Lansing v. Lansing

736 S.W.2d 554
Missouri Court of Appeals·Decided August 11, 1987·No. 52331·Published·Cited by 18 cases

Opinion

736 S.W.2d 554 (1987)

Barbara LANSING, Respondent,
v.
Joseph LANSING, Appellant.

No. 52331.

Missouri Court of Appeals, Eastern District, Division Four.

August 11, 1987.
Motion for Rehearing and/or Transfer Denied September 9, 1987.
Application to Transfer Denied October 13, 1987.

*555 Ronald David Edelman, Clayton, for respondent.

Mark Belz, Clayton, for appellant.

SIMON, Judge.

Husband, Joseph Lansing, appeals from a decree of dissolution of marriage, entered in the Circuit Court of St. Louis County on April 18, 1986, and also appeals from a nunc pro tunc decree, entered in the same court on October 17, 1986, amending the April 18 decree. Husband asserts five irregularities, one jurisdictional, as the basis for reversal.

Wife, Barbara Lansing, has filed a "motion for costs and damages for frivolous appeal" and a "motion to strike [Husband's] reply brief." For reasons that shall appear herein, both motions are denied.

The facts are not disputed. Husband and wife were married on September 13, 1980. There were two children born of the marriage: Derek Lansing, born May 26, 1982 and Kyle Lansing, born February 19, 1985. Husband and wife were separated on or about the first day of May, 1985.

Wife filed a petition for dissolution of marriage in St. Louis County Circuit Court on January 29, 1986. Wife alleged that during the course of the marriage certain marital property was accumulated by husband and wife, "including but not limited to the marital home located at 8210 Marvale; a 1984 Toyota Corolla; a 1985 Toyota Pickup truck" and certain other personalty. Averring that the marriage had been irretrievably broken, wife prayed that the marriage be dissolved and that she be awarded *556 custody of the minor children. Wife further prayed that husband be ordered to pay a reasonable sum for the support of the children and that the court order "an equal division of the marital property."

Personal service on husband was made on February 8, 1986, but husband failed to file any responsive pleadings. On March 12, 1986, a default and inquiry was granted upon the oral application of wife and the cause was set for hearing on April 18, 1986. By order of the Presiding Circuit Judge, the cause was assigned to Associate Circuit Judge Susan Block for disposition in Division 40 of the Circuit Court of St. Louis County.

However, Judge Block did not hear the case. The hearing was conducted by Associate Circuit Judge William E. Neff. Judge Neff had been assigned by order of the Missouri Supreme Court to sit in Division 40 of the Circuit Court of St. Louis County for the week of April 14, through April 18, 1986. Ordinarily, Judge Neff sat as an Associate Circuit Judge in Macon County, Missouri. The record does not reveal the reason that Judge Neff was sitting in the place of Judge Block on April 18, 1987. Nothing in the record indicates that the presiding judge transferred the assignment of the case to Judge Neff or that Judge Block requested that Judge Neff hear the case.

Although still in default, husband was at the hearing before Judge Neff on April 18, 1986. Husband appeared pro se and wife was represented by counsel. At the hearing, wife asked for all of the marital property, except the 1985 Toyota pickup truck, including the entire interest in the marital residence and all personalty of the marriage contained therein. Wife's request was at variance with the prayer in her petition. After wife had testified, Judge Neff asked husband if there was anything that he wished to say. Husband had questions about the division of property. He stated that he and his wife "were going to divide everything in half and now she has changed her mind and she wants the whole house." He asked the court to "divide the property in half for the house."

Judge Neff responded that husband had had the opportunity to retain counsel, but he was willing to continue the matter if that was husband's desire. Husband stated that he would rather have the divorce granted and did not want it continued. Judge Neff asked if husband understood that wife was "asking for the house and the property that's in the house." Husband answered "yes," but stated that he did not understand the child support arrangement asked for by wife. After adjusting the child support to more fairly correspond with husband's seasonal employment pursuant to husband's concerns, Judge Neff dissolved the marriage. He found that the marriage had been irretrievably broken and that wife's proposed "custody arrangement [was] fair and just and [her suggested] property settlement [was] fair."

In a judgment entered on April 18, 1986, Judge Neff ordered that wife "have as her property solely the real property located at 8210 Marvale (the marital home) in the County of St. Louis" and "all household goods acquired during the marriage and all personal property in her possession." Because the judgment included an award of real estate, the clerk was ordered to file a certified copy of the decree with the St. Louis County Recorder of Deeds. The judgment was signed by Judge Neff. Subsequently, a formal decree of dissolution was prepared in accordance with Judge Neff's April 18, 1986 judgment, and was signed by Judge Block. Judge Block did not hear any evidence in the case. Judge Block's decree mirrored the judgment entered by Judge Neff, except for the amount of child support ordered for the months of June, July, and August. Subsequently, Judge Neff returned to Macon County.

On September 17, 1986, having obtained counsel, husband filed a motion to set aside the decree signed by Judge Block for irregularities. Husband argued that the decree had to be set aside because Judge Block made a judicial determination without having heard any of the testimony or evidence upon which the determination was predicated. Husband maintained that because *557 Judge Block had not heard the testimony or the evidence, she was without jurisdiction to enter the decree and, therefore, the decree was irregular on its face. Husband also argued that he had not been in default since he was present at trial.

On the following day, wife filed a motion to amend the decree of dissolution nunc pro tunc. Wife's motion sought to correct a discrepancy between Judge Neff's April 18th judgment and Judge Block's purported decree in the amount and timing of child support. Wife also sought to have the value and legal description of the marital residence set forth in the decree. It had been omitted in the decree signed by Judge Block. Finally, by her motion, wife sought to have Judge Neff sign the decree.

Both husband's and wife's motions were heard by Judge Neff on October 9, 1986. Husband's motion was overruled and wife's motion was sustained. On October 17, 1986, Judge Neff signed an alleged nunc pro tunc decree of dissolution, amending the judgment of April 18, 1986 in accordance with wife's motion. On October 20, 1986, husband filed his notice of appeal.

In his first point, husband maintains that the decree of dissolution should be set aside for irregularity because the case had not been specifically assigned to Judge Neff. Husband argues that at the time of the hearing, the case had been specifically assigned to Judge Block and, therefore, Judge Neff "was clearly outside of his authority and jurisdiction" in sitting on the case. Husband refers to Local Rule 6.6 of the 21st Judicial Circuit which provides that "[n]o judge, except the Presiding Judge or the Judge presiding over the team to which the absent Judge is assigned, shall act for or enter any ord

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