            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT

IN THE MATTER OF: G.K.S., a Minor,              )
by her Next Friend, KATI JO SPENCER,            )
and KATI JO SPENCER, Individually,              )
                                                )
                                Respondent,     )    WD76982
                                                )
v.                                              )    OPINION FILED:
                                                )    December 30, 2014
                                                )
JASON LEE STAGGS,                               )
                                                )
                                  Appellant.    )


                Appeal from the Circuit Court of Jackson County, Missouri
                         The Honorable James F. Kanatzar, Judge

                   Before Division II: Joseph M. Ellis, Presiding Judge, and
                        Victor C. Howard and Mark D. Pfeiffer, Judges

       Jason Lee Staggs (“Father”) appeals from the judgment of the Circuit Court of Jackson

County, Family Court Division (“trial court”), in this paternity action initiated by Kati Jo

Spencer (“Mother”). Father asserts that the trial court erred in failing to award him deposition

costs and attorney fees in the judgment. Father also appeals from an order of the trial court

denying his motion for an order nunc pro tunc and motion to reconsider. We affirm.
                                Factual and Procedural Background1

        Mother filed a petition for declaration of paternity and order of child custody and child

support under Missouri’s Uniform Parentage Act. Father answered and cross-petitioned for

determination of a father/child relationship and for an award of custody and child support.

        On March 30, 2012, the parties appeared before the trial court for a temporary custody

hearing. They informed the trial court that they had reached an agreement regarding temporary

custody, and they made a record of that agreement. Father agreed to pay temporary child support

to Mother in the amount of $500 per month. The trial court adopted and incorporated into the

case the temporary custody order that was agreed to by the parties.

        On July 13, 2012, Father took Mother’s deposition. Two weeks later, Father filed a

motion to compel and to sanction Mother for her allegedly evasive deposition answers. The trial

court took the motion under advisement.

        On August 6, 2012, Father filed a motion to modify the March 30 temporary order

regarding parenting time, daycare provider, and child support. The trial court held a hearing on

August 27, 2012, and thereafter entered a temporary award titled “Judgment of Paternity and

Order of Temporary Parenting Time” on September 4, 2012. Among the temporary orders were

a declaration that Father was the minor child’s natural father and an order that Father continue to

pay $500 per month child support to Mother.

        On March 15, 2013, Father filed a motion for an order nunc pro tunc or, in the

alternative, a motion to modify the September 4, 2012 order of temporary parenting time with

respect to child support. By Order dated June 4, 2013, the trial court denied Father’s motion.




        1
          We view the facts in the light most favorable to the judgment of the trial court. Hall v. Utley, 443
S.W.3d 696, 699 n.1 (Mo. App. W.D. 2014).


                                                      2
Father filed a motion for reconsideration of the denial of his motion for order nunc pro tunc on

June 22, 2013, which the trial court denied.

       Father deposed Mother again on July 30, 2013.

       The trial court conducted a bench trial and entered its final Judgment of Paternity, Child

Custody, Parenting Time, and Child Support on September 16, 2013. Father timely appealed

from the judgment. In pertinent part, the trial court’s judgment stated:

       The parties do not share a commonality of beliefs, are unable to agree on
       decision-making rights, responsibilities and authority relating to the health,
       education and welfare of the minor child, and they are unable to cooperate and
       function as a parental unit. Joint legal custody of the minor child would be
       unworkable, inappropriate and not in the best interests of the minor child.

       After considering all relevant factors set forth in § 452.375.2 RSMo., the Court
       finds the best interests of the minor child would be served by awarding sole legal
       custody of the minor child to [Father], joint physical custody to [Mother and
       Father], and designating [Father’s] address as the address of the minor child for
       mailing and educational purposes.

       ....

       [E]ach of the parties shall pay his or her own attorney fees and costs in regard to
       this action.

                                               Point I

       In Point I, Father asserts that the trial court erred in failing to award him deposition costs.

Father contends that he requested recovery of those costs as the prevailing party on the issue of

child custody, that the trial court possessed no discretion but to award him those costs under

sections 492.590.1 and 514.060, and the trial court failed to do so. We disagree.

                                       Standard of Review

       “Under the Uniform Parentage Act, the trial court has discretion in its award of costs,”

particularly where one party “[does] not have sufficient money, assets, or property to pay

attorney’s fees and costs.” Sprague-Cappel ex rel. Cappel v. Sprague, 852 S.W.2d 361, 365



                                                 3
(Mo. App. E.D. 1993), abrogated on other grounds by King v. King, 865 S.W.2d 403 (Mo. App.

E.D. 1993). “The award of costs is a matter within the circuit court’s sound discretion, and we

will not disturb the award absent a showing of an abuse of discretion.” Sasnett v. Jons, 400

S.W.3d 429, 441 (Mo. App. W.D. 2013) (affirming trial court’s denial of motion for costs). A

trial court abuses its discretion when its decision is against the logic of the circumstances and is

so arbitrary and unreasonable that it shocks one’s sense of justice. Id.

                                                     Analysis

         In its final judgment, the trial court ordered “that each of the parties shall pay his or her

own attorney fees and costs in regard to this action.” “The concept of ‘costs’ was created by

statute, and not common law[;] [t]herefore, courts may only award those costs which may be

granted by virtue of express statutory authority.” Multidata Sys. Int’l Corp. v. Zhu, 107 S.W.3d

334, 337 (Mo. App. E.D. 2003) (internal quotations omitted).

         In his first point, Father relies on two statutory authorities to support his argument that

the trial court erred in failing to award him deposition costs as the prevailing party. First, Father

relies on section 514.060, which provides: “In all civil actions, or proceedings of any kind, the

party prevailing shall recover his costs against the other party, except in those cases in which a

different provision is made by law.” (Emphasis added.)2 Second, Father relies on section

492.590.1, which provides authority for the taxing of deposition expenses as costs. However, by

its express terms, the general statute covering the subject of costs, § 514.060, does not apply

when a “different provision is made by law.” Such is the case in this paternity action.

         This paternity case was brought under Missouri’s Uniform Parentage Act. Under that

Act, the trial court possesses discretion in its award of costs: “[T]he court may enter judgment in


         2
           Rule 77.01, which is derived from section 514.060, provides that “[i]n civil actions, the party prevailing
shall recover his costs against the other party, unless otherwise provided in these rules or by law.”


                                                         4
the amount of the reasonable fees for counsel, experts, the child’s guardian ad litem and other

costs of the action and pretrial proceedings, including blood tests, to be paid by the parties in

such proportions and at such times as determined by the court[.]” § 210.842 (emphasis added).

See Sprague, 852 S.W.2d at 365.

        In his appellate brief, Father itemizes all of what he perceives to be Mother’s

transgressions in the litigation and rearing of the minor child. What Father ignores is that the

trial court concluded in its judgment that neither parent “cooperate[d] and function[ed] as a

parental unit” and that neither parent was willing to budge on their respective positions as to

“decision-making rights, responsibilities and authority relating to the health, education and

welfare of the minor child.” As is often the case in custodial disputes, both of the parents acted

immaturely and neither chose to humbly place the needs of the minor child before his or her own

selfish desires. These findings by the trial court are not challenged on appeal by either party.

        To be sure, however, the trial court found Mother’s past and present behavior worse than

Father’s, awarded sole legal custody to Father, and designated Father’s address as the address of

the minor child for mailing and educational purposes. Yet, though Father worked full time and

earned in excess of $81,000 per year while Mother was impoverished,3 Father demands that the

trial court had no choice but to squeeze blood out of Mother’s proverbial turnip.

        On the record before us, the similarity in uncooperative behavior between the parties and

the disparity in income is clear. “Further, the trial court sits in a superior position to assess the

credibility of the parties and the sincerity of a party’s position, which often is not fully

discernable from the record.” Prosser v. Rethorn, 928 S.W.2d 364, 365 (Mo. App. W.D. 1996).


        3
          Mother’s income—$180 every two weeks—did not meet her monthly expenses. Mother additionally
owed $15,000 on her motor vehicle; had $900 in the bank; had $400 in personal household goods to her name; had
over $5,500 in credit card debt; and had $6,000 in student loan debt. In its judgment, noting Mother’s poverty, no
child support was awarded to Father—a finding that Father does not appeal.


                                                        5
And without a doubt, Mother did not have sufficient money, assets, or property to pay costs. See

Sprague, 852 S.W.2d at 365. Under the circumstances presented on the record before us, we

discern no abuse of discretion by the trial court in refusing Father’s request to assess costs to

Mother.

        Point I is denied.

                                                 Point II

        In his second point, Father asserts that the trial court erred in failing to impose monetary

sanctions against Mother pursuant to Rule 61.01. Specifically, he argues the trial court erred in

failing to award him deposition costs and attorney fees incurred relating to Mother’s deposition.

                                          Standard of Review

        “Discovery sanctions under Rule 61.01 are reviewed for abuse of discretion.” Stidham v.

Stidham, 136 S.W.3d 74, 83 (Mo. App. W.D. 2004). “[W]e will reverse only upon a showing

that the trial court abused its discretion.” Harrington v. Harrington, 153 S.W.3d 315, 318 (Mo.

App. W.D. 2005). “To constitute an abuse of discretion, the trial court’s action must be clearly

against the logic of the circumstances before the court and be so arbitrary and unreasonable to

shock the sense of justice and reveal a lack of careful consideration.” Id.

                                                 Analysis

        Father deposed Mother on July 13, 2012. Because Father considered Mother’s answers

evasive,4 on July 27, 2012, he moved for an order to compel her to produce documents, for

sanctions, and to preclude her from eliciting testimony or evidence from the minor child’s

daycare provider. Specifically, he requested that Mother “be required to pay all costs of a

rescheduled deposition necessitated by her conduct, including [Father’s] and Guardian Ad

        4
           Mother stated “I’m not sure” in response to many questions at the deposition. Though the equivocal
response may have made sense in response to some of the questions, it does not appear to have been candid in
response to many of the questions.


                                                     6
Litem’s reasonable attorney fees in preparation for the taking of [Mother’s] deposition[.]” Father

also requested that the trial court require Mother to post a $3,000 bond as security for the costs of

re-taking her deposition and for attorney fees. The trial court held a hearing on August 27, 2012,

permitted Father to re-take Mother’s deposition, and announced that it would take the requested

monetary sanctions with the case to be taken up at trial. After trial, the trial court stated, “I’m

not going to order costs for depositions” and the judgment reflects the same.

       Rule 61.01(g) authorizes the imposition of sanctions if a witness fails to answer questions

on deposition:

              If a witness fails or refuses to testify in response to questions propounded
       on deposition, the proponent of the question may move for an order compelling an
       answer. The proponent of the question may complete or adjourn the deposition
       examination before applying for an order. In ruling upon the motion, the court
       may make such protective order as it would have been empowered to make on a
       motion pursuant to Rule 56.01(c).

               If the motion is granted, the court, after opportunity for hearing, shall
       require the party or deponent whose conduct necessitated the motion or the party
       or attorney advising such conduct or both of them to pay to the moving party the
       reasonable expenses incurred in obtaining the order, including attorney’s fees,
       unless the court finds that the opposition to the motion was substantially justified
       or that other circumstances make an award of expenses unjust.

               If the motion is denied, the court, after opportunity for hearing, shall
       require the moving party or the attorney advising the motion or both of them to
       pay to the party or deponent who opposed the motion the reasonable expenses
       incurred in opposing the motion, including attorney’s fees, unless the court finds
       that the making of the motion was substantially justified or that other
       circumstances make an award of expenses unjust.

               If the motion is granted in part and denied in part, the court may apportion
       the reasonable expenses incurred in relation to the motion among the parties and
       persons in a just manner.

               If the motion is granted and if the persons ordered to respond fail to
       comply with the court’s order, the court, upon motion and reasonable notice to the
       other parties and all persons affected thereby, may make such orders in regard to
       the failure as are just, and among others, it may take any action authorized under
       Rule 61.01(d).



                                                 7
(Emphasis added.) The rule specifically provides that if the trial court finds that “circumstances

make an award of expenses unjust,” the trial court is not required to order the party deponent to

pay the reasonable expenses of the party moving for such sanction. As we observed in our

analysis of Father’s first point, the record reflects that both parties were “uncooperative” with

each other during the course of this litigation and there was evidence of a significant disparity in

the parties’ incomes.

       Additionally, as we previously noted, under the Uniform Parentage Act, the trial court

has discretion in its award of costs. § 210.842. “[T]he trial court is vested with broad discretion

in its award of attorney’s fees, and we will not disturb that award absent an abuse of discretion.”

Scobee ex rel. Roberts v. Scobee, 360 S.W.3d 336, 346 (Mo. App. W.D. 2012) (internal

quotation omitted). A trial court must consider each party’s financial position as well as the

merits of the case and the actions of each party during the pendency of the action. Id. An award

of attorney’s fees is discretionary, and “[t]he trial court’s decision as to a request for award of

attorney’s fees is presumptively correct.” Id. at 347 (internal quotation omitted).

       We find no abuse of discretion in the trial court’s refusal to award Father the sanctions he

requested.

       Point II is denied.

                                             Point III

       In Father’s third point, he asserts that the trial court erred in entering its June 4, 2013

Order denying his motion for order nunc pro tunc and motion to reconsider the trial court’s

temporary award dated September 4, 2012 and titled, “Judgment of Paternity and Order of

Temporary Parenting Time.”       Father argues that the September 4, 2012 temporary award

ordering that Father continue to pay $500 per month in child support should be corrected because



                                                 8
the trial court did not order temporary child support in its oral pronouncement at the hearing

discussing the temporary award.

                                           Jurisdiction

       “A reviewing court has a duty to determine its jurisdiction sua sponte.” Chromalloy Am.

Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). “The right of appeal in Missouri

is purely statutory, and, in the absence of specific statutory authority, no appeal will lie from a

ruling that does not constitute a final disposition of the case.” Cowger v. Livingston, 182 S.W.3d

783, 786 (Mo. App. W.D. 2006).

       Rule 74.01(a) provides that:

       “Judgment” as used in these rules includes a decree and any order from which an
       appeal lies. A judgment is rendered when entered. A judgment is entered when a
       writing signed by the judge and denominated “judgment” or “decree” is filed.
       The judgment may be a separate document or entry on the docket sheet of the
       case.

Under this rule, a judgment must be (1) in writing, (2) signed by the judge, (3) denominated

“judgment” and (4) filed.

       The June 4, 2013 order denying Staggs’s motion for judgment nunc pro tunc is not

denominated either a “judgment” or a “decree.” Furthermore, it does not purport to resolve all

the issues in the case, nor does Father assert that it does. “Thus, the Order does not constitute a

final ‘judgment’ for purposes of appeal.” Basta v. Kansas City Power & Light Co., 410 S.W.3d

743, 746 (Mo. App. W.D. 2013).

       The trial court’s September 4, 2012 temporary award is likewise not subject to appellate

review. Though the trial court denominated its temporary award ruling on Father’s motion to

modify a “Judgment and Order,” “[i]t is the content, substance, and effect of the order that

determines finality and appealability.” Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc




                                                9
1997). The “content, substance, and effect” of the trial court’s order belies the conclusion that it

was a final judgment. See In re Care & Treatment of Bowles v. State, 83 S.W.3d 93, 95 (Mo.

App. W.D. 2002). The trial court’s order specifically stated that “this Court makes the following

Temporary Orders.” Those temporary orders included a declaration that Father is the natural and

biological father of the minor child and that he will continue to pay $500 per month child support

on behalf of the minor child.             “Temporary orders, which by their nature expire and are

superseded by a subsequent judgment on the merits, generally are not subject to review, either by

interlocutory appeal or couched in an appeal of the final judgment . . . .” Erickson v. Erickson

(In re Marriage of Erickson), 419 S.W.3d 836, 847 (Mo. App. S.D. 2013) (internal quotation

omitted) (citing Saeuberlich v. Saeuberlich, 782 S.W.2d 78, 81 (Mo. App. E.D. 1989)

(temporary order pending final judgment is not appealable)). Because the September 2012 order

was a temporary order pending a final judgment, it is not an order that is separately subject to

appeal. Only the terms of the trial court’s final judgment are subject to appeal.5

         Point III is dismissed.




         5
           Furthermore, even if the trial court’s order had been appealable, the rule in criminal cases that the “oral
pronouncement prevails” over the written judgment if there is material conflict in the two prison sentences does not
apply in civil matters. Saunders v. Bowersox, 179 S.W.3d 288, 294 (Mo. App. S.D. 2005). “Courts typically
disregard a trial court’s oral statements made in ruling on an issue because such statements are not part of the trial
court’s order or judgment.” Id. “The court may consider such comments so long as they do not oppose, dispute, or
impeach the judgment and are not used as a substitute for the judgment.” Id. (internal quotation omitted). “[W]here
the language of the judgment is plain and unambiguous, we do not look outside the four corners of the judgment for
its interpretation.” Id. (internal quotation omitted). In effect, Father asks this court to create an ambiguity by
looking beyond the four corners of the documents. This we will not do. We also gratuitously note that there was
testimony in the record that the guardian ad litem confirmed with the trial court that the order (which the GAL was
instructed to prepare) should include $500 per month child support. There is nothing in the record to indicate that
the trial court did not intend to order temporary child support or that inclusion of the temporary child support
amount in the September 4, 2012 order was a clerical error.


                                                         10
                                          Conclusion

       The trial court’s judgment is affirmed.



                                             Mark D. Pfeiffer, Judge

Joseph M. Ellis, Presiding Judge, and
Victor C. Howard, Judge, concur.




                                                 11
