Opinion
No. 20944.
Filed July 30, 1997.
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY, HONORABLE DOUGLAS E. LONG, JR., JUDGE.
AFFIRMEDAppellant's Attorney — Ronald D. White.
Respondent's Attorney — Brian L. Harvell.
David W. Kunstel, Jr. (Husband) appeals from an amended decree of dissolution filed nearly nine months after the trial court entered its original decree dissolving his marriage to Laurie A. Kunstel (Wife). In his sole contention on appeal, Husband alleges that the trial court lacked jurisdiction to amend the decree. We affirm.
On January 25, 1995, Wife filed a petition to dissolve her marriage to Husband, and Husband filed his answer and "Counter-Petition" on February 3, 1995. The case was heard in the Circuit Court of Phelps County on June 12, 1995. The trial court's Judgment and Decree of Dissolution of Marriage, dated July 13, 1995, was filed on July 21, 1995. On July 27, 1995, Husband filed a motion to amend the decree, which was overruled by the trial court on August 10, 1995. Husband subsequently filed a notice of appeal. On November 29, 1995, while Husband's appeal was pending, Wife filed a motion for contempt. Husband subsequently abandoned his appeal, and it was dismissed on December 28, 1995.
Wife's motion for contempt was taken up on March 14, 1996. Sometime either at or before the hearing on that motion, the attorneys for the parties informed the court that the original decree did not conform to the facts adduced at the hearing in June 1995. The court then announced that it could not find Husband in contempt for failing to follow a decree that contained inconsistencies. Counsel for the parties agreed not to take up the contempt motion that day, but agreed to put on evidence to clear up discrepancies in the original decree. The parties entered into a written stipulation agreeing that certain matters "be included in any Amended Judgment and Decree entered by the Court." Included in the stipulation was the agreement that evidence would be taken on certain issues. Evidence was heard, and the court took the matter under advisement. The court filed its Amended Judgment and Decree of Dissolution of Marriage on April 11, 1996, in which it incorporated the stipulations made by the parties.
The Stipulation was apparently entered into on March 14, 1996 (the date of the hearing), but was not filed until March 25, 1996.
In Husband's sole point on appeal, he alleges that the amended judgment was void because the trial court lacked jurisdiction to amend the original dissolution decree. According to Husband, more than thirty days had elapsed from the time the original judgment was entered, and it was therefore a final judgment. He argues that because no motion pursuant to Rule 74.06 was filed, the trial court lacked jurisdiction to amend the decree.
Apparently, there was no written motion filed pursuant to Rule 74.06, although there were discussions on the record concerning the fact that evidence would be taken relating to the need to "clarify" the judgment. Due to our holding in this case, we do not address the question of whether or not a proper Rule 74.06 motion was before the court.
We acknowledge, and the parties agree, that the amended judgment was filed more than thirty days after the filing of the original judgment. "Absent a timely motion for a new trial, the trial court loses jurisdiction of the cause 30 days after entry of judgment." Samazin v. Director of Revenue , 876 S.W.2d 50, 51 (Mo.App.W.D. 1994); see also Rule 75.01 and Rule 81.05. "Unless applicable supreme court rules are utilized for relief from a judgment, the trial court has no jurisdiction to entertain proceedings affecting a judgment after the thirty-day period prescribed in Rule 75.01." Settles v. Settles , 913 S.W.2d 101, 103 (Mo.App.S.D. 1995).
The record before us does not indicate that a new trial motion was filed.
"`Jurisdiction' is a loosely employed term but generally it includes three kinds of authority, over the subject matter, over the person, and to render the order given." In re Marriage of Neal , 699 S.W.2d 92, 94 (Mo.App.S.D. 1985). While that term is often used ambiguously, "in its stricter sense, it means judicial authority over the subject matter and parties; in its broader sense, it includes the power to grant specific relief in cases within such authority." Id. "A court has `jurisdiction' if it has judicial authority over the subject matter acted upon, judicial authority to act as to the persons before it, and judicial authority to render the order entered." State Family Services v. Bullock , 904 S.W.2d 510, 512 (Mo.App.S.D. 1995).
In oral argument before this court, Husband's attorney sought to frame the jurisdictional question as one of subject matter, which could not be waived by any party. While we acknowledge that subject matter jurisdiction cannot be waived, we are not persuaded that the trial court's ability to amend a decree more than thirty days after it is entered presents a challenge to the court's subject matter jurisdiction. "A court has subject matter jurisdiction in a case if it has jurisdiction of the class of cases which includes the particular case." Schneider v. Union Elec. Co. , 805 S.W.2d 222, 225 (Mo.App.W.D. 1991). It is clear that the Circuit Court of Phelps County has subject matter jurisdiction over dissolution actions. What Husband is challenging, despite his assertions to the contrary, is the court's jurisdiction over his particular case. "[L]ack of jurisdiction of the particular case, as opposed to lack of jurisdiction of the class of cases to which this case belongs, is a defect which must be timely raised or is waived." Id. at 225-26; see also In re Marriage of Neal , 699 S.W.2d at 94.
"Subject matter jurisdiction cannot be waived, nor can it be conferred by stipulation of the parties." Dept. of Social Services v. Branch , 929 S.W.2d 875, 881 (Mo.App.S.D. 1996).
In the instant case, Husband made no objection to re-opening the evidence to amend the dissolution decree at the March 14, 1996 hearing. In fact, he tacitly agreed to do so. After a discussion on the record about the need to hear evidence on the discrepancies between the record and the original decree, the following occurred:
THE COURT: Well, let me hear evidence on those matters today and I can decide whether or not further testimony would be necessary after I've received that and looked at the transcript.
[WIFE'S COUNSEL]: That's agreeable with us, Judge.
THE COURT: Would that be agreeable with counsel?
[HUSBAND'S COUNSEL]: (Nods head yes).
Husband never challenged the jurisdiction of the trial court to hear the matters before it on March 14, 1996. In fact, he affirmatively participated in the hearing, and even made the following comment during his closing argument: "The issues before the Court today with respect to trying to reform this decree and to correct the mistakes has been what [Husband] has sought since July of 1995 when he brought to [Wife's attorney's] attention the need to amend the decree to correct it. And finally today it comes to light to everybody that it really does need to be changed."
We hold that Husband's claim that the trial court lacked jurisdiction to amend the original dissolution decree was waived when it was not timely raised in the trial court, and it may not be raised for the first time on appeal.
Affirmed.
Barney, P.J. — concurs.
Prewitt, J. — concurs.