412 S.W.3d 487
Mo. Ct. App.2013Background
- 2006 dissolution decree awarded joint legal and physical custody and ordered child support with a specified parenting plan and visitation schedule.
- On November 12, 2009 Mother filed a motion to modify child support and to determine arrearages; Father counter-moved to modify visitation and child support.
- Case was heard by a family court commissioner; at the outset Father limited his request to child support modification and withdrew the visitation modification claim.
- Commissioner issued findings on June 19, 2012; trial court adopted them and entered judgment the same day and mailed notice of entry that day.
- On July 18, 2012 Father filed an after-trial motion alleging lack of statutory requirements, counsel errors, weight of the evidence, and bias; motion denied September 7, 2012.
- Father filed his notice of appeal on September 17, 2012; the court later dismissed the appeal as untimely due to lack of timely filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Father’s notice of appeal was timely. | Lenz argues post-trial filings were timely as a motion to amend or for new trial. | Appellate timeliness governed by Rule 81.04 and Rule 130; motion was a new trial, not amend; untimely under 15-day rule. | Timeliness governs; appeal dismissed due to untimely notice. |
Key Cases Cited
- Thorp v. Thorp, 390 S.W.3d 871 (Mo.App.E.D.2013) (timeliness is a jurisdictional requirement for appeals)
- Dunkle v. Dunkle, 158 S.W.3d 823 (Mo.App.E.D.2005) (interplay of Rule 78.04 and Rule 130 in family matters; timing of motions)
- State ex rel. Missouri Parks Ass’n v. Missouri Dept. of Nat. Resources, 316 S.W.3d 375 (Mo.App.W.D.2010) (substance over form in evaluating post-trial motions)
- Wilson v. Whitney, 81 S.W.3d 172 (Mo.App.S.D.2002) (Rule 78.04 timing in context of new trial when applicable; not controlling for this precise issue)