Magee v. Magee

• Decision Date: 18 July 1995
• Docket Number: No. WD,WD
• Citation: Magee v. Magee, 904 S.W.2d 514 (Mo. App. 1995)
• Parties: Vickie L. MAGEE, Appellant, v. Dennis R. MAGEE, Respondent. 49932.
• Court: Missouri Court of Appeals

Page 514

904 S.W.2d 514

Vickie L. MAGEE, Appellant, v. Dennis R. MAGEE, Respondent.

No. WD 49932.

Missouri Court of Appeals,

Western District.

July 18, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 29, 1995.

Richard T. Brewster, Jr., Brewster & Brewster, Kansas City, for appellant.

Aunna L. Peoples, Kansas City, for respondent.

Before KENNEDY, P.J., and SMART and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 5, 1993, Dennis Magee, an Illinois resident, filed a pro se Motion for Termination of Child Support, alleging that his daughter, Azure Mae Magee, was eighteen years old, was not enrolled in or attending a secondary school program of instruction and was not enrolled in or attending an institution of vocational or higher education.

Vickie Magee filed an Answer and Cross-Motion for Modification and Enforcement of Child Support and Maintenance in Gross Orders. Ms. Magee's Answer alleged that Mr. Magee acted in bad faith in filing the Motion to Terminate because he had been fully informed that his daughter was enrolled in a vocational school. Ms. Magee sought an award of her costs and attorney fees incurred in defending the motion to terminate child support.

In her Cross-Motion, Ms. Magee also sought modification of the Dissolution Decree to include notice provisions permitted by Missouri statute regarding wage withholding; a determination of the amount of maintenance and interest thereon due and owing to date; a determination of the amount of child support and interest thereon due and owing to date; and an award of her costs and attorney fees incurred in bringing the Cross-Motion. Mr. Magee was served with a copy of both the Answer and Cross-Motion by mail on September 30, 1993.

Mr. Magee did not file an Answer or other pleading responsive to Ms. Magee's Cross-Motion. He also failed to appear at a Docket Call in Independence on April 7, 1994, at which time the court set both the Motion to Terminate and the Cross-Motion for trial on Monday, June 20, 1994, at 9:30 a.m. in Independence. Notice of the trial date and location was mailed to Mr. Magee in Illinois on April 19, 1994.

Sometime prior to the June 20, 1994 trial date, Mr. Magee contacted his Illinois attorney. As a result of this conversation, Mr. Magee apparently understood that Illinois counsel would contact a local Missouri attorney to appear at the June 20, 1994 trial, while Illinois counsel thought Mr. Magee would contact Missouri counsel for this purpose. Because of this mutual misunderstanding, neither Mr. Magee nor Illinois counsel in fact contacted Missouri counsel or forwarded suit papers to Missouri counsel for some time. The mistake was discovered and Missouri counsel Aunna L. Peoples was hired to represent Mr. Magee. She was sent the suit papers late in the day on Friday, June 17, 1994, the last workday before the Monday, June 20, 1994 trial setting.

Ms. Peoples states that due to the timing of her receipt of the suit papers, she was unable to contact Ms. Magee's attorney or file an entry of appearance prior to the June 20, 1994 trial. Moreover, she explains that she was already scheduled to appear in another case set to be heard on the morning of Monday, June 20, 1994. She therefore was not able to arrive at the Independence courthouse in time to attend the 9:30 a.m. hearing.

Ms. Peoples had not called the court to inform it of the conflict in her schedule or to request a delay in the trial, nor had she contacted opposing counsel for that purpose. Counsel for Ms. Magee did appear at the June 20, 1994 hearing. Both the court and counsel for Ms. Magee believed that Mr. Magee had chosen not to appear in person or by counsel. The court therefore permitted Ms. Magee to offer evidence with regard to both Mr. Magee's Motion and Ms. Magee's Cross-Motion, and then entered an order at the hearing denying Mr. Magee's motion to terminate child support and granting Ms. Magee's motion to modify child support and for enforcement of maintenance in gross in accordance with Ms. Magee's testimony and her pleadings.

Very shortly after the conclusion of the hearing, while Ms. Magee's counsel was still in the process of obtaining conformed copies of the judge's order, Mr. Magee's attorney, Ms. Peoples, appeared in the Clerk's Office. She explained the reason for her non-appearance at the hearing to counsel for Ms. Magee, but Ms. Magee's attorney declined Ms. Peoples' request at that time to set aside the order by agreement.

On June 29, 1994, Mr. Magee filed a Motion to Set Aside Default Judgment and to Allow Answer Out of Time. The motion and suggestions set out the course of events recited above, and argued that the confusion as to obtaining an attorney to represent Mr. Magee at the hearing constituted good cause to set aside the default judgment.

Mr. Magee also stated in his motion and again in his supporting suggestions that he had a meritorious defense to the motion to modify child support and maintenance. Ms. Peoples also filed an affidavit in support of the motion. The affidavit itself contained no facts, but simply stated that the facts set forth in the motion were true to the best of Ms. Peoples' knowledge and belief. However, neither the motion nor the suggestions set forth a single fact explaining what allegations constituted Mr. Magee's meritorious defense.

Attached to the motion was a proposed, unverified Answer. The Answer admitted to two specific facts alleged in the Cross-Motion and denied each other allegation, including the allegations that child support and maintenance were due and owing. The Answer also alleged that Mr. Magee was paying child support by wage withholding. It set forth no other facts in support of the denials.

On July 18, 1994, the trial judge entered an order which stated that, after reviewing the court file, Mr. Magee's motion and the supporting and opposing suggestions, the judge found that "cause does exist" to set aside the entry of default judgment. The judge set aside the default judgment, granted Mr. Magee leave to file an answer out of time, and accepted Mr. Magee's Answer to Petitioner's Cross-Motion previously filed with the court.

Ms. Magee appeals the order setting aside the default judgment. We reverse and remand with directions to reinstate the default judgment in favor of Ms. Magee.

II. THE TRIAL COURT ERRED IN SETTING ASIDE THE DEFAULT JUDGMENT AS TO THE ISSUES RAISED IN THE CROSS-MOTION.

Ms. Magee argues that the trial court erred in setting aside the June 20, 1994 default judgment because Mr. Magee failed to meet the requirements of Rule 74.05(d) governing when default judgments may be set aside. Rule 74.05(d) states:

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.

We find that the trial court was within its discretion in holding that Mr. Magee satisfied the portion of the rule requiring him to show good cause why the default judgment should be set aside, but that the evidence does not support a finding that Mr. Magee had satisfied the portion of the rule requiring his motion to set forth facts constituting a meritorious defense. ¹

A. Mr. Magee Showed Good Cause To Set Aside the Default Judgment.

Motions to set aside default judgments are governed by Rule 74.05(d), which provides that a default judgment may be set aside "[u]pon motion stating facts constituting a meritorious defense and for good cause shown.... Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process." Rule 74.05(d).

The trial court has the discretion to set aside a default judgment and the trial court's decision in that regard will generally not be interfered with unless the record convincingly indicates an abuse of discretion. Jeffries v. Jeffries, 840 S.W.2d 291, 293 (Mo.App.1992); Gibson v. Elley, 778 S.W.2d 851, 852 (Mo.App.1989).

Mr. Magee alleges that his attorney failed to appear at the June 20 trial because of a misunderstanding between Mr. Magee and his Illinois attorney as to who would contact Missouri counsel. A similar misunderstanding was found to be "good cause" in Bell v. Bell, 849 S.W.2d 194 (Mo.App.1993). In Bell, Wife filed for divorce in Wisconsin and Husband filed for divorce in Missouri. A default judgment was entered in the Missouri action because Wife had not filed an answer to Husband's petition. Wife filed a motion to set aside the default judgment. Evidence revealed that Wife's Wisconsin attorney wrote to Missouri counsel asking that Missouri counsel attempt to obtain dismissal of the Missouri action. The letter arrived in Missouri counsel's office while she was on vacation. In the meantime, the secretary for Missouri counsel talked by telephone with the Wisconsin attorney and mistakenly understood the Wisconsin attorney would attempt to get Husband's attorney to voluntarily dismiss the Missouri action. Therefore, the secretary waited and heard nothing further until she checked with the court and found that a default judgment had been entered. She then informed Missouri counsel, who promptly moved to set aside the default, thirteen days after the default was entered. The appellate court found that the record showed the Wife made a showing of "good cause."

Likewise, in this case, Mr. Magee mistakenly understood that...