Bell v. Bell

• Decision Date: 16 February 1993
• Docket Number: Nos. WD,s. WD
• Citation: Bell v. Bell, 849 S.W.2d 194 (Mo. App. 1993)
• Parties: Robert Arthur BELL, Respondent, v. Barbara Ann BELL, Appellant. 45553, WD 46039.
• Court: Missouri Court of Appeals

Page 194

849 S.W.2d 194

Robert Arthur BELL, Respondent, v. Barbara Ann BELL, Appellant.

Nos. WD 45553, WD 46039.

Missouri Court of Appeals Western District.

Feb. 16, 1993.

Rehearing Denied March 30, 1993.

Laurie S. Ward, Sedalia, for appellant.

C. Michael Fitzgerald, Warrensburg, for respondent.

Before BERREY, P.J., and ULRICH and SMART, JJ.

SMART, Judge.

Barbara A. Bell appeals from an order denying her motion to set aside a default judgment which dissolved her marriage and decided issues of maintenance and property distribution.

Barbara A. ("Wife") and Robert A. ("Husband") Bell were married on November 11, 1967 in the state of Illinois. The parties resided in Wisconsin until January 1, 1991, at which time Mr. Bell separated from his wife and moved to Missouri. Two children were born during the marriage, one of whom is already emancipated.

On September 18, 1991, Wife filed for divorce in Wisconsin. Wife traveled to Missouri to pick up some personal belongings from Husband and also with the intention of delivering to the sheriff the summons to be served on Husband. In the meantime, on September 19, 1991, Husband filed for divorce in Missouri. Wife was then served with Husband's petition on September 20, 1991, when she arrived in Missouri. Husband was served with a summons in the Wisconsin action four days later, September 24, 1991.

Husband filed a motion to dismiss the Wisconsin action on the basis that the Missouri action was pending. The Wisconsin court denied Husband's motion on October 16, 1991, after considering the parties' significant contacts with the state of Wisconsin. On October 30, 1991, a default judgment was entered in the Missouri action because Wife had not filed an answer to Husband's petition. The Missouri court ruled on the issues of maintenance, marital property, and the status of the marriage, but declined to enter any orders regarding the parties' unemancipated child. The decree specifically recognized that jurisdiction of custody matters was "properly vested" in the State of Wisconsin, where the unemancipated child resides.

On November 12, 1991, Wife filed a motion to set aside the default judgment under Rule 74.05 alleging in part that there was a previously filed petition for dissolution of marriage then pending in Wisconsin, that Husband had been denied dismissal of the Wisconsin action, that the Missouri action should be dismissed, and that good cause existed for Wife's failure to file a responsive pleading in the Missouri action.

On November 27, 1991, the motion to set aside was heard by the Missouri trial court. Evidence was presented by affidavit and through testimony of Laurie S. Ward, Wife's counsel, and Ms. Ward's secretary. The evidence revealed that subsequent to the hearing in Wisconsin overruling Husband's motion to dismiss, Wife's Wisconsin attorney wrote to Ms. Ward asking that Ms. Ward enter her appearance and attempt to obtain dismissal of the Missouri action if counsel for Mr. Bell would not voluntarily dismiss the action. At the time the letter arrived in Ms. Ward's office, she was on vacation. Her secretary held the letter on her desk intending to bring it to Ms. Ward's attention upon her return from vacation. In the meantime, the secretary talked by telephone with the Wisconsin attorney which resulted in a misunderstanding about who was responsible for attempting to get Mr. Bell's attorney to voluntarily dismiss the action. The secretary mistakenly understood the Wisconsin attorney would take care of it and then get back to Ms. Ward about any follow-up. Therefore, she waited and heard nothing further until she checked with the court on November 12, and found that a default judgment had been entered. She then notified Ms. Ward, and Ms. Ward promptly moved to set aside the default. This action was taken 13 days after the default was entered.

During the hearing on the motion to set aside, Ms. Ward sought leave to file an amended motion to set aside the judgment so that she could more fully plead the factors of inconvenient forum, inequitable division of the property and lack of maintenance award. Both the motion to set aside and the motion for leave to amend were denied by the trial court. In the trial court's view, Wife's motion had alleged lack of jurisdiction as the only "meritorious defense" within the meaning of Rule 74.05(c). Since the trial court concluded it had concurrent jurisdiction with Wisconsin, the court denied the motion to set aside the default judgment. The motion for leave to amend the motion to set aside was denied because the trial court found that the items should have been pleaded originally and presented in the initial hearing. Wife filed her appeal on December 2, 1991.

On January 15, 1992, Wife filed two additional motions in the trial court, one under Rule 74.06(b) and one as a second motion to set aside under Rule 74.05(c). At the hearing on these motions, evidence was again presented by Wife through affidavits of Wife and her Wisconsin attorney, and testimony from Ms. Ward's secretary, the payroll custodian for Husband's employer, and Husband. The evidence showed the significant disparity in income between the parties, the fact that Wife sacrificed occupational opportunities for the sake of the marriage, the inability of Wife to provide for her own needs, the disparity in the property award, the inadvertence in failing to file a responsive pleading, and the existence of the pending Wisconsin proceeding. The trial court denied Wife's motion indicating that the rules did not contemplate a second attack upon a judgment based on evidence which was previously heard and upon which relief was denied. Wife filed an appeal from this judgment on March 16, 1992. The appeals were consolidated for this court's consideration.

Wife argues on appeal that the trial court erred in denying Wife's initial motion to set aside the default judgment and Wife's first amended motion to request relief under alternative grounds of 74.06(b) because Wife established good cause for the default and stated facts constituting a meritorious defense. This court will address the appeal of the denial of Wife's initial motion to set aside under Rule 74.05.

Wife argues that she established "good cause" by showing that she failed to answer the petition as a result of Ms. Ward's secretary's misunderstanding as to the handling of the motion to dismiss or stay the Missouri action, because this conduct was not "intentionally or recklessly designed to impede the judicial process," as specified in the rule. Additionally, Wife argues that she stated a basis for the court to decline to exercise jurisdiction over the Missouri dissolution action as a meritorious defense because the record established that there was a previously filed and pending dissolution action between the parties in a Wisconsin court that had expressly indicated its intent to exercise jurisdiction over the parties divorce, all of which respondent was aware.

"Good Cause" Element

Rule 74.05(c) provides when a default judgment may be set aside, stating:

Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside. The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process.

(emphasis added).

The trial court has the discretion to set aside a default judgment and the trial court's decision in that regard will generally not be interfered with unless an abuse of discretion is found. Gibson v. Elley, 778 S.W.2d 851, 853 (Mo.App.1989).

It is notable, however, that "the discretion not to set aside is a good deal narrower than the discretion to set aside." Thus, an appellate court is much more likely to interfere with the trial court's decision when the motion to set aside the judgment has been denied. The reason given for such a directive is the distaste our system holds for default judgments.

Id. at 853-54 (citations omitted). This discretion is even more restrictive in divorce actions. Ramage v. Ramage, 792 S.W.2d 432, 433 (Mo.App.1990). The court in Mosley v. Mosley discussed this disfavor for default judgments in divorce proceedings by stating, "[i]n a divorce case, there is practically no such thing as a divorce decree by confession and courts disfavor 'default judgments' in dissolution of marriage cases because of the state's interest in the welfare of the parties." 744 S.W.2d 874, 878 (Mo.App.1988).

The first issue to be resolved is whether Wife made a showing of good cause for her failure to answer Husband's petition. The second issue is whether she articulated a meritorious defense. We believe the record shows that Wife made a showing of "good cause," as that phrase is described by Rule 74.05(c). Wife turned the summons over to her attorney in Wisconsin. It was not unreasonable for her to work through that attorney. The mistake by Ms. Ward's secretary could not be considered reckless since the secretary was not consciously disregarding a known risk. See Gibson, 778 S.W.2d at 854-855. In this case the secretary (incorrectly) understood that Ms. Ward would not...