Marriage of Bradford, In re

Decision Date25 October 1977
Docket NumberNo. 10413,10413
Citation557 S.W.2d 720
PartiesIn re the MARRIAGE OF Stephen C. BRADFORD, Petitioner-Respondent, and Carolynn C. Bradford, Respondent-Appellant.
CourtMissouri Court of Appeals

Raymond H. Vogel, Vogel, Frye & O'Loughlin, Cape Girardeau, for respondent-appellant.

Arthur T. Stephenson, Caruthersville, for petitioner-respondent.

Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.

HOGAN, Judge.

In this dissolution of marriage action, respondent Carolynn C. Bradford appeals from the refusal of the trial court to set aside the provisions of a default decree apportioning marital property and awarding custody of the parties' minor child.

Petitioner and respondent were married February 7, 1970, at Hammond, in Tangipahoa Parish, Louisiana. They separated on August 23, 1975. On August 25 this action was commenced in the Circuit Court of Pemiscot County. On the same day, respondent instituted an action for separation from bed and board in the District Court for Tangipahoa Parish, in Louisiana. Both courts have rendered judgments.

In the Missouri action, the respondent was personally served outside the state. At our request, the Clerk of the Circuit Court of Pemiscot County has furnished us a copy of the summons. We shall comment further concerning the sufficiency of service. The Missouri summons was served on September 12, 1975. There is no record indication that the petitioner was ever served by the Louisiana court, but on October 8, 1975, that court entered a judgment in favor of the respondent: (a) decreeing a separation from bed and board; (b) awarding the care and custody of the parties' minor child to respondent, and (c) dissolving the community of acquests and gains existing between the parties. 1

No responsive pleading whatever was filed in the Missouri proceeding. On April 6, 1976, at the petitioner's request and after notice to the respondent, the cause was called for hearing. For the first time, counsel appeared for the respondent. He advised the court that no pleading or motion had been filed in the Missouri proceeding because (1) the venue of the action was improperly laid, and (2) respondent's Louisiana attorney had been led to believe that the effect of § 452.320, para. 1, RSMo Supp. 1975, 2 was to provide for a first, interlocutory hearing of which respondent would receive notice and that upon being notified, respondent could then file pleadings and frame issues concerning the apportionment of marital property and the custody of the child. Counsel asked for a hearing on the question of venue and for a continuance; both requests were denied; a hearing was held upon the petition for dissolution. The evidence heard need not be set forth in detail at this point. At the conclusion of the hearing, the Circuit Court of Pemiscot County entered a judgment reciting petitioner's appearance in person, respondent's appearance for the purpose of contesting venue and jurisdiction and for the purpose of requesting a continuance. The court further found that the petitioner had been a resident of this state for more than 90 days; that more than 30 days had elapsed since the respondent was served and respondent was in default. The court found the marriage to be irretrievably broken and that one child was born of the marriage. The child was found to be in respondent's custody. The court also found that the respondent was not pregnant. It was accordingly ordered and decreed: (1) that the marriage be dissolved; (2) that custody of the parties' minor child be awarded to the respondent for ten months each year and that petitioner have custody for two months each summer. Petitioner was ordered to pay respondent the sum of $100 per month during the time respondent had custody of the child. The trial court also made a general order apportioning the marital property. The notice provided for in § 452.320, para. 1, RSMo Supp. 1975 was ordered mailed.

Respondent filed two after-trial motions. The first of these motions was filed April 16, and was styled "Objection to Entry of Order of Dissolution of Marriage." The second motion was filed May 4 and was entitled "Motion to Set Aside Judgment." The assignments of error are much the same in both motions. Condensed and summarized, the allegations of error in both motions were: (1) that the venue of the action was improperly laid because the parties' marital domicile was in Cole County, not Pemiscot County; (2) that the Circuit Court of Pemiscot County was without jurisdiction because the Louisiana court had jurisdiction of the respondent and had entered a decree prior to April 6; (3) that the respondent would have appeared and filed pleadings but for her counsel's mistake of law; (4) that the trial court granted relief in excess of that prayed in the petition; (5) that respondent had a good defense because petitioner had substantial property and earnings not disclosed to the trial court. A hearing was held on both motions on June 15, 1976. The respondent offered two affidavits and an authenticated copy of the Louisiana judgment in evidence, and some testimony was heard. On June 18, the trial court denied respondent's motion and this appeal followed.

A word concerning the posture of the cause on appeal seems appropriate. The motion filed April 16, 1976, seems to have been intended as a petition for review as authorized by Rule 74.15. 3 We assume the second motion was filed because such a petition does not lie if the defendant has been personally served with process. Zbryk v. B. F. Goodrich Company, 344 S.W.2d 138, 140(1) (Mo.App.1961). Whatever counsel's reasons for filing the second, duplicative motion, we might regard the first motion as a motion for new trial, Gorzel v. Orlamander, 352 S.W.2d 675, 677-678 (Mo.1962), but as just noted, the "Motion to Set Aside" duplicates and to some extent expands the allegations of error set out in the first motion, and sets up both matters which appear on the face of the record and matters dehors the record as grounds to set aside the default. We are aware that there is a distinction between a motion to set aside a judgment for irregularity under Rule 74.32 and a motion in the nature of a writ of error coram nobis; 4 it is nevertheless possible to combine a motion to vacate for irregularity and a motion in the nature of a writ of error coram nobis and to present irregularities patent upon the record and error dehors the record in one proceeding. Murray v. United Zinc Smelting Corp., 263 S.W.2d 351, 354 (Mo.1954); Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 1180-1181, 111 S.W.2d 103, 106(1-4) (5) (Mo.1937). When such a combined motion is filed and proof is heard, the motion to set aside or to vacate constitutes a new and independent proceeding commenced by motion, and the order entered by the court is itself an appealable order. In re Jackson's Will, 291 S.W.2d 214, 219-220(6) (7, 8) (Mo.App.1956). We accordingly regard the ruling on the motion to set aside as the judgment appealed from.

The respondent's first assignment of error, as briefed, is that "the court erred in refusing to set aside the default judgment, because it is the policy of the court, especially in divorce or dissolution cases, that causes should be tried on their merits, where such setting aside would result in no detriment or prejudice." This point is not developed in the "Argument" part of the brief, and we will not pursue it as an abstraction. Bopp v. Spainhower, 519 S.W.2d 281, 286(7) (Mo. banc 1975); State v. Schulten, 529 S.W.2d 432, 434(4) (Mo.App.1975).

Another point, strenuously and repeatedly advanced by the respondent, is that the default should be set aside because the petitioner's Missouri counsel advised respondent's Louisiana attorney that under the provisions of § 452.320, para. 1, RSMo Supp. 1975, respondent would have ten days to file objections to any part of the judgment with which she disagreed. The respondent assumes that counsel for the petitioner held an erroneous view of the law, and she is correct in that assumption. In State ex rel. Nilges v. Rush, 532 S.W.2d 857 (Mo.App.1975), a mandamus action, the court pointed out that one purpose of the Uniform Marriage and Divorce Act, 9 U.L.A. §§ 301-316 (Master ed.1973) from which our Dissolution of Marriage Act, §§ 452.250-452.415 RSMo Supp. 1975, is taken, was to abolish interlocutory decrees in those states which have them, and suggested that in any event, the rules governing civil actions would prevail over apparently contradictory provisions in the Act because of the specific language of § 452.300(1), RSMo Supp. 1975. 5 See State ex rel Nilges v. Rush, supra, 532 S.W.2d at 859(1-3). In Brand v. Brand, 534 S.W.2d 628, 631(3) (Mo.App.1976), the court went further and held that the ten-day notice was not jurisdictional and that a party's failure to receive such notice in no way attenuated the trial court's authority to enter an order of dissolution. Manifestly, petitioner's counsel had an erroneous view of the law, and there is no doubt that he communicated that view to the Louisiana attorney who represented the respondent.

It is important in this case that respondent makes no allegation of fraud in the procurement of the judgment. Indeed, she carefully points out in her brief that she makes "no allegation" that Mr. Stephenson intentionally misled her Louisiana counsel. Neither is there any record indication that, as in J. R. Watkins Company v. Hubbard, 343 S.W.2d 189 (Mo.App.1961), and other cases cited by the respondent, petitioner's counsel obtained the default judgment in violation of an agreement not to do so; again, the record clearly shows the contrary is true. Further, although our Dissolution of Marriage Act is a species of "no fault" legislation, it is important to note that respondent made no showing of any meritorious defense to those parts of the judgment to which she now objects. There is a bare allegation that the petitioner "has substantial...

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