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08/09/83 MARRIAGE IRENE ANN BRUSKE AND GEORGE

August 9, 1983

IN RE MARRIAGE OF: IRENE ANN BRUSKE AND GEORGE WILLIAM BRUSKE. IRENE ANN BRUSKE, APPELLANT
v.
GEORGE WILLIAM BRUSKE, RESPONDENT



From the Circuit Court of Platte County; Civil Appeal; Judge Ward B. Stuckey.

Before Wasserstrom, P.j., Turnage, Clark, JJ.

The opinion of the court was delivered by: Clark

This appeal in this dissolution of marriage case is prosecuted by the wife from the portions of the judgment designating non-marital property, the general division of marital assets and the amount awarded as child support. No appeal was taken as to the judgment dissolving the marriage and that decree has matured to finality. ( § 452.360, RSMo 1978). *fn1 The judgment is affirmed.

The first issue considered in this case, although not presented by the parties in their briefs, is whether the associate circuit Judge who heard and decided the case had jurisdiction to do so. The problem is apparent on the face of the record because this is a contested dissolution of marriage case and associate Judges have no original jurisdiction in such matters. Section 478.225.4. Associate Judges may hear matters outside their original jurisdiction by assignment or transfer, but the record in this case contained no order of transfer or assignment. The duty of this court to consider sua sponte the issue of jurisdiction is firmly established. Frederick v. Frederick, 617 S.W.2d 629 (Mo. App. 1981).

Upon notice to counsel of the jurisdiction issue a stipulation was filed to supplement the record. The stipulation included an extract from the local rules of the Sixth Judicial Circuit. The parties jointly suggest that jurisdiction was acquired by the associate Judge by reason of Local Rule 6 which reads in part as follows:

"The following classes of cases are assigned as follows, and shall be filed by the Circuit Clerk of Platte County, Missouri, as follows:

A. All actions for Dissolution of Marriage, Legal Separation, Child Custody and Child Support, Separate Maintenance, and Motions to Modify Decrees of Dissolution of Marriage, Legal Separation, Separate Maintenance, Child Custody, and Child Support, including injunctive relief relative thereto, shall be assigned equally, at random, to Division II and Division III."

The courts in the Sixth Judicial Circuit are constituted in four divisions. The circuit Judge, who is the presiding Judge (Article V, § 15, Subsection 3, Constitution of Missouri) presides in Division I. Associate circuit Judges preside in Division II, III and IV, the last numbered division being assigned probate matters. In consequence of the local rule above quoted, all dissolution of marriage cases, contested and uncontested, are handled from inception to Disposition in Platte County by an associate circuit Judge. Because the rule directs the action to be taken by the circuit clerk when the case is filed, the circuit Judge performs no function in Disposition of marriage dissolution cases and makes no determination as to the assignment of the cases except under the blanket directive of the rule.

The jurisdictional issue in the case is whether the applicable statutes authorize the presiding Judge of the circuit to invest the associate circuit Judges serving under him with primary and exclusive responsibility for Disposition of contested dissolution of marriage cases by adopting a local rule to this effect. *fn2

The general jurisdiction of associate circuit Judges to hear and decide classes of cases is narrowly circumscribed, in the first instance, by § 478.225:

Associate circuit Judges, cases and matters within their jurisdiction.

2. Each associate circuit Judge within the counties or city of St. Louis for which he is an associate circuit Judge may hear and determine the following cases or classes of cases:

(1) Except as otherwise provided by law, all civil actions and proceedings for the recovery of money, whether such action be founded upon contract or tort, or upon a bond or undertaking given in pursuance of law in any civil action or proceeding, or for a penalty or forfeiture given by any statute of this state, when the sum demanded, exclusive of interest and costs, does not exceed five thousand dollars;

(2) All actions against any railroad company in this state, to recover damages for killing or injuring horses, mules, cattle or other animals within their respective counties, without regard to the value of such animals, or the amount claimed for killing or injuring the same;

(3) All cases of misdemeanor or infraction, except as otherwise provided by law;

(4) Felony cases prior to the filing of the information;

(5) Municipal ordinance violation cases of a municipality with a population of under four hundred thousand for which a municipal Judge is not provided;

(6) 'Small claims' cases as provided in sections 482.300 through 482.365;

(7) In counties of less than seventy thousand inhabitants, when a circuit Judge is absent from the county, cases that a circuit Judge can hear in chambers;

(8) Such other cases that could be heard and determined by a magistrate Judge without assignment as an acting circuit Judge under provisions of law in effect on January 1, 1979, including but not limited to replevin, attachment and mechanic's lien actions where the recovery sought is less than five thousand dollars, actions for unlawful detainer authorized by chapter 534, RSMo, actions for rent and possession authorized by ...


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