George S. Fowler, Jr., Respondent, v. Carole St. Mard Fowler, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: George S. Fowler, Jr., Respondent, v. Carole St. Mard Fowler, Appellant. Case Number: 72942 Handdown Date: 07/31/1998 Appeal From: Circuit Court of St. Louis County, Hon. Melvyn Wiesman Counsel for Appellant: Alan E. Freed and Daniel P. Card Counsel for Respondent: Charles P. Todt Opinion Summary: Carole St. Mard Fowler appeals from a judgment and order signed by the presiding judge of the Family Court Division of St. Louis County circuit court on January 9, 1998 adopting and confirming the Amended Judgment/Order of Commissioner Yates issued on June 12, 1997. The appellate court found that the Amended Judgment/Order signed by the Commissioner is not a final judgment and dismisses the appeal for lack of jurisdiction. However, because of the general interest and importance of this jurisdictional question, the court transfers this case to the Missouri Supreme Court. Rule 83.02. CASE TRANSFERRED TO THE MISSOURI SUPREME COURT. Division Four holds: A "judgment" signed by a commissioner, but not timely signed by a judge, does not constitute a final appealable judgment where the commissioner's "judgment" has been challenged by one of the parties. Citation: Opinion Author: Paul J. Simon, Judge Opinion Vote: CASE TRANSFERRED TO THE MISSOURI SUPREME COURT. R. Dowd, Jr., P.J. and Hoff, J., concur. Opinion:

Appellant, Carole St. Mard Fowler (Carole) appeals from a judgment and order signed by Honorable Melvyn Wiesman, the presiding judge of the Family Court Division of St. Louis County on January 9, 1998 adopting and confirming the Amended Judgment/Order of Commissioner Yates (Commissioner) issued on June 12, 1997. On appeal, appellant contends that the Family Court Division: (1) erred in treating sua sponte, without notice to either party or this court, Commissioner's prior judgment as mere recommendations and then adopting the same on January 9, 1998 during the pendency of this appeal as the "judgment and order" of the court because the Family Court Division was without jurisdiction to enter such judgment, the litigants had a constitutional right to receive notice and an opportunity to be heard before the Family Court Division adopted and entered judgment based on Commissioner's findings, and Carole was constitutionally entitled to a full and plenary review by a judge; (2) abused its discretion in terminating the obligation of George Fowler (George) to pay maintenance to Carole because there was no evidence to support or it was against the weight of the evidence to find that Carole could be employed earning above the minimum wage, that her income from rental properties and from employment would be sufficient to support her, and she possessed enough property to provide for her reasonable needs; (3) erred as a matter of law in terminating George's obligation to provide life insurance for Carole's benefit in that no evidence was adduced relative to that issue and the obligation to provide life insurance is a contractual, non modifiable obligation over which the Family Court Division has no jurisdiction; (4) abused its discretion in failing to award attorney's fees and court costs to Carole, in that the evidence clearly demonstrated George's superior income and ability to pay for attorney's fees and costs of courts and the failure to award such is against the weight of the evidence. The record reveals that the parties' marriage was dissolved in

1. Pursuant to the decree, George was ordered to pay Carole $1,200 per week as maintenance and to maintain a

life insurance trust naming Carole and her children as beneficiaries. Thereafter, George experienced a decrease in his income. In 1996, George filed a Motion to Modify Decree of Dissolution asking the court to terminate or reduce the amount of maintenance payments and to eliminate the life insurance requirement. The matter was heard before a Commissioner, who issued his "Notice of Findings and Recommendation (and Judgment) of Commissioner" on April 8, 1997, terminating maintenance and life insurance obligations. Carole filed a timely "Motion for Rehearing and, in the Alternative, Motion to Amend or for New Trial" requesting a "rehearing of this cause, by a Circuit Judge" and in the alternative that the motion to amend or for new trial be granted. Subsequently, the Commissioner issued his Amended Judgment/Order on June 12, 1997. Carole filed a timely Motion to Alter/Amend, which was denied on July 21, 1997. Carole filed an appeal in this court on July 30, 1997. The order had not been signed by a judge at that time. In November 1997, this court transferred to our Supreme Court Slay v. Slay,

No. 72106 slip op.at 2 (Mo.App. Nov. 25, 1997), calling into question the validity of Section 487.030.1 RSMo Supp. 1996 (all further references herein shall be to RSMo Supp. 1996 unless otherwise noted), which provided that orders signed and entered solely by a commissioner constitute final judgments. Thereafter, the presiding judge of the Family Court Division, sua sponte, without notice to either of the parties or this court, entered a "Judgment and Order of the Court" which adopted and confirmed Commissioner's prior judgment. The threshold question is our jurisdiction. Because we hold that there was no final appealable judgment entered in this case, we are without jurisdiction to consider the appeal. We initially note that the presiding judge of the Family Court Division was without jurisdiction to adopt and sign the judgment of Commissioner and enter it as the judgment of the court. After Commissioner entered its "Judgment/Order" and before the presiding judge signed the order, Carole filed an appeal with this court. We have held that when a party files a notice of appeal from a final judgment, the trial court loses jurisdiction over the cause until the appellate court revests the trial court with jurisdiction by the issuance of its judgment. Lardinois v. Lardinois, 852 S.W.2d 272, 273 [1] (Mo.App. 1993). A trial court has continuing jurisdiction to perform ministerial acts involving the case so long as those acts do not affect the appeal and has continuing jurisdiction over a collateral matter for the preservation of the status quo of the parties. Id. Since the presiding judge's adoption of Commissioner's Amended Order/Judgment was a judicial act, rather than a ministerial act, the presiding judge was without jurisdiction on January 9, 1998 to enter a judgment and order adopting Commissioner's findings. See Id. at 873 [1-2]. Additionally, the presiding judge's attempt to enter an Order and Judgment on January 9, 1998 was not timely. Section 487.030.2 provides that the parties are entitled to file a motion for hearing by a judge within fifteen days after receiving notice of the findings of the commissioner and that the judge shall promptly rule on the motion. If the motion is not ruled on within forty five days, it is denied for all purposes. Section 487.030.2. Here, the presiding judge entered the order and judgment well beyond the period provided for review and thus it was untimely. Because we find that the order and judgment was not timely entered by the presiding judge and further that the presiding judge was without jurisdiction to enter a judgment by reason of an appeal to this court, we must determine if Commissioner's order and judgment alone, without the benefit of being signed by a judge constitutes a final appealable judgment. Section 487.030.1 provided that the findings and recommendations of the commissioner in cases which are not IV-D cases (in which support rights have been assigned to the state of Missouri or where the division of child support enforcement is providing support enforcement services), findings and recommendations of the commissioner shall become the order of the court when entered by the commissioner. In Slay, No. 72106 slip op.at 2 (Mo.App. Nov. 25,

1997), in transferring the issue to our Supreme Court, we noted that the statute appeared to be inconsistent with Rule 74.01 (a) which provides that: "Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" is filed. The judgment may be a separate document or included on the docket sheet of the case. Under this rule, a judgment must be (1) in writing, (2) signed by the judge, (3) denominated "judgment," and (4) filed. Chambers v. Easter Fence Co., Inc., 943 S.W.2d 863, 865 (Mo.App. 1997). Our Supreme Court determined that because the "judgments," which were signed by a commissioner but not a judge were "not signed by a person selected for office in accordance with and authorized to exercise judicial power by article V of the state constitution, no final appealable judgments have been entered and this court is without jurisdiction." Slay v. Slay, Gray v. Gray, Bell v. Bell, Nos. 80405 to 80407 slip ops. (Mo.banc March 24, 1998). Our Supreme Court's holding in State ex rel. York v. Daugherty, No. 80742 slip op. (Mo. banc June 16, 1998) does not compel a different result. There, the Court modified its holding in Slay, Nos. 80405 to 80407 slip ops. (Mo.banc March 24, 1998), reacting to widespread concern about the validity of several purported "judgments" entered by commissioners which had for some time been relied on as valid judgments. The Court held that parties to a void judgment are estopped from raising a claim of lack of jurisdiction in some circumstances, especially where they "assumed the benefits of such >judgment'" and failed to object to the commissioner's legal authority. Here, we do not have an instance of two parties accepting a "judgment" of a commissioner and as a result of Slay now questioning that "judgment" which they have always considered valid. Carole has never accepted this "judgment" or assumed its benefits, evidenced by her motions to modify and her appeal. She is not estopped from disputing the "judgment" of Commissioner, as she has never claimed to accept it. Thus, because the Amended Order and Judgment of Commissioner is not a final appealable judgment under Slay and the parties are not estopped from disputing its validity under Daugherty, we are without jurisdiction to hear this appeal. However, because of the general interest and importance of this jurisdictional question, we transfer this case to the Missouri Supreme Court. Rule 83.02. CASE TRANSFERRED TO THE MISSOURI SUPREME COURT. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.