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August 9, 1983


From the Circuit Court of Platte County; Civil Appeal; Judge Owens Lee Hull, Jr.

Motion for Rehearing Overruled, Transfer Denied September 27, 1983. Application Denied November 22, 1983.

Before Clark, P.j., Dixon, Nugent, JJ.

The opinion of the court was delivered by: Clark

This cause and the present appeal are indirectly attributable to a default dissolution of marriage decree entered on the petition of appellant wife September 3, 1981. Following entry of the decree, respondent husband pursued various means to set aside the judgment and ultimately filed a pleading titled "Respondent's Petition In Equity Requesting Setting Aside Default Judgment." After taking evidence, the court entered judgment setting aside the judgment of September 3, 1981 and the wife appeals. Reversed.

The record in this case is a morass of procedural confusion, one ingredient of which is the apparent failure of the trial court to designate and treat the suit in equity, from which this appeal is taken, as a separate case distinguishable from the marriage dissolution action. We therefore note at the outset that the cause filed by respondent husband is not an appendage to the dissolution case filed but is a separate action in equity concluded by a judgment. We review here the Disposition of the equitable suit alone and express no opinion on the merits of past or pending proceedings in the marriage dissolution case itself. No appeal has been sought in that case. That record, however, has been included in the documentation of this appeal and we notice those proceedings only for the factual content.

The record in the dissolution of marriage case commences with the wife's petition which was filed July 22, 1981. Personal service on the husband was accomplished July 27, 1981. No answer was filed by the husband and on September 3, 1981, the case was heard on the wife's evidence and the decree was entered. The husband acknowledges being informed about the decree by September 8, 1981.

The husband took no action in the case until September 21, 1981 when he filed the first of a succession of motions seeking to void the decree. In general, the motions alleged substantially the same grounds, and that he had not resisted the dissolution action by the persuasion of the wife to leave the details to her. He further asserted that the wife took unfair advantage of his acquiescence to procure for herself an unreasonable share of the marital assets and an unjust award of maintenance.

This first motion to set aside the judgment was heard October 15, 1981 and on October 28, 1981, the court entered its order overruling the motion. No appeal from that order was taken but the husband filed successive motions January 21, 1982, May 6, 1982, June 17, 1982 and July 12, 1982, claiming the same grounds and asking the same relief. So far as this record discloses, none of those motions was ever called up for Disposition and they presumably pend as of this date.

The present suit in equity, the subject of this appeal, was filed July 30, 1982 and a return of service was made on the wife August 5, 1982. With some factual embellishment, the petition restated the allegations originally made in the first motion filed in September, 1981 contending that the husband had not appeared when the dissolution case first was heard because of fraud practiced by the wife.

Although associate circuit Judges have no general jurisdiction in equity matters, this case was assigned to Associate Circuit Judge Owens Lee Hull, Jr. in apparent conformity with a local court rule governing assignment of domestic relations cases. *fn1 Judge Hull had heard the original dissolution action as a default case and had ruled the husband's first post-trial motion. After hearing the evidence in this case, Judge Hull ordered the judgment in the marriage dissolution case vacated and the wife appeals.

Before proceeding to the merits of the wife's points, it is appropriate to note that the judgment entered in the equity action erroneously exceeded the relief sought. In his petition, the husband raised no claim that the marriage was not irretrievably broken. He complained only of the property Disposition and the allowance for maintenance. The judgment, however, nullified the entire decree thereby reconstituting the marriage relation. A decree dissolving a marriage is a severable aspect of the judgment in any dissolution case, affecting as it does the prospect of remarriage. Section 452.360, RSMo 1978. Irrespective of other issues, the trial court erred when it ordered the judgment dissolving the marriage vacated when no contest over that question had been presented.

In her first point, the wife contends the husband should have been denied relief on his suit in equity because he had previously litigated the same issue in his post-trial motion to set aside the decree and Disposition of that motion judicially concluded the dispute. We agree and because subsequent points raised by the wife thereby become irrelevant, they are not discussed.

As has already been described, the motion filed by the husband in the dissolution of marriage case 18 days after entry of the judgment asserted the ground of fraud practiced by the wife in causing the husband not to appear or secure an attorney to protect his interests. That motion was heard, the relief was denied and no appeal was taken. The subsequent petition in this case, although in different form was, of course, between the same parties, it asserted the same claim and sought the same relief. The court pointed out in Landes v. City of Kansas City, 635 S.W.2d 87 (Mo. App. 1982), quoting from Jackson v. Hartford Accident and Indemnity Company, 484 S.W.2d 315, 321 (Mo. 1972), material facts in issue in a former action and judicially determined are conclusively settled by the judgment and may not be again litigated between the same parties regardless of the form the issue may take in the subsequent action. It is immaterial that the two actions are based on different grounds or instituted for different purposes and seek different relief.

The case bears a similarity to Munday v. Thielecke, 483 S.W.2d 679 (Mo. App. 1972), cited by appellant. There, a judgment had been entered for the plaintiff by default and within 15 days, the defendant filed a motion to set the judgment aside. The motion was not called up and in 90 days an order was entered deeming the motion denied. No appeal was taken. Some six months later, the defendant filed an additional motion to set aside the default judgment. The court observed that defendant was ...

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