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09/20/93 LOUISE DIANA ANDERSON v. MARK R. ANDERSON

September 20, 1993

LOUISE DIANA ANDERSON, PETITIONER-RESPONDENT,
v.
MARK R. ANDERSON, RESPONDENT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable David P. Anderson, Judge

Garrison, Flanigan, Prewitt

The opinion of the court was delivered by: Garrison

This is an appeal from a decree sustaining a motion to modify child support filed by Respondent (Louise). The three main issues raised by Appellant (Mark) are that the trial court erred in denying his request for change of Judge, in modifying the amount of the child support award, and in ordering that the child support award be retroactive.

The marriage of Mark and Louise was dissolved in September 1987. Custody of their three minor children was awarded to Louise and Mark was ordered to pay child support of $1,200 per month. In July 1990, Mark filed a motion to modify seeking primary custody of the children. On September 6, 1990, Louise filed an answer and counter-motion to modify by which she sought an increase in the child support. The case was tried and a judgment was entered on March 14, 1991, by which Mark's motion to modify was overruled but Louise's counter-motion was sustained and child support was increased to $600 per month per child.

Mark appealed that portion of the judgment sustaining Louise's counter-motion. The court reporter, however, was unable to produce a transcript of the trial and this court remanded the case for a new trial on Louise's counter-motion. On the day following the remand, Mark filed a request for change of Judge under Rule 51.05. *fn1 This request was overruled.

When the case was tried the second time in May 1992, Mark was unemployed. He had previously been employed by a closely-held Subchapter S corporation (J & L) which operated a beer distributorship. Mark owned 49% of the stock in J & L and his father owned the other 51%. Approximately three months prior to trial, Mark was arrested for possession of cocaine. At the insistence of the brewery for which they were a distributor, his employment with J & L was terminated and a purchaser of the distributorship was actively being sought.

According to the evidence, Mark's only income at the time of the second trial consisted of dividend payments from J & L of $1,995 which he received twice each month. In 1991, his W-2 earnings from J & L were $65,779.20 and he reported K-1 earnings from the corporation of $115,888. In 1990, he had W-2 earnings of $84,514.97 and a K-1 loss of $10,602; and in 1989, he had total income of $130,183, which included K-1 earnings of $83,792 from the corporation. As of the end of 1991, J & L had retained earnings of $857,673.

Louise was not employed during her nine-year marriage to Mark. Following the dissolution, she worked for three months doing housecleaning at a nursing home. At the time of trial, she was working as a housekeeper at a motel four to twelve hours per week, earning $4.75 per hour. She did not want to work more hours until her youngest child, who was then five, started school.

The retrial resulted in a judgment increasing the child support from $400 to $600 *fn2 per month per child for the period of March 15, 1991 through October 31, 1991, and increasing it to $637 per month per child beginning November 1, 1991. This appeal is from that judgment.

POINT I

In his first point, Mark argues that the trial court was required to sustain his request for change of Judge pursuant to Rule 51.05 and, as a result of its failure to do so, it was without jurisdiction to retry Louise's counter-motion to modify. He relies primarily on the cases of State ex rel. Rickard v. Turner, 721 S.W.2d 781 (Mo.App. 1986), and Hough v. Hough, 819 S.W.2d 751 (Mo.App. 1991).

In State ex rel. Rickard v. Turner, this court held that a party was entitled to a change of Judge under Rule 51.05 after a dissolution action was remanded for retrial on certain issues. The Rickard case, however, was decided under a prior version of Rule 51.05. At that time, the Rule required that an application for change of Judge be filed at least thirty days before the trial date or within five days after a trial setting had been made, whichever was later (or if the trial Judge was not then designated, within ten days after such designation). The current version of Rule 51.05, which has been in effect since January 1, 1990, no longer ties the timeliness of a request for change of Judge to a trial setting. It provides:

(b) The application must be filed within thirty days after the answer is due to be filed if the trial Judge is designated at the time the answer is due. If no answer is required to be filed, the application must be filed no later than thirty days after the filing of the civil action. If the trial Judge is not designated at the time the answer is due or, if no answer is due, within thirty days after the filing of the civil action, the application must be filed no later than thirty days after the designation of the trial Judge and notification to the parties or their attorneys. If the designation of the trial Judge occurs less than thirty days before trial, the application must be filed prior to commencement of any proceeding on the record.

Hough v. Hough, supra, the other case relied on by Mark, on its face, is very similar to the instant case. In that case, a judgment modifying a dissolution decree was reversed and the case was remanded. After remand, one party filed what was described in the opinion as "a timely motion for change of Judge." As in the case at bar, the Judge sought to be disqualified was the same one who had entered the original modification decree. The court said that "if the motion were treated as being a request for a change of Judge under Rule 51.05, the motion was sufficient and timely and the Judge had no choice but to grant the motion." Id. at 752. In Hough there was apparently no issue about the timeliness of the request because the court said "the parties agree that a change of Judge was proper in this case after the judgment was reversed and the cause was remanded for a new trial ...


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