Davis v. Department of Social Services Division of Child Support Enforcement

15 S.W.3d 42, 2000 Mo. App. LEXIS 477, 2000 WL 342697
CourtMissouri Court of Appeals
DecidedApril 4, 2000
DocketNo. WD 57040
StatusPublished
Cited by6 cases

This text of 15 S.W.3d 42 (Davis v. Department of Social Services Division of Child Support Enforcement) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Department of Social Services Division of Child Support Enforcement, 15 S.W.3d 42, 2000 Mo. App. LEXIS 477, 2000 WL 342697 (Mo. Ct. App. 2000).

Opinion

HAROLD L. LOWENSTEIN, Judge.

This appeal comes from an administrative decision as to the amount of arrearage of child support. The agency determined the custodial parent had “waived by acquiescence” a good portion of court ordered support. The custodial parent filed for judicial review in circuit court. The petition was dismissed for want of prosecution, then reinstated. However, the court later found the dismissal was final, was never properly reinstated, and dismissed the petition for lack of jurisdiction.

I.

On July 27, 1990, the marriage of Appellant Mary L. Davis (Mother) and Respondent Kent B. Davis (Father) was dissolved by judgment of the Circuit Court of Jackson County. Father was ordered to pay to Mother child support for the couple’s two children.

On November 20,1996, subsequent to an Order that awarded Mother back child support and a later modification of that Order after an administrative hearing requested by Father, Mother filed a petition for judicial review in the Circuit Court of Jackson County. On January 2, 1998,1 the petition was dismissed for want of prosecution. Mother filed a motion to set aside the order of dismissal on February 2. On August 11, the court entered an “Order Setting Aside Dismissal,” after which time the case was again on the court’s active docket. However, on December 21, the circuit court issued an order finding it had no jurisdiction for the pending matter, that the August 11 order was a nullity and removed the matter from the court’s inventory. The court found that jurisdiction of the matter was lost thirty days after the date of dismissal entered on January 2. Therefore, the order setting aside the dismissal was out of time and invalid.

On January 12, 1999, the Division filed a “Motion to Approve and to Adopt Administrative Order as Judgment of the Court.” In that motion, the Division requested as follows, “[Ijnasmuch as there is no longer a proceeding pending seeking to review the administrative order, Respondent prays that the court enter its order approving the administrative order and adopting it as the judgment of the court.” On February 16, 1999, the court entered judgment which adopted the decision of the administrative hearing officer, granting Mother $845 in child support. Mother appealed that decision to this court on March 22,1999.

For ease in understanding the procedural posture of this appeal, an abbreviated time line follows.

1990-July Dissolution. $145 per child for 2 children was ordered after Mother said she needed no support.
1995-Oetober Mother called Father and said she now needs support. He said he could not pay. Administrative action was filed with Div. of Child Support Enforcement.
1996-February Hearing before agency determined Father owed $18,825 in back support and payment schedule set up. Father sought agency review.
1996-August 30 After hearing on Father’s motion, Department of Social Services determined arrearage amount was $845 since Mother did not pursue past support, and since the time she did request it, the child support amounted to $845.
[44]*441996-November Mother filed for judicial review in circuit court.
1998-January 2 Circuit court dismissed Mother’s review for want of prosecution.
1998-February 2 Mother filed motion to set aside dismissal.
1998-May 20 By docket entry, court sustained Mother’s motion to set aside.
1998-August 11 Order to reinstate review entered. Hearing date set.
1998-December 21 At hearing on Mother’s review, court found it lacked jurisdiction to reach merits since it lost jurisdiction either thirty days after the January 2 dismissal, or in early April (before the May 20 action). May 20 entry declared a nullity-
1999-January 12 Respondent, Division filed motion in circuit court to approve, under § 454.496.6, RSMo. 1994, the 1996 Administrative Order.
1999-February 16 The August 30,1996, Administrative Order was adopted as a judgment of the court. Mother then timely filed this appeal.

II.

Appeal from a court-tried civil case is governed by the standard set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). By that standard, this court will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 32.

III.

Mother’s first point on appeal is that the trial court erred in its December 21 order declaring void its August 11 set aside of the dismissal of her action. The court’s December 21 order declared the set aside a nullity because the court believed it lost jurisdiction of the matter thirty days after its January 2 dismissal. If the court had in fact lost jurisdiction, then the August 11 set aside of the dismissal was an invalid action. The trial court apparently believed Rule 75.01 to be applicable. Under that rule, the trial court only retains jurisdiction over a matter for thirty days after entry of judgment. Mother contends this was error because she filed her motion to set aside under Rule 74.06, which can be made within a year of a court’s judgment, notwithstanding Rule 75.01.

The first problem which arises in this procedural maze is that both the trial court, in its December 21 order, and Mother, in her motion to set aside the dismissal, proceed as if the January 2 dismissal of Mother’s action was a final judgment of the court. In its December 21 order, the court contends it lost jurisdiction over the matter thirty days after the date of dismissal, January 2. However, the thirty-day rule in 75.01 determines when a judgment becomes final. Additionally, Mother relies on Rule 74.06 which deals with motions following a final judgment. The problem with both analysis is that the January 2 dismissal was not a final judgment of the trial court.

As noted above, Mother filed for judicial review in the Circuit Court of Jackson County on November 20, 1996. The court dismissed that appeal for want of prosecution on January 2. The court’s January 2 order of dismissal is denominated an “Order” and results in Mother’s case being “dismissed...without prejudice.” However, a “dismissal without prejudice is not a final judgment.” Vernor v. Missouri Bd. of Probation and Parole, 934 S.W.2d 13, 14 (Mo.App.1996). Additionally, an order of the court must be denominated a “judgment” to be considered final. City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo.1997). The January 2 dismissal was not a final judgment as it was a dismissal without prejudice and was denominated an “order”. Therefore, both Rule 75.01 and [45]*45Rule 74.06 are inapplicable to Mother’s February 2, 1998, motion to set aside that dismissal.

After determining the January 2 order of dismissal was not a final judgment, as apparently the parties and the trial court at one time believed, the effect of that order must be determined.

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Bluebook (online)
15 S.W.3d 42, 2000 Mo. App. LEXIS 477, 2000 WL 342697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-department-of-social-services-division-of-child-support-moctapp-2000.