In re the Marriage of Janet Elaine Gray, n/k/a Janet Elaine Graham and Walter Gray, Jr. Janet Elaine Gray, n/k/a Janet Elaine Graham, Petitioner/Appellant, v. Walter Gray, Jr., Respondent/Respondent.

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: In re the Marriage of Janet Elaine Gray, n/k/a Janet Elaine Graham and Walter Gray, Jr. Janet Elaine Gray, n/k/a Janet Elaine Graham, Petitioner/Appellant, v. Walter Gray, Jr., Respondent/Respondent. Case Number: 71970 Handdown Date: 11/25/1997 Appeal From: Circuit Court of St. Louis County, Hon. M. Zane Yates Counsel for Appellant: Susan M. Hais Counsel for Respondent: Bruce F. Hilton and Lawrence G. Gillespie Opinion Summary: Father filed a motion to declare the parties' daughter emancipated and terminate child support after daughter took a one-semester leave of absence from college to join a touring dance group. Mother appeals from the family court commissioner's entry of summary judgment in father's favor. TRANSFERRED TO THE MISSOURI SUPREME COURT. Division Two holds: 1. Daughter's voluntary one-semester leave of absence from college to join a touring dance group was within her control and did not constitute circumstances which manifestly dictated that the continuous attendance requirement of Section 452.340.5 RSMo (1994) be waived. 2.However, because there is a question of general interest and importance whether appellate jurisdiction exists over a judgment entered by a family court commissioner and whether the statute making the findings and recommendations of a commissioner the judgment of the court is valid, we transfer to the Missouri Supreme Court. Citation: Opinion Author: Kathianne Knaup Crane, Presiding Judge Opinion Vote: TRANSFERRED TO THE MISSOURI SUPREME COURT. Rhodes Russell and J. Dowd, JJ., concur. Opinion:

Father filed a motion to declare the parties' daughter emancipated and terminate child support after daughter took a one-semester leave of absence from college to join a touring dance group. Mother appeals from the family court commissioner's entry of summary judgment in father's favor. She asserts that because daughter's leave of absence related to her educational and career goals and she continued her education after the leave of absence, the trial court should have liberally construed Section 452.340.5 RSMo (1994) to allow daughter to continue to receive child support. On the merits of this case we would affirm. However, the "judgment" in this case was signed by a commissioner pursuant to Section 487.030.1 RSMo (1996 Supp.) and not by a judge as required by Rule 74.01(a). This raises both a jurisdictional question and a question of the validity of Section 487.030.1 (1996 Supp.), which gives a commissioner the power to enter a judgment. Because the question regarding the validity of this statute is exclusively within the jurisdiction of the Missouri Supreme Court and the general interest and importance of this jurisdictional question, we transfer to the Missouri Supreme Court. Rule 83.02. MERITS The marriage of Janet Elaine Graham (f/k/a Janet E. Gray) (mother) and Walter Gray, Jr., (father) was dissolved in February 1981. Mother was awarded the care, custody, and control of the one child born of the marriage, Tiffany Anne Gray (daughter). Father was ordered to pay $75.00 per week for child support. In June 1994 daughter graduated from high school. She began attending Webster University in the fall of that same year and selected dance as her major. During the summer of 1995, daughter decided to take a one-semester leave of absence to perform with Sesame Street Live, a national dance tour. Daughter notified the university of her decision to take a leave of absence and that she intended to return for the spring 1996 semester. Daughter was not enrolled in any school program while on tour. As a performer with Sesame Street Live, daughter earned approximately $530.00 a week from which she had to provide for her own living expenses. Daughter toured with the dance company during the fall of 1995 and returned to the university in the following spring as planned. At the time of trial she continued to attend the university. On March 12, 1996 father filed a motion to declare daughter emancipated and terminate support. On August 22, 1996 father filed a motion for summary judgment which the family court commissioner granted. In her only point on appeal, mother asserts that the trial court erred in granting summary judgment in favor of father because it failed to liberally construe Section 452.340.5 RSMo (1994) to find that daughter's leave of absence was related to her educational and career goals. She argues that daughter was entitled to child support until she reached age

twenty-two or completed her education. Section 452.340.3(5) RSMo (1994) provides that, "unless the circumstances of the child manifestly dictate otherwise and the court specifically so provides," a parent's child support obligation terminates when a child reaches age eighteen, unless subsections 4 or 5 apply. Subsection 5 of Section 452.340 RSMo (1994) provides in part as follows: [i]f the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school and so long as the child continues to attend such institution of vocational or higher education, the parental support obligation shall continue until the child completes his education, or until the child reaches the age of twenty-two, whichever first occurs. If the circumstances of the child manifestly dictate, the court may waive the October first deadline for enrollment required by this subsection. . . . As used in this section, an "institution of vocational education" means any postsecondary training or schooling for which the student is assessed a fee and attends classes regularly. "Higher education" means any junior college, college, or university at which the child attends classes regularly. Courts have liberally construed what constitutes an institution of vocational education or higher education. See McIlroy v. Simmons, 832 S.W.2d 949 (Mo. App. 1992) (technical accounting institute in Italy which did not charge a fee); State ex rel. Division of Child Support Enforcement v. Gosney, 928 S.W.2d 892 (Mo. App. 1996) (unaccredited bible college). Courts have further liberally construed course load requirements. A full-time course load is not required. Mayes v. Fisher, 854 S.W.2d 430 (Mo. App. 1993) (a three-hour community college class); Harris v. Rattini, 855 S.W.2d 410 (Mo. App. 1993) (less than full-time course load). Where attendance is not continuous, three elements must be present to waive the statute's requirement that support continue "so long as the child continues to attend such institution": (1) interruption from enrollment is temporary; (2) an intention to re-enroll is evident; and (3) manifest circumstances prevent continuous enrollment. Daily v. Daily, 912 S.W.2d 110 (Mo. App. 1995). "Manifest circumstances" are those which are beyond a child's control. Id. at 113. Our courts have found such circumstances where there have been temporary interruptions in attendance which are beyond the child's control. See McNair v. Jones, 892 S.W.2d 338 (Mo. App. 1995) (father's lack of financial support); Braun v. Lied, 851 S.W.2d 93, 94 (Mo. App. 1993) (illness). However, when circumstances are within the child's control, a temporary interruption in enrollment does not allow the court to waive the continuous attendance requirement. Daily, 912 S.W.2d at 112-13. In this case, although daughter's absence from college was temporary and her intention to re-enroll was evident, her absence was voluntary. Although her employment during her absence related to her major, she received no college credit for it and she took no classes during that time. She was not enrolled in or attending an educational institution. The trial court did not err in determining as a matter of law that daughter was not entitled to further child support under Section 452.340.5 RSMo (1994).

JURISDICTIONAL ISSUE On October 16, 1996 the family court commissioner entered a "Judgment/Order" granting father's motion for summary judgment. Mother did not file a motion for rehearing by a judge of the family court. Mother appeals from the ruling of the commissioner. Although neither party raises the issue of appellate jurisdiction, it is our duty to do so sua sponte. McKean v. St. Louis County, 936 S.W.2d 184, 185 (Mo. App. 1996). In appealing directly from the ruling of the commissioner, mother was relying on Section 487.030.1 RSMo (1996 Supp.) which was amended effective May 15, 1996 to provide that "[i]n cases which are not IV-D cases, findings and recommendations of the commissioner shall become the judgment of the court when entered by the commissioner." Previously, the statute required the commissioner to transmit his or her findings and recommendations to a judge. Section 487.030.1 RSMo (1994). Under the previous versions of the statute, the findings and recommendations of the commissioner did not become the decree of the court unless and until adopted and confirmed by an order of a judge. Section 487.030.2 RSMo (1994). Under the previous versions of Section 487.030, a commissioner was not a judge and could not enter judgments. See In Interest of R.M.M., 902 S.W.2d 355, 358 (Mo. App. 1995); In re Marriage of McMillin, 908 S.W.2d 860, 861-62 (Mo. App. 1995). The issue thus posed is whether this statute creates an appealable judgment. Rule 74.01(a) provides: "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. (emphasis added). 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). The rule also clearly applies to orders from which an appeal lies. Id. We explained in Chambers: "Otherwise, the requirements of a writing signed by the judge and filing would not apply to appealable orders. This would create two different tests for when an appealable order is entered and when a judgment is entered." Id. Rule 74.01 is procedural and was adopted pursuant to the Court's authority to enact rules relating to practice and procedure under article V, Section 5 of the Missouri Constitution. City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997). "Procedural law prescribes a method of enforcing rights or obtaining redress for their invasion; substantive law creates, defines and regulates rights; the distinction between substantive law and procedural law is that substantive

law relates to the rights and duties giving rise to the cause of action, while procedural law is the machinery used for carrying on the suit." Wilkes v. Missouri Highway and Transportation Commission, 762 S.W.2d 27, 28 (Mo. banc 1988). Rule 74.01 does not "change" the right of appeal, but prescribes the method to create an appealable judgment. Because Rule 74.01 is procedural, it controls this case unless specifically annulled or amended by the legislature. State v. Reese, 920 S.W.2d 94, 95 (Mo. banc 1996), which holds: "This Court has the power to make procedural rules governing all legal matters subject only to the limitations of federal law and the Missouri Constitution." Berdella v. Pender, 821 S.W.2d 846, 850 (Mo. banc 1991). The Constitution grants this Court power to "establish rules relating to practice, procedure and pleading for all courts ... which shall have the force and effect of law...." Mo. Const., Art. V, section 5. This Court's rules may not "change substantive rights, or ... the right of appeal." Id. "Supreme Court rules govern over contradictory statutes in procedural matters unless the General Assembly specifically annuls or amends the rules in a bill limited to that purpose." Ostermueller v. Potter, 868 S.W.2d 110, 111 (Mo. banc 1993). The General Assembly did not specifically annul or amend Rule 74.01 (a) by amending Section 487.030.1. To obtain an appealable judgment after a commissioner has entered findings and recommendations under Rule 127 and Section 487.030.1 RSMo (1996 Supp.), a party must file a motion for rehearing as set out in both Rule 127 and the statute, and obtain an order signed by a judge. We are aware that one of our appellate courts has treated a commissioner as a judge for purposes of a motion for change of judge under Rule 51.05. See State ex rel. Kramer v. Walker, 926 S.W.2d 72 (Mo. App. 1996). In State ex rel. Roedel v. Yates, 926 S.W.2d 521 (Mo. App. 1996) this court agreed with the reasoning in Kramer to hold that a commissioner had the authority to sign and execute a warrant and commitment order. However, no case has held that a commissioner is a judge as created and defined by the Missouri Constitution for the purposes of entering a judgment under Rule 74.01(a). Rather, there is a serious question whether the portion of Section 487.030.1 RSMo (1996 Supp.) which makes a commissioner's findings and recommendations a judgment of the court without any action by a judge is constitutional. See In re Marriage of Bloom, 926 S.W.2d 512, 515-16 (Mo. App. 1996). Resolution of this question of the validity of this statute is within the exclusive jurisdiction of the Missouri Supreme Court. Mo. Const. Art. V section 3. Because of the question of the validity of this statute and the general interest and importance of this jurisdictional question, we transfer this case to the Missouri Supreme Court. Rule 83.02. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.