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Cone v. Kolesiak

Court of Appeals of Missouri, Western District, Third Division

April 2, 2019

HEATHER C. CONE, Appellant,
v.
JEFFREY A. KOLESIAK, Respondent.

          Appeal from the Circuit Court of Boone County, Missouri The Honorable Leslie Schneider, Judge

          Before Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and Anthony Rex Gabbert, Judges

          MARK D. PFEIFFER, PRESIDING JUDGE

         Ms. Heather C. Cone ("Cone") appeals from the Judgment and Decree of Dissolution of Marriage entered by the Circuit Court of Boone County, Missouri ("trial court"), on January 5, 2018 ("Original Judgment").[1] Because Cone's notice of appeal was not timely filed, we dismiss the appeal for lack of appellate jurisdiction.

         Factual and Procedural Background

         Cone and Mr. Jeffrey A. Kolesiak ("Kolesiak") were married on September 17, 2013. One child was born of the marriage on June 21, 2014. Cone filed a petition for dissolution of marriage on January 14, 2015, and Kolesiak filed an answer and counter-petition on February 9, 2015. The trial court heard evidence on September 19, 20, and 26, 2017, and took the cause under advisement.

         A docket entry dated December 13, 2017, stated:

Uncontested
Docket entry attached hereto. (blm)

         In a separate unsigned document, [2] the trial court entered its tentative findings and ordered Kolesiak to submit a proposed judgment by December 27, 2017. Subsequently, on January 5, 2018, the trial court entered the Original Judgment dissolving the marriage between the parties and awarding legal and physical custody of the minor child jointly to the parties pursuant to the court-ordered parenting plan, with Cone paying child support to Kolesiak.

         On January 26, 2018, Kolesiak filed a motion seeking to modify the Original Judgment, specifically pertaining to child custody, and specifically identified post-judgment custodial difficulties between the parents necessitating a custody modification to the Original Judgment. On February 5, 2018, Cone filed her own motion seeking to modify the Original Judgment, also as to child custody issues, and also raising post-judgment custodial issues between the parents necessitating a custody modification to the Original Judgment. The motions to modify were eventually argued to, and taken under advisement by, the trial court on March 22, 2018, after the trial court received new evidence relating to the child custodial issues raised in the motions to modify. A docket entry dated March 26, 2018, stated:

Judgment Entered
Court's docket entry made this date. (sc)[3]

         In a separate unsigned document, [4] the trial court sustained Kolesiak's motion to modify the Original Judgment and awarded him sole legal custody of the minor child ("Modification Order"). The trial court directed Kolesiak to provide the court with an amended parenting plan awarding him sole legal custody pursuant to the provisions contained in his proposed parenting plan and the requirements set forth in the Modification Order. On May 4, 2018, Cone filed her notice of appeal from the Original Judgment (dated January 5, 2018), a judgment which did not address the ruling delineated in the Modification Order.

         After Cone's notice of appeal was filed, this court notified the parties by letter of its concern regarding the topic of what judgment or ruling Cone was appealing from and identified related timeliness and judgment finality issues. Thereafter, the parties jointly submitted a proposed amended judgment to the trial court and, on May 22, 2018, the trial court entered its Amended Judgment and Decree of Dissolution of Marriage ("Modification Judgment"),[5] sustaining Kolesiak's motion to modify the Original Judgment, making findings regarding the section 452.375.2 statutory factors, awarding Kolesiak sole legal custody of the minor child, and awarding Kolesiak and Cone joint physical custody of the minor child. In the Modification Judgment, the trial court specifically addressed serious custodial issues impacting the minor child's medical and educational needs that had arisen since the Original Judgment, expressly noted the Guardian Ad Litem's opinion that-due to events transpiring after the Original Judgment-the Guardian Ad Litem no longer believed that joint legal custody was in the best interest of the minor child, and the trial court's pronouncement that, since the Original Judgment, the circumstances surrounding the educational and medical needs of the minor child had changed and necessitated a ruling that sole legal custody must be entered in favor of one of the parents- in this case the father, Kolesiak.

         Subsequently, this court again notified the parties of continuing concerns about the Notice of Appeal and advised the parties to address these jurisdictional concerns in their appellate briefing. In Cone's sole point on appeal, she asserts that the trial court erred in entering the Modification Judgment because it was without jurisdiction to do so. Hence, though her Notice of Appeal expressly appeals from the Original Judgment, in her prayer for relief, ...


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