Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

Parties in Divorce Trials Before Commissioners Have Less Time To Appeal

Marcia of Chesterfield recently wrote me about an inequity in Missouri law as it pertains to divorce trials that has her seeing red.


“Did you know that if you are getting a divorce you could be issued a commissioner to oversee the case/trial, and if you wish to appeal the case after the ruling you are only allowed 15 days with a commissioner versus 30 days with a judge overseeing your case. Is this fair?


“This is unconstitutional. I am a victim of this rule, and my attorney was an ex-judge who has been even cited by the appellate court (for) not filing the appeal in the 15 days.”


(For the readers’ edification, commissioners are appointed by the local circuit court to hear domestic relations cases instead of the Family Court judges appointed by the Governor as a way of coping with the court’s overcrowded docket. Commissioner rulings are reviewed and approved by a trial court judge, although such reviews are usually cursory and of the “rubber stamp” variety.)


Marcia, you are correct, although the shorter 15 day limit applies only to a motion for a new trial filed at the circuit court level. Those appearing before an actual judge would have 30 days to file that same appeal. However, there are other avenues of redress available, and ones with more value in my judgment, that I will discuss shortly where the time limits are the same for all litigants no matter who heard the case originally.


Is it fair? I don’t think so. Is it constitutional? I don’t know since that’s not my expertise. But, I can tell you that my office researched Missouri records and we could not find one case taken to either the Missouri Court of Appeals or its Supreme Court challenging this provision’s constitutionality.


This odd twist in law just seems dumb to me and without any societal purpose, except perhaps to confuse the general public. If there is a legislator reading this that can enlighten me as to why this time difference should exist, please get in touch.


Having said all that, your lawyer should have been aware of the shorter deadline if he/she is taking on divorce cases in St. Louis County.


Also, there were still other approaches, with longer deadlines, to get your case a second review. In my experience, a Motion to Amend is usually a more productive option than a Motion for a New Trial and the litigant is provided 30 days to file, whether the case was heard first by a commissioner or a judge.


The Motion to Amend is used to gain a rehearing on specific issues that were important to the outcome, where the appellant believes there was an error by the commissioner or judge. I usually file these motions in 90% of my trials and I am almost always successful in gaining an affirmative ruling on at least some of the issues raised. Failure to file a motion to amend to give the court a chance to correct its mistakes will likely make a subsequent appeal of no help. Seeking a new trial should only be attempted where you have documented evidence of gross and pervasive errors at the original trial. And, even so, these motions are rarely granted.


One benefit of having your case before a commissioner is that any post-trial motions are heard by the signatory judge, rather than the commissioner who made the initial ruling. As such, you get to make your case to a second arbiter. In trials before judges, these motions are heard by that same judge.


Lastly, Marcia, even if your attorney missed the 15 and 30 day deadlines for filing at the circuit court level, you could still have taken your complaint to the Missouri Court of Appeals so long as your Notice of Appeal was filed within 40 days of when the judge rubber-stamped the commissioner’s ruling.