Lindsey v. Lindsey
336 S.W.3d 487
| Mo. Ct. App. | 2011Background
- Husband filed for dissolution on May 13, 2009; Wife answered with a cross-petition for legal separation.
- A guardian ad litem (GAL) was appointed for D.L.; a pendente lite (PDL) order granted Wife sole custody and Husband visitation.
- The trial court struck Husband's pleadings as a discovery sanction and later entered a Judgment and Decree of Legal Separation (Dec. 3, 2009) awarding Wife sole custody, and ordering maintenance and fees.
- Husband's counsel withdrew; Husband was found in contempt for failing to adhere to the PDL order; He did not appear at trial.
- The trial court entered the judgment on the merits despite Husband’s non-appearance; Husband moved to set aside the default judgment, which was denied.
- The appellate court affirmed, ruling the proceedings were on the merits, not a default judgment, and disposing of all issues in Wife’s favor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 74.05(d) applies to set aside the judgment | Lindsey argues default judgment grounds apply | Lindsey contends the judgment is on the merits, not default | Rule 74.05(d) inapplicable; judgment on the merits affirmed |
| GAL absence at trial | GAL needed to protect D.L.'s best interests | GAL's presence unnecessary absent abuse/neglect claims | No plain error; no manifest injustice shown; point denied |
| Custody determination on D.L. | Trial court failed to consider evidence; custody should differ | Record contained sufficient evidence on best interests | Court's sole legal and physical custody to Wife upheld; evidence sufficient under §452.375 |
| Division of marital property | Disproportionate award not supported by evidence of values or misconduct | Misconduct and asset values justify disposition | Record supported valuation and Wife's greater award due to misconduct; point denied |
| Maintenance and attorney's fees | Maintenance amount and fees not supported by finances | Wife showed need and Husband ability to pay; fees justified | Maintenance of $1,948 monthly and fees/costs awarded; not an abuse of discretion |
Key Cases Cited
- MBNA Am. Bank v. Montgomery, 269 S.W.3d 536 (Mo. App. S.D. 2008) (Rule 74.05 applies to default judgments only)
- Cotleur v. Danziger, 870 S.W.2d 234 (Mo. banc 1994) (Judgment on the merits when pleadings exist and trial occurs without default)
- DuPont v. Bluestein, 994 S.W.2d 96 (Mo. App. S.D. 1999) (Sanctions-based judgments are not default judgments for Rule 74.05 purposes)
- Keling v. Keling, 155 S.W.3d 830 (Mo. App. E.D. 2005) (GAL needed where abuse allegations exist; distinguish from present case)
- In re Marriage of Demorrow, 169 S.W.3d 591 (Mo. App. S.D. 2005) (Plain error review where GAL absence cited without preservation)
- Francka v. Francka, 951 S.W.2d 685 (Mo. App. S.D. 1997) (Plain error not shown from GAL absence absent abuse claims)
- Horton v. Horton, 961 S.W.2d 67 (Mo. App. W.D. 1997) (Custody awards may favor custodial parent when consistent with best interests)
- Murphy v. Carron, 536 S.W.2d 30 (Mo. Banc. 1976) (Standard for appellate review of awards in dissolution cases)