State ex rel. Thexton v. Killebrew

25 S.W.3d 167, 2000 Mo. App. LEXIS 1291, 2000 WL 1206684
CourtMissouri Court of Appeals
DecidedAugust 25, 2000
DocketNo. 23467
StatusPublished
Cited by4 cases

This text of 25 S.W.3d 167 (State ex rel. Thexton v. Killebrew) 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
State ex rel. Thexton v. Killebrew, 25 S.W.3d 167, 2000 Mo. App. LEXIS 1291, 2000 WL 1206684 (Mo. Ct. App. 2000).

Opinion

KENNETH W. SHRUM, Judge.

Relator seeks a writ of prohibition to disqualify Respondent, the Honorable Don J. Killebrew, Jr., from proceeding in a domestic relations case now pending in the circuit court of Newton County, Missouri. The underlying case involves a motion to modify the child custody, visitation, and support provisions of a dissolution decree. Relator is a party to that litigation.

Respondent is the trial judge who heard and decided the original dissolution of marriage case on June 4, 1998. He is also the trial judge designated to hear the motion to modify which was filed November 22, 1999. On January 12, 2000, Relator filed an “Application for Change of Judge” in the underlying case. Sans caption, title, and signatures, the relevant part of Relator’s application reads:

“COMES NOW the ... Movant, Richard Douglas Thexton, by and through his attorney ... and respectfully applies for a change of judge from the Honorable Don J. Killebrew, Jr. in the above-styled cause of action.”

On January 13, 2000, Respondent sustained Relator’s change of judge application by this docket entry: “Sustained 1/13/00. DJK.” This occurred without any indication the litigants or their attorneys were present, or that Relator had given notice of when his change of judge application would be presented to the court.

On January 20, 2000, Respondent purported to set aside his sustension of Relator’s change of judge application via this docket entry: “Court’s order sustaining ... appl. for change of judge is hereby ordered set aside.” Thereon, Relator filed his petition with this court requesting we prohibit Respondent from taking any further action in the dissolution case other than sustaining the request for a change of judge. We issued a preliminary order. We make the preliminary order of prohibition absolute.

ANALYSIS

With exceptions not relevant here, two rules of procedure govern disqualification of a circuit judge in a civil case. The first is Rule 51.05 which affords a party a preemptory right to disqualification. Specifically, Rule 51.05 provides a party may disqualify a judge by an application which “need not allege or prove any cause for such change.” Rule 51.05(a). See Byrd v. Brown, 613 S.W.2d 695, 699 (Mo.App.1981). Under this rule, the only prerequisite for obtaining a change of judge is timely application and service of a copy of the application and notice of hearing on the other party. State ex rel. Wesolich v. Goeke, 794 S.W.2d 692, 695[4] (Mo. App.1990). To be timely, a Rule 51.05 disqualification application ordinarily must be filed within sixty days of service of process or thirty days from the designation of the trial judge, whichever is longer. [170]*170Rule 51.05(b). If the trial judge designation occurs less than thirty days before trial, the application must be filed before any appearance before the trial judge. Id.

In 1994, an amendment to Rule 51.05 eliminated the right of preemptory disqualification of judges in certain domestic relations cases. Specifically, Rule 51.05(a) was amended as follows: “[Mjotions to modify child custody, child support, or spousal maintenance filed pursuant to chapter 452, RSMo, shall not be deemed to be an independent civil action unless the judge designated to rule on the motion is not the same judge that ruled on the previous independent civil action.”

The second disqualification procedure is found in Rule 51.07. It authorizes a trial judge to disqualify himself or herself at any time and without specifying the reasons for doing so. Byrd, 613 S.W.2d at 699[9], Under Rule 51.07, the trial judge alone determines his or her own disqualification. Id. at 699, n. 6. Self-disqualification by a judge pursuant to Rule 51.07 requires no notice, Helton Const. Co. v. Thrift, 865 S.W.2d 419, 422[3] (Mo.App. 1993) and none need be given. Byrd, 613 S.W.2d at 699[10].1

Here, Relator’s change of judge application is terse and generic. It cites no rule or basis for disqualification. Respondent’s docket entry is equally terse and provides no clue why he sustained the motion. If we presume Respondent followed the law when he sustained Relator’s motion to disqualify — which we will do unless the presumption is refuted by the record — then we must conclude Respondent disqualified himself per Rule 51.07. See Dycus v. Cross, 869 S.W.2d 745, 751 (Mo.banc 1994); Hubbs v. Hubbs, 870 S.W.2d 901, 907[7] (Mo.App.1994). Such conclusion follows because disqualification pursuant to Rule 51.05 was not an option. First, this was a motion to modify a dissolution case in which Respondent was the same judge who tried the initial independent civil action; consequently, the 1994 amendment to Rule 51.05 precluded preemptory disqualification of Respondent via that procedure. See In re C.N.H., 998 S.W.2d 553, 561 (Mo.App.1999). Second, Respondent disqualified himself without affording the other party notice and opportunity to be heard as contemplated and mandated by Rule 51.05.

“The moving party [in a Rule 51.05 disqualification] ... should notice the other side as to when the motion will be called up, and then present it or call it up before the judge. As mandatory as it is that a proper motion for change of judge be sustained, the other party is entitled to notice and an opportunity to be heard, and he may contest the form, timeliness and sufficiency of the motion.”

Matter of Buford, 577 S.W.2d 809, 827 (Mo.banc 1979).

Because preemptory disqualification via Rule 51.05 was not an option, disqualification per Rule 51.07 was the only way Respondent could have sustained Relator’s disqualification application and still have followed the law. Although Relator’s application was not timely under Rule 51.05, this did not preclude Relator from requesting that Respondent recuse himself. See State v. Garner, 799 S.W.2d 950, 954[1] (Mo.App.1990). Moreover, Relator’s application, though untimely as a Rule 51.05 effort, could have prompted Respondent to recuse himself. “A judge is entitled to the presumption that he will not undertake to preside at a trial in which he cannot be impartial.” Ledbetter v. Sampson, 924 S.W.2d 617, 618[4] (Mo.App.1996). Since nothing in this record as of January 13, 2000, refutes or contradicts the presumption that Respondent knew the law and applied it when he sustained Relator’s ap[171]*171plication, we presume Respondent disqualified himself for reasons described in Rule 51.07 or Rule 2.03, Canon 3E of the Code of Judicial Conduct.2

Case law teaches a disqualified judge has no further power to act in a case except to transfer it to another judge. Helton Const Co., 865 S.W.2d at 422[2], An order entered by a judge disqualifying himself or herself under authority of Rule 51.07 is effective upon making the docket entry. Helton Const. Co.,

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Bluebook (online)
25 S.W.3d 167, 2000 Mo. App. LEXIS 1291, 2000 WL 1206684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-thexton-v-killebrew-moctapp-2000.