Dozier v. Dozier

• Decision Date: 09 May 2007
• Docket Number: No. WD 66669.,WD 66669.
• Citation: Dozier v. Dozier, 222 S.W.3d 308 (Mo. App. 2007)
• Parties: Chandra Kay DOZIER, Respondent, v. Michael Joseph DOZIER, Appellant.
• Court: Missouri Court of Appeals

222 S.W.3d 308

Chandra Kay DOZIER, Respondent, v.Michael Joseph DOZIER, Appellant.

No. WD 66669.

Missouri Court of Appeals, Western District.

May 9, 2007.

Chandra Kay Dozier, Gladstone, respondentpro se.

Sharlie Pender, Independence, for appellant.

Before SMART, P.J., and SMITH and HARDWICK, JJ.

EDWIN H. SMITH, Judge.

Michael Joseph Dozier appeals from the denial of his Rule 74.05¹motion to set aside the default judgment of the Circuit Court of Clay County, dissolving his marriage to the respondent, Chandra Kay Dozier, and awarding the parties joint legal custody and the respondent sole physical custody of the parties' three unemancipated minor children.

The appellant raises one point on appeal.He claims that the trial court erred in denying his Rule 74.05motion to set aside the trial court's default judgment, awarding, inter alia,the respondent sole physical custody of the parties' three children, because his motion stated facts constituting a meritorious defense to the respondent being awarded sole physical custody of the parties' children and facts constituting good cause for his failing to timely file an answer to the respondent's petition.

We affirm.

Facts

The parties were married on August 17, 1991, in Lee's Summit, Jackson County, Missouri.Three children were born of the marriage: David M. Dozier, born December 21, 1992; Ariel N. Dozier, born March 1, 1995; and Sabrina J. Dozier, born March 12, 1996.

The parties separated on April 16, 2004.The respondent filed a petition for dissolution of marriage in the Circuit Court of Clay County on September 28, 2005.In her petition, she requested, inter alia, that the parties be awarded joint legal custody and that she be awarded sole physical custody of the parties' three children.She alleged that the children had been in the appellant's care, custody, and control since July 11, 2005.On October 29, 2005, the appellant was served by special process server, who left a copy of the summons and petition at his residence with his mother.

The appellant did not file a timely answer to the respondent's petition, and on February 15, 2006, the trial court entered a default judgment, dissolving the parties' marriage, and awarding the parties joint legal custody and the respondent sole physical custody of the parties' children.That same day, the appellant filed a motion for leave of court to file an answer to the respondent's petition out of time, his answer, and a cross-petition for dissolution of marriage.In his answer and cross-petition, he requested that he be awarded sole legal and physical custody of the parties' three children.

On February 16, 2006, the appellant filed a motion to set aside the default judgment.There were no affidavits or other documents filed in support of the motion.On February 27, 2006, the respondent filed her response in opposition to the appellant's motion.That same day, the motion was taken up, heard, and denied.

This appeal follows.

Standard of Review

When we"consider an appeal that involves the denial of a motion to set aside a default judgment under Rule 74.05(d), the appeal properly lies from the court's denial of the motion and not from the default judgment itself."Martin v. Martin,196 S.W.3d 632, 635(Mo.App.2006).The record reflects in this case that the appellant filed his motion to set aside the trial court's default judgment before the underlying default judgment became final, pursuant to Rule 81.05(a).In that circumstance, this court held in McElroy v. Eagle Star Group Inc.,156 S.W.3d 392, 400(Mo.App.2005), our review is for an abuse of discretion.However, the Southern District held in In re Marriage of Coonts,190 S.W.3d 590, 603-04(Mo.App.2006), that regardless of when the motion is filed, it is an independent action subject to review under Murphy v. Carron,536 S.W.2d 30, 32(Mo. banc1976).After both McElroy and Coonts were decided, the Missouri Supreme Court amended Rule 74.05(d), effective January 1, 2007, to provide, in pertinent part: "A motion filed under this Rule 74.05(d), even if filed within 30 days after judgment, is an independent action and not an authorized after-trial motion subject to Rule 78.04 or Rule 78.06."(Emphasis added.)Clearly, the current version of Rule 74.05(d) sides with Coonts and because our review is under that version of the rule, our review here is pursuant to Murphy v. Carron, such that we will affirm the trial court's denial of the appellant's motion to set aside its default judgment for the respondent unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declared or applied the law.536 S.W.2d at 32.

Because the law does not favor default judgments, trial courts"are allowed greater discretion in granting a motion to set aside a default judgment than in denying such motions."Martin,196 S.W.3d at 635."Thus, appellate courts are more likely to reverse a judgment which fails to set aside a default judgment than one which grants that relief.This is because of the law's distaste for default judgments and its preference for trials on the merits."Heintz Elec. Co. v. Tri Lakes Interiors, Inc.,185 S.W.3d 787, 791(Mo. App.2006)(quotation marks and citations omitted).

The law's distaste for default judgments is even stronger in dissolution cases involving child custody.Reed v. Reed,48 S.W.3d 634, 639(Mo.App.2001)(overruled, in part, and on other grounds byMcElroy,156 S.W.3d at 401).The court's discretion is restricted in an action involving the dissolution of marriage because "there is practically no such thing as a divorce decree by confession and . . . because of the state's interest in the welfare of the parties."Id.In cases of dissolution where child custody is concerned, "strict rules pertaining to the setting aside of such judgments are less rigorously applied."Brooks v. Brooks,800 S.W.2d 468, 470-71(Mo.App.1990).When child custody is concerned, "the welfare of the child becomes paramount and the trial court's discretion is more narrowly bounded."Cutter-Ascoli v. Ascoli,32 S.W.3d 167, 169(Mo.App.2000)."Because the adversarial process better protects the child's interests in a custody proceeding, default judgments in custody cases are strongly disfavored and a refusal to set aside such a judgment is reviewed with heightened scrutiny."Id.

I.

In his sole point on appeal, the appellant claims that the trial court erred in denying his Rule 74.05motion to set aside the trial court's default judgment, awarding, inter alia,the respondent sole physical custody of the parties' three children, because his motion stated facts constituting a meritorious defense to the respondent being awarded sole physical custody of the parties' children and facts constituting good cause for his failing to timely file an answer to the respondent's petition.Specifically, as to a meritorious defense to the respondent's request for sole physical custody of the parties' children, he claims that the facts alleged in his motion demonstrated that such an award was not in their best interests in that for the year immediately preceding the filing of the respondent's petition, the children had been living with him.As to "good cause" for his failing to timely file an answer to the respondent's petition, he claims that the facts alleged in his motion demonstrated that "he had financial problems that hindered his ability to engage the services of an attorney."

As to when a default judgment may be set aside, Rule 74.05(d) provides:

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.An order setting aside an interlocutory order of default or a default judgment may be conditioned on such terms as are just, including a requirement that the party in default pay reasonable attorney's fees and expenses incurred as a result of the default by the party who requested the default.

Rule 74.05(d), by its express terms, requires a motion to set aside a default judgment to state facts constituting both a meritorious defense and good cause.McElroy,156 S.W.3d at 403."When deciding whether a moving party has complied with the pleading requirements of Rule 74.05(d), courts examine the allegations set forth in the motion to set aside the default judgment and consider the contents of any accompanying materials such as affidavits, exhibits, and proposed answers."Id.

Because the prerequisites of Rule 74.05(d) for setting aside a default judgment, a "meritorious defense" and "good cause," are stated in the conjunctive, a default judgment is to be set aside only if the movant alleges facts in his motion that establish both of the prerequisites.Doe v. Hamilton,202 S.W.3d 621, 623(Mo.App.2006);In re Marriage of Williams,847 S.W.2d 896, 899(Mo.App.1993).Hence, even if a motion to set aside a default judgment states facts constituting a meritorious defense, if it does not also state facts constituting good cause, or vice versa, the motion cannot succeed.In re Marriage of Williams,847 S.W.2d at 899.As such, on appeal of the denial of a motion to set aside a default judgment, if the appellate court finds that the motion failed to state facts constituting either a meritorious defense or good cause, it must affirm.Id.Here, because we find that the appellant's motion to set aside the trial court's default judgment, awarding, inter alia,the respondent sole physical custody of the parties' children, failed to state facts constituting good cause for his failing to timely file an answer to the respondent's petition, requiring us to affirm the trial court's denial of his motion, we need...