Court of Appeals of Missouri, Eastern District, Fourth Division
JOHN J. SMITH, Appellant,
LORA J. SMITH, Respondent.
from the Circuit Court of St. Charles County Honorable John
F. Garvey, Jr.
S. ODENWALD, Judge
Smith ("Smith") appeals from the denial of his Rule
74.06(b)(4) motion seeking relief from a 2007 judgment
entered by Judge Thomas J. Frawley ("Judge
Frawley") dissolving Smith's marriage to Lora J.
Smith ("Lora"). After both parties moved to modify the
original judgment, Judge Frawley was disqualified in 2009
from presiding over the motion-to-modify proceedings. On
appeal, Smith argues that Judge Frawley's
disqualification in the motion-to-modify proceedings
conclusively established that Judge Frawley demonstrated
actual bias against Smith at the time he entered the original
judgment, rendering said judgment void ab initio and
in violation of Smith's constitutional right to a fair
tribunal. Because Smith is estopped from asserting the 2009
disqualification as a challenge to the original 2007
judgment, we affirm the judgment of the trial court.
and Procedural History
parties have litigated the circumstances surrounding the
dissolution of their marriage since 2005. We will address the
various actions separately.
Original Divorce Proceeding and the Subsequent Direct Appeals
filed suit seeking the dissolution of the parties'
marriage in November 2005. After all judges in the Eleventh
Circuit recused themselves, the Supreme Court of Missouri
assigned Judge Frawley to adjudicate the divorce proceeding.
Contentiously litigated and bitterly disputed, the case
proceeded to a bench trial. Judge Frawley entered a judgment
dissolving the marriage and awarding Lora $650 a month in
maintenance in December 2007. Smith appealed the dissolution
judgment. We dismissed the appeal for failure to comply with
Rule 84.04 and Rule 81.12. Smith v. Smith (In re Marriage
of Smith), 283 S.W.3d 271, 273 (Mo. App. E.D. 2009).
that appeal was pending, Lora filed a motion seeking
appellate attorney's fees with the trial court. Smith
requested assignment of a special judge to hear Lora's
motion, which Judge Frawley denied. Smith then moved for a
change of judge under Rule 51.05,  which was denied. Smith then
moved for a change of judge under Section
508.090 to hear the motion for attorney's fees
and the motion-to-modify case (discussed infra).
After the appeal was dismissed in April 2009, Judge Frawley
awarded Lora her attorney's fees on appeal. Smith
appealed this ruling, but we again dismissed Smith's
appeal for failure to comply with this Court's rules.
The Motions to Modify the Original Dissolution and the
December 2008, Smith filed a motion to modify the original
dissolution judgment. Lora filed a cross-motion to modify the
judgment and asked the Court to find Smith in contempt. Smith
moved for a change of judge under Section 508.090 in both the
motion-to-modify case and in the original divorce proceeding,
in his motion, Smith alleged that Judge Frawley improperly
used an unverified Statement of Income and Expenses to
calculate Smith's finances in the original divorce
judgment. The unverified statement was admitted into evidence
at trial. Smith also alleged that Judge Frawley incorrectly
found the date of Lora's return to full-time employment
when calculating the maintenance award. Smith further claimed
that Judge Frawley angrily interrupted him during a telephone
conference over a post-judgment discovery dispute by
declaring, "I'm not a fool, Mr. Smith." As a
result, Smith maintained:
That Judge Frawley's behavior during the telephone status
conference, his continued refusal to have open and
transparent hearings on the record, his continual
manipulation of the facts and findings to [Smith's]
disadvantage and [Lora's] advantage has demonstrated
actual hostility and prejudice toward [Smith] such that
[Smith] has just cause to believe that he cannot have a fair
trial with respect to the motion for attorney fees on appeal
and the motion to modify in these causes.
Frawley ordered the appointment of a special judge to rule
upon Smith's request for a change of judge. The Supreme
Court of Missouri assigned Judge T. Bennett Burkemper, Jr.
("Judge Burkemper") to adjudicate the motion. After
an evidentiary hearing in December 2009, Judge Burkemper
granted Smith's motion for change of judge. Judge
Burkemper disqualified Judge Frawley from the
motion-to-modify proceedings without issuing any findings of
Judge Frawley's disqualification, the Supreme Court of
Missouri assigned the motion-to-modify case to Judge Karl A.
DeMarce ("Judge DeMarce"). In preparing for trial,
Smith took depositions, propounded discovery requests, argued
various motions, and collected evidence. After the completion
of substantial discovery, Judge DeMarce held a trial to
adjudicate the cross-motions to modify the original divorce
judgment. Judge DeMarce denied both motions to modify, and in
June 2011 ordered "that all terms of the original
Judgment of Dissolution, dated December 21, 2007, are
confirmed and remain in full force and effect." Judge