In response the recent decision of the Missouri Supreme Court in the case of Slay, v. Slay, Plaintiff Marc Perkel looked up his court records to see if the separate maintenance order was made by a commissioner or a judge. To his surprise, the order was made by neither a judge nor commissioner. The order (Attached) is a hand written order that has no signature or date and nowhere on the "order" is the name of the person who wrote it. Although it has been assumed that Commissioner Winston Davis wrote the document in question, Plaintiff has reason to believe that the document was not written by the commissioner, but written by the petitioners attorneys instead.

In 1996 the legislature passed 487.030, a statute that the decision of a commissioner becomes the decision of the court if not challenged in 15 days. The Missouri Supreme Court ruled that statute unconstitutional stating that a commissioner is not a judge and that the orders of commissioners are void. Before 1996 all the findings of the commissioners were not orders unless a judge signed them.

In this case however, the maintenance order was made in 1995, more than a year before this unconstitutional statute was passed. This was done at a time when commissioners were supposed to get the signature of a judge on all orders. In this case, if Commissioner Davis did make the hand written order, he clearly violated the rules by not having Judge McGuire sign it. And he further broke the rules by not signing it himself. This is assuming that Winston Davis wrote the order in the first place.

Plaintiff believes that Commissioner Davis did not write the order and that the law firm of Wear and Sharp did. The handwriting is remarkably similar to the handwriting of James Sharp. The reason the Plaintiff believes that Wear or Sharp wrote the decision is that the Plaintiff is aware that Commissioner Davis is often too lazy to write his own orders and assigns one of the lawyers to do it for him. The hand written order of the court awards the wife more money than she was asking for. It orders the Plaintiff to pay the medical and car insurance of the Wife's daughter, who is not related to the Plaintiff, and it makes findings about the status of the Plaintiff corporation which were not the subject of the hearing. These findings were favorable to the Wife's position.

Based on Commissioner Davis' record of letting the litigant's attorneys write decisions for him, and the decision being so favorable to the Wife's position, and the inclusion of findings that were not the subject of the hearing, Plaintiff believes that either William Wear and/or James Sharp wrote the "order" of the court.

The Missouri Supreme Court has held that the orders of commissioners are not the orders of the court because commissioners are not judges. Only judges can make judgements and orders. This decision was made in a case after 1996 where the commissioners honestly thought they had the power to make orders. The case before this court happened before 1996 when commissioners clearly did not have this power and knew they didn't have this power. So even if a commissioner did sign this order, the order would be void on its face.

This order wasn't even signed by a commissioner. No where on the document is the name of Winston Davis mentioned. If this order were written by the Wife's lawyers, then the order must certainly be void. The Missouri Constitution does not give the lawyers of parties the authority to act as a judge of the court. This order is unsigned. For all we know, some stranger could have walked in off the street and made the order. Clearly this anonymous order is void. Plaintiff can see no way that any court can construe an unsigned and undated had written order as being an order of a Judge of the State of Missouri. The order is void on its face.

In the case of K & K Investments, Inc. v. McCoy, ___ S.W.2d ___ (Mo.App. E.D. 1994)(slip op. #64245, decided May 3, 1994), the court defined what a void judgement is as being:

In this case the anonymous author of the order did not have the authority or jurisdiction to make a judgement. Thus the maintenance order had no legal force or effect. It is as if it never happened. You can't appeal a void order because there's nothing to appeal. This was not a maintenance order because it was not an order at all. Thus the case of Darr v. Darr 950 S.W.2d 867 doesn't apply here.

In the case of WILLIAM BLAIR HUGHES AND MARY ELIZABETH ,332 S.W.2d 1, the court held that a void judgement will be entirely disregarded as if it never happened. That there are neither procedural requirements nor time limitations to void judgements.

Thus, a void judgement is a judgement that never really existed and is void forever. It doesn't become unvoid with the passage of time or inaction of the litigants. A void judgement has no power to bind or protect anyone. In RUFUS RHINE v. M. E. MONTGOMERY, MAGISTRATE JUDGE OF SCOTT COUNTY, MISSOURI, 422 S.W.2d 661, it was held that:

Defendants claim that the Plaintiff failed to file a timely appeal of the maintenance order doesn't apply here because you can not appeal a void order. In JOHN H. BROWN v. COLOR COATING, 867 S.W.2d 242 it was decided that:

Thus the Court of Appeal lacks jurisdiction to hear the appeal of a void order. It can only hear a issue disputing the voidness of an order.

The Slay v. Slay decision states:

In the Slay decision, the Supreme Court was dealing with the issue that the commissioners, who honestly believed that they had the authority to write orders of the court, would have made findings and recommendations had they knew the statute was unconstitutional. Thus the scope of the orders of the court being construed as findings is limited to those orders which occurred between June of 1996 and April of 1998 in order to correct an honest mistake. If a commissioner wrote this handwritten order in 1995, he was clearly doing so without jurisdiction. And the Slay decision would hardly apply to an order written by the defendant's attorney.

The "order" was not the order of a commissioner who mistakenly thought he had the authority of a judge. This order is an unsigned order by an unknown author. The order can not be construed as the finding of a commissioner because a finding of a commissioner requires the signature of a commissioner that this document lacks. Plaintiff contends that the hand written document was not written by the commissioner and because it is unsigned and undated would not be binding if it were.

On three occasions, (10-16-95, 11-10-95, and 11-20-95) Plaintiff filed motions to have a hearing before a judge to review and to clarify the maintenance order and was denied review. Plaintiff therefore can not be accused of inattention to the problem order. The "order" itself was irrational and confusing. Plaintiff did not know at that time that the order was also void.

On the last page of the "order" the author originally wrote, "Commissioner makes the following findings from Hearing concluded 6 feb 95.", but scribbled this out and wrote "Therefore the court orders" above it. The author clearly knew that a commissioner did not have the authority to act as a judge, but decided to do so anyhow. This indicates that the author was not a judge, and knowingly and deliberately attempted to usurp the power of a judge. So in addition to being void, it is also an act of fraud.

This raises another issue. If this "order" by an unknown author is void, then the Plaintiff contends that the final judgement is also void because the final judgement was founded in part on the findings made in this void order. An anonymous author doesn't have the authority to make findings and recommendations. If the defendant's attorneys made these findings then that would become fraud on the court and the derivative decisions would be void as well.

WHEREFORE, Plaintiff prays that this court will summarily rule on the face of the evidence before it that the "order" of the unknown author is void and that all decisions in Case #194DR3198 following that order are also void.

Marc Perkel * Plaintiff * 06-12-98