Speir v. Speir (In re Speir)
Speir v. Speir (In re Speir)
Opinion of the Court
Mackenzie Everett Speir ("Appellant") and Jessica Lynn Speir ("Respondent") were divorced by entry of a dissolution judgment in September 2013, with the Honorable Michael Dawson presiding. The dissolution docket notes that Judge Dawson was "No Longer in Office/Position" as of December 31, 2014, and the "Judge Jerry Rellihan [was] assigned to the case." Nothing was pending at that time. On September 28, 2016, three years after the dissolution was entered, Respondent filed a motion to modify the dissolution judgment. Appellant was served on October 5, 2016, with the modification summons.
Respondent also filed a Writ of Habeas Corpus on October 14, 2016, in the same case.
THE COURT: [Appellant's attorney], you-yesterday afternoon at around 4:00, or whatever, 3:00, you filed a motion for change of judge pursuant to 51.05; is that correct?
[Appellant's attorney]: That's correct.
THE COURT: Let me hear your argument as to why you think it's timely.
[Appellant's attorney]: Well, Judge, I reviewed the rule, and to the best of my ability to determine, it's timely filed, and the rule provides upon the filing of a timely filed motion that this Court has no alternative but to sustain the motion.
THE COURT: And you filed this after we had an appearance and a hearing yesterday morning, correct?
[Appellant's attorney]: Well, I-
THE COURT: Correct?
[Appellant's attorney]: Yes.
THE COURT: Okay. So we had an appearance-You had an appearance yesterday morning before me, the trial judge, correct?
[Appellant's attorney]: That's-That's correct. That's correct.
*398THE COURT: All right. Well, the way I read 51.05(b) is the application must be filed prior to any appearance before the trial judge. Which we had an appearance yesterday morning at 9:00. You didn't like a ruling I made, and so at 3:00, you filed a motion for change of judge; is that correct?
[Appellant's attorney]: Judge-Judge, the-
THE COURT: Is that correct?
[Appellant's attorney]: That's-That's correct, Judge.
THE COURT: All right.
[Appellant's attorney]: But I disagree with your interpretation of the rule.
THE COURT: And that's-You have that right and that prerogative.
[Appellant's attorney]: Yes.
THE COURT: But that's my ruling. If-Your ruling for a change of judge is that it is not timely and it is denied.
[Appellant's attorney]: Well, I would like-I'd like seven days so I can file an application for a writ.3
Appellant brings this appeal with his sole point being that the denial of his motion for change of judge was error as it was timely filed.
We review the interpretation of the Supreme Court's rules de novo. State v. Ford ,
The trial court interpreted Rule 51.05(b) to mean that an application for a change of judge must be filed prior to any appearance before the trial judge. The trial court is mistaken. We commence with Rule 51.05(b). Rule 51.05(b), regarding the procedure for change of judge, states:
(b) The application must be filed within 60 days from service of process or 30 days from the designation of the trial judge, whichever time is longer. If the designation of the trial judge occurs less than thirty days before trial, the application must be filed prior to any appearance before the trial judge.
*399Here, the trial judge was designated when the modification summons was issued. Therefore, Appellant was entitled to the longer 60-day period from service of process to file his application for change of judge. See Beckwith v. Giles ,
Jeffrey W. Bates, J.-Concurs
William W. Francis, Jr., J.-Concurs
Based on our review of the record, it is clear that Respondent filed her writ petition for the purpose of maintaining the status quo by enforcing Respondent's right to parenting time pursuant to the existing dissolution judgment. "Habeas corpus is the proper remedy to enforce that custody." In re Lechliter ,
All rule references are to Missouri Court Rules 2017, unless otherwise noted.
Appellant further brought this matter to the court's attention after the court entered judgment by a post-trial motion.
Respondent did not file a brief on appeal. There is no penalty for this failure, but it deprives us of the benefit of any argument she might have made. Simpson v. State Highway Patrol Criminal Records Repository ,
Here, the relevant "trial" within the meaning of Rule 51.05(b) was the hearing on the merits of the motion to modify custody, not the writ petition. "The circuit court which granted the divorce decree retains jurisdiction of the minor child and is the proper forum to adjudicate fitness or custody." B.M.P. v. G.H.P. ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.