Opinion
No. ED76177
February 15, 2000
Appeal from the Circuit Court of the City of St. Louis, Hon. Thomas J. Frawley
Susan M. Hais, Suite 400, 100 S. Brentwood, Clayton, MO 63105, Law Office's of Hais Carmody, Attorney for Respondent.
David R. Usher, 118 Oakwood, St. Louis, MO 63119, and Nathan S. Cohen, GAL, Attorney for Appellant.
Crane, P.J., and R. Dowd, J., concur.
David R. Usher ("Husband") appeals from a judgment denying his Motion to Modify custody provisions of a marriage dissolution decree. We transfer to the Missouri Supreme Court.
The marriage of Husband and Lauren Suffian ("Wife") was dissolved on November 4, 1988. The Decree of Dissolution ("Decree") granted Wife primary custody of the couple's two children. The Decree granted Husband reasonable temporary custody and visitation rights. In 1991, the trial court modified the Decree by granting Husband temporary physical custody of the children at specific times and for specific periods.
In March 1998, Husband filed a Motion to Modify Decree of Dissolution requesting legal and primary physical custody of the children. In April 1998, the trial court appointed a guardian ad litem for the two children. On August 28, 1998, Husband filed a Motion to Disqualify and Remove Guardian Ad Litem, followed by an Amended Motion to Disqualify and Remove Guardian Ad Litem on September 1. The trial court denied the motion.
Husband raises three points on appeal; however, only one point is relevant here. Husband's point one on appeal argues that the trial court erred in denying Husband's First Amended Motion to Disqualify and Remove Guardian Ad Litem pursuant to Section 452.423 because the section expressly grants any party an entitlement to an automatic disqualification of a guardian ad litem upon request and without discretion of the trial court.
All statutory references are to RSMo 1998, unless otherwise indicated.
A 1998 amendment to Section 452.423.1 provides:
Disqualification of a guardian ad litem shall be ordered in any legal proceeding upon the filing of a written application by any party within ten days of appointment, or within ten days of August 28, 1998 if the appointment occurs prior to August 28, 1998. Each party shall be entitled to one disqualification of a guardian ad litem in each proceeding, except a party may be entitled to additional disqualifications of a guardian ad litem for good cause shown.
Before we can address the merits of Husband's claims, we are first required to determine, sua sponte, our appellate jurisdiction. The Missouri Supreme Court has exclusive appellate jurisdiction in all cases involving the validity of a statute of this state. Mo. Const. art. V, Sec. 3. If any point on appeal involves such a question, we must transfer the entire case to the Missouri Supreme Court. Estate of R.B. Potashnick, 841 S.W.2d 714, 718 (Mo. App. E.D. 1992).
The trial court denied Husband's Amended Motion to Disqualify and Remove Guardian Ad Litem by declaring unconstitutional the provision of Section 452.423.1 allowing disqualification of a guardian ad litem in the absence of any cause allegation. Thus, because the basis of the trial court's ruling is a challenge to the constitutionality of a statute of this state, the Missouri Supreme Court has exclusive appellate jurisdiction over this issue on appeal, and consequently, we must transfer the entire case to the Missouri Supreme Court.
Accordingly, as we lack jurisdiction, the case is ordered transferred to the Missouri Supreme Court pursuant to Mo. Const. art. V, Sec. 11.