Marriage of DeWitt, In re, WD

• Decision Date: 27 May 1997
• Docket Number: No. WD,WD
• Parties: In re the MARRIAGE OF Susan M. DeWITT (Bronson), Appellant, and Eldon L. DeWitt Jr., Respondent. 52784.
• Court: Missouri Court of Appeals

Page 258

946 S.W.2d 258

In re the MARRIAGE OF Susan M. DeWITT (Bronson), Appellant and Eldon L. DeWitt Jr., Respondent.

No. WD 52784.

Missouri Court of Appeals Western District.

May 27, 1997.

Rehearing Denied July 1, 1997.

Connie Boysen Stallings, Laura E. Miller, Kansas City, for appellant.

Michael C. McIntosh, Independence, for respondent.

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

PER CURIAM.

On February 28, 1996, the trial court granted Petitioner-Appellant Susan Bronson's motion for modification of child support, and also entered a judgment of contempt against Respondent Eldon DeWitt for failure to pay back child support. Six weeks later, the court granted Mr. DeWitt's motion for relief from the judgment because of excusable neglect pursuant to Rule 74.06(b). Ms. Bronson appeals. We find that the trial court abused its discretion in granting the motion for relief from judgment because excusable neglect was not shown. Accordingly, we reverse and remand for reinstatement of the modification order and judgment of contempt.

I. FACTUAL BACKGROUND

The marriage of Susan Bronson ("Mother") and Eldon DeWitt ("Father") was dissolved on July 21, 1983. The decree of dissolution granted primary custody of the couple's three children to Mother. Father was ordered to pay $133.33 per month per child for child support. Mother is a Missouri resident. Father now resides in Florida. Because Father has continually refused to pay support since 1983, Mother was required to file motions for contempt in 1983, 1984, 1986, and 1988. On December 9, 1994, due to Father's further failure to pay child support, Mother again filed a motion for contempt. She also filed a motion to modify the decree of dissolution to increase child support. At the time of the motion, Father was delinquent in his support payments by $6,109.37. Father filed a responsive pleading on December 29, 1994.

Mother served her first interrogatories and a request for production of documents on December 12, 1994. She filed a motion to enforce discovery or impose sanctions on May 1, 1995. Father was given until June 12, 1995 to file his discovery responses. Florida counsel for Father contacted the court by letter and explained that Father had been seriously injured in a boating accident in June, 1994, and that Father had not retained Missouri counsel.

A hearing was set for April 24, 1995, but was continued. On the date the hearing had been scheduled, the court sent both counsel a letter stating, "Since the defendant, Mr. Eldon Loren DeWitt, Jr., lives out of state, please contact me immediately so that a special court setting may be arranged."

Neither party contacted the court immediately--or at all--to arrange a special setting. However, counsel for Petitioner did file a motion for discovery sanctions due to Father's failure to respond to discovery. On May 23, 1995, the trial court entered an order which stated that if Father did not file a response to Mother's discovery within 20 days the court would enter an order striking Father's pleadings. During this period, Florida counsel for Father sent a number of letters to the court and to counsel for Mother in which he explained that Father was recovering from surgery and that he would try to respond to discovery but that counsel was not a Missouri lawyer and was not entering an appearance. In fact, no discovery responses were ever filed and no counsel ever entered an appearance for Father.

The court finally set the case for a hearing on February 28, 1996. On February 20, 1996, Florida counsel for Father sent a letter to the courthouse in which he asked that the February 28, 1996 hearing be continued. In support, he stated that Father could not attend the hearing because he did not have the funds to attend the hearing and that he had recently started working and would jeopardize his job by attending. No formal motion for continuance was filed, however, and no attorney entered an appearance for Father. No explanation was given as to why Father had not hired local counsel. In addition, while the letter from Florida counsel suggested that the parties had agreed on repayment without the need for a hearing, counsel for Mother made clear that no such agreement had been made on behalf of Mother.

Accordingly, the hearing was held as scheduled on February 28, 1996 before Judge Owens Hull, Jr., a visiting judge. Neither father nor anyone on his behalf appeared at the hearing. At the end of Mother's testimony, Judge Hull sanctioned father by striking his pleadings for his continued failure to respond to discovery in the nine months since the court's show cause order had been entered.

On March 1, 1996, the trial court entered its order modifying the child support provisions of the dissolution decree, finding a substantial and continuing change in circumstances. Father was ordered to pay support of $1,460.00 per month, retroactive to December 9, 1994, the date that the motion for modification was filed, and was ordered to pay Mother's attorney fees. Further, Mother was allowed to claim the three children as dependents upon her state and federal tax returns and Father was ordered to maintain health insurance coverage on the children. The court found that Father had voluntarily, knowingly, and contumaciously failed to pay support.

On March 27, 1996, Father filed a motion to set aside judgment pursuant to Rule 75.01; a motion to set aside judgment pursuant to Rule 74.05(d); and a motion to vacate pursuant to Rule 74.06(b).

The Honorable J.D. Williamson, Jr. overruled the motions to vacate pursuant to Rule 75.01 and 74.05(d). He sustained Father's motion for relief pursuant to Rule 74.06(b) on the basis of excusable neglect. Mother appeals, arguing that the trial court abused its discretion in sustaining Father's motion. We agree and remand the cause with instructions to reinstate the modification judgment of March 1, 1996 and the judgment of contempt and warrant for commitment of March 1, 1996.

II. STANDARD OF REVIEW

The trial court has broad discretion to grant or deny a motion to vacate a judgment and its decision shall not be reversed unless the record clearly and convincingly proves an abuse of that discretion. Clark v. Clark, 926 S.W.2d 123, 126 (Mo.App.1996). An abuse of discretion is found where the ruling of the trial court is "clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Bowman v. McDonald's Corp., 916 S.W.2d 270, 276 (Mo.App.1995). Where reasonable people may differ about the propriety of the action that was taken by court, no abuse of discretion will be found. State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988).

III. NONE OF THE THREE RULES GOVERNING THE SETTING ASIDE OF JUDGMENTS PROVIDES A BASIS FOR RELIEF

Father moved to set aside the judgment under each of the three Missouri rules governing the setting aside of judgments. Rule 75.01 gives the trial court control over its judgment for 30 days. While Father filed his motion to vacate within 30 days of the judgment, it was not ruled on during that period. Thus, Judge Williamson properly denied relief under that motion.

Father also moved for relief under Rule 74.05(d), which permits a default judgment to be set aside upon a motion stating facts constituting a meritorious defense and for good cause shown. Father recognizes that in Cotleur v. Danziger, 870 S.W.2d 234, 236 (Mo. banc 1994), the Missouri Supreme Court held that where, as here, a party has filed a responsive pleading but then has failed to appear at the hearing on his case, the resulting adverse judgment is a judgment on the merits, not a default judgment. Father argues that this rule should not apply here, however, because his pleadings were stricken as a sanction for his failure to respond to discovery. Therefore, he argues, it became as if he were in default, and Rule 74.05(d) should apply.

Father cites no authority to support his proposed rule, and we find none. To the contrary, we have previously specifically held that

[t]he rendition of judgment which follows the disallowance of a pleading for failure to obey a discovery order does not come by default, in the ordinary sense, but is treated as a judgment upon trial by the court.

In Re Marriage of Dickey, 553 S.W.2d 538, 539 (Mo.App.1977). Accord J.B.C. v. S.H.C., 719 S.W.2d 866, 871 (Mo.App.1986). Public policy requires this result, for adoption of the rule suggested by Father would permit him to obtain a procedural benefit as a result of his failure to respond to discovery. This we will not allow. Whether or not his pleadings were stricken, Father...