Reed v. Reed

• Court: Missouri Court of Appeals
• Writing for the Court: Joseph M. Ellis
• Citation: Reed v. Reed, 48 S.W.3d 634 (Mo. App. 2001)
• Decision Date: 19 June 2001
• Parties: (Mo.App. S.D. 2001) Mary Reed, Appellant, v. Robert Reed, Respondent. WD58707 0

48 S.W.3d 634 (Mo.App. S.D. 2001)

Mary Reed, Appellant, v. Robert Reed, Respondent.

WD58707

Missouri Court of Appeals Western District

06/19/2001

Appeal From: Circuit Court of Platte County, Hon. Daniel M. Czamanske

Counsel for Appellant: Lyle L. Odo

Counsel for Respondent: Peter J. Koppe

Opinion Summary: Appellant Mary Jane Reed appeals the trial court's order granting Respondent Robert Reed's Motion to Vacate Default Judgment pursuant to Rule 74.05(d).

REVERSED and REMANDED.

Division I holds: (1) Respondent sufficiently plead "good cause" under Rule 74.05 for failing to file a responsive pleading to warrant an evidentiary hearing where Respondent alleged that the depression resulting from his wife filing for divorce was so severe it impaired his ability to understand the nature of the proceedings against him.

(2) Respondent sufficiently plead a "meritorious defense" to Appellant's petition under Rule 74.05 to warrant an evidentiary hearing where Respondent challenged the amounts reflected on Appellant's Form 14 related to Respondent's salary, the cost of health insurance, and the daycare expenses paid by Appellant.

(3) The trial court had no basis for granting Respondent's motion to set aside the default judgment where Respondent's motion was not verified, Respondent did not present any affidavits or sworn testimony in support of his motion, and the trial court did not conduct an evidentiary hearing to allow Respondent the opportunity to present testimony or other evidence in support of the pleadings contained in his motion.

Lowenstein and Howard, JJ., concur.

Joseph M. Ellis, Judge

Appellant Mary Jane Reed appeals from an order entered in the Circuit Court of Platte County granting Respondent Robert Reed's Motion to Vacate Default Judgment pursuant to Rule 74.05(d).

On February 26, 1999, Appellant filed a petition for the dissolution of her marriage to Respondent. Respondent was personally served with that petition on March 7, 1999, but never filed a responsive pleading.

On January 26, 2000, Appellant scheduled a default hearing with the Circuit Court for February 10, 2000. On February 10, 2000, Appellant's attorney cancelled that hearing.

On February 14, 2000, Appellant filed her First Amended Petition for Dissolution of Marriage. Respondent was personally served with that petition that same day. Respondent again failed to file an answer or any other form of responsive pleading.

On March 16, 2000, the Circuit Court conducted a hearing and entered a Default Judgment of Dissolution of Marriage. The Court awarded sole custody of the couple's three children to Appellant and granted Respondent visitation rights. In addition, after finding that the presumed amount of child support reflected in Appellant's Form 14 ($1,525.00 per month) was unjust and unreasonable due to high living expenses and childcare costs, the Court ordered Respondent to pay $1,830.00 per month in child support. The Court also awarded Appellant $2,000.00 in attorney's fees.

On March 17, 2000, the Circuit Court mailed a certified copy of the judgment to Respondent via certified mail. On March 20, 2000, Respondent received the judgment in the mail and signed the return receipt. On March 24, 2000, the Circuit Court amended its judgment to provide that Respondent's wages and other income would be subject to withholding if he became delinquent in his child support payments.

On April 20, 2000, Appellant filed an Application for Income Assignment with the Circuit Court alleging that Respondent had failed to pay any child support since the judgment had been entered. Appellant requested that the Court order Respondent's employer to withhold an appropriate amount from Respondent's wages to remedy his arrearage.

On April 25, 2000, the Circuit Court entered its Judgment Ordering Income/Wage Assignment in which it ordered Respondent's employer to withhold $2,745.00 per month (his current monthly obligation and 50% of one month's delinquency) until Respondent's delinquency was paid in full. This judgment was served upon Respondent's employer on April 27, 2000.

On May 9, 2000, Respondent filed a motion to set aside the default judgment and to allow him to answer Appellant's petition out of time. In that motion, Respondent alleged that withholding $2,745.00 from his $3,600 monthly income would not leave him enough to support himself. Respondent also claimed "[t]hat the judgment was patently unfair to Respondent." Respondent further alleged that he had "good cause" for not filing an answer to Appellant's petition because Respondent did not want to dissolve his marriage and had become "despondent and depressed" since Appellant began the proceedings. Respondent claimed that his ability to understand the nature of the proceedings was impaired by his depression over his failing marriage. He also claimed that he did not know that his wife could proceed against him without further notice.

On May 18, 2000, counsel for both parties argued the motion before the Circuit Court. Counsel for Respondent claimed that her client was "emotionally distraught" when he received Appellant's amended petition and "unfortunately did not respond in thirty days." With regard to a meritorious defense to Appellant's petition, counsel argued that the amounts listed on Appellant's Form 14 were likely incorrect with respect to childcare costs and the cost of health insurance for the children. Counsel's argument also indicated that the salary amount for Respondent reflected on Appellant's Form 14 was higher than his actual monthly salary. Counsel further argued that it was unfair for the trial court to have ordered Respondent to pay over half of his gross income toward child support and that her client was not left sufficient money to cover his own living expenses.

Counsel for Appellant then pointed out to the court that Respondent's motion to set aside the default judgment was not verified and that Respondent had not presented any evidence to the court to support his motion. Counsel argued that Respondent had failed to include sufficient pleadings in his motion to warrant an evidentiary hearing, but that if the pleadings were sufficient, an evidentiary hearing would be required in order for the Court to have any evidence on which to render a judgment. Counsel asserted that the Court could not set aside the judgment based solely on the unverified pleadings and unsupported arguments of Respondent's counsel. Counsel contended that Respondent had failed to establish good cause for failing to file an answer merely based on unsupported claims that Respondent was depressed about the divorce. Counsel also claimed that Respondent had failed to show that he had a meritorious defense to Appellant's petition as required under Rule 74.05(d). Later that day, Appellant filed her motion in opposition to setting aside the default judgment, further elaborating on the arguments set forth at the hearing.

On May 22, 2000, the Circuit Court entered its order setting aside the default judgment for "good cause shown." The Circuit Court subsequently certified the matter for appeal. Appellant brings four points on appeal.

When reviewing the circuit court's decision on a motion to set aside a default judgment, we will affirm the circuit court's decision unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Young v. Safe-Ride Servs., 23 S.W.3d 730, 732 (Mo. App. W.D. 2000). "The setting aside of a judgment is traditionally within the discretion of the trial court, and that ruling will not be interfered with in the absence of an abuse of discretion." Meramec Valley Bank v. Joel Bianco Kawasaki Plus, Inc., 14 S.W.3d 684, 689 (Mo. App. E.D. 2000). Moreover, because of the law's distaste for default judgments, the circuit court is allowed greater discretion in granting a motion to set aside a default judgment than it is in denying such a motion. Id.; Billingsley v. Ford Motor Co., 939 S.W.2d 493, 498 (Mo. App. S.D. 1997). "This discretion is even more restrictive in divorce actions," because "[i]n a divorce case, there is practically no such thing as a divorce decree by confession and courts disfavor 'default judgments' in dissolution of marriage cases because of the state's interest in the welfare of the parties.'" Bell v. Bell, 849 S.W.2d 194, 198 (Mo. App. W.D. 1993) (quoting Moseley v. Moseley, 744 S.W.2d 874, 878 (Mo. App. S.D. 1988)).

In the case at bar, the circuit court granted Respondent's motion under Rule 74.05. "Rule 74.05 allows the court to set aside a default judgment 'within a reasonable time not to exceed one year after the entry of the default judgment,' and upon a showing of a meritorious defense and for good cause." Young, 23 S.W.3d at 732 (quoting Rule 74.05). "Under this rule, a party to a dissolution case who seeks to have a default judgment therein set aside must do two things: First, the moving party must satisfy the pleading requirements of Rule 74.05(d), and, second, such party must show 'good cause' for setting aside the dissolution judgment at an evidentiary hearing." Tyree v. Tyree, 978 S.W.2d 846, 849 (Mo. App. S.D. 1998). The party filing the motion to set aside a default judgment must plead and then demonstrate both that he had good cause for not filing a responsive pleading and that he had a meritorious defense to the plaintiff's petition. Crain v. Crain, 19 S.W.3d 170, 174 (Mo. App. W.D. 2000).

In three of her four points, Appellant argues that Respondent's pleadings were insufficient to support his motion under Rule 74.05(d) and that the motion should have been denied without an evidentiary hearing. "Entitlement to an evidentiary hearing on a motion to set aside a default judgment depends on meeting the pleading requirements of Rule 74.05." Stradford v. Caudillo, 972 S.W.2d 483, 485 (Mo. App. W.D. 1998). "Under the explicit terms of Rule 74.05(d), a motion to set...