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Jones v. Jones

Court of Appeals of Missouri, Southern District, Second Division

January 16, 2018

KAREN LEANN JONES, Respondent,
v.
MICHAEL STEVEN JONES, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY Honorable Larry G. Luna, Judge.

          DANIEL E. SCOTT, J.

         Husband appeals the denial of his Rule 74.06(b) motion to set aside a dissolution judgment.[1]

         Background

         Wife petitioned to dissolve the parties' long-time marriage. Several months after Husband entered his appearance, but did not answer or otherwise respond, the court entered a default judgment in Wife's proposed form.

         Three days later, Husband moved to set that judgment aside, citing, inter alia, Rule 75.01, which provides that a court maintains control over its civil judgment for 30 days after entry. The court granted that motion and set the judgment aside.

         A year into the case, Wife's attorney filed a "Joint Affidavit for Judgment (Pursuant to Local Rule 68.8)" (hereafter "Affidavit") bearing both parties' notarized signatures, plus a proposed judgment nearly identical to the one previously set aside, except for a significant reduction of Husband's equalization payment to Wife. The court entered the proposed judgment without a hearing via docket entry as follows:

18 Aug 2016 Judgment on Dissolution

JUDGMENT OF DISSOLUTION OF MARRIAGE Uncontested

Cause submitted by affidavit pursuant to local rule.

Court finds it has jurisdiction of the parties and the subject matter.

Dissolution of marriage is granted.

The distribution of marital and non-marital property and debts is approved as fair and not unconscionable.

All per written judgment entered.

SO ORDERED

DATE: 08/17/2016

/S/ JUDGE LARRY G. LUNA

         Husband, who was still represented by counsel, filed no motion while the court maintained control over the judgment and took no appeal.

         Nearly five months later and with new counsel, [2] Husband moved per Rule 74.06(b) to set aside the judgment, alleging that it was irregular and void due to noncompliance with a local court rule. Husband noticed his motion for hearing; the parties and their attorneys appeared; argument was heard; and the court took the matter under advisement.[3] The court later denied the motion and entered formal judgment accordingly. We allowed Husband to appeal out of time and consider his two complaints in reverse order.

         Failure to Conduct Evidentiary Hearing

         Husband complains that the court denied his motion without an evidentiary hearing. Yet he makes no effort to show how that prejudiced him and cites no evidence that he was precluded from presenting to the court. We review for prejudice, not mere error. Pruett v. Pruett, 280 S.W.3d 749, 751 (Mo.App. 2009) (also noting that a complaint about excluded evidence requires a specific and definite offer of proof to inform the trial court of the proffered evidence and allow an appellate court to assess the prejudicial effect of its exclusion).

         Further, we do not see and Husband does not show that he requested to offer evidence to the trial court or was refused that opportunity, or that he objected when the court took his motion under advisement after hearing only the arguments of counsel, or that he raised any complaint below prior to complaining here.

It is well recognized that a party should not be entitled on appeal to claim error on the part of the trial court when the party did not call attention to the error at trial and did not give ...

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