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Montgomery v. Brown

Court of Appeals of Missouri, Southern District

February 5, 2018

TAMI J. MONTGOMERY, Petitioner-Respondent,
v.
STEVEN M. BROWN, Respondent-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Margaret Palmietto

          OPINION

          MARY W. SHEFFIELD, P.J.

         Steven M. Brown ("Husband") appeals the denial of his Rule 74.05(d) motion to set aside a default judgment.[1] 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").[2] Because Husband failed to prove good cause to set aside the judgment, we affirm.

         Factual and Procedural Background

         Wife, 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 3, 2016.

         On 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.

         Nearly 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 followed.

         Standard of Review

         "We 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).

         Analysis

         Husband's 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.

         Rule 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 ...


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