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In re Marriage of Hilgenberg

Court of Appeals of Missouri, Southern District, Second Division

January 17, 2017

IN RE: The Marriage of JOSEPH HAROLD HILGENBERG, Petitioner/Respondent,
v.
WENDY JOY HILGENBERG, Respondent/Appellant.

         APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable Gregory Stremel, Associate Circuit Judge

         APPEAL DISMISSED.

          WILLIAM W. FRANCIS, JR., J.

         Wendy Joy Hilgenberg ("Wife") appeals the trial court's "Judgment of Dissolution of Marriage, " dated January 12, 2015, dissolving her marriage to Joseph Harold Hilgenberg ("Husband"). In two points on appeal, Wife alleges trial court error in awarding physical custody of the minor children to Husband, and the division of marital property. Finding no preserved issues before us, we dismiss Wife's appeal.

         Factual and Procedural History

         Husband and Wife were married on November 23, 2000. Two children were born of the marriage: SHH and PJH, who were ages 10 and 13 respectively at the time of trial. The parties separated on August 12, 2013. On the same day, Husband filed a petition for dissolution of marriage asserting it was in the best interest of the minor children that joint legal and physical custody be awarded to Husband and Wife, with Husband being designated as the "residential custodian for address and educational purposes." Husband also requested a division of the marital property, which included the marital home and five acres.

         Trial was held on December 4, 2014 and December 19, 2014. On January 12, 2015, the trial court entered its "Judgment of Dissolution of Marriage." The trial court awarded to Husband marital property that included the marital home and five acres. The trial court ordered the minor children to be placed in the joint legal custody of Husband and Wife, and in the physical custody of Husband. The trial court also adopted Husband's proposed parenting plan.

         On January 26, 2015, Wife filed a "Motion to Set Aside Decision, Amend, Reconsider, or Alternatively for New Trial" ("post-trial motion"). Wife asserted, in part, that the trial court failed to make specific findings as to the custody of the minor children, in accordance with sections 452.375.2, 452.375.4, and 452.375.6, [1] and erred in adopting Husband's parenting plan. Wife also asserted the trial court failed to make a "fair and equitable distribution of the marital property."

         On March 2, 2015, a hearing was held on Wife's post-trial motion. After hearing argument, the trial court requested Wife's counsel prepare a proposed judgment for the trial court's review with a copy to Husband's attorney.

         On April 23, 2015, Wife filed a "Motion for Extension of Time to Set Aside Decision, Amend, Reconsider, or Alternatively for New Trial" and a proposed order, to grant the trial court additional time in which to rule on Wife's post-trial motion.

         On May 18, 2015, the trial court signed an Order granting an extension until May 26, 2015, in which to allow the trial court sufficient time to rule on Wife's post-trial motion. On May 20, 2015, the trial court filed an "Amended Judgment of Dissolution of Marriage."

         Thereafter, Husband filed a "Motion to Set Aside Order Extending Time and Amended Judgment of Dissolution of Marriage" asserting: (1) that the trial court no longer had jurisdiction over the January 26, 2015 judgment due to its failure to rule on Wife's post-trial motion within 90 days, and the trial court lacked jurisdiction to enter the May 20, 2015 amended judgment.

         On February 23, 2016, [2] after a hearing, the trial court entered its "Order and Judgment Setting Aside Order for Exten[s]ion of Time and Amended Judgment of Dissolution of Marriage" for lack of jurisdiction, and ordered the parties to comply with the terms of the January 12, 2015 Judgment of Dissolution of Marriage. Wife filed her Notice of Appeal on March 2, 2016.

         In two points on appeal, Wife asserts the trial court erred in failing to make specific findings, required by section 452.375.6, when awarding the parties joint legal custody and awarding sole physical custody to Husband, and in making an inequitable distribution of the marital ...


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