400 S.W.3d 846
Mo. Ct. App.2013Background
- Parents Muhm (mother) and Myers (father) married in 2001, had two minor children, and divorced in 2006 in St. Charles County; dissolution judgment approved by Judge Briscoe.
- Since the divorce, the parties have repeatedly litigated contempt and modifications of custody.
- A 2007 contempt motion by the mother was assigned to Judge Zerr and dismissed.
- In 2008, the father sought contempt and to modify; Judge Swann handled related motions, then all local judges disqualified; Judge Frawley was appointed as special judge to adjudicate the 2008 motions.
- Judge Frawley heard the 2008 modification trial and partially granted the father’s motion; the 2008/2009 judgments became final.
- In 2010 the mother filed contempt and a motion to modify again; Judge Frawley, again a special judge, denied the mother’s motion for change of judge; trial on modification and contempt occurred in 2012 with Judge Frawley granting parts of each motion; the mother appeals the denial of change of judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the mother was entitled to an automatic change of judge. | Muhm argues Judge Frawley did not qualify as the same judge who ruled on previous actions. | Myers argues Rule 51.05(a) makes 2010 motions not an independent action and the same judge can rule. | Denied; 51.05(a) excludes automatic change when the same judge ruled on prior independent action. |
| Whether Rule 452.410.2 and Rule 51.05 collectively permit an automatic change of judge here. | Muhm relies on 452.410.2’s entitlement to change of judge. | Rule 51.05 excludes automatic change for motions to modify when the same judge ruled previously. | Denied; automatic change not triggered. |
Key Cases Cited
- Castor v. State, 20 S.W.3d 603 (Mo. 2000) (motions to modify are independent actions; but 51.05 limitation applies to same judge)
- Wilson v. Sullivan, 967 S.W.2d 225 (Mo.App. E.D.1998) (special judge finality ends authority without reappointment)
- State ex rel. Burns v. Goeke, 884 S.W.2d 60 (Mo.App. E.D.1994) (assessing acceptability of trial judge soon after identity determined; remedy if prejudice)
- State ex rel. Thexton v. Killebrew, 25 S.W.3d 167 (Mo.App. S.D.2000) (Rule 51.05 precludes disqualification in motion to modify dissolution where same judge tried initial action)
- In re C.N.H., 998 S.W.2d 553 (Mo.App. S.D.1999) (when prior action judge presided, subsequent modify not an independent action)
- In re J.M., 328 S.W.3d 466 (Mo.App. E.D.2010) (one family court judge preferred for efficiency; continuity of judge favored)
- Joshi v. Ries, 330 S.W.3d 512 (Mo.App. E.D.2010) (statutory interpretation of Rule 51.05)