Opinion
WD 57947
OPINION FILED: November 28, 2000
APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY, MISSOURI, HONORABLE OWENS LEE HULL, JR., JUDGE.
Frank S. Stewart Kansas City, MO for Respondent,
Robert G. Neds Kansas City, MO for Appellant.
Before: Spinden, C.J., and Ulrich and Smith, JJ.
Jennifer A. Williams appeals the judgment of the Circuit Court of Platte County dissolving her marriage to the respondent, Phillip M. Williams.
The appellant raises eight points on appeal. In the first seven points, she makes various claims of error with respect to the trial court's division of the parties' marital property; its awards of custody and child support; and its denial of the appellant's requests for awards of maintenance and attorney's fees. In Point VIII, the appellant claims that the trial court erred in amending its judgment of October 6, 1999, on October 29, 1999, because it violated due process in that prior to amending its judgment, the trial court was required by Rule 75.01, but failed, to give her an opportunity to be heard.
All rule references are to the Missouri Rules of Civil Procedure (1999), unless otherwise indicated.
We dismiss and remand.
Facts
On August 18, 1998, the respondent filed in the Circuit Court of Platte County, Missouri, a petition to dissolve his marriage to the appellant. On September 18, 1998, the appellant filed her answer and cross-petition. With leave of court, she filed her first amended answer and cross-petition on August 9, 1999. The respondent did not file an answer to either the original or amended cross-petition.
The case went to trial on August 13, 1999. At the conclusion of the trial, the trial court took the case under advisement. On October 6, 1999, the court entered its judgment dissolving the marriage of the parties. In its judgment, the trial court purportedly awarded the parties joint legal and physical custody of their one minor child, Lexus Ann Williams, with "physical placement" of the child to the respondent and visitation to the appellant. There was no award of child support to either party. On October 29, 1999, the trial court amended its judgment to include an award of child support from the appellant to the respondent of $177 per month and a notice of wage withholding should the appellant become delinquent in paying child support as ordered.
As to its award of child custody, the trial court stated in its judgment:
The Court Orders the best interest of the minor child will be served by [the respondent] and [the appellant] mutually sharing joint physical and legal custody, [the respondent's] residence is designated as the address of the child for mailing and educational purposes. Physical placement of the child shall be with [the respondent]. [The appellant] shall have visitation pursuant to the Parenting Plan attached hereto.
The first sentence of this order is perplexing in that it appears to "order" a finding with respect to the best interests of the child's custody. However, even assuming that it reflects an award of "joint physical and legal custody" to the parties, rather than a finding, that would appear to put it at odds with the second sentence of the order. In the second sentence, the trial court orders the "physical placement" of the child to the respondent, which in our view would be the equivalent of awarding "physical custody" to the respondent. Despite this very confusing and apparent conflicting language, given our disposition of this appeal, this confusion and conflict is not significant to our discussion.
This appeal follows.
I.
Because the resolution of the appellant's Point VIII is dispositive of her appeal, we address it alone.
In Point VIII, the appellant claims that the trial court erred in amending its judgment of October 6, 1999, on October 29, 1999, because it violated due process in that prior to amending its judgment, the trial court was required by Rule 75.01, but failed, to give her an opportunity to be heard. Specifically, she contends that because the trial court failed to grant her an opportunity to be heard before amending its judgment, as required by the rule, the court's amended judgment of October 29, 1999, was rendered null and void. If, in fact, she is correct, then we would be required to reverse and remand for the circuit court to enter an order vacating its amended judgment and reinstating its original judgment. This then would deprive us of any jurisdiction to address the merits of the appellant's claims of error raised in Points I-VII with respect to the court's amended judgment in that the judgment would be a nullity and not a final and appealable judgment. See Moreland v. Farren-Davis , 995 S.W.2d 512, 516 (Mo.App. 1999) (holding that "[u]nless otherwise expressly provided by rule or law, our jurisdiction is limited to appeals from final judgments") (citation omitted).
Rule 75.01 provides, in pertinent part, that "[t]he trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time." (Emphasis added.) Accordingly, even if good cause exists for a trial court to amend its judgment, Rule 75.01 only authorizes it to do so on its own initiative within thirty days after its entry where the parties have received notice and an opportunity to be heard. Pirtle v. Cook , 956 S.W.2d 235, 240 (Mo. banc 1997); Brockhoff v. Leary , 711 S.W.2d 869, 871 (Mo. banc 1986). Thus, as a matter of due process and as a condition precedent to the trial court's exercising its authority to amend on its own initiative under Rule 75.01, the parties must receive notice and an opportunity to be heard. In re Marriage of Bennett , 938 S.W.2d 952, 957 (Mo.App. 1997); Couch v. Couch , 824 S.W.2d 65, 69 (Mo.App. 1991); State ex rel. Kairuz v. Romines , 806 S.W.2d 451, 457 (Mo.App. 1991); Lacy v. Dalton , 803 S.W.2d 664, 665 (Mo.App. 1991); Todd v. Todd , 762 S.W.2d 449, 451 (Mo.App. 1988). Here, the trial court's docket sheet indicates, as the appellant contends, that the court, in violation of Rule 75.01, amended its judgment of October 6, 1999, on October 29, 1999, without giving any notice to the appellant or affording her an opportunity to be heard. The question is whether this voided the trial court's amended judgment such that an appeal would not lie therefrom.
There appears to be some confusion among the cases as to whether a violation of Rule 75.01 for failure of the trial court to give the required notice and afford the parties an opportunity to be heard results in a Rule 75.01 order or judgment being void or only voidable. See Brockhoff , 711 S.W.2d at 871; Kairuz , 806 S.W.2d at 456; Lacy , 803 S.W.2d at 666; Todd , 762 S.W.2d at 451. In Brockhoff , the Missouri Supreme Court recognized that "[c]ertain language in [ Hewitt v. Chicago, Burlington Quincy R.R. Co. , 426 S.W.2d 27 (Mo. banc 1968); Hoppe v. St. Louis Pub. Serv. Co. , 235 S.W.2d 347 (Mo. banc 1950); Savings Trust Co. v. Skain , 131 S.W.2d 566 (Mo. banc 1939); Dixon v. Bi-State Dev. Agency , 636 S.W.2d 696, 698 (Mo.App. 1982)] suggest[ed] that such [a judgment] entered without notice is void and a nullity." 711 S.W.2d at 870. However, the Court went on to suggest that this might no longer be true stating that, although notice was required under the present version of Rule 75.01, " Hoppe and its progenies, . . . are relics from a prior procedural code that have little need under today's practice," noting that Hoppe was decided prior to the codification of the notice requirement in both the statute, § 510.370, RSMo 1978, and the predecessor to the present rule, which was amended in 1981. Id . at 871. In any event, the Brockhoff court ultimately declined to expressly answer the question of whether a Rule 75.01 order that was entered without the parties receiving notice or an opportunity to be heard was void or voidable, finding that it was unnecessary to its determination of the appeal before it inasmuch as the "unique circumstances" of the case dictated that there was no violation of due process under the rule. Id . at 871-72.
In Brockhoff , the Court was asked to address whether the appeal from the trial court's judgment was timely filed. In determining the timeliness of the appeal, the Supreme Court was called upon to decide whether the trial court's order granting a new trial on its own initiative was null and void because in entering its order, the court violated Rule 75.01 by failing to give the parties notice and an opportunity to be heard. If it was void, then the trial court's subsequent order vacating its order granting a new trial was also void such that the time for filing of the appeal would have run. Recognizing that the trial court had not given the parties notice and an opportunity to be heard prior to entering its order, which violated Rule 75.01, the court nonetheless declined to find that the due process requirements contemplated by the rule were not met, given the "unique circumstances" of the case, so as to void the court's order. Brockhoff , 711 S.W.2d at 871-72 . The unique circumstances cited included the fact that within the time for appealing the trial court's order granting a new trial, the parties were before the court on their respective motions asking the court to vacate its order granting a new trial, which it did. Id . at 872. The unique circumstances also included the fact that the record reflected that neither party contemplated an appeal from the court's order, and that both parties expressed satisfaction with the court's action in vacating its order and reinstating its prior pending after-trial motions, which afforded them an opportunity to be heard on the issues addressed by their pending after-trial motions. Id .
Although the Brockhoff court stated that it was not deciding whether a post-trial order entered on the trial court's own initiative without notice or an opportunity to be heard, in violation of Rule 75.01, was void or voidable, its resolution of the case would imply that the court was finding it was voidable. We glean this from the fact that the opinion clearly stands for the proposition that although a Rule 75.01 order is not ipso facto void for a violation of the rule for failure to give the parties notice and an opportunity to be heard, it can be voided if unique circumstances are not found which would lead to the conclusion that the parties, in spite of the rule violation, received the due process to which they were entitled.
Inasmuch as the Supreme Court ostensibly declined in Brockhoff to decide the issue it raised, whether a violation of Rule 75.01 rendered an order entered pursuant thereto void or voidable, the Eastern District found in Kairuz that the most recent pronouncement by the Supreme Court on the issue was found in Hewitt . 806 S.W.2d at 457. There, the Supreme Court held that the order in question was invalid, "even though the parties were given notice of the invalid order after it was entered," id. ( citing Hewitt , 426 S.W.2d at 29 ), which would suggest that the Court had found that it was a void order. Nonetheless, the Kairuz court, like the court in Brockhoff , avoided expressing an opinion on the issue in that it found that the order in question could not stand whether it was considered to be void or voidable because the appellant had been "deprived of substantial rights without due process of law." Id. at 458. However, it did recognize that in Todd , discussed, infra, this "court reached an eminently just and proper result under the unique circumstances disclosed by the record in that case." Id. at 457.
In Lacy , supra, the Eastern District, again, without expressly deciding the issue, held that the order in question was invalid because there existed no unique circumstances that, despite the Rule 75.01 violation, afforded due process to the party adversely affected by the order. 803 S.W.2d at 666. As to cases in which unique circumstances were found affording due process, the court cited State ex rel. Stoffer v. Moore , 628 S.W.2d 637 (Mo. banc 1982) and Derfelt v. Yocom , 692 S.W.2d 300 (Mo. banc 1985) as involving a situation where due process was met pursuant to a " de facto notice by virtue of a pleading or pending motion or conversations with the court," and cited Todd , decided by this court, as involving a situation "where the affected party is estopped from asserting the invalidity of the order because he made a strategic decision to allow it to stand." Id. (emphasis added).
Although the courts in Kairuz and Lacy declined to expressly decide the issue, in our view, they impliedly held, as did the court in Brockhoff , that a violation of the rule renders a Rule 75.01order voidable, having recognized that the orders under review there would not have been ruled invalid for a rule violation unless there had been an absence of unique circumstances insuring due process. This, of course, would be contrary to what appears to be the Supreme Court's most recent pronouncement on the issue in Hewitt .
In Todd , this court read Brockhoff as suggesting that the due process implications of a Rule 75.01 violation "depend upon the sufficiency of other available procedures to remedy the lapse." 762 S.W.2d at 451. "The lapse of notice prior to the action of a court on a judgment under Rule 75.01, therefore, presents the violation of a rule and not, ipso facto, a failure of due process of law." Id . at 452. Principle does not "demand that the want of [the Rule 75.01] notice procedure invariably renders void — and hence null — rather than merely irregular — and hence still correctible [ sic] — the judicial action taken under the circumstances presented to us and under the construct of our rules of procedure." Id . at 453. Thus, this court's opinion in Todd would seem to be in step with Brockhoff , Kairuz , and Lacy , that a violation of the notice requirement of Rule 75.01 does not ipso facto void the order in question. However, several years after Todd , this court decided Couch , which appears to be in conflict with the holdings in those cases. When considering whether the second order in question was valid, we stated that "if literal adherence to Rule 75.01 were given, the second order would be a nullity, as notice, under due process requirements, is a condition precedent to the power to modify." 824 S.W.2d at 69 (emphasis added). The Couch decision did not cite Todd , but did cite Kairuz and Lacy . Thus, while Couch purports to follow Kairuz and Lacy , it appears to follow Hewitt , Hoppe , and like-minded cases, without citing the same. Ultimately, the Couch court denied the appellant's claim on appeal, holding that even though the second order was void so that "the first order was reinstated, [the respondent] would be no better off than he is now." Id.
As to the position of the Southern District on this issue, that district, without citing Hewitt , held in its most recent pronouncement in Swanson v. D R Enterprises , 899 S.W.2d 134, 136-37 (Mo.App. 1995) that a Rule 75.01 order entered in violation of the rule as to the notice and hearing requirement was void. In so holding the court relied on Kairuz , quoting favorably from that portion of the decision that discussed prior decisions, i.e., Hoppe ; Champ v. Poelker , 755 S.W.2d 383, 386 (Mo.App. 1988); Griffith v. Mullenix Corp. , 688 S.W.2d 46, 47 (Mo.App. 1985); Dixon , 636 S.W.2d at 698 , which held that a violation of the rule rendered a Rule 75.01 order void. Id . at 136. Of course, this would appear to ignore the fact, as noted, supra, that the Supreme Court in Brockhoff referred to Hoppe and its progeny as being "relics from a prior procedural code that have little need under today's practice." 711 S.W.2d at 871. The Swanson court did not discuss the concerns of the Kairuz court as to whether a Rule 75.01 order was void or voidable as a result of a rule violation.
Although we favor the approach taken by the courts in Brockhoff , Todd , Kairuz , and Lacy in determining whether due process is violated where a trial court enters a Rule 75.01 order or judgment without first giving notice to the parties or affording them an opportunity to be heard, as discussed, supra, we recognize the authorities which hold to the contrary, most notably Hewitt . In any event, given the apparent conflict among the decisions of the Missouri Supreme Court and the three districts of the Missouri Court of Appeals on this issue, we would certify this case after opinion to the Supreme Court, pursuant to Rule 83.02, to decide the issue.
Ultimately, here, as in Brockhoff , Kairuz , and Lacy , a determination of whether the trial court's Rule 75.01 amended judgment is void or voidable is not necessary. The record reflects, specifically the trial court's docket sheet, that there were no unique circumstances to justify a finding that due process was satisfied, despite the trial court's violation of Rule 75.01 in entering its amended judgment. The docket sheet does not reflect that the trial court took any action after the entry of its amended judgment. The only action reflected was the appellant's filing of her notice of appeal of the amended judgment on November 15, 1999. Even if not void ipso facto due to the trial court's violation of Rule 75.01, in the absence of any unique circumstances, we find that the court's amended judgment of October 29, 2000, entered without notice to the appellant or an opportunity to be heard resulted in her being deprived of a substantial right without due process of law such that the amended judgment must be vacated and the original judgment reinstated.
In light of our disposition, an appeal on the merits would only lie from the original judgment, not the amended judgment in that it is a nullity and not a final and appealable judgment. As such, the appellant's appeal with respect to the amended judgment must be dismissed. Even though the appellant never voluntarily abandoned her appeal as to the original judgment, rather it was the ultra vires act of the trial court which resulted in her appeal from the amended judgment, the time for filing her appeal from the original judgment has long since passed. Rule 81.04. The appellant's only recourse to appeal the original judgment would be to request, pursuant to Rule 81.07, leave of this court to file her appeal out of time. However, Rule 81.07 limits such requests to six months from the time of judgment entry, which has long since passed. Due process would then dictate that a procedural remedy be fashioned so as not to punish the appellant for the trial court's failure to comply with the due process requirements of Rule 75.01. In this regard, although only mentioned in a footnote in Brockhoff , our Supreme Court recognized the proposition that the appellant here would not have been aware that a special order under Rule 81.07 was necessary until this court ruled, as it does, that the original judgment was being reinstated such that the "six month period [of Rule 81.07] should be tolled during the period the matter was pending in the appellate court." 711 S.W.2d at 869 n. 1.
Although the procedural remedy suggested in Brockhoff would appear, from the appellant's perspective, to be a satisfactory resolution of the procedural predicament in which she was placed as a result of the trial court's Rule 75.01 violation, it does not afford the court an opportunity to amend its judgment after complying with the notice and hearing requirement of the rule. It would seem to us that, logically, to promote the intent of Rule 75.01, which is to give the trial court an opportunity to reconsider the proper disposition of the case, while protecting the due process rights of the parties, the better practice would be to dismiss the appeal and remand for the trial court to "re-enter" its original decree. This then would become the "entry of judgment" date for purposes of triggering the thirty days under Rule 75.01 during which the trial court is authorized to vacate, reopen, correct, amend, or modify its original judgment. This would also preserve the right of a party to file a timely notice of appeal under Rule 81.04(a) as to any final judgment entered by the trial court, negating any need to resort to Rule 81.07. Thus, because we are convinced of the logic of this alternative remedy and because we are not bound by the dicta in Brockhoff concerning the procedural remedy for the Rule 75.01 violation in question, Cox v. Dir. of Revenue , 858 S.W.2d 844, 846 (Mo.App. 1993), concerning the proper procedural remedy for a Rule 75.01 violation, we would adopt the alternative remedy.
This remedy would be limited, of course, to the situation where the attempted amendment under Rule 75.01 was timely, but violated the notice and hearing requirement of the same.
Conclusion
The appeal from the October 29, 2000, amended judgment of the circuit court is dismissed and the case remanded to the court with directions to reinstate and re-enter its judgment of October 6, 2000. Upon re-entry of the judgment, the time limits of Rule 75.01 and Rule 81.04(a) will commence to run.
Due to the cited conflict between the decisions of the Supreme Court and the districts of the court of appeals concerning the effect of the Rule 75.01 violation discussed herein, this case is ordered transferred to the Missouri Supreme Court, pursuant to Rule 83.02.