TAMI J. MONTGOMERY, Petitioner-Respondent,
STEVEN M. BROWN, Respondent-Appellant.
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Margaret
W. SHEFFIELD, P.J.
M. Brown ("Husband") appeals the denial of his Rule
74.05(d) motion to set aside a default
judgment. In his sole point on appeal, Husband
claims the trial court abused its discretion by refusing to
set aside a default judgment dissolving his marriage to Tami
J. Montgomery ("Wife"). Because Husband failed to
prove good cause to set aside the judgment, we affirm.
and Procedural Background
through counsel, filed a petition in March 2016 to dissolve
her marriage to Husband. Husband, after one failed attempt,
was served with a summons and copy of Wife's petition on
June 15, 2016. Wife's counsel withdrew in early July, and
Wife proceeded pro se. No party took any further
action until the trial court issued a dismissal notice on
September 9, 2016, to both parties stating:
You are hereby notified this case will be dismissed without
prejudice for failure to prosecute on October 10, 2016. Any
request that case not be dismissed must be in writing, filed
and properly noticed before the [c]ourt no later than October
October 5, the trial court received a letter from Wife in
which Wife requested that the case not be dismissed. The next
day, Wife appeared pro se before the court. Husband
was not present and had not filed an answer to Wife's
petition. The court noted that Wife had appeared to have the
case removed from the dismissal docket, but the court stated
that it then "elected to take this up as a default, as
it most certainly is." The court heard testimony from
Wife, and thereafter entered a judgment on October 13
granting Wife the relief she had requested in her petition. A
copy of the judgment was mailed to Husband that same date.
four months later, on February 6, 2017, Husband filed a Rule
74.05(d) motion to set aside the default judgment. A hearing
was held on the motion. The court later entered a judgment
denying Husband's motion to set aside. This appeal
review the trial court's decision to grant or deny a
motion to set aside a default judgment for an abuse of
discretion." In re Marriage of Williford, 392
S.W.3d 509, 510 (Mo. App. S.D. 2013).
sole point maintains the trial court abused its discretion in
refusing to set aside the default judgment under Rule
74.05(d) because his motion
was timely filed after the judgment entry and good cause
existed to set aside the judgment, in that [Husband] did not
respond to the petition because [Husband] believed that the
matter would be dismissed or resolved by agreement, and
[Husband] had a meritorious defense in that there was
evidence to rebut the awarding of sole legal and sole
physical custody of the minor child to [Wife], and the order
of child support, and the allocation of debt, which should
have been considered by the trial court.
74.05(d) provides that a default judgment may be set aside
"[u]pon motion stating facts constituting a meritorious
defense and for good cause shown[.]" The motion must be
"made within a reasonable time not to exceed one year
after the entry of the default judgment." Id.
"'Good cause' includes a mistake or conduct that
is not intentionally or recklessly designed to impede the
judicial process." Id. Here, Husband ...