Godsy v. Godsy

• Decision Date: 03 April 1978
• Docket Number: Nos. KCD,s. KCD
• Parties: Nadine GODSY, Appellant-Respondent, v. Sherman M. GODSY, Jr., Respondent-Appellant. 28689, KCD 28804 and KCD 28805.
• Court: Missouri Court of Appeals

Page 726

565 S.W.2d 726

Nadine GODSY, Appellant-Respondent, v. Sherman M. GODSY, Jr., Respondent-Appellant.

Nos. KCD 28689, KCD 28804 and KCD 28805.

Missouri Court of Appeals,Kansas City District.

April 3, 1978.

Motion for Rehearing and/or Transfer Denied May 1, 1978.

Application to Transfer Denied June 15, 1978.

Thaine Q. Blumer, Kansas City, for appellant-respondent, Nadine Godsy.

James R. Wyrsch, Ronald R. Holliger, Kansas City, for respondent-appellant, Sherman M. Godsy, Jr.

Before SOMERVILLE, P. J., TURNAGE, J., and DONALD L. MASON, Special Judge.

DONALD L. MASON, Special Judge.

The issues raised on these cross appeals necessitate a detailed recitation of the chronology of events and evidence which bring these antagonists, who were once fond enough of each other to get married and conceive one child, to this Court. The parties will sometimes be referred to in the roles they occupied in the trial court. Our review is as promulgated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The parties were married on May 1, 1964, from which union a male child was born in 1966. On July 7, 1971, Nadine Godsy filed a petition for divorce alleging the necessary elements to obtain that relief under the statutes then in force. On July 14, 1972, Sherman M. Godsy, Jr., filed his First Amended Answer and Cross-Petition, with leave of court, likewise alleging the necessary elements which would entitle him to the divorce, if proven. In December, 1972, the parties and the trial judge agreed to a special setting on February 15, 1973, to try the case on the merits. Six to eight continuances had previously been requested and granted. After obtaining the special setting the parties, through their attorneys, continued to negotiate a property settlement agreement, which negotiations were fruitless, mainly because defendant refused to sign an agreement which contained his previously accepted terms.

On January 23, 1973, defendant's then counsel wrote the docket clerk that it appeared the case would be resolved without trial and to remove the case from the trial docket for February 15th. On January 29, 1973, plaintiff's then counsel directed a letter to the trial judge, with a copy to the docket clerk, disputing the assertions of his opponent and requesting that the matter be retained on the trial docket. Under date of February 5, 1973, but not mailed until February 7th, and received by plaintiff's counsel on February 8th, defendant's attorney advised that he would not be able to try the case on February 15th as he and his family were leaving on February 10th for a ten day vacation to Hawaii and suggested the trial be postponed to the end of the month. Plaintiff's attorney responded by return mail, and personally, that he would not agree to a continuance and that he and his client would appear on trial date prepared for trial. He also verbally apprised the partner of defendant's counsel of his intentions. Defense counsel, or his partner, advised defendant that he need not appear for trial as the case was going to be continued.

Plaintiff and her counsel appeared as scheduled. Neither defendant nor his retained counsel appeared. An office associate of defendant's counsel appeared and orally moved for a continuance. Judge Clymer, after noting the many continuances and the special setting, denied the continuance and the case was heard as a non-contested matter. Judgment was entered granting plaintiff the divorce, custody of the minor child and alimony in gross of $100,000.00. In addition plaintiff received a judgment of $4,320.00 for attorney fees for her first attorney and $5,932.00 for her trial attorney. The alimony and child support judgment was based upon testimony heard by the Court that the parties owned real estate valued at $500,000.00 upon which they lived and operated three pay fishing lakes. The fishing lakes provided annual taxable income of some $45,000.00. In addition the parties owned personal property in excess of $100,000.00 value. The attorney fee awards were also supported by the necessary and competent evidence.

On February 28, 1973, defendant timely filed his motion for new trial, which was subsequently overruled. He thereafter filed his notice of appeal to this Court, but the appeal was dismissed as not being timely filed (reported at 521 S.W.2d 449). Thereafter, certiorari was denied by the United States Supreme Court at 423 U.S. 887, 96 S.Ct. 181, 46 L.Ed.2d 119.

By this time both parties had changed legal counsel to their present attorneys. On August 5, 1975, defendant caused to be filed in the divorce case (No. 749,413) a pleading denominated as a Motion to Set Aside Judgment (hereafter "Motion"). The next day Mr. Godsy, as plaintiff, filed a pleading entitled Petition to Set Aside Judgment and for an Injunction (hereafter "Petition") (Case No. DR75-4195). The Motion and the Petition are almost identical in context and content. We will summarize, and at times paraphrase, the allegations contained in each pleading.

In the Motion defendant pleaded (1) the Motion was pursuant to Rules 74.32 and 74.78, in the nature of coram nobis, and that the judgment should be set aside for fraud; (2) the entry of default judgment on February 15, 1973; (3) the filing of the Motion within three years; (4) that Rule 74.32 permits setting aside judgments within three years; (5) that the judgment was secured as a result of a misapplication of, and failure to follow, established rules of procedure; (6) that the clerk of the court had published a docket advising defendant's counsel that the case was on a motion to modify docket and that a motion for additional temporary alimony and child support was then pending, which plaintiff's counsel advised was going to be heard; (7) no notice of entry of order and judgment as provided by Rule 74.78; (8) that the judgment entry and transcript shows no notice was given to defendant or his counsel; (9) that the court exceeded its jurisdiction in entering default judgment with the motions for temporary monies and to strike defendant's pleadings being on file and not ruled; (10) defendant's due process rights under both the United States and Missouri Constitutions were violated by lack of adequate notice; (11) lack of competent and adequate evidence to permit entry of judgment and error in denying defendant's request for a continuance; (12) that evidence outside the record was available to support setting aside the default judgment; (13) that fraud was perpetrated upon defendant and his counsel by plaintiff's counsel agreeing to a continuance and that the case was settled and no hearing was necessary, and that only motions to modify would be heard; (14) that defendant was not represented at the hearing by his attorney in violation of the 6th and 14th Amendments of the United States Constitution and Article I, Section 10, and Article I, Section 14, of the Missouri Constitution; (15) that defendant was told by his counsel not to appear and was thereby free of personal fault and negligence; (16) defendant's counsel did not properly represent him which constituted a fraud in procurement of the judgment; (17) that the judgment was procured as the result of unavoidable accident or excusable mistake of defendant who did not appear because of advice of counsel, which counsel was inattentive, inadequately prepared and gave bad advice; (18) defendant had no adequate remedy at law; and (19) that defendant had a meritorious defense based on the marital misconduct of plaintiff (which was definitively pleaded).

The Petition alleged the same grounds and, additionally, asserted that Mrs. Godsy had caused various attachments, levies and executions to issue against the real estate owned by the parties in order to collect the judgments rendered in her favor in the divorce case. In this case plaintiff (Mr. Godsy) prayed that the default judgment be set aside and that defendant (Mrs. Godsy) be enjoined from further judgment collection efforts. Defendant did not file an answer to this petition until March 27, 1976, after hearing, judgment and filing of notice of appeal. She appeared at the hearing on the Motion and Petition and offered evidence, without objection. In this posture the failure to file responsive pleadings is deemed waived. Gregg v. Johnston, 546 S.W.2d 754 (Mo.App.1977).

The Motion and Petition were consolidated for hearing in the trial court, and the hearing was commenced on September 12, 1975, but not completed. The evidentiary hearing was completed January 19, 1976, and taken under advisement. On February 13, 1976, Judge Clymer entered his order sustaining the Motion to Set Aside Judgment (as filed in Case No. 749,413). It is from this order that Mrs. Godsy appeals in Case No. KCD-28689.

On April 5, 1976, the parties filed a stipulation that the trial court could consider all the evidence heard in both cases in ruling on the Petition to Set Aside Judgment, in ruling on the Motion for Attorney Fees Pendente Lite, filed on March 2, 1976, and the Motion for the Appointment of a Receiver, filed also on March 2, 1976. On April 5, 1976, an order was entered awarding attorney fees of $4,320.00, plus 6% interest from February 15, 1973, for services performed by plaintiff's first attorney; $5,932.00, plus 6% interest from February 15, 1973, for services performed by plaintiff's second attorney; and $4,000.00 for services performed by plaintiff's present attorney. On the same date the Court appointed a Receiver for the marital property and business, but that Receiver never qualified or served. It is from these orders that Mr. Godsy appeals in Case No. KCD-28804. Also, on the same date the Court entered an order sustaining the Petition to Set Aside Judgment (as filed in Case No. DR75-4195). No injunctive relief was ordered. It is from this order that Mrs. Godsy appeals in Case No. KCD-28805. No findings of facts and conclusions of law were requested or filed in support of the various...