reverse and remand with directions.
Some time prior to 1989, mother filed her dissolution petition in St. Louis County, where father resided. The case was assigned St. Louis County Circuit Court number 560238.
On January 4, 1989, the parties entered into a Property Settlement and Separation Agreement and presented their matter to Judge Martin Schiff, Jr. On January 12, 1989, pursuant to the separation agreement, Judge Schiff granted mother primary custody of the minor child and entered a decree of dissolution.
On May 15, 1992, father filed a Motion to Transfer Custody and Motion for Contempt in St. Louis County Circuit Court. In accordance with long established practice and Missouri Supreme Court Clerk Handbook section 220.08, the motion was filed in the original dissolution file and continued to have St. Louis County Circuit Court number 560238.
On November 18, 1992, the parties and their attorneys filed a Memorandum by Consent to Appoint Special Judge. In pertinent part, the memorandum requested St. Louis County Circuit Court "to appoint as special judge in the above styled matter pending in St. Louis County Circuit Court, Judge Thomas Frawley, to preside over this matter."
On that same day, a judge of the St. Louis County Circuit Court entered the following order:
Upon submission of parties Consent Memorandum for appointment of Special Judge and their joint request that the same be approved [and] the Court being apprised of the circumstances for such appointment, Judge Thomas Frawley of the St. Louis Circuit Court, Division 15, is hereby appointed as special judge for the hearing of this cause.
File to be removed by counsel and taken to Judge Frawley.
At this point, the procedural facts become confusing. All documents in the legal file subsequent to Judge Frawley's appointment as special judge no longer contain the St. Louis County Circuit Court caption. Rather, the heading says the matter is in "THE CIRCUIT COURT OF THE CITY OF ST. LOUIS."
Further, the cause number shown on the documents is no longer St. Louis County Circuit Court number 560238. Rather, until 1997, the documents show the cause number as 943-1887. At oral argument, we were advised that apparently for administrative purposes, the St. Louis City Circuit Court assigned a cause number to the matter. This occurred although the matter had not been transferred to St. Louis City Circuit Court, but rather remained pending in St. Louis County Circuit Court.
We were not furnished any circuit court minute sheets from St. Louis County. However, the legal file given us contains St. Louis City case minutes that begin July 26, 1994, almost two years after Judge Frawley was appointed special judge. These minutes reflect that the parties filed numerous motions and cross-motions.
Judge Frawley heard the matter in August and September, 1994. On November 30, 1994, he entered an order. Among other things, he granted in part and denied in part father's motion to modify and motion for contempt, and denied mother's motion for contempt. Moreover, he granted father legal custody of the child. Both parties appealed. This court, in an opinion handed down April 2, 1996, affirmed in part and reversed and remanded in part. Wilson v. Sullivan, 922 S.W.2d 835, 839 (Mo.App. E.D.1996).
On August 20, 1996, Judge Frawley conducted a further hearing. On October 22, 1996, he issued his judgment. On December 6, 1996, he issued a nunc pro tunc order correcting a typographical error in the judgment. Neither party appealed.
We now reach the pleadings which are the basis for this appeal. On May 23, 1997, father filed a Motion to Modify. In addition, he filed a motion seeking a temporary restraining order and issuance of a preliminary injunction transferring custody pendente lite. The motions bear the file stamp of the St. Louis City Circuit Court clerk and bear the number 943-1887B. In these motions, father asked the court to terminate mother's right to "any temporary custody or visitation rights or direct or indirect contact" with the child.
That same day, Judge Frawley waived the notice requirements and issued the temporary restraining order. He set the matter for hearing on June 2, 1997.
On May 29, 1997, mother filed a motion to dissolve the TRO and asked that the proceedings be dismissed for lack of jurisdiction and for improper venue. Among other things, mother's motion contended that Judge Frawley's authority terminated when the matter before him became a final judgment in 1996. In addition, the motion alleged that venue remained in St. Louis County, which was not affected by Judge Frawley's appointment as special judge. Therefore, she alleged, the new motions should be dismissed for improper venue. That same day, Judge Frawley denied mother's motion.
On June 30, 1997, Judge Frawley heard father's motion and issued his order. In part, his order says that mother gave their consent to a specific order being entered. Mother then appealed.
Mother's sole point on appeal alleges the trial court erred in "failing to dismiss the newly filed matters for want of jurisdiction...." She contends that Judge Frawley's appointment as special judge "ended when all pending matters were disposed of on December 6, 1996."
Judge Frawley is a judge of the 22nd Judicial Circuit, composed solely of the City of St. Louis. He is not a judge of the 21st Judicial Circuit, composed solely of the County of St. Louis. However, under Article V, Section 15.1, of the Missouri Constitution, any circuit or associate circuit judge may sit temporarily in any other circuit at the request of a judge thereof. Here, at the request of the parties, a 21st Judicial Circuit Court judge appointed Judge Frawley "as special judge for the hearing of this cause."
Neither party contests Judge Frawley's appointment. Rather, the question raised concerns the duration of his appointment. The general rule is that the special judge's jurisdiction "continues until the termination of the case by final judgment." Prather v. Prather, 263 S.W.2d 57, 58 (Mo.App. E.D.1953). When Judge Frawley entered his October 22, 1996 judgment, all matters pending before him had been resolved. That judgment became final when no appeal was taken. As such, his appointment as special judge in this matter ended.
The subsequent motion to modify filed in May 1997 was in the nature of an independent proceeding and the motion is treated as a petition in an original action. See Wood v. Wood, 378 S.W.2d 237, 239 (Mo.App. E.D.1964). Thus, in Wood, this court said that each subsequent motion to modify "is a separate and independent proceeding." Id.; see also State ex rel. Trojahn v. Conard, 948 S.W.2d 446, 447 (Mo.App. E.D.1997).
As such, under long established case law and under previous Rule 51.05, upon the filing of a motion to modify, a party was entitled to disqualify the judge. Wood, 378 S.W.2d at 239; see also Medawar v. Gaddis, 779 S.W.2d 323 (Mo.App. W.D.1989) ; James v. James, 853 S.W.2d 425, (Mo.App. S.D.1993) .
On March 22, 1994, effective January 1, 1995, the Missouri Supreme Court amended Rule 51.05(a) concerning the procedure for obtaining a change of judge. The amendment in part says that for "purposes of this Rule 51, motions to modify child custody ... filed pursuant to chapter 452, RSMo, shall not be deemed to be an independent civil action unless the judge designated to rule on the motion is not the same judge that ruled on the previous independent civil action." Thus, the supreme court has now limited the previous right to obtain a change of judge on a motion to modify.
Under the new rule, for example, if Judge Able grants the dissolution and subsequently a first motion to modify is filed and assigned to Judge Able, neither party is entitled to a change of judge. If a second motion to modify is filed and assigned to Judge Able, again neither party would be entitled to a change of judge. However, if the first motion to modify was assigned to Judge Capable, then the parties would be entitled to a change of judge.
Nevertheless, father argues that the change in Rule 51.05 "states that motions to modify are not treated as independent civil actions and parties to them are not entitled to another automatic change of judge." (Father's emphasis). As the language in Rule 51.05 indicates and as demonstrated in the previous paragraph, the supreme court did not say...
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Muhm v. Myers, ED 98668.
...is correct as to the general rule that a judge's authority to rule on a case ends when the judgment becomes final. Wilson v. Sullivan, 967 S.W.2d 225, 227 (Mo.App. E.D.1998). That the Supreme Court appointed Judge Frawley as a special judge on the separate occasions of the 2008, 2009, and 2......
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State ex rel. Dreppard v. Jones
...modify a divorce decree, however, is an independent proceeding. Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323 (1952); Wilson v. Sullivan, 967 S.W.2d 225 (Mo.App. E.D.1998). In fact, it appears that by "re-appointing" the GAL following the motion to modify, the court recognized that the modifi......