In re the Marriage of Toby Ruth Slay and Alan Lee Slay. Toby Ruth Slay, Petitioner/Appelalnt, v. Alan Lee Slay, 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 Toby Ruth Slay and Alan Lee Slay. Toby Ruth Slay, Petitioner/Appelalnt, v. Alan Lee Slay, Respondent/Respondent. Case Number: 72106 Handdown Date: 11/25/1997 Appeal From: Circuit Court of St. Louis County, Hon. M. Zane Yates Counsel for Appellant: Nancy S. Everett Counsel for Respondent: Albert S. Watkins & Richard B. Hein Opinion Summary: Wife's motion to enter a Qualified Domestic Relations Order was overruled by a "Judgment/Order" from the family court commissioner. TRANSFERRED TO THE MISSOURI SUPREME COURT. Division Two Holds: Because there is a question whether the statute making the findings and recommendations of a commissioner the judgment of the court is valid and a question whether appellate jurisdiction exists over judgment entered by a family court commissioner, which is of general interest and importance, 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: On January 15, 1997 the family court commissioner entered a "Judgment/Order" overruling wife's motion to enter a Qualified Domestic Relations Order. Wife did not file a motion for rehearing by a judge of the family court and appeals from the commissioner's ruling.

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). The family court commissioner entered a "Judgment/Order" overruling wife's motion to enter a Qualified Domestic Relations Order. The "Judgment/Order" 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 because of the general interest and importance of this jurisdictional question, we transfer to the Missouri Supreme Court. Rule 83.02. In appealing directly from the ruling of the commissioner, wife 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 from 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 because of 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.