Phyllis Ann Bell, Respondent, v. David Leslie Bell, 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: Phyllis Ann Bell, Respondent, v. David Leslie Bell, Appellant. Case Number: 71313 Handdown Date: 11/25/1997 Appeal From: Circuit Court of St. Louis County, Hon. M. Zane Yates Counsel for Appellant: Jack J. Cavanagh, Jr., and Paul J. Vaporean Counsel for Respondent: Aaron S. Dubin Opinion Summary: In this court tried case, a commissioner of the family court awarded custody of Sultan Bell to his mother, Phyllis Ann Bell. Father, David Leslie Bell, appeals the commissioner's "judgment". Since a judge did not sign the writing denominated "judgment", there is no final judgment under Rule 74.01(a). TRANSFERRED TO THE SUPREME COURT. Division Three holds: (1) Family Court Commissioner's findings and recommendations are not judgments under Rule 74.01(a) since they are not signed by judges. (2) Because of the general interest and importance of the issue, we transfer the case to the Supreme Court pursuant to Rule 83.02. Citation: Opinion Author: Clifford H. Ahrens, Presiding Judge Opinion Vote: Crandall Jr. and Karohl, J.J., concur. Opinion: In this court tried case, a commissioner of the family court awarded custody of Sultan Bell to his mother, Phyllis Ann Bell. Father, David Leslie Bell, appeals the commissioner's "judgment". Since a judge did not sign the writing

denominated "judgment", a jurisdictional question exists as to whether there is final judgment under Rule 74.01(a). Transferred to Supreme Court. Mother filed a petition for dissolution of her marriage with father on May 25, 1995. Father filed an answer and cross-petition. After a one day trial, the commissioner entered his "judgment" on May 16, 1996, awarding primary custody of Sultan Bell to his mother. Mother filed a motion for an amended judgment requesting that the commissioner alter the visitation arrangements. The commissioner court granted mother's motion and entered an amended judgment on August 26, 1996.(FN1) This appeal follows. Neither party has questioned this court's jurisdiction over father's appeal. However, a reviewing court has a duty to determine its jurisdiction sua sponte. Stein v. Trampe, 897 S.W.2d 209, 210 (Mo. App. 1995). The right to appeal is purely statutory, and an appeal may be only taken from a final judgment of a trial court. Id.; Section 512.020 RSMo. (1994). Rule 74.01(a) defines a judgment as a writing signed by the judge and denominated as a "judgment". Our Supreme Court has recently held that the provisions of Rule 74.01(a) must be strictly complied with in order for a writing to be a judgment.(FN2) City of St. Louis v. Hughes, No. 79514 (Mo. banc August 19, 1997). Although Rule 74.01(a) requires a judge to sign a writing for it to become a "judgment", the legislature has declared that the findings and recommendations of a family court commissioner shall become the judgment of the court when entered by the commissioner. Section 487.030.1 RSMo. Cumm. Supp. (1996). The statute appears to conflict with the Supreme Court rule in that the statute does not require a judge to sign the writing denominated as "judgment" while the rule does. Supreme Court Rules govern over conflicting statutes in procedural matters unless the General Assembly amends the rule by enacting a bill specifically for that purpose. Ostermueller v. Potter, 868 S.W.2d 110, 111 (Mo. banc 1993); Mo. Const. Art. V, Section 5. Rule 74.01(a) is procedural since it relates to the machinery used for carrying on the suit. See Wilkes v. Missouri Highway and Transportation Commission, 762 S.W.2d 27, 28 (Mo. banc 1988). Also, the General Assembly has not enacted a bill specifically for the purpose of amending Rule 74.01(a). Thus, Rule 74.01(a) requiring a judge to sign the writing denominated as "judgment" appears to control over section 487.030.1 which automatically converts the commissioner's findings into the court's judgment. Here, only the family court commissioner signed the writing denominated as "judgment". The judgment signed by the commissioner is only a judgment as defined by Rule 74.01(a) if the commissioner is a judge. It is true that the legislature has vested commissioners with the power to enter findings and recommendations that affect the legal rights, duties or privileges of the litigants. Therefore, commissioners do act in a quasi-judicial capacity. See Ryan v. McNeal,

569 S.W.2d 361, 363 (Mo. App. 1978). Courts have held that commissioners have the power to enforce their rulings by issuing contempt orders, State ex. rel. Roedel v. Yates, 926 S.W.2d 521, 522 (Mo. App. 1996), and are subject to the change of judge provisions of Rule 51.05 , State ex. rel. Kramer v. Walker, 926 S.W.2d 72, 75-76 (Mo. App. 1996). Although commissioners do have some judicial authority by statute, they are not judges. Section 487.030.1 states that in IV-D cases(FN3), the findings of the commissioner shall become the judgment of the court when adopted and confirmed by an order of the judge. Also, Section 487.030.2 recites that parties to a cause of action heard by a commissioner are entitled to file with the court a motion for a hearing by a judge of the family court. Furthermore, under the prior version of section 487.030.1, which required a judge to adopt and confirm the commissioner's findings and recommendations, our courts held that a commissioner was not a judge. See e.g. In re Interest of R.M.M., 902 S.W.2d 355, 358 (Mo. App. 1995). Therefore, under both the statute and prior case law, a commissioner is not equivalent to a judge. Because a judge did not sign the writing denominated as "judgment", there is no final judgment as defined by Rule 74.01(a). Under the existing rule, we would conclude that we do not have jurisdiction to rule on the merits of father's appeal, and would therefore be required to dismiss the appeal. However, because of the general interest or importance of this question, we transfer the case to the Supreme Court pursuant to Rule 83.02. Footnotes: FN1.Although it is beyond the scope of this opinion, there is an issue as to whether a family court commissioner has the power to rule on post-trial motions. The Rules of Civil Procedure relating to post-trial motions do not apply to cases before a family court commissioner. See Rule 41.01. Also, there is no statute that gives the commissioner the power to hear post-trial motions. In a similar situation, it has been held that the quasi-judicial officer does not have the power to hear or rule on post-trial motions. Lucitt v. Toohey's Estate, 89 S.W.2d 662, 665 (Mo. 1935). FN2.Before the Supreme Court's promulgation of Rule 74.01(a), Missouri Courts were quite liberal in interpreting what constituted a judgment. See State ex. rel. Newton County v. Robinson, 276 S.W.2d 235, 236 (Mo. App. 1955) (holding that a board of arbitrators' finding was a judgment although the board was not a court in a constitutional sense.) FN3.A "IV-D" case is one in which support rights have been assigned to the State of Missouri. Section 452.345.1 RSMo. (1994). Separate Opinion: This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.