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Wagner v. Wagner

Court of Appeals of Missouri, Eastern District, Fourth Division

June 18, 2019

BENJAMIN WILLIAM WAGNER, Appellant,
v.
DONI ROCHELLE WAGNER, Respondent.

          Appeal from the Circuit Court of the City of St. Louis Honorable Lynne Raynard Perkins

          Kurt S. Odenwald, Presiding Judge.

         Introduction

         Benjamin William Wagner ("Wagner") appeals the circuit court's dismissal of his petition for dissolution of marriage without prejudice. Because the circuit court's dismissal was not a final, appealable judgment, we lack jurisdiction to review this appeal. Accordingly, we dismiss the appeal.

         Factual and Procedural History

         In 2014, while incarcerated in Missouri, Wagner mailed a pro se petition to the circuit court seeking dissolution of his marriage to Doni Rochelle Wagner. The circuit clerk notified Wagner that his request to file the petition for dissolution was incomplete for failure to provide the certificate of completion of the litigant awareness program, which is required for pro se litigants in dissolution proceedings under Rule 88.09.[1] Wagner sought judicial relief through various pleadings for the circuit clerk to accept and file his petition. In September 2016, Wagner sought leave to file his petition for dissolution of marriage without the certificate of completion of the litigant awareness program. Although the record contains no judgment granting Wagner leave, the circuit court subsequently advised Wagner by letter, dated September 20, 2017, that his petition failed to state a claim upon which relief could be granted. The letter advised Wagner that he may have left certain questions blank or answered them incorrectly, and therefore his petition would be dismissed unless he filed an amended petition. The circuit court sent Wagner two additional letters, dated November 16, 2017 and February 16, 2018, containing the same information. Wagner resubmitted a petition for dissolution to the circuit clerk, which the docket sheet shows was filed on April 3, 2018. On June 13, 2018, the circuit court dismissed without prejudice Wagner's petition for failure to state a claim. Wagner now appeals.

         Point on Appeal

         Wagner raises one point on appeal with two subparts. First, Wagner alleges the circuit clerk erred in not accepting his initial petition for failure to submit the certificate of competition of the litigant awareness program. Next, Wagner argues the trial court erred in dismissing his petition because he fulfilled the statutory requirements for filing for dissolution of marriage under Sections 452.300 and 452.310.[2]

         Jurisdiction

         Because Wagner's petition for dissolution of marriage was dismissed without prejudice, we must first consider whether we have jurisdiction to review Wagner's appeal. State ex rel. Hazelwood Yellow Ribbon Comm. v. Klos, 35 S.W.3d 457, 463 (Mo. App. E.D. 2000) ("[A]n appellate court has a duty to determine whether a final appealable judgment has been reached and to dismiss the appeal sua sponte if it finds that no such judgment was rendered.").

         "The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appealable." Harlow v. Harlow, 302 S.W.3d 154, 155 (Mo. App. E.D. 2009) (internal citation omitted). "In most instances, a dismissal without prejudice is not a final judgment because it is not an adjudication on the merits, and the [petitioner] typically can cure the dismissal by filing another suit in the same court." Id. (internal citation omitted). We may nonetheless have jurisdiction to review an appeal from a dismissal without prejudice if "the dismissal has the practical effect of terminating the litigation[.]" K.M.J, v. M.A.J., 363 S.W.3d 172, 175 (Mo. App. E.D. 2012) (internal citation omitted).

         Here, after the circuit clerk accepted Wagner's petition for filing, the circuit court dismissed the petition without prejudice. See Rule 67.03 ("Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify.") Critical to our dismissal of this appeal, the circuit court's judgment did not have the practical effect of terminating litigation in Wagner's chosen forum because Wagner lawfully retains the opportunity to correct his petition's deficiencies and refile the petition with the circuit court. See Harlow, 302 S.W.3d at 155. Wagner posits as part of his point on appeal that he is unable to complete the litigant awareness program online (www.selfrepresent.mo.gov) because he has insufficient access to the internet. We first question the relevancy of this claim to this appeal, given that the record shows Wagner's petition for dissolution was accepted by the circuit clerk and filed with the circuit court after the initial correspondence regarding Wagner's access to and compliance with the litigant awareness program. The judgment of dismissal does not state that Wagner's failure to file the certificate of completion for said program was the basis of the circuit court's dismissal of his petition. However, even assuming arguendo that Wagner's failure to file the certificate of completion was the catalyst for the circuit court's dismissal, Wagner is not impeded from obtaining the required certification because he may complete the program via printed materials and submit the certificate of completion to the circuit court by mail. Cf. Meadows v. Meadows, 330 S.W.3d 798, 803-04 (Mo. App. S.D. 2011) (internal citations omitted) (recognizing that a petitioner in prison is "not deprived of due process [where] he fail[s] to show that alternative means of presenting his case were inadequate to secure meaningful access to the courts."). Because Wagner is able to refile his petition for dissolution of marriage and prosecute his action in his chosen forum, the circuit court's dismissal is not a final, appealable judgment. See Harlow, 302 S.W.3d at 155.[3]

         Accordingly, we dismiss Wagner's appeal for lack of subject matter ...


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