Skaggs v. Skaggs

Missouri Court of Appeals

Skaggs v. Skaggs

938 S.W.2d 302, 1997 Mo. App. LEXIS 121, 1997 WL 30778

Missouri Court of Appeals·Decided January 28, 1997·No. No. 70454·Published·Cited by 9 cases

Opinion

DOWD, Presiding Judge.

John Gilbert Skaggs (“Husband”) appeals from the dismissal of his motion to modify a prior decree of legal separation. We dismiss the appeal.

In June 1994, Husband and Beverly Ann Skaggs (“Wife”) entered into a separation agreement which was incorporated into a Decree of Legal Separation. In June of the following year, Husband filed a motion to modify and convert the Decree of Separation into a Decree of Dissolution. Wife made a special appearance to contest the sufficiency of the allegations in the motion and the service of process. The trial court dismissed the motion without prejudice.

Although not addressed by either party, we must consider, sua sponte, issues which determine whether this court has jurisdiction to consider Husband’s appeal. White v. Pruneau, 913 S.W.2d 959 (Mo.App. E.D.1996). Here, the trial court specifically dismissed Husband’s motion “without prejudice.” The general rule is that a dismissal without prejudice is not a final judgment. Id.; Waltrip v. Davis, 899 S.W.2d 147, 148 (Mo.App. E.D.1995). An appeal from such a dismissal is proper only if it has the practical effect of terminating the litigation in the form in which it is cast or in the plaintiffs chosen forum. Fitzpatrick v. Hannibal Re[303] gional Hosp., 922 S.W.2d 840, 842 (Mo.App. E.D.1996).

We find no such effect here and therefore dismiss the appeal.

REINHARD and GARY M. GAERTNER, JJ., concur.

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DOWD, Presiding Judge.

John Gilbert Skaggs (“Husband”) appeals from the dismissal of his motion to modify a prior decree of legal separation. We dismiss the appeal.

In June 1994, Husband and Beverly Ann Skaggs (“Wife”) entered into a separation agreement which was incorporated into a Decree of Legal Separation. In June of the following year, Husband filed a motion to modify and convert the Decree of Separation into a Decree of Dissolution. Wife made a special appearance to contest the sufficiency of the allegations in the motion and the service of process. The trial court dismissed the motion without prejudice.

Although not addressed by either party, we must consider, sua sponte, issues which determine whether this court has jurisdiction to consider Husband’s appeal. White v. Pruneau, 913 S.W.2d 959 (Mo.App. E.D.1996). Here, the trial court specifically dismissed Husband’s motion “without prejudice.” The general rule is that a dismissal without prejudice is not a final judgment. Id.; Waltrip v. Davis, 899 S.W.2d 147, 148 (Mo.App. E.D.1995). An appeal from such a dismissal is proper only if it has the practical effect of terminating the litigation in the form in which it is cast or in the plaintiffs chosen forum. Fitzpatrick v. Hannibal Re[303] gional Hosp., 922 S.W.2d 840, 842 (Mo.App. E.D.1996).

We find no such effect here and therefore dismiss the appeal.

REINHARD and GARY M. GAERTNER, JJ., concur.

Skaggs v. Skaggs, 938 S.W.2d 302, 1997 Mo. App. LEXIS 121, 1997 WL 30778 (Mo. Ct. App. 1997).

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