Roberts v. Roberts

989 S.W.2d 272, 1999 Mo. App. LEXIS 555
CourtMissouri Court of Appeals
DecidedApril 29, 1999
DocketNo. 22522
StatusPublished
Cited by2 cases

This text of 989 S.W.2d 272 (Roberts v. Roberts) 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
Roberts v. Roberts, 989 S.W.2d 272, 1999 Mo. App. LEXIS 555 (Mo. Ct. App. 1999).

Opinion

PHILLIP R. GARRISON, Chief Judge.

The Circuit Court of Greene County dissolved the marriage of Edward Dean Roberts (“Father”) and Jacqueline Sue Roberts (“Mother”) on June 25, 1991. Pursuant to the decree, Mother was awarded primary custody of their minor son, and Father was awarded visitation rights with some restrictions. On August 11, 1993, Father filed a “Motion to Modify the Decree of Dissolution of Marriage” seeking primary custody of their minor son or, in the alternative, unrestricted reasonable visitation rights. Father then filed an “Amended Motion to Modify” on January 27, 1995, alleging inter alia that on numerous occasions when he received their son from Mother, there were bruises on him such as handprints on his back, bruises on his upper arm as if he had been grabbed, and a black eye. On October 27,1994, Mother filed a “Motion for Contempt” against Father alleging that he had violated the restrictions applicable to his visitation rights with the child. She also filed a “Motion for Mental Examination” of Father to determine the appropriateness of his visitation with the child and a “Motion to Terminate Visitation Rights” of Father.

On December 16, 1994, the court found that allegations of abuse and neglect were before the court and appointed attorney Galen Thomas to serve as guardian ad litem for the minor child. At the same time, the court ordered each party to deposit $250 with the clerk as security for the payment of guardian ad litem fees. On May 2, 1995, the court allowed Mr. Thomas to withdraw as guardian ad litem and appointed attorney William A Wear, Jr. (“Appellant” or “guardian ad li-tem”) as his replacement. Appellant entered his appearance in the case as guardian ad litem on June 9,1995. On December 4,1995, Appellant filed a “Motion to Release Funds” from the deposit for guardian ad litem fees which was sustained on December 14, 1995. On March 14, 1996, a “Motion for Additional Deposit for Guardian Ad Litem Fees” was filed, but it apparently was never heard. On April 4, 1997, Appellant filed a “Motion for Guardian Ad Litem Fees” and gave notice that the motion would be heard on April 16, 1997. On April 14, 1997, however, Father filed a voluntary dismissal of his “Amended Motion to Modify,” and on April 15, 1997, Mother filed a voluntary dismissal of her “Counter-Motion to Modify.”1 The court heard arguments regarding Appellant’s guardian ad litem fees on April 16,1997, and took the issue under advisement. On August 5,1997, the trial court denied the request for guardian ad litem fees finding that, based on Givens v. Warren, 905 S.W.2d 130 (Mo.App. E.D.1995), it lacked jurisdiction to award such fees after April 15, 1997, the date on which Mother filed the voluntary dismissal of her “Counter-Motion to Modify.”2 As indi[274]*274cated, Father had previously dismissed his “Amended Motion to Modify.” Appellant now appeals the trial court’s order. We reverse.

Givens involved a mother’s suit for a declaration of paternity against the alleged father (the “defendant”). Pursuant to the defendant’s motion to compel paternity blood testing, the court ordered the parties to submit to blood tests. After the tests excluded him as the father, the defendant filed a motion to dismiss the petition and to recover his attorney fees and costs. The mother dismissed the suit, however, before the motion was heard. Subsequently, the trial court sustained a motion filed by the defendant to reopen the case. It ordered the mother to pay the defendant one-half of his costs and to reimburse him for his costs incurred for the blood tests. It then sustained the defendant’s motion to dismiss the petition. The appellate court found that the trial court lost jurisdiction as of the date of the original dismissal except that, pursuant to § 514.170, RSMo,3 it had jurisdiction to “issue an order as an administrative act in connection with any appropriate orders regarding the assessment of costs.” Id. at 132. In so finding, the court held that a trial court retains jurisdiction with respect to costs specifically taxable against a plaintiff under § 514.170. The court described the costs which were taxable pursuant to § 514.170 as those which are fixed, do not require judicial investigation or determination, and are capable of being assessed as a ministerial act. Id. at 133.

In Liberman v. Liberman, 844 S.W.2d 79 (Mo.App. E.D.1992), the issue was whether the trial court could sustain a husband’s motion for attorney fees that was filed after the wife voluntarily dismissed her petition prior to the introduction of any evidence. The appellate court noted that when a plaintiff dismisses a suit prior to the introduction of evidence, while the dismissal is effective without court order, “the court may enter an order with any appropriate order regarding assessment of costs.” Id. at 80. It held, however, that attorney fees do not qualify as such “costs,” and thus the trial court lost jurisdiction to rule on the motion when the plaintiff dismissed her petition. Id. at 81.

Fisher v. Spray Planes, Inc., 814 S.W.2d 628 (Mo.App. E.D.1991), involved a motion for costs that was filed by the defendants after the plaintiffs voluntarily dismissed their case. The costs involved were deposition expenses which were taxed by the clerk after the suit was dismissed. The appellate court held that the costs were appropriately assessed, relying in part on § 514.170. The court noted that the costs involved were “definite, fixed by statute and specifically taxable against plaintiff pursuant to § 514.170,” and that “[n]o judicial investigation or determination was involved which would have required a court order taxing costs.” Id. at 631. Plaintiffs argued that the trial court lacked jurisdiction to tax the costs because they had dismissed the case. The court disagreed, saying that the issue involved “taxing court costs pursuant to law when the case is voluntarily dismissed,” and “[b]ecause the allocation of court costs does not require judicial investigation and determination, the trial court does not lose jurisdiction to issue an execution.” Id. at 632. In support, the court said that “[t]he amount of the allowance is not a discretionary matter to be determined by the court upon judicial investigation, and is a matter of ministerial duty of the clerk.” Id.

Another case standing for the proposition that a trial court has jurisdiction to award some costs after a voluntary dismissal by a plaintiff is Gore v. St. Anthony’s Medical Center, 866 S.W.2d 871 (Mo.App. E.D.1993). In that case, the plaintiff dismissed his petition before the introduction of evidence without prejudice “at Plaintiffs’ [sic] costs.” [275]*275Thereafter, the trial court sustained a motion for costs filed by the defendants, and ordered the plaintiff to pay all of the defendants’ deposition and other costs amounting to over $30,000. The appellate court noted § 514.170, but held that it permits no trial court discretion in the taxing of costs upon a voluntary dismissal by a plaintiff. Id. at 872-73.

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Cite This Page — Counsel Stack

Bluebook (online)
989 S.W.2d 272, 1999 Mo. App. LEXIS 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-roberts-moctapp-1999.