Case Law Update: Post-Judgment Procedures Pitfall
Susan J. Southard, Petitioner/Respondent v. James A. Southard, Respondent/Appellant, No. 89217 (Mo. App. E.D., November 27, 2007), Romines, J.
This was an action for modification heard by a family court commissioner. The commissioner's findings and recommendations were adopted and the original judgment was modified as to custody. Father filed a motion for de novo rehearing. The motion was denied. He appealed. One of the claims made in father's motion was that the trial court's judgment was deficient in making statutorily required findings for modification of custody.
By failing to file a motion to amend the judgment to make statutorily required findings, father waived his right to make that argument on appeal. Rule 78.07(c).
“The fact that Rule 129 exists does not mean that a family court judge is confined to ordering relief found in Rule 129 alone. While Rule 129 does govern procedures in front of commissioners and supersedes all inconsistent rules by its own terms, see Rule 129.02, it does not preclude the application of rules with which it is not inconsistent.”
“Rule 78.07(c) is clear that a motion to amend must be filed in order to preserve error in all cases in which failure to make statutorily required findings is raised. A party simply must file both motions if he wants a rehearing in front of a circuit judge but wishes to preserve his claims of error for appeal in the event that motion for rehearing is denied.”
It did not matter that the post-judgment motion filed by father, and designated as a motion for rehearing, contained all of his claims of error, including those related to Rule 78.07(c) deficiencies. Dual motions were required.
Source for Post: Missouri Bar Courts Bulletin