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Smith v. Smith

Court of Appeals of Missouri, Eastern District, Fourth Division

March 28, 2017

JOHN J. SMITH, Appellant,
v.
LORA J. SMITH, Respondent.

         Appeal from the Circuit Court of St. Charles County Honorable John F. Garvey, Jr.

          KURT S. ODENWALD, Judge

         Introduction

         John J. Smith ("Smith") appeals from the denial of his Rule 74.06(b)(4)[1] motion seeking relief from a 2007 judgment entered by Judge Thomas J. Frawley ("Judge Frawley") dissolving Smith's marriage to Lora J. Smith ("Lora").[2] 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.

         Factual and Procedural History

         The parties have litigated the circumstances surrounding the dissolution of their marriage since 2005. We will address the various actions separately.

         I. The Original Divorce Proceeding and the Subsequent Direct Appeals

         Smith 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).

         While 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, [3] which was denied. Smith then moved for a change of judge under Section 508.090[4] 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.

         II. The Motions to Modify the Original Dissolution and the Subsequent Writs

         In 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.

         Judge 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 facts.

         After 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 ...


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