Kocsis v. Kocsis

• Decision Date: 17 October 2000
• Citation: 28 S.W.3d 505
• Parties: (Mo.App. E.D. 2000) Stephanie E. Kocsis, Respondent, v. John C. Kocsis, Appellant. ED77443
• Court: Missouri Court of Appeals

28 S.W.3d 505 (Mo.App. E.D. 2000)

Stephanie E. Kocsis, Respondent, v. John C. Kocsis, Appellant.

ED77443

Missouri Court of Appeals Eastern District

10/17/2000

Appeal From: Circuit Court of St. Charles County, Hon. Frank A. Conard

Counsel for Appellant: Michael A. Turken

Counsel for Respondent: Virginia L. Busch

Opinion Summary: John Kocsis(husband) appeals from a default judgment in a dissolution action in favor of Stephanie Kocsis(wife).

Division Four holds: The husband did not show good cause for being in default.The trial court erred in awarding attorney's fees and maintenance but did not err in dividing the marital debt or in ordering the husband's restrictive visitation rights for the three minor children born of the marriage.

Paul J. Simon, Judge

John Kocsis, husband, appeals from a default judgment in a dissolution action in favor of Stephanie Kocsis, wife.Stephanie Kocsis, wife, and John Kocsis, husband, were married on November 4, 1995.Three children were born during the marriage: Kayla on April 23, 1996; Hanna on December 8, 1997; and Gabrielle on July 24, 1999.Gabrielle was born after the parties separated on June 5, 1998.Husband raises two points on appeal.First, that the trial court's refusal to set aside the default judgment was an abuse of its discretion because husband timely filed a motion to set aside and an affidavit showing good cause and a meritorious defense.Second, that the trial court lacked subject matter jurisdiction to enter its orders of maintenance, attorney fees, disproportionate division of debt, and restrictive visitation.We affirm in part and reverse in part.

Wife filed a petition for dissolution of marriage on October 30, 1998, and the Sheriff of Allen County, Indiana, served a summons on husband on November 25, 1998.In her petition, wife requested the primary care, control and custody of the children subject to husband's reasonable rights of temporary custody and visitation.She also requested the trial court to order husband to pay child support, maintain health insurance for the children through his employer, and to contribute to the uninsured medical expenses of the children.She further requested a fair and equitable division of marital property and debt, that each party pay his or her attorney fees, and that the two parties equally divide court costs.She also stated that she was unemployed, and that husband was presently employed.

In the proposed parenting plan attached to the petition, wife also requested primary custody of the two minor children, visitation to husband of one weekend per month, certain holidays and two weeks of summer vacation once the children attain the age of four.The plan also provided that if husband returned to and resided in the St. Louis Metropolitan Area, he would receive visitation on alternating weekends, one evening per week, six weeks during the summer, and more extended holidays.

Husband did not respond to the pleadings.On March 4, 1999, wife filed a motion for temporary maintenance, child support, attorney fees, suit money, and costs pendente lite.Husband did not appear, and the trial court ordered husband to pay $713 per month in child support, awarded wife $300 per month in maintenance, and awarded wife $500 in attorney fees.

On May 4, 1999, wife provided a notice of default hearing for May 28, 1999.The record does not reveal what, if anything, occurred on May 28, 1999.The parties' third child, Gabrielle Kocsis, was born on July 24, 1999.Wife did not amend her petition to reflect the birth of Gabrielle.On August 19, 1999, after written correspondence between wife's attorney and husband, wife appeared before the trial court, represented that the cause had been settled, and requested that it be continued to the affidavit docket on August 30, 1999.On August 30, the case was called and set for trial on December 4, 1999.

In the month of October, 1999, wife filed a notice of default hearing for October 18, 1999, then two amended notices of default hearing, the first for October 25, 1999 and the second for November 4, 1999.On November 4, 1999, the hearing was held, but husband did not appear.The trial court entered a default judgment in favor of wife.

The trial court found that it had jurisdiction over the case and that there were three minor children born of the marriage.It accepted the Form 14 submitted by wife.It further ordered husband to pay $1,422.57 per month in child support and one dollar per month in maintenance.It found that there was no marital property but ordered husband to pay a list of marital debts.The trial court also ordered that the parenting plan filed by wife become the order of the court and that husband pay wife's attorney fees.

The parenting plan incorporated into the trial court's order differed from the one attached to wife's petition in that it provided only for husband to have visitation rights with Kayla.Visitation with the two youngest children would be by agreement of the parties"due to the fact that [husband] has had very limited contact with Hanna Kocsis since the date of the separation and two hours of contact with the youngest child, Gabrielle Kocsis."As of November 4, 1999, husband had seen Hannah three times in the previous two years and spent about two hours with Gabrielle.His contact with Kayla was somewhat more extensive.

On December 3, 1999, husband filed a motion to set aside the default decree and an accompanying affidavit.To show good cause, the motion stated that the procedural history of the case was difficult for husband to follow.To show a meritorious defense, the motion stated that the awards of maintenance and attorney fees were not requested in wife's petition, that the parenting plan submitted by wife did not provide for the best interests of the children, and that the Form 14 submitted by wife did not accurately reflect the parties' gross income and expenses.On January 11, 2000, husband filed a motion for new trial.After a hearing, the motion to set aside and the motion for new trial were denied on January 27, 2000.

In his first point on appeal, husband contends that the trial court abused its discretion in refusing to set aside the default judgment

Rule 74.05 provides that "[u]pon 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....Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process."The decision to set aside a default judgment lies within the trial court's discretion, and its decision will not be overturned unless the record indicates an abuse of that discretion.Yerkes v. Asberry, 938 S.W.2d 307, 309(Mo.App. E.D.1997).Because courts favor a trial on the merits, discretion not to set aside a default judgment is narrower than discretion to set...