Flieder v. Flieder

• Decision Date: 27 November 1978
• Docket Number: No. KCD,KCD
• Parties: Carol FLIEDER, Respondent, v. Harvey FLIEDER, Appellant. 29729.
• Court: Missouri Court of Appeals

Page 758

575 S.W.2d 758

Carol FLIEDER, Respondent, v. Harvey FLIEDER, Appellant.

No. KCD 29729.

Missouri Court of Appeals, Kansas City District.

Nov. 27, 1978.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 27, 1978.

Lillie Knight, Kansas City, for appellant.

Steven G. Emerson, Morris, Larson, King, Stamper & Bold, Kansas City, for respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

PER CURIAM.

A judgment debtor's continuing resistance to the registration of a foreign judgment under the Uniform Enforcement of Foreign Judgments Law, Sec. 511.760, RSMo 1969, and Rule 74.79 prompted this appeal.

Plaintiff's (judgment creditor) verified petition for registration, an attached copy of a Kansas judgment authenticated in the manner authorized by the laws of the United States, defendant's (judgment debtor) "Motion to Set Aside Foreign Judgment", and evidence adduced at a hearing held thereon, reveal certain highly pertinent matters.

On March 15, 1976, personal service of process was obtained upon the judgment debtor, then a citizen and resident of Kansas, in a divorce action instituted by the judgment creditor in the District Court of Johnson County, Kansas. At some unknown, later date the judgment debtor moved from the state of Kansas to the state of Missouri. On August 5, 1976, counsel (a member of the Kansas Bar) representing the judgment debtor in the Kansas divorce action was permitted to withdraw from the case and there is no indication in the record that a new attorney ever appeared on behalf of the judgment debtor therein. On August 13, 1976, the Judge of the District Court of Johnson County, Kansas, entered an order setting the case for "final hearing" on August 18, 1976, and requiring that "notice of final hearing should be sent directly to defendant". A "Certificate of Mailing" attached to said order was undated and unsigned. Although the judgment debtor did not appear in person or by counsel at the August 18, 1976, "final hearing", a judgment was entered in favor of the judgment creditor and against the judgment debtor for divorce, custody of a minor child, alimony, child support, attorney fees and a division of property. According to a "Certificate of Mailing" filed in the District Court of Johnson County, Kansas, a copy of said judgment entered on the 18th day of August, 1976, was mailed on the same day by counsel for the judgment creditor to the judgment debtor at the latter's address in Kansas City, Missouri.

On August 24, 1976, the judgment creditor filed what was captioned a "Notice of Trial of Cause" in said case in the District Court of Johnson County, Kansas, which recited that a judgment has been granted on a "default basis against the judgment debtor on August 18, 1976", that the judgment creditor was willing to "set aside" the "default judgment" entered on August 18, 1976, and again proceed to trial in the matter on September 3, 1976, in the event the judgment debtor "appears in person" on that date, and in the event the judgment debtor did not appear on "September 3, 1976, at 9:00 o'clock A.M. in Division 6 of the District Court of Johnson County, Kansas" the judgment creditor would "move the Court for a default judgment which incorporates all of the specific judgments of the Court's decision on August 18, 1976."

A "default judgment" ¹ as requested by the judgment creditor, supra, was rendered by the Judge of the District Court of Johnson County Kansas, on September 3, 1976. According to a "Certificate of Mailing" filed in the District Court of Johnson County, Kansas, a copy of said judgment entered on the 3rd day of September, 1976, was mailed on the same day by counsel for the judgment creditor to the judgment debtor at the latter's address in Kansas City, Missouri, and to the attorney representing the judgment debtor in the instant action at her address in Kansas City, Missouri. Recitals to the following effect are found in various recital portions of the September 3, 1976, judgment: (1) the judgment creditor appeared in person and by counsel on September 3, 1976; (2) the judgment debtor did not appear; and (3) albeit somewhat imprecisely stated, requisite notice of the hearing to be held on September 3, 1976, was given the judgment debtor.

In response to the judgment creditor's verified petition for registration, the September 3, 1976, Kansas judgment was registered in the Circuit Court of Jackson County, Missouri, on October 29, 1976. The judgment debtor attacked registration of the foreign judgment on the grounds that (1) the setting aside of the August 18, 1976, judgment terminated the original cause of action and the judgment entered on September 3, 1976, constituted the rendition of a judgment in a new and different cause of action in which no personal service of process was obtained upon the judgment debtor, and (2) alternatively, the judgment debtor was never given proper notice of the September 3, 1976, hearing which culminated in the judgment ultimately registered in Missouri. Although the points relied on by the judgment...