Court of Appeals of Missouri, Eastern District, First Division
Appeal from the Circuit Court of St. Louis County. Honorable Joseph L. Walsh.
Mark. D. Hirschfeld, Clayton, MO, for appellant.
John W. Peel, St. Louis, MO, for respondent.
LAWRENCE E. MOONEY, PRESIDING JUDGE. CLIFFORD H. AHRENS, J., and LISA VAN AMBURG, J., concur.
LAWRENCE E. MOONEY, PRESIDING JUDGE
The mother, Cindy Ortega Al-Hawarey, appeals the judgment entered by the Circuit Court of St. Louis County dismissing her motions to modify child-custody and child-support and for temporary restraining order after the dissolution of marriage to the father, Sherif Al-Hawarey, and the parties' later modification. Because the judgment is not a final appealable judgment, we dismiss the mother's appeal.
The parties divorced in 2007 in Illinois, and the Illinois court modified the child-custody and support provisions of the dissolution decree in 2011. After registering the Illinois dissolution decree in Missouri, the mother filed a motion to modify the child-custody and support provisions along with a motion for temporary restraining order to prevent the father from relocating the children outside Missouri and from removing them from the United States. The mother requested appointment of a guardian ad litem.
One year later, upon the motion of the guardian ad litem, the trial court dismissed the mother's motions because of the mother's " failure to pay [guardian ad litem] fees ordered by the Court, and other orders referred to in [m]otions to [d]ismiss previously filed." The mother had failed to comply with multiple court orders over the course of several months in the present action. These included the trial court's orders to pay the $750 fee deposit to the guardian ad litem, to undergo a child-custody evaluation with the childrens' therapist, to attend parenting class, and to cooperate with the guardian ad litem and to comply with his recommendations. The judgment did not specify whether the dismissal was with or without prejudice. The mother appeals.
Supreme Court Rule 67.03 allows the involuntary dismissal of a civil action based on the plaintiff's failure to comply with any court order. Rule 67.03 further provides that " [a]ny involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify." The judgment here did not specify whether the dismissal was with or without prejudice. Thus, the trial court dismissed the mother's motions without prejudice.
In every appeal, this Court must determine whether we have jurisdiction. Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 450 (Mo. banc 1994); Columbia Mut. Ins. Co. v. Epstein, 200 S.W.3d 547, 549 (Mo. App. E.D. 2006). The general rule is that a dismissal without prejudice is
not a final judgment, and thus, is not appealable. Harlow v. Harlow, 302 S.W.3d 154, 155 (Mo. App. E.D. 2009). A dismissal without prejudice generally does not constitute a final judgment because it does not constitute an adjudication on the merits. Id. A plaintiff typically is free to cure the dismissal by filing another suit in the same court. Id. Here, the trial court's dismissal did not reach the merits of the mother's motions to modify and for temporary restraining order, and nothing in the dismissal prevents the mother from re-filing her motions. We alerted the parties to this issue prior to oral argument, and allowed the parties to submit supplemental briefing on the question of our jurisdiction. Both parties acknowledged at oral argument that the mother is free to re-file her motions.
The mother points to the case of Markovitz v. Markovitz, 945 S.W.2d 598 (Mo. App. E.D. 1997). In Markovitz, this Court held that only after a hearing could the trial court dismiss the father's motion to modify based on his failure to comply with prior court orders concerning maintenance, child-support, and attorney fees. 945 S.W.2d at 599-600. The Court stated that " [w]hether a party is flouting the authority of the court or is unable to comply with the order of the court ...