State Dept. of Social Services v. Stone
| Decision Date | 26 February 2002 |
| Docket Number | No. WD 58993.,WD 58993. |
| Citation | 71 S.W.3d 643 |
| Parties | STATE of Missouri ex rel. DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, et al, Appellant, v. Larry Don STONE, Respondent. |
| Court | Missouri Court of Appeals |
Kerry G. Rowden, Esq., Tuscumbia, for Respondent.
Christopher Michael Rohrer, Camdenton, for Appellant.
Before HARDWICK, P.J., TURNAGE, Sr. J., and MORAN, Sr. J.
The Missouri Department of Social Services Division of Child Support Enforcement appeals the trial court's order setting aside a default judgment of paternity and child support entered against Larry Don Stone. We reverse and remand for reinstatement of the default judgment.
On December 22, 1996, the Missouri Department of Social Services Division of Child Support Enforcement (DCSE) filed a paternity suit against Larry Don Stone in the Circuit Court of Miller County, Missouri. The suit was filed on behalf of Kayla McCreery, a minor child, and her mother, Susan McCreery. On August 22, 1996, the clerk of Miller County issued a summons for personal service on Stone in Miller County. The summons was returned non-est, indicating that Stone no longer resided in Miller County. On August 5, 1997, the clerk issued an alias summons for personal service on Stone in Cole County. On August 6, 1997, Deputy Eric Payne returned the summons, indicating it was personally served on Stone at 13105 Jefferson in Russellville, Missouri, in Cole County.
Stone did not file responsive pleadings or enter his appearance in the paternity action. On September 17, 1997, DCSE filed a motion for default judgment. The court heard evidence on the motion and concluded that Stone was Kayla's biological father. By default judgment entered October 21, 1997, Stone was ordered to pay child support for Kayla in the amount of $204.00 per month and a lump sum amount of $5,712.00 to reimburse the State of Missouri for funds paid to the child's mother.
On May 9, 2000, more than two-and-half years later, Stone filed a motion to set aside the default judgment. He claimed the trial court did not have personal jurisdiction to enter the default judgment because he never received service of process. Stone alleged he was unaware of any paternity proceedings in Miller County until he was picked up on an outstanding warrant for failure to pay child support.
On July 18, 2000, the court held a hearing on the motion to set aside. Stone testified at the hearing that he never resided at 13105 Jefferson in Russellville, Missouri, where the summons was served. He said he resided in Sunrise Beach, Missouri, in Morgan County, during the period of February 1977 through October 1997. Stoned denied he was ever served with process by Deputy Payne.
Members of Stone's family testified on his behalf at the hearing. His mother, Judy Stone, said Stone lived in Sunrise Beach as of May 1997, but might have "moved to another place" thereafter. Stone's brother and sister-in-law, James and Elizabeth Stone, testified that they lived at the Russellville, Missouri, address where the summons was allegedly served. Elizabeth testified that Stone did not reside at their home, but he visited and may have stayed overnight once or twice in 1997. James testified that Elizabeth's brother, Bruce McMillin—whom he described as a "drug addict ... diagnosed as paranoid schizophrenic and bipolar"—lived with them at the Russellville address from April 1997 through December 1997. During closing arguments, Stone's counsel suggested McMillin "may well have accepted service on behalf of Mr. Stone."
Deputy Eric Payne, who served the summons in August 1997, also testified at the motion hearing. He served process on approximately "16,000 papers" in 1997 and did not specifically recall serving Stone. Deputy Payne wrote on the return that he served it on "Larry Don Stone in person." He testified that he "wouldn't have marked it that way if [he] had not done it."
At the close of the evidence and argument, the trial judge granted the motion to set aside the default judgment and made the following comments:
Let the Court say my judgment may be colored somewhat by the fact that we have just had arise within the last week in this county a situation where an officer served papers on an individual who identified himself as the defendant. And it so happened that the officer had the occasion to arrest, the next week, the so-called defendant, and he says, gee, you're not the guy I served that said he was you.
So the Court is aware that people do sometimes claim to be who they are not even if they're about to be served papers. What the motivation is the Court can only speculate. Possibly it's they think they're better off to announce that they are someone they're not rather than to have to tell the law enforcement officer who they are. I don't know. I can only guess. But this officer could not identify Mr. Stone as the person he served, nor could he identify Mr. McMillin, I believe it was, as the person he served.
And I realize that's something that may be impossible to do, but I think that the—I think this is more and more a problem that law enforcement is going to have to address and attempt to do a better job of identifying the people they are serving. I see it as a flawed procedure at present.
And to some degree, I suppose that— I mean, I recognize your argument, Mr. Rohrer, that this Respondent does have motive to be untruthful to the Court, but I think if there's any question, I think it better to err on the side of fairness. And the Court believes that this Respondent should have his hearing if that's what he wants.
DCSE appeals the trial court's order setting aside the default judgment.
DCSE's sole point on appeal is that the trial court erred in setting aside the default judgment because Stone failed to present clear and convincing evidence that he was not personally served. We review the court's ruling for an abuse of discretion. Brants v. Foster, 926 S.W.2d 534, 535 (Mo.App. W.D.1996). A trial court does not abuse its discretion in setting aside a default judgment unless its ruling was clearly against the logic of the circumstances and was so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Gering v. Walcott, 975 S.W.2d 496, 499-500 (Mo.App. W.D.1...
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