In re Marriage of Coonts, 27052.

• Decision Date: 05 May 2006
• Docket Number: No. 27052.,27052.
• Citation: 190 S.W.3d 590
• Parties: In re the MARRIAGE OF Mary Jane COONTS and Mark Coonts Mary. Jane Coonts, Petitioner-Respondent, and Mark Coonts, Respondent-Appellant.
• Court: Missouri Court of Appeals

190 S.W.3d 590

In re the MARRIAGE OF Mary Jane COONTS and Mark Coonts Mary Jane Coonts, Petitioner-Respondent, and Mark Coonts, Respondent-Appellant.

No. 27052.

Missouri Court of Appeals, Southern District, En Banc.

May 5, 2006.

Brad D. Eidson, Houston, MO, for Appellant.

Michael B. Curtis, West Plains, MO, for Respondent.

PER CURIAM.

Respondent Mary Jane Coonts (Wife) obtained a default judgment in the Circuit Court of Texas County dissolving her marriage to Appellant Mark Coonts (Husband). Husband filed a "Motion for New Trial or, In the Alternative, Vacating, Reopening, Correcting, Amending or Modifying this Prior Judgment" (Motion) which the trial court considered, at Husband's request, as a motion to set aside default judgment under Rule 74.05(d).¹ Following an evidentiary hearing, the trial court denied the Motion, and Husband appeals. We dismiss the appeal for lack of jurisdiction.

1) Procedural Background

Wife filed her petition for dissolution of marriage on September 23, 2004. Service of process was obtained on Husband on October 7, 2004. A default hearing on the petition was held by the trial court on January 4, 2005. Over two months later, on March 10, 2005, the trial court entered its "Judgment, Order and Decree of Dissolution of Marriage" (Default Judgment). Twenty days thereafter, on March 30, 2005, Husband filed his Motion. The trial court held an evidentiary hearing on the Motion on May 27, 2005. That same day, following the hearing, this entry was made in the docket: "Ct. takes up Motion for New Trial. Both parties appear. Hearing held and evidence adduced. Motion denied. (Copy to attys)." Ten days later, Husband filed his Notice of Appeal with the trial court clerk.

2) Appellate Jurisdiction

This Court was presented an almost identical procedural background in In re Marriage of Tyree, 978 S.W.2d 846 (Mo. App. S.D.1998). The husband in Tyree obtained a default dissolution judgment against wife. Id. at 847. Fourteen days after its entry, wife filed her motion to set aside the default judgment. Id. Thereafter, an evidentiary hearing was held by the trial court, immediately following which, the trial court denied wife's motion by docket entry, and wife appealed. Id. We, sua sponte, examined our jurisdiction to entertain the appeal noting:

"[Such an inquiry] is not a matter of mere technical concern. Judicial integrity and restraint demand it. `To avoid arbitrary discretion in the courts, it is indispensable that they should be bound by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.' The Federalist Papers No. 78 (Alexander Hamilton). Courts, no less than the citizens they serve, must abide by the rules and precedents defining their jurisdiction. To do otherwise is to erode the very foundation of the rule of law."

Id. (quoting Committee for Educ. Equality v. State, 878 S.W.2d 446, 450[1] (Mo.App. 1994)).

The jurisdictional concern in Tyree, as in this case, was the failure of the docket entry denying the motion to set aside the default judgment to be denominated as a judgment. Id. We explained this concern as:

The usual requirement that a document or docket notation be "denominated" a "judgment" is found in Rule 74.01(a).[²] [Original footnote omitted]. In City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo.banc 1997), the court explained that Rule 74.01(a) was intended to clarify what constitutes a "judgment" within the meaning of §§ 511.020 and 512.020, RSMo 1994. Id. at 852-53. In that context, the Hughes court held that if a trial court makes a docket entry, signs a memorandum, or otherwise purports to enter a "judgment" without denominating the same as a "judgment," then there is no "final judgment" for purposes of appeal. Id.³

Id. at 847-48. We framed this issue by stating: "Our authority to consider this appeal depends on whether the trial court's order overruling Wife's motion to set aside a default judgment is governed by Rule 74.01(a). If so, we lack jurisdiction and the appeal must be dismissed." Id. at 848. Finding that section 512.020 provides for the appeal of some "orders" that are not "final judgments," we resolved this issue in the negative and held that "the `denomination' requirement of Rule 74.01(a) is inapplicable here because the denial of a motion to set aside a default judgment is a `special order' within the meaning of § 512.020 and is, therefore, appealable." Id. Our jurisdictional inquiry in the instant case could end at this point as it did in Tyree, proceeding to decide the appeal on the merits, except for Brooks v. Brooks, 98 S.W.3d 530 (Mo. banc 2003).

In Brooks, our Supreme Court was confronted with a Qualified Domestic Relations Order (QDRO) entered by the trial court after entry of the underlying dissolution judgment. Id. at 531. The QDRO was not denominated as a "judgment" or "decree." Id. The Supreme Court held:

Although the QDRO is an appealable special order, to perfect the appeal it is still necessary to denominate the order as a "judgment or decree." This requirement, set out in Rule 74.01(a), applies to "decree[s] and any order from which an appeal lies." Tyree v. Tyree, 978 S.W.2d 846 (Mo.App.1998), which appears to be the only case to address the application of Rule 74.01(a) to special orders under section 512.020, holds to the contrary, and is now overruled.

Id. at 532.

There is certainly a temptation for us to conclude our jurisdictional inquiry at this point by simply dismissing this appeal for lack of a final judgment, in accordance with the holding in Brooks. However, developments in case law related to Rule 74.05(d) out of the Eastern and Western Districts of our Court, occurring after Tyree, cause us to pause and consider a novel issue for our court — whether a motion to set aside a default judgment pursuant to Rule 74.05(d), filed before the underlying default judgment becomes final, is an after-trial motion under Rule 78, such that a timely appeal of the underlying default judgment, once it becomes a "final judgment" following the denial of the motion to set it aside by the trial court, grants us jurisdiction under section 512.020 to hear and decide the appeal. Unfortunately, this will not be a short pause.

In order to properly address this issue, it will be necessary to explore the status of the law before the enactment of Rule 74.05(d); consider the development of the case law in our District of this Court since the enactment of Rule 74.05(d); discuss the case law divergence in the Eastern and Western Districts of our Court since 1999; come to some conclusions about the status of the law; and apply those conclusions to the facts of this case.

a) Status of Law Before January 1, 1988 — the Effective Date of Rule 74.05(c), now Rule 74.05(d)

The provisions of current Rule 74.05(d)⁴ were originally adopted as Rule 74.05(c), effective on January 1, 1988. Volvo Fin. North America, Inc. v. Raja, 754 S.W.2d 955, 957 n. 1 (Mo.App. W.D.1988). Rule 74.05 was thereafter amended, effective January 1, 1994, and, among other changes to the Rule, the former subsection (c) was re-designated as subsection (d), but no change was made in the actual language used in the subsection. Cont'l Basketball Ass'n v. Harrisburg Professional Sports, 947 S.W.2d 471, 474 (Mo.App. E.D.1997).

The Court in Volvo noted:

The Missouri Supreme Court has repealed former Rules 74.01-74.78, which include the default judgment rules and adopted in lieu thereof Rules 74.01-74.14 which include new default judgment rules. The new rules became effective January 1, 1988. New Rule 74.05(c) provides that a default judgment may be set aside upon a motion made within a reasonable time not to exceed one year. The thirty day requirement of the old rules has been abolished. Under the old rules a new petition in equity provided the necessary jurisdiction for the trial court to proceed after the expiration of 30 days when the judgment was final.

Id. at 957.

So, before the effective date of the "new" rule, a defaulting party had only thirty days after the entry of a default judgment within which to file a motion to set it aside. This time period corresponded with the provisions of Rule 75.01,⁵ granting the trial court control over judgments for thirty days after entry, and Rule 81.05,⁶ providing, as a general rule, that for purposes of appeal, a judgment becomes final thirty days after its entry.

We observed in Clark v. Brown, 794 S.W.2d 254, 256 (Mo.App. S.D.1990), that before the effective date of the new rule 74.05(c), a substantial body of case law had developed saying that:

[A] motion to set aside a default judgment can properly be considered as an after trial motion in the nature of a motion for new trial and is therefore subject to the time limitations of old Rules 75.01, 78.04 and 78.06. State ex rel. Stoffer v. Moore, 628 S.W.2d 637 (Mo.banc 1982); Gorzel v. Orlamander, 352 S.W.2d 675 (Mo.1961); J & J Window Sales, Inc. v. Mueller, 567 S.W.2d 153 (Mo.App.1978); Murray v. Sanders, 667 S.W.2d 426 (Mo.App.1984); State ex rel. Campbell v. Anderson, 536 S.W.2d 200 (Mo.App.1976).

Clark, 794 S.W.2d at 256.

On the other hand, if a party desired to challenge a default judgment after the expiration of the thirty-day period within which to file a motion to set it aside and after the default judgment had become final, such a challenge required the filing of a petition to initiate an independent suit in equity. Volvo, 754 S.W.2d at 957. It is against this backdrop that our Court first addressed the new rule 74.05(c).

b) Development of Interpretation of Rule 74.05(c), now 74.05(d), by the Southern District as an independent action in all circumstances

In Clark, the first appellate case decided on facts arising after the effective date of the new Rule 74.05(c), plaintiffs obtained a default judgment against defendant on August 17, 1988. Clark, 794 S.W.2d at 255. Eighty-five days later, on November...