Opinion
No. 26049
February 3, 2005
Appeal from the Circuit Court of Stone County, Honorable Alan Mark Blankenship, Associate Circuit Judge.
Richard L. Schnake, attorney for Appellant.
Douglas C. Fredrick, attorney for Respondent.
Justin Buchanan ("Father") appeals from the judgment, which dissolved his marriage to Jaclyn Buchanan ("Mother"). Specifically, Father contends the judge granting the dissolution was a visiting judge in Stone County, who did not have subject matter jurisdiction to render a judgment in this particular case. Alternatively, he contends the judgment failed to satisfy the requirements of Section 452.375.6 when it designated Mother's address as the child's mailing address for educational purposes. We affirm.
All references to statutes are to RSMo 2000, unless otherwise indicated.
The Supreme Court of Missouri issued an Order temporarily transferring the Honorable Daniel M. Czamanske from the 6th judicial circuit to the 39th judicial circuit. The order stated in pertinent part:
It is further ordered that the judge hereby transferred shall have the same powers and responsibilities as a judge of the court or district to which transferred. Such powers and responsibilities shall be confined to designated matters and cases, and shall continue until final disposition of such designated matters including after-trial proceedings.
Father contends this order fails to give subject matter jurisdiction to Judge Czamanske to hear this particular dissolution because the supreme court order transferring Judge Czamanske limits the power of a temporary judge to "designated matters and cases"; in other words, the temporary judge must be assigned to a designated case by the presiding judge. Father further argues that the presiding judge of the 39th judicial circuit, who has the jurisdiction to make case assignments pursuant to section 478.240, had assigned the Honorable Alan M. Blankenship, not Judge Czamanske, to hear this particular dissolution and, therefore, Judge Czamanske was not assigned to a "designated" matter or case. Father notes that a docket entry by the assigned Judge Blankenship, which stated the case "may be heard by visiting judge Daniel M. Czamanske," failed to authorize the transfer of the case. Father reasons that the entry was not a directive purporting to assign Judge Czamanske to hear and determine the case and, if it was a directive, Judge Blankenship had no authority to make the assignment because he was an associate judge and not the presiding judge. Father did not raise the issue of subject matter jurisdiction prior to the trial, but only in a motion for new trial. Father cites to no cases in which this issue has been raised, but, rather, relies upon the plain meaning of section 478.240.2, that only Judge Sweeney as presiding judge had the power to assign Judge Czamanske to hear this dissolution.
Section 478.240.2 sets forth the assignment authority of the presiding judge.
Mother, on the other hand, claims this specific issue has been addressed by the Missouri Supreme Court and the Eastern District Court of Appeals. Mother cites to City of Kansas City v. Rule , 673 S.W.2d 21 (Mo. banc 1984), and Lansing v. Lansing 736 S.W.2d 554 (Mo.App.E.D. 1987), claiming both cases rebut Father's reasoning. In the City of Kansas City case, pursuant to an administrative order within the Circuit Court of Jackson County, certain types of cases were routinely assigned to the associate circuit division. Defendant was convicted of a crime in the municipal division, requested a trial de novo before a jury, and was convicted in the associate circuit court. On appeal, the Western District of this court sua sponte ruled that the associate circuit judge was without jurisdiction to hear the case because the assignment order did not name the specific judge to which the case was assigned.
The administrative order stated, "It is hereby ordered that Municipal Division cases in which trials de novo are requested may be heard and disposed of by associate circuit judges of the Circuit Court of Jackson County, Missouri."
The supreme court rejected the argument that an associate circuit judge had no jurisdiction to hear a particular case unless specifically appointed to hear that case. The Court explained:
It is, of course, undisputed that the associate circuit division has no constitutional or statutory authority to hear cases coming from the municipal division. See § 478.225. They may hear such cases only when authorized to do so through one of three methods of assignment: (1) pursuant to an order of the presiding judge of the circuit entered under § 478.240.2; (2) pursuant to a local court rule adopted under § 478.245.1; or (3) pursuant to an order of this Court entered under article V, § 6 of our state Constitution. See § 478.225.4.
City of Kansas City , 673 S.W.2d at 23.
When the supreme court analyzed the administrative order of the Jackson County court, it found that no purpose would be furthered by requiring a presiding judge who desires to authorize associate circuit judges in the circuit to hear certain classes of cases to mention each judge by name in the order. Id. at 23. Citing section 17 of article V, the court reasoned that the legislature did not intend to narrowly delimit the jurisdiction of associate circuit judges in that, "[a]ssociate circuit judges may hear and determine all cases, civil or criminal and all other matters as now provided by law for magistrate or probate judges and may be assigned such additional cases or classes of cases as may be provided by law." Id. at 24.
Lansing directly addressed the factual situation we find in the present case. In Lansing , a judge, the honorable Susan Block, was assigned to hear the case, but did not; instead, a "visiting" judge, Judge Neff, who had been assigned by the Missouri Supreme Court, heard the evidence. Id. at 556. Appellant argued to the court of appeals that, at the time of the hearing, the case was specifically assigned to Judge Block and the "visiting" judge had no jurisdiction absent a direct assignment by the presiding judge. He claimed the local rule provided that, "[n]o judge, except the Presiding Judge or the Judge presiding over the team to which the absent Judge is assigned, shall act for or enter any orders for another Judge except by assignment of the Presiding Judge or upon request of the absent Judge." Id. at 557. The Eastern District of this court found the visiting judge had jurisdiction regardless of the local rule because the supreme court transferred Judge Neff to sit in that division of the circuit court and that is where he presided over the matter. Id. at 557-558.
Father argues that the transfer order involved in Lansing distinguishes Lansing from the present case. Father contends the assignment in Lansing was "to sit in Division 40 of the Circuit Court of St. Louis County for the week of April 14, through April 18, 1986," as opposed to the transfer order in this case which transferred Judge Czamanske to "the 39th Judicial Circuit for the period Monday, September 15, 2003, to Friday, September 19, 2003." Apparently, Father finds legal significance in the supreme court order of the specific transfer to division 40 of circuit 21 in Lansing , versus a transfer to the entire 39th circuit in the present case. We do not, nor do we agree with Father's argument that the issue concerns subject matter jurisdiction which can be raised at any time.
There was no objection at trial to Judge Czamanske's authority. Any lack of authority of Judge Czamanske would have been a matter of error, not jurisdiction, and, not being timely objected to, was waived. See In re Estate of Mapes , 817 S.W. 2d 545, 547 (Mo.App.W.D. 1991) (circuit judge had the jurisdiction to act since he was a duly qualified judge of the circuit in question and purported to act under assignment of the presiding judge when there was no objection at trial to his authority). A party by its conduct can waive the disqualification of a judge and cannot thereafter complain about the judge's participation in the trial. See Holly v. State , 924 S.W. 2d 868, 869 (Mo.App.S.D. 1996) (a claim that the same judge presided over both a preliminary hearing and entry of his guilty plea in violation of section 478.240 was waived by the conduct of defendant and his attorney).
The issue in this case is the authority of Judge Czamanske to hear and determine the underlying case. See State ex rel. McNaul v. Bonaker , 711 S.W. 2d 566, 571-572 (Mo.App.S.D. 1986) (a challenge to the authority of a circuit judge to hear a case previously assigned to an associate circuit judge is rejected with an explanation of the statutory scheme to enlarge the role of the divisions of the circuit courts to better utilize judicial manpower). A dissolution is within the subject matter jurisdiction of the circuit courts. Circuit judges and associate circuit judges may hear and determine all cases and matters within the subject matter jurisdiction of their circuit courts. State ex rel. M.D.K. v. Dolan , 968 S.W.2d 740, 743 (Mo.App. E.D. 1998); section 478.220. Judge Czamanske was transferred, by order of the supreme court, to sit in the 39th judicial circuit and it was in the 39th judicial circuit that he presided over the instant matter. We conclude that by virtue of the supreme court's order he was clothed with the authority to hear this dissolution in the 39th judicial circuit. See In re Marriage of Pierce , 867 S.W. 2d 237, 238 (Mo.App.S.D. 1993) (trial court had jurisdiction over the parties despite no assignment by either individual assignment of the presiding circuit judge, or local court rule, nor authorization by section 452.420 when the issue was not properly raised with the trial court). Point I is denied.
Father's second point presents the narrow issue of whether the designation of the child's mailing address for educational purposes triggers the requirement of any findings pursuant to section 452.375.6. We find that it does not. Section 452.375.6 provides:
If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child.
Joint legal custody means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child. Section 452.375.1(2). Joint physical custody means an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Section 452.375.1(3). The parties agreed to joint legal and physical custody of the minor child and the court awarded the joint care, custody, and control of the minor child to the parties. In fact, the parties agreed to a schedule of exchanging parenting time every three weeks, which the court adopted. Father admits that the practical issue was where the child will live when she attends school. We do not find the designation of Mother's address for educational and mailing purposes as a rejection of joint legal and physical custody, thus triggering any requirements under section 452.375.6 regarding a listing of factors.
Although this precise issue has not been addressed, in Simon-Harris v. Harris , 138 S.W.3d 170 (Mo.App.W.D. 2004), the Western District of this court addressed the issue of the necessity of written findings when the parties agreed to a custody arrangement, but not to a parenting plan. The court stated:
Section 452.375.6 requires written findings only when the parties do not agree on a custody arrangement or when the court rejects their custody arrangement, not when the parties cannot agree on a parenting plan or when the court rejects the parenting plan. There is no statutory requirement that the trial court make written findings when it rejects the parties' parenting plan. Sections 452.375.9 and 452.310.7 deal with parenting plans and section 452.375.9 merely requires that the court include a parenting plan that complies with section 452.310.7.
Id. at 178. Point II is denied.
The judgment is affirmed.
Prewitt, J., concurs.
Garrison, P.J., concurs in part and dissents in part in separate opinion.
OPINION CONCURRING IN PART AND DISSENTING IN PART
I respectfully concur in part and dissent in part.
I do not believe that Judge Czamanske was properly assigned to hear this case. The Supreme Court of Missouri certainly has authority to transfer judicial personnel pursuant to Section 6, Art. V of the Missouri Constitution. When the Supreme Court of Missouri transferred Judge Czamanske to the 39th Judicial Circuit, however, it also provided that his power was "confined to designated matters and cases." Were it not for the quoted restriction, I would agree that he would have been authorized to hear this case pursuant to Lansing v. Lansing , 736 S.W.2d 554, 557-558 (Mo.App.E.D. 1987). In Lansing , the associate circuit judge who heard that dissolution case had been transferred to that specific division of the circuit court by the Supreme Court. Id. at 557. The Supreme Court does not appear, however, to have placed any restrictions on that assignment as it did in this case. Id.
Likewise, the presiding judge of a judicial circuit has authority to assign associate circuit judges to hear cases or classes of cases. Section 478.240.2. The power to make such assignments includes assignment to hear and decide dissolution cases. Section 478.220; State ex rel. M.D.K. v. Dolan , 968 S.W.2d 740, 743-745 (Mo.App.E.D. 1998). There is no evidence that the presiding judge of this circuit assigned Judge Czamanske to hear the instant case. For that reason, I do not think that City of Kansas City v. Rule , 673 S.W.2d 21 (Mo. banc 1984), controls here. In that case the associate circuit judge heard a case pursuant to an assignment by the presiding circuit judge authorizing "associate circuit judges" of that circuit to hear trials de novo from municipal division cases without specifically naming the judge. Id. at 22-23. In the instant case, the record does not include any evidence that the presiding judge made a blanket assignment of associate circuit judges in the circuit to hear dissolution cases. Thus, the record contains neither a copy of any such blanket assignment nor a copy of a local court rule having that effect. In that regard, there is a line of authority holding that we are not permitted to take judicial notice of local court rules that have not been made part of the record. See Robinson v. Lohman, Director of Revenue , 949 S.W.2d 907, 913 (Mo.App.S.D. 1997), which cited as authority Sher v. Chand , 889 S.W.2d 79, 81 (Mo.App.E.D. 1994), which cited Hoskins v. Hoskins , 833 S.W.2d 20, 21 (Mo.App.E.D. 1992), which cited Irving v. Brannock , 756 S.W.2d 585, 586 (Mo.App. W.D. 1988) which cited Bank v. Pfeil , 537 S.W.2d 680, 681 (Mo.App. St. L. 1976). Bank and earlier cases containing similar holdings were decided prior to January 2, 1979, the effective date of Section 478.245.3 providing for the adoption of local court rules and requiring that they be filed with the clerk of the Supreme Court. These cases were also decided prior to the general publication of such rules as a part of the Missouri Court Rules published by West and before these rules were available through computer research. As such, I do not believe the reason for the rule against taking judicial notice of such rules exists today, and those cases should be overruled. I believe that we should be permitted to take judicial notice of local court rules under the principle that judicial notice operates not only as to things commonly known, but also as to things courts are deemed to know by virtue of their office. See Mince v. Mince , 481 S.W.2d 610, 614 (Mo.App. K.C. 1972). The legislature might also consider whether to adopt a statute specifically authorizing us to take judicial notice of such rules. Bearing in mind the existing authority on the subject, I nevertheless note that the local court rules for the 39th Judicial Circuit in effect when this case was decided did not include a blanket assignment of associate circuit judges to hear and decide dissolution cases.
That having been said, however, I agree with the result reached by the majority opinion that Appellant is not entitled to relief under his first point on appeal. As indicated above, dissolution cases are within the category of cases over which associate circuit judges have subject matter jurisdiction if properly assigned to hear them. An objection to a judge hearing a case, over which he would otherwise have jurisdiction by statute, because of a failure to follow assignment procedures as to that judge, is procedural in nature and is waived if not presented to the trial court. Cooper v. Bluff City Mobile Home Sales, Inc. , 78 S.W.3d 157, 168 (Mo.App.S.D. 2002). See also In re Estate of Mapes , 817 S.W.2d 545, 547 (Mo.App.W.D. 1991) (lack of authority of judge to hear a particular case is a matter of error, not jurisdiction, and is waived if not the subject of a timely objection). Even more to the point is the holding in In re Marriage of Pierce , 867 S.W.2d 237, 238 (Mo.App.S.D. 1993), where the contention on appeal was that an associate circuit judge had no jurisdiction to hear that dissolution case because he had not been assigned to do so. "Jurisdiction" is the basis of Appellant's contention in this case. In Pierce , we held that the judge had "jurisdiction" pursuant to § 478.220, which answered the issues raised on appeal. Id. We said:
Whether there was no assignment or defective assignment, we need not decide. The plain and clear language of § 478.220 gave [the judge] jurisdiction to "hear and determine all cases and matters within the jurisdiction" of the Circuit Court of Howell County. Whether the assignment question was error which might have been raised in the trial court is not before us. Under § 478.220, [the judge] had jurisdiction to render the judgment.
Id. I agree that Appellant is entitled to no relief under his first point.
I disagree with the majority about Appellant's entitlement to relief under his second point. In my opinion the trial court was required to have made specific findings pursuant to Section 452.375.6. That subsection is triggered "[i]f the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child." If that is the case, the subsection requires a written finding based on the public policy in subsection 4 of that statute ("that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child") and on the factors listed in subdivisions (1) to (8) of subsection 2 "detailing the specific relevant factors that made a particular arrangement in the best interest of the child." Section 452.375.6. It has been held that a trial court is not required, in complying with Section 452.375.6, to specifically discuss each of the eight factors delineated in Section 452.375.2 when determining the best interests of the child in custody matters, but rather is required to detail the specific relevant factors that made a particular arrangement in the best interest of the child. Davidson v. Fisher , 96 S.W.3d 160, 164 (Mo.App.W.D. 2003). See also In re Marriage of Cluck , 121 S.W.3d 271, 273 (Mo.App.S.D. 2003).
Rule 78.07(c) took effect January 1, 2005. It provides that allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review. Rule 78.07(c) (2005). This rule was not in effect when the judgment was entered in the instant case.
In this case, Mother submitted a parenting plan to the trial court that called for there to be joint legal and physical custody with the "physical placement" of the child to be "primarily" with her. It called for the parties to exchange the child every three weeks until the child started school. It also called for the child to attend school in the district where Mother resided.
Father's proposed parenting plan called for the parties to have joint legal and physical custody; the child would attend school in the district where Father resided; and his residence would be the child's address for mailing and educational purposes. With reference to "periods of actual physical custody of and residential time" he proposed that for the school year of 2003-2004, each would have the child for alternating periods of two consecutive weeks, and for the school year 2004-2005, as well as continuing through the 2006 school year, they would each have custody for alternating three-week periods. Those schedules would continue through the summer months until the child began kindergarten. Beginning when the child began school in 2007, Father would have custody from Sunday night to Friday afternoon, with Mother to have custody and visitation every weekend except the first weekend of the month.
The trial court awarded joint legal and physical custody and adopted a parenting plan that provided that Mother's address would be used for health and education purposes; the parties would exchange the child each three weeks; when the child became school age, Father would have three, two-week periods of parenting time during the summer; and, although there was a schedule for custody during holidays, there was no schedule for custody after the child started school.
It thus appears to me that the parties did not agree to a custodial arrangement, thereby imposing the requirements of Section 452.375.6. I do not believe that it ends the inquiry or determines the requirement to make findings pursuant to that statute to say that joint legal and physical custody was requested and granted without also analyzing whether the parties failed to agree to "custodial arrangements," which I interpret to mean the details concerning custody. Here, while both parenting plans proposed joint legal and physical custody, the details of those plans differed.
The varying forms of custody are defined in Section 452.375.1(1) as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof." "Joint physical custody" is defined as an award of significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Section 452.375.1(3). A joint custody arrangement results in each parent being referred to as a "joint physical custodian," and an award of sole custody results in one parent being the sole physical custodian and the other being referred to as the non-custodian. Loumiet v. Loumiet , 103 S.W.3d 332, 337 (Mo.App.W.D. 2003). The time awarded to the non-custodian is "visitation." Id. Under Section 452.400.1 visitation is to be ordered only where a parent is not granted custody of the child. Id. "Thus, where the parties are awarded joint physical custody, there is no visitation schedule, only a joint physical custody schedule; and conversely, where one parent is awarded sole custody, there is not a joint custody schedule, only a visitation schedule setting forth the periods of time the child is to reside with the other parent[.]" Id. at 337-338.
In the instant case, both parents proposed that they receive significant, but not equal, periods of time with the child. Under either scenario, I believe the proposals would have qualified as joint physical custody. That being the case, the time each parent would have with the child would be custodial in nature. Id. Since they did not agree as to those custodial arrangements, I believe the requirements of Section 452.375.6 were triggered, but not complied with by the trial court.
Simon-Harris v. Harris , 138 S.W.3d 170, 178 (Mo.App.W.D. 2004), referred to by the majority opinion, holds that there is no statutory requirement that the trial court make written findings when it rejects the parties' parenting plan. I respectfully disagree with that case to the extent it holds that, with reference to joint physical custody, a disagreement about "parenting time" between the parties is something different than a disagreement about a custodial arrangement. There, the court found that the parties agreed that they wanted joint physical custody, but disagreed about the amount of time each would have with the child. Id. That is essentially the same scenario as in this case. In Simon-Harris , however, the court characterized the time each parent wanted to have the child with them as "parenting time," which it apparently distinguished from a "joint physical custody schedule." Id.
I believe that a blanket characterization of "parenting time" as being something distinguished from a custodial schedule is incorrect. First, Section 452.310.7, requiring the submission of parenting plans, provides that such plans shall include, among other things, a specific written schedule detailing the "custody," visitation, and residential time for each child with each party. Second, the time when a joint physical custodian has a child is custody, not visitation. See Loumiet , 103 S.W.3d at 337. Accordingly, I believe that the "parenting time" referred to in Simon-Harris was actually custodial time by a joint physical custodian. The same is true in this case. Accordingly, I would reverse the judgment and remand the case to the trial court for the findings required by Section 452.375.6.