State of Missouri, Department of Social Services, Family Support Division v. Kenneth Schauer , 2016 Mo. App. LEXIS 1072 ( 2016 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
DEPARTMENT OF SOCIAL SERVICES )
FAMILY SUPPORT DIVISION, ET. AL., )
)
Respondent, )
)
v. ) WD79417
)
KENNETH SCHAUER, ) Opinion filed: October 25, 2016
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF NODAWAY COUNTY, MISSOURI
THE HONORABLE W. DOUGLAS THOMSON, ASSOCIATE JUDGE
Before Division One: Thomas H. Newton, Presiding Judge,
Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge
Kenneth M. Schauer (“Schauer”), proceeding pro se, appeals the circuit court’s denial of
his Motion to Vacate Judgment of Modification of March 25, 2011, for Lack of Jurisdiction. The
motion came nearly four years after the issuance of the judgment it sought to vacate which itself
was modifying a child support order issued nine years earlier. After a careful review of the record,
we determine that, because Schauer’s appeal is not taken from a final judgment, his appeal must
be dismissed.
Factual and Procedural Background
On April 18, 2002, the Nodaway County Circuit Court entered a judgment dissolving the
marriage of Kenneth Schauer and Lisa Schauer. Pursuant to that dissolution, the circuit court
ordered Mr. Schauer to pay $400.00 per month in child support. Sometime later, and at the request
of Ms. Schauer, the Family Support Division (“the Division”) began the child support modification
procedures outlined in sections 454.496 and 452.370,1 which resulted in an administrative hearing
on September 28, 2010. The hearing officer determined that the “substantial and continuing
change” requirement of section 452.370 had been satisfied on at least two independent grounds,
and determined a new presumed child support amount of $714.00 per month. Schauer failed to
seek judicial review of the hearing officer’s decision.
Shortly after the administrative hearing, and based on the hearing officer’s finding of a
substantial and continuing change, the Division filed with the circuit court a Motion to Review
and Approve its proposed modification. On March 25, 2011, the circuit court entered judgment
modifying the original dissolution of marriage decree by adopting the presumed child support
amount determined by the hearing officer. Again, Schauer did not appeal. Nearly a year later, on
March 19, 2012, Schauer filed a Motion for Relief from Judgment pursuant to Rule 74.06(b)2
claiming that the Division had perpetrated a fraud upon the court. The circuit court took up the
motion and denied the same on September 4, 2013. On December 18, 2015, Schauer filed a motion
titled Motion to Vacate Judgment of Modification of March 25, 2011, for Lack of Jurisdiction
(“Motion to Vacate”), which is the subject of this appeal. That motion was denied by order of the
circuit court on January 28, 2016. Schauer now appeals that denial.
Points Raised on Appeal
Schauer raises two points on appeal. First, he asserts that the circuit court erred in
modifying the original child support order because the circuit court lacked the jurisdiction to do
1
All statutory citations are to the Revised Statutes of Missouri; 2000, as supplemented.
2
All references are to Missouri Supreme Court Rules (2015).
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so. Second, Schauer argues that the circuit court erred in “assisting” the Division who, he claims,
brought its 2011 proposed modification to the circuit court with unclean hands.
Discussion
While not clearly delineated as such, we properly understand the Motion to Vacate, which
is the subject of this appeal, to have been brought pursuant to Rule 74.06(b). Rule 74.06(b) allows
for a party to seek relief from a judgment on one of five distinct grounds:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (3) the judgment is irregular; (4) the judgment is
void; or (5) the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment remain in force.
With regard to subsection (4) in particular, the Missouri Supreme Court has stated that “[a]
judgment is void under Rule 74.06(b)(4) if the trial court: (1) lacked subject matter jurisdiction,
(2) lacked personal jurisdiction, or (3) entered the judgment in a manner that violated due process.”
Bate v. Greenwich Insurance Company, 464 S.W.3d 515, 517 (Mo. banc 2015).
Upon review of the Motion to Vacate, it appears that Schauer’s argument, albeit far from
precise, is that the circuit court lacked the subject matter jurisdiction needed to modify its previous
child support order thereby rendering the 2011 modification judgment void. As a result, this court
determines that Schauer’s Motion to Vacate was brought pursuant to 74.06(b)(4).
However, before we are able to address the merits of Schauer’s appeal, we are required,
sua sponte, to first determine whether we have jurisdiction to review it. Capital Finance Loans,
LLC v. Read, 476 S.W.3d 925, 927 (Mo. App. W.D. 2015). An important part of this analysis is to
determine whether there is a final judgment, which “is a prerequisite to appellate review.”Ndegwa
v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012). Rule 74.01 clearly states that “[a] judgment
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is entered when a writing signed by the judge and denominated ‘judgment’ or ‘decree’ is filed.”
This “requirement that a trial court must ‘denominate’ its final ruling as a ‘judgment’ is not a mere
formality; [i]t establishes a ‘bright line’ test as to when a writing is a judgment.” G.H. v. Eli Lilly
& Co., 412 S.W.3d 326, 330 (Mo. App. W.D. 2013) (quoting City of St. Louis v. Hughes, 950
S.W.2d 850, 853 (Mo. banc 1997)).
This court has clearly and repeatedly interpreted this language to mean that for an order to
be appealable, it must first be denominated a “judgment” or “decree.” See, e.g. G.K.S. v. Staggs,
452 S.W.3d 244, 250-51 (Mo. App. W.D. 2014); Basta v. Kansas City Power & Light Co., 410
S.W.3d 743, 746 (Mo. App. W.D. 2013); Hamilton v. Hamilton, 278 S.W.3d 730, 732 (Mo. App.
W.D. 2009); Dempsey v. Shelter General Ins. Co., 199 S.W.3d 896, 898 (Mo. App. W.D. 2006).
This rule applies directly to a motion brought pursuant to Rule 74.06(b)(4), such that, an order
denying a Rule 74.06(b)(4) motion “must be denominated a judgment” before this court is able to
review it on appeal. Snelling v. Michelin North America, Inc., 213 S.W.3d 201, 202 (Mo. App.
E.D. 2007). Because the court order issued January 28, 2016, denying Schauer’s Motion to Vacate,
is not denominated either a judgment or decree, Schauer’s appeal must be dismissed.
Schauer’s appeal is dismissed without prejudice for lack of a final, appealable judgment.
__________________________________________
EDWARD R. ARDINI, JR., JUDGE
All concur.
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