Clark v. Clark

• Court: Missouri Court of Appeals
• Writing for the Court: LAURA DENVIR STITH
• Citation: Clark v. Clark, 926 S.W.2d 123 (Mo. App. 1996)
• Decision Date: 28 May 1996
• Docket Number: No. WD,WD
• Parties: Diana C. CLARK, Respondent, v. Stephen H. CLARK, Appellant. 51561.

Page 123

926 S.W.2d 123

Diana C. CLARK, Respondent, v. Stephen H. CLARK, Appellant.

No. WD 51561.

Missouri Court of Appeals Western District.

May 28, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 2, 1996.

Application to Transfer Denied

Aug. 20, 1996.

Robert T. Wilhelmus, Kansas City, for appellant.

Don L. Cowan, Kansas City, for respondent.

Before SPINDEN, P.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.

LAURA DENVIR STITH, Judge.

On April 8, 1994, the trial court granted Stephen Clark's motion to modify his child support obligation, denied Diana Clark's cross-motion to modify, and ordered Mrs. Clark to reimburse Mr. Clark certain overpaid amounts of child support. On June 30, 1994, Mrs. Clark moved to set aside the April 8, 1994 judgment under Rule 74.06(b). On July 24, 1995, the trial court granted Mrs. Clark's motion. It did so in part on the basis that the April 8, 1994, judgment was irregular and entered without proper notice that a judgment on the merits would occur. Mr. Clark appeals. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 8, 1991, the trial court dissolved the marriage of Stephen and Diana Clark. It gave Mrs. Clark custody of the couple's three minor children and ordered Mr. Clark to pay $626 per month in child support.

On April 27, 1993, Mr. Clark filed a motion to modify the decree on the basis that his eldest daughter, Jennifer Suzanne Clark ("Jennifer"), had become emancipated. Anthony Stein, who at that time was counsel for Mrs. Clark, admitted the fact of Jennifer's emancipation in suggestions filed in opposition to the Motion. He also filed a cross-motion to modify on behalf of Mrs. Clark which asserted that Mr. Clark was not current in his child support payments and which asserted a need to modify visitation in light of Mr. Clark's relocation to Jefferson City, Missouri.

On November 9, 1993, Mr. Stein moved for leave to withdraw as attorney for Mrs. Clark. In support, he stated that "submitted simultaneously with this Motion is the Entry of Appearance of Missouri attorney Curtis G. Hanrahan, ... who will act as the new attorney for Petitioner." Mr. Hanrahan's Entry of Appearance indicated he was "Attorney for the State of Missouri, Department of Social Services Division of Child Support Enforcement, and Diana G. Braun [Clark]."

In January 1994, the trial court granted Mr. Stein's motion for leave to withdraw. In so doing, the judge noted that Mr. Hanrahan would be representing Mrs. Clark's interests only as to the issue of child support, and that as to all other issues, Mrs. Clark would be proceeding pro se so that "Attorney for Respondent shall make sure to send and address all correspondence, interrogatories, etc., directly to Petitioner, who is currently acting pro-se."

Although the trial court thus admonished counsel for Respondent to send correspondence directly to Petitioner because of her pro se status, the court itself failed to follow this procedure. It sent notice to counsel for Respondent and to Mr. Hanrahan that both parties' motions to modify were scheduled for a docket call on April 8, 1994, but it sent no notice of the docket call directly to Mrs. Clark. The notice and docket were published in the Daily Record.

The Notice sent by the court stated in relevant part:

the Court will set each case for trial. Counsel or individual shall be prepared to discuss the status of the case and to have a calendar to make a firm commitment for trial.... Failure to appear on the date and time may result in the dismissal of the petition, motion or cross-filing, and/or a default judgment may be entered.... If counsel cannot appear on April 8, 1994, counsel shall make arrangements with another member of the Bar to appear on behalf of counsel.

(emphasis added).

Mr. Hanrahan did not attend the April 8, 1994, docket call himself or arrange for a representative to attend. Instead, on April 5, 1994, he faxed to the court a document entitled Motion for Trial Setting. Mr. Hanrahan apparently believed that, because this Motion informed the court as to the dates on which he was available for trial, he would not need to appear at the docket call.

Mr. Hanrahan was incorrect. Because neither he nor Mrs. Clark (who had not formally been served with notice) appeared at the docket call, the court entered a judgment finding Mrs. Clark in default for failure to appear. The court's judgment stated that both parties' motions to modify had "come on regularly for hearing" and that "the Court gave notice of the hearing to both parties by service on their attorneys by ordinary first class mail" and that "The Court, having reviewed the file, heard the evidence and being fully advised in the premises finds as follows: ...".

The court then granted Mr. Clark's motion to modify based on the emancipation of Jennifer, found Mr. Clark to be current in his child support, dismissed Mrs. Clark's motion to modify for want of prosecution and granted judgment to Mr. Clark for $2,288.00 in child support improperly paid to Mrs. Clark after Jennifer was emancipated.

Despite these recitals in the judgment, as noted previously, the judgment was not entered after an evidentiary hearing, or based on record evidence. Rather, it was entered based on a failure to appear at an April 8, 1994 docket call at which this and other cases were being set for future trial. The case had not actually been set for hearing on April 8, 1994, no notice was given that it would actually be heard that day, and no evidence was in fact heard on that day.

On June 30, 1994, Mrs. Clark filed a Motion to Set Aside Default Judgment under Rule 74.05(d). In her motion, Mrs. Clark alleged that the default judgment was not based on competent and substantial evidence, that in fact Mr. Clark was in arrears in paying child support, and that the judgment was inequitable.

In opposition, Mr. Clark noted that, while the judgment sought to be set aside stated that Mrs. Clark was in default, in fact she had answered and filed a cross-motion. Mr. Clark quite correctly pointed out that the April 8, 1994, judgment therefore was not really a default judgment, but rather was "intended to be one on the merits." See Lockhart v. Middleton, 863 S.W.2d 367, 368 (Mo.App.1993), cert. denied, 511 U.S. 1131, 114 S.Ct. 2143, 128 L.Ed.2d 871 (1994).

For this reason, Mr. Clark argued, Mrs. Clark had erred in moving to set aside the judgment under Rule 74.05, as that rule governs only the setting aside of a default judgment. Mr. Clark did not then ask that the motion be denied because brought under the wrong rule, however. Instead he noted that, "if there is any basis to set aside the judgment, [petitioner's] motion should be [brought] pursuant to Missouri Supreme Court Rule 74.06," which governs setting aside judgments on the merits.

Mr. Clark then went on to argue why none of the bases to set aside a judgment under Rule 74.06(b) were satisfied. In so doing, he did not argue that the court had no jurisdiction over him for the purposes of Rule 74.06, nor did he point out that, unlike Rule 74.05, Rule 74.06 requires personal service. Rule 74.06(c). Rather, he addressed the merits of granting or denying the motion under each subsection of Rule 74.06(b). He concluded by pointing out that the "decision to vacate a judgment, pursuant to Missouri Supreme Court Rule 74.06, is left to the sound discretion of the trial court, which will not be interfered with by an appellate court unless the record convincingly demonstrates an abuse of discretion," and asked the court to deny Mrs. Clark's motion.

The motion to set aside came before The Honorable Justine Del Muro. It was set for hearing on four occasions. For various reasons the motion was not formally reached on those dates, although on one of those dates the court and parties informally discussed the legal issues in chambers. Finally, in January 1995, Judge Del Muro informally notified the parties that she would rule on the motion to set aside without witness testimony but that she would not rule until the parties had an opportunity to file additional suggestions in support of their positions. Mr. Clark filed a brief supplemental response, which also failed to raise any jurisdictional issue or to object to the court's intended course of disposing of the motion without hearing.

On July 26, 1995, Judge Del Muro set aside the prior judgment. In so doing, she agreed with Mr. Clark that the April 8, 1994, judgment was not a default judgment, but rather was a judgment on the merits, because Mrs. Clark had already filed her responsive pleading, citing Cotleur v. Danziger, 870 S.W.2d 234, 237 (Mo. banc 1994). Judge Del Muro further found, however, that Mrs. Clark had shown multiple bases to set aside the judgment under Rule 74.06. These included: (1) the fact that Mrs. Clark was never sent a copy of the Notice of the docket call and therefore there was no deliberate action on her part to be absent from the docket call; (2) the Notice sent to counsel warned that failure to appear might result in dismissal or default judgment, but did not give notice that the court might enter judgment on the merits as to any party who did not appear; (3) no evidence was heard and thus no judgment on the merits could be entered; and (4) the judgment was patently unfair and unjust and that it was no longer equitable that the judgment remain in force. This appeal followed.

II. STANDARD OF REVIEW

The trial court is vested with broad discretion when acting on motions to vacate judgments and this Court will not interfere with that action unless the record convincingly demonstrates an abuse of discretion. In re Marriage of Clark, 813 S.W.2d 123, 125 (Mo.App.1991).

III. LACK OF PERSONAL SERVICE WAS WAIVED

Mr. Clark first claims that the trial court erred in setting aside the default judgment under Rule 74.06(b) because the court lacked personal jurisdiction over him due to the fact that the motion to set...