Opinion
Nos. 27678, 27742.
February 21, 1950. Rehearing Denied March 24, 1950.
APPEAL FROM THE CAPE GIRARDEAU COURT OF COMMON PLEAS, J. HENRY CARUTHERS, J.
R. P. Smith, and Strom Spradling, all of Cape Girardeau, for appellant.
J. Grant Frye, of Cape Girardeau, for respondent.
This is a proceeding involving the modification of a divorce decree as respects the custody of a minor child.
The divorce action was brought by the wife, Golda M. Perr, against her husband, Eberhardt Perr, and resulted in the entry of a decree in plaintiff's favor with a provision awarding plaintiff general custody of the parties' son, James Edward Perr, subject to defendant's right to visit the child and have the child visit him "at all convenient and proper times". The child was approximately thirteen months of age at the time of the entry of the decree.
Such indefinite provision respecting defendant's right of visitation did not work out satisfactorily, and eventually defendant filed a motion to modify the decree, which the court sustained, and thereupon entered an order modifying the decree so as to provide, among other things, that defendant should have the custody of the child for nine months each year from September 1st to May 31st inclusive, with plaintiff to have custody for the remaining three months, or from June 1st to August 31st inclusive.
Plaintiff appealed from the order modifying the decree; and upon the submission of the case in this court we reversed the order and remanded the cause for further proceedings not inconsistent with the views expressed in our opinion, which is reported as Perr v. Perr, Mo.App., 205 S.W.2d 909. Such views were that the child's general custody should be left with plaintiff, but that defendant's motion to modify should be none the less sustained and the provisions of the original decree be modified so as to fix and define defendant's visitation privileges specifically and beyond room for doubt or controversy. The reasons impelling us to reach such conclusion are fully set out in our former opinion.
The effect of our decision was to reinstate defendant's motion to modify as a pending motion; and when our mandate reached the lower court, the matter was heard on defendant's motion along with certain motions which had been meanwhile filed by plaintiff.
On October 22, 1948, the court entered an order that the decree be modified so as to provide, among other things, that plaintiff should have custody of the child during the entire school year subject to defendant's right of possession during alternative week-ends, and that during summer vacations defendant should have custody subject to plaintiff's right of possession on alternate week-ends.
On October 29, 1948, plaintiff filed her motion for a new trial, which was thereafter argued and submitted, and then overruled on November 22, 1948.
On December 10, 1948, plaintiff filed a motion asking the court to set aside its order of November 22d overruling her motion for a new trial upon the ground that she had received no notice of the entry of such order until December 4th, which was after the expiration of the time for giving notice of appeal. She advised the court that she desired to appeal from the modification of the decree by which she considered herself aggrieved, and that her purpose in asking that her motion for a new trial be reinstated was so that upon the reentry of the order overruling it she might take her appeal without applying for a special order from this court.
On the same day, that is, on December 10th, the court sustained plaintiff's motion; set aside its previous order of November 22d; and reinstated the motion for a new trial, which it again overruled on December 17, 1948. Plaintiff immediately gave notice of appeal; and by subsequent steps has undertaken to have the case transferred to this court for a review of the order modifying the decree.
There is no doubt that the order modifying the decree was an appealable order, and defendant has not challenged plaintiff's right to be heard in this court upon the propriety of the order as entered below. But even in the absence of a challenge from defendant, it is none the less our duty, on our own account, to examine into the question of our jurisdiction, or, to be precise, into the question of whether the appellant has taken the necessary procedural steps to invoke our jurisdiction and authorize us to entertain the appeal on its merits. No matter how greatly disposed we may be to give a liberal construction to statutes and rules affecting appellate practice and procedure, we may not consciously close our eyes to a record which shows that our jurisdiction has not been properly invoked; and whenever it appears that the necessary steps have not been taken to make an appeal effective, we have no recourse but to say so.
It is now settled law that the vital step for taking an appeal is the timely filing of a notice of appeal, which is referred to as being jurisdictional in the sense of being the one procedural step outlined by statute which must be literally complied with if the appeal is to be "effective". Laws Mo. 1943, p. 390, sec. 129, Mo.R.S.A. sec. 847.129; Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657.
The question here is whether the notice of appeal was filed not later than ten days after the order appealed from became final.
Plaintiff's motion for a new trial was timely, having been filed within ten days after the entry of the order complained of, and the order therefore became final and appealable upon the "disposition of the motion". Laws Mo. 1943, p. 388, sec. 116, Mo.R.S.A., sec. 847.116. There is no question in this case of the automatic denial of the motion at the expiration of ninety days. On the contrary, the motion was passed upon by the court, not once, but twice, within that period; and therein lies the difficulty.
Notice of appeal was given on December 17th, which was the very day that the motion for a new trial was overruled after the previous order overruling it had been set aside and the motion reinstated. The question is therefore one of the legal effect of the court's action in purporting to set aside such previous order so that the motion could be reinstated and again overruled. If the court had the authority to take such action so that the order overruling the motion on December 17th is to be regarded as the date of the "disposition of the motion", plaintiff's notice of appeal was timely. If not, her notice was long out of time (the previous order overruling the motion having been entered on November 22d), in which event, by virtue of express statutory provision, her appeal would not be "effective". Sec. 129, supra.
However good the court's intentions, it none the less acted without authority in undertaking to set aside its order of November 22d and reinstate the motion for a new trial so that the same could be again overruled and plaintiff be afforded an opportunity to appeal.
When the motion for a new trial was overruled on November 22d, the modification order of October 22d became final, and the court had no further authority to disturb such order or its finality. Moreover the period of thirty days following the entry of the order during which the court retained control over the same had likewise expired. The order of December 10th purporting to set aside the order of November 22d and reinstate the motion for a new trial was therefore void, as was also the order of December 17th whereby the motion was again overruled. If an appeal was to be taken in the regular course, it was necessary that notice of appeal should have been filed within ten days after November 22nd when the order modifying the decree became final; and notice given on December 17th did not suffice to make the appeal effective. Bank of Thayer v. Kuebler, Mo.App., 219 S.W.2d 297; Krummel v. Hintz, Mo.App., 222 S.W.2d 574.
Nor is this conclusion altered by the fact that it was not until December 4th (two days after the expiration of the time for giving notice of appeal) that plaintiff received actual notice that the court had overruled her motion for a new trial on November 22d. Not only was she in court, but she was in fact the moving party to the motion, and she was therefore chargeable with knowledge of any proper and legal action taken on her motion during the regular course of the proceedings. 60 C.J.S., Motions and Orders, § 61. When plaintiff did receive actual notice after the expiration of the time for taking a regular appeal, her remedy then (of which her subsequent motion shows that she was aware) was to apply to this court for a special order permitting her to file a notice of appeal. Laws Mo. 1943, p. 391, sec. 130, Mo.R.S.A., sec. 847.130. Even though the present controversy involves the modification of a decree in an action for divorce, the question of the time and manner of taking an appeal was nevertheless governed by the provisions of the general civil code. State ex rel. Fawkes v. Bland, 357 Mo. 634, 210 S.W.2d 31.
In the situation before us we have no alternative but to dismiss the appeal from the order modifying the decree. However the case in this court also involves a second appeal, which, by stipulation of the parties, has been consolidated with the appeal to be dismissed. This was an appeal from an order denying plaintiff's motion for suit money and attorney's fees for the prosecution of her appeal from the order modifying the decree.
It appears that the court denied the motion upon the ground that plaintiff's appeal from the order modifying the decree was not taken in good faith or for what she actually conceived to be the best interests of the child, but rather for the purpose of vexing and harassing defendant and giving vent to the hostility which she entertained towards him.
Plaintiff insists that the court denied her motion solely because of its personal ill feeling towards her and her present husband. We need not consider whether the record affords a fair basis for such insistence, since the court was in any event right in its result. Obviously defendant should not have been required to bear the expenses of an appeal which had not been taken in time to make the appeal effective.
Along with the case has been taken respondent's motion to dismiss both appeals upon the primary ground of the alleged insufficiency of plaintiff's brief. This motion should be overruled; the appeal from the order modifying the decree should be dismissed of the court's own motion; and the order denying plaintiff's motion for suit money and attorney's fees should be affirmed. The Commissioner so recommends.
The foregoing opinion of BENNICK, C., is adopted as the opinion of the court
Respondent's motion to dismiss the appeals is, accordingly, overruled; the appeal from the order modifying the decree is dismissed of the court's own motion; and the order denying plaintiff's motion for suit money and attorney's fees is affirmed.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.