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In re Marriage of Travis

Court of Appeals of Missouri, Southern District, Second Division

May 4, 2017

In re the Marriage of Tosha Marie Travis and Fredrick Darnell Travis
v.
FREDRICK DARNELL TRAVIS, Respondent-Appellant. TOSHA MARIE TRAVIS, Petitioner-Respondent,

         APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable Kevin L. Selby, Associate Circuit Judge

          Nancy Steffen Rahmeyer, J. - Opinion Author

         Fredrick Darnell Travis ("Father") appeals the judgment which denied in part his motion to set aside a judgment that dissolved his marriage to Tosha Marie Travis ("Mother"), and awarded sole legal and physical custody of two minor children to Mother with visitation for Father. Father raises three points in his appeal asserting that the trial court (1) erred in denying Father's motion to set aside the "default judgment, " (2) "abused its discretion in striking [Father's] pleadings, " and (3) "erred in determining that [Mother] should have sole custody of the children and their best interest and the award amount of child support." We believe Father's second point has merit, reverse the striking of his pleadings, and remand the case for further proceedings. As a result, we do not reach Father's other points as it is unnecessary to do so in resolving Father's appeal.[1]

         Facts and Procedural History

         On October 3, 2014, Mother filed a petition for dissolution of her marriage to Father in Newton County where both resided. In the petition, Mother alleged that she and Father had been married slightly more than six years, that they had separated on or about October 2, 2014, that she was unemployed and that Father was employed by the United States Department of Agriculture. Mother and Father had two children: a son who was ten, and a daughter who was six. At the time the petition was filed, the children were residing with Mother. Mother asserted that the best interest of the children supported an award of "joint legal and physical custody" of the children with Mother's address designated as the children's address "for purposes of education and mailing with reasonable and specific visitation in" Father. Mother also requested child support in an appropriate amount, maintenance, attorney fees and costs, and division of marital property and obligations.

         Father was served by summons on October 6, 2014. Father delivered a letter to the trial court on October 30, 2014, and also filed a "motion for continuance" on November 5, 2014, in which Father sought an enlargement of the time to answer because he needed additional time to retain an attorney. In a docket entry on November 12, 2014, the trial court granted Father an additional thirty days to answer. On December 11, 2014, Father, acting without an attorney, filed an answer. In his answer, Father admitted Mother's allegations in the petition except Father denied that (1) the children currently resided with Mother, (2) Mother's address should be designated as the children's address with visitation to Father, (3) Mother was entitled to child support, maintenance, or attorney fees and costs, and (4) the marriage was irretrievably broken. Father also denied Mother's prayer for relief in the petition. In his answer, Father also requested that the trial court (1) grant dissolution of the marriage, (2) grant custody of the children (but did not specify how custody should be granted), (3) order appropriate child support and that Mother pay Father's attorney fees, and (4) divide the couple's marital property and debts.

         Mother mailed her first set of interrogatories and first request for production of documents to Father on December 16, 2014. On January 29, 2015, Mother filed a motion requesting that Father be compelled to answer her interrogatories and respond to her request for production of documents, and requesting sanctions including striking Father's pleadings and refusing to permit Father to "support or oppose" the items sought in discovery.[2]

         On January 31, 2015, the trial court scheduled a pre-trial conference for March 11, 2015. On March 3, 2015, because of a conflict for Mother's counsel, the trial court rescheduled the pre-trial conference for April 29, 2015.[3]

         On March 17 and 18, 2015, an attorney from Independence, Missouri, entered his appearance on behalf of Father, and filed a first amended answer, a motion for appointment of a guardian ad litem, a motion for temporary parenting time, a counter petition, and Father's proposed parenting plan.

         The first amended answer admitted that Mother was "currently unemployed" and Father was "currently employed" with the United States Department of Agriculture, that Mother and Father "separated on or about October 2, 2014, " that the "minor children are entitled to child support deemed appropriate, " and that the marriage was "irretrievably broken." The counter petition asserted that the minor children were "born before the marriage, " and that the paternity of the older child had been determined but that the paternity of the younger child had "not been determined yet."[4] The counter petition also asserted that (1) the marriage was irretrievably broken "due to adultery committed by" Mother, (2) Mother's "marital misconduct" should be considered in dividing marital property and debt, "payment of attorney's fees, and custody of the minor children, " (3) Mother "is currently employed at an unknown location, "[5] (4) Father's "sole legal and sole physical custody of the minor children" is in the best interest of the minor children, [6] and (4) "neither party is in need of maintenance" and "neither should be awarded attorney's fees and/or costs." Father's proposed parenting plan also provided for Father to have "sole physical custody" and "sole legal custody" of the minor children.

         Father's motion for temporary parenting time stated that the "minor children currently reside with" Mother, and, in light of Mother's alleged sexual misconduct in the presence of the minor children and other parental misconduct, requested that a "[t]emporary order be entered adopting [Father's] [p]roposed [p]arenting [p]lan." Father's motion for appointment of a guardian ad litem repeated the allegations of sexual and parental misconduct made in his motion for temporary parenting time, and added an additional allegation of sexual misconduct by Mother during the day. Father's motion for appointment of a guardian ad litem also requested that "equal responsibility" be placed on the parties for the guardian's fees.

         On March 20, 2015, the trial court scheduled a pre-trial conference for April 15, 2015.

         On April 13, 2015, Mother filed a proposed parenting plan that proposed Mother be granted sole legal and physical custody of the minor children with supervised visitation for Father.

         On April 15, 2015, the trial court, based on Father's "allegations regarding the safety of the minor child[ren]" appointed a guardian ad litem "to represent the interests of the minor child[ren] throughout these proceedings."[7]

         On May 19, 2015, Father's initial attorney withdrew and a second attorney from the same law firm entered an appearance on behalf of Father.

         On May 21, 2015, Father filed an income and expense statement.

         On July 7, 2015, Mother mailed her first request for production of documents and her first set of interrogatories to Father's attorney.[8] On July 10, 2015, Father emailed his first request for production of documents and his first interrogatories to Mother's attorney.[9] On July 31, 2015, Father's attorney requested an enlargement of time to respond to Mother's first request for production of documents and first set of interrogatories.[10]

         On September 29, 2015, Father's second attorney filed a motion to withdraw based at least in part on the attorney's allegations that (1) Father "owes approximately $7, 500" to bring his "client trust account" to the minimum balance required by his written fee agreement, and (2) Father "has failed to cooperate with Counsel in the preparation of discovery responses." The motion to withdraw also stated that Father "has been informed of deadlines and court dates in this matter." A consent signed by Father was filed on October 5, 2015, in which Father consented to his second attorney's withdrawal, and represented that Father (1) "has discharged" his second attorney, (2) "has read and understands the content of the [m]otion to [w]ithdraw . . . and hereby consents to the same without objection, " and (3) "acknowledges notice of all pending hearings and other deadlines, and further that continuances will not be ordinarily granted because of the lack of counsel or lack of preparation time."

         The trial court granted the motion to withdraw on October 7, 2015.

         Following a pre-trial conference on October 14, 2015, the trial court made a docket entry on the docket sheet the same day that stated, "Motion to Compel [g]ranted, 5 days to answer or relief will be granted, "[11] and scheduled another pre-trial conference for November 18, 2015. An October 20, 2015 docket entry states, in part, "Order compelling answers to interrogatories and responses to request for documents." The Order filed on October 20, 2015, stated:

COMES ON NOW for hearing on this 14th day of October, 2015, the Petitioner's Motion to Compel Answers to Petitioner's First Set of Interrogatories and Responses to Petitioner's First Request for Production of Documents. The Court finds that answers to the Interrogatories are past due and responses to the Request for Production of Documents are past due. The Court orders the Respondent to fully and accurately answer Petitioner's Interrogatories and respond to Petitioner's Request for Production of Documents, all as required by the Rules of Civil Procedure, within five (5) days of this date. Upon Respondent's failure to answer and respond, Respondent's pleadings shall be stricken, and Petitioner will be granted judgment by default.

         On October 20 and 21, 2015, Mother filed a "Proposed Judgment and Decree of Dissolution of Marriage, " an "Affidavit of [Mother] Requesting Dissolution of Marriage (Corrected), "[12] and a Form 14, intended to permit the trial court to enter final orders in the proceeding without a hearing. In the affidavit, Mother stated, "[Mother] has submitted a Parenting Plan, which she believes to be in the best interest of the children and is incorporated in the proposed Judgment and Decree of Dissolution of Marriage."

         The trial court signed the proposed judgment on October 21, 2015, but it was not filed until October 26, 2015.

         A third attorney entered an appearance on behalf of Father on October 23, 2015.[13]

         The judgment of dissolution signed on October 21, 2015, and entered on October 26, 2015, incorporated evidence presented by Mother's affidavit and provided: "[o]n October 14, 2015, the Court ordered [Father] to comply with discovery requests within five (5) days or [Father's] pleadings would be stricken. [Father] failed to comply with the Court's order and the Court strikes [Father's] pleadings and holds [Father] in default." The judgment (1) awarded "sole legal and physical custody" of the minor children to Mother with visitation for Father, [14] (2) ordered Father to pay monthly child support for the minor children in the amount of $874 beginning October 3, 2014, (3) awarded the marital home to Father, and (4) ordered no maintenance.

         On October 29, 2015, Father's attorney filed a motion to set aside the judgment "pursuant to . . . Rule 74.05." In the motion to set aside, Father asserted that, if the judgment was set aside, he "would be able to present evidence . . . regarding a more appropriate custody and visitation order with regard to the children, allowing for joint legal custody and for the children's residential custodian to be that of ...


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