State Ex Rel. Moore v. Sharp

JOHN E. PARRISH, Presiding Judge,

dissenting.

I respectfully dissent. In my opinion, the principal opinion addresses issues that are neither raised by the point relied on or jurisdictional. I would order the preliminary order in prohibition quashed.

Relator asserts one point relied on. It contends that relator is entitled to an order prohibiting the respondent judge from taking further action in the Stoddard County dissolution action, case No. 02CV762553, because “respondent is without jurisdiction in that action, notwithstanding the fact that the dissolution action had been consolidated with a separate petition for review of a child support enforcement order, in that relator dismissed the dissolution action without prejudice on December 18, 2003.” Relator contends, alternatively, that failure to grant leave to dismiss relator’s petition for dissolution was an abuse of discretion. The issue for determination by this court is that raised in relator’s point relied on. See Baker v. Empire Dist. Elec. Co., 24 S.W.3d 255, 257 (Mo.App.2000); Nat’l. Equity Resources Corp. v. Montgomery, 872 S.W.2d 533, 536 (Mo.App.1994).

No issue is raised regarding the fact that evidence had been adduced, by consent of the parties, before an official who serves as a drug court commissioner. In my opinion, the involvement of the official who conducted an evidentiary hearing for purposes of recommending findings to the circuit court is not a matter of jurisdictional concern because that official acted solely within the confines of the directive of the circuit court and did not exercise authority limited to a judicial officer. A circuit judge may delegate functions to others subject to his or her review and determi*114nation. See State v. Ralls, 8 S.W.3d 64, 65 (Mo. banc 1999); Transit Cas. Co. v. Certain Underwriters At Lloyd’s Of London, 995 S.W.2d 32, 34-35 (Mo.App.1999). That is what occurred in this case.

Trial Court’s Authority to Deny Attempt to Dismiss

A docket entry dated June 2, 2003, in relator’s Stoddard County dissolution case, case No. 02CV762553, states:1

Hearing Held
Parties appear in person and with counsel. Guardian ad litem, James Tweedy, also appears. Evidence adduced.
Cause Taken Under Advisement
Cause taken under advisement for submission of findings and recommendations to Hon. Stephen Sharp!2]

On December 18, 2003, the trial court noted the receipt of correspondence from relator (the petitioner in case No. 02CV762553). It reflected the filing of “Petitioner’s Discharge of Attorney Robert Mayer and Dismissal without Prejudice of Pending Dissolution Proceedings.” On February 5, 2004, the respondent circuit judge entered the order that relator could not voluntarily dismiss her dissolution of marriage case without consent, stating, “It is therefore ordered that the case not be dismissed.”

Rule 67.02(a)(2) permits cases tried without a jury to de dismissed by the party bringing the action “prior to the introduction of evidence.”3 Rule 67.02(b) addresses dismissal of actions that Rule 67.02(a) does not permit to be dismissed at the instance of the initiating parties. It provides such actions shall not be dismissed “except upon order of the court upon such terms and conditions as the court deems proper.”

Evidence having previously been introduced in case No. 02CV762553, relator was not entitled to dismiss her petition “except upon order of the court upon such terms and conditions as the court deems proper.” Rule 67.02(b). Although the respondent judge did not rely on Rule 67.02 as the reason dismissal was denied, a correct ruling is not to be disturbed because a wrong or insufficient reason for that ruling was given. State ex rel. Hazelwood Yellow Ribbon Committee v. Klos, 35 S.W.3d 457, 464-65 (Mo.App.2000); State ex rel. Heiserman v. Heiserman, 941 S.W.2d 768, 770 (Mo.App.1997).

Trial Court’s Discretion

Relator sought to dismiss her dissolution of marriage case some 18 months after its filing. During the time between its filing and her attempt to dismiss without prejudice, she sought continuance of the proceedings on two occasions. The respondent in the dissolution action had filed an answer, a proposed parenting plan, and a joint custody plan. There had been discovery. A hearing, discussed supra, had been held. The case was consolidated with an action for judicial review of a child support enforcement action, case No. 03MC761242-02. Whether to allow dismissal was within the discretion of the *115circuit court.4 State ex rel. J.L. Mason Group of Missouri, Inc. v. Village of Dardenne Prairie, 763 S.W.2d 727, 729 (Mo.App.1989); Schuster v. Purdun, 742 S.W.2d 226, 227 (Mo.App.1987). In my opinion, there was no abuse of discretion by the trial court’s denial of relator’s request to dismiss the dissolution action. Compare Cento v. Cento, 703 S.W.2d 595 (Mo.App.1986); Braun v. General Motors Corp., 579 S.W.2d 766, 771 (Mo.App.1979). I would quash the preliminary order in prohibition.

. Certified copies of the docket sheets in Stod-dard County case No. 02CV762553 were received and have been filed in this case and, for purposes of this dissenting opinion, are judicially noticed. Knorp v. Thompson, 352 Mo. 44, 52, 175 S.W.2d 889, 894 (1943).

. The hearing at which evidence was adduced was held before a drug court commissioner to whom the case had been assigned by agreement of the parties on November 20, 2002. It was under advisement for findings and recommendations to be provided the respondent judge.

. Provisions similar to present Rule 67.02 were previously found in Rule 67.01. Also, prior to July 1, 2002, the rule allowed a plaintiff to dismiss a civil action without order of court prior to introduction of evidence "at the trial.” That language is not now part of Rule 67.02.

.Rule 52 is not applicable to this action.