S.S., a Minor, by and through her Next Friend T.R.S., and T.R.S., Individually v. K.E.J., Respondent/Respondent.

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
S.S., a Minor, by and through her Next Friend ) No. ED108143
T.R.S., and T.R.S., individually, )
)
Petitioners/Appellants, ) Appeal from the
) Circuit Court of Jefferson County
vs. )
)
K.E.J., ) Honorable Brenda Stacey
)
Respondent/Respondent. ) Filed: August 25, 2020
Introduction
T.R.S. (Appellant) appeals from the trial court’s Judgment and Decree of Paternity
(Judgment) and denial of his Motion to Set Aside Judgment (motion to set aside). Appellant
claims the trial court erred by not setting aside the Judgment, entered following a paternity
hearing for which he did not receive notice. We reverse the trial court’s denial of Appellant’s
motion to set aside and remand with instructions to set aside the Judgment and allow for a
hearing on the merits.
Factual and Procedural Background
Appellant filed a Petition for Paternity against K.E.J. (Respondent) alleging he was the
father of S.S. (Child). He further alleged it was in Child’s best interest for the trial court to grant
sole legal custody to Appellant and joint physical custody to Appellant and Respondent. The
petition included Appellant’s address, 39 Hickory Hill. Respondent also filed a paternity action,
and after the two cases were consolidated, filed a counter-petition. Appellant and Respondent
entered into mediation, and in October 2017 filed a notice with the trial court stating they had
reached an agreement. In August 2018, Appellant’s counsel filed a motion to withdraw. The trial
court granted the motion to withdraw in December 2018 and mailed a copy of the order to
Appellant at the incorrect address of 69 Hickory Hill. The case was continued for several pretrial
conference settings and on May 10, 2019, was set for trial on July 9, 2019. A copy of the order
setting the matter for trial was mailed to Appellant, again at 69 Hickory Hill. On May 22, 2019,
the order mailed to Appellant was returned by the postal service to the clerk’s office marked
“Return to Sender – Insufficient Address – Unable to Forward.” A copy of the return notice was
filed with the court, and no further attempts to notify Appellant were made.
On July 9, 2019, Appellant failed to appear at the hearing and the trial court proceeded on
Respondent’s counter-petition. Respondent presented her parenting plan giving the parties joint
legal custody of Child but granting her sole physical custody, with Appellant receiving only
visitation. The trial court entered its Judgment the same day, adopting Respondent’s parenting
plan and ordering Appellant to pay Respondent child support.
Appellant filed his motion to set aside on August 1, 2019.1 His motion, with an attached
affidavit, stated the order notifying him of the trial setting was returned to the clerk’s office due
to an insufficient address, and as a result he did not have notice of the trial date. The trial court
denied his motion without explanation on August 5, 2019. This appeal follows.
Points Relied On
In Point I, Appellant claims the trial court erred in not setting aside the Judgment because
Appellant did not receive notice of the hearing, in violation of his right to due process. In Point
1
Appellant also filed an address change with the trial court, correcting his address to 39 Hickory Hill.
2
II, Appellant claims the trial court erred in awarding Respondent sole physical custody because
the award was against the weight of the evidence in that a sole physical custody designation was
not in the best interests of Child pursuant to Section 452.375.4.2
Standard of Review
“The trial court is vested with broad discretion when acting on a motion to set aside a
judgment.” Edwards v. Black Twig Mktg. & Comm. LLC, 418 S.W.3d 512, 516 (Mo. App. E.D.
2013), quoting Greasel Conversions, Inc. v. Massa, 399 S.W.3d 456, 458 (Mo. App. S.D. 2013)
(internal quotations omitted). “This Court should not interfere unless the record convincingly
demonstrates an abuse of discretion.” Greasel Conversions, 399 S.W.3d at 458, citing
Breckenridge Material Co. v. Enloe, 194 S.W.3d 915, 918 (Mo. App. E.D. 2006). Additionally,
“where custody of children is involved … the strict rules pertaining to the setting aside of such
judgments are less rigorously applied.” Brooks v. Brooks, 800 S.W.2d 468, 470-71 (Mo. App.
E.D. 1990), quoting Hinson v. Hinson, 518 S.W.2d 330, 332 (Mo. App. St.L. 1975).
Discussion
Appellant claims the trial court abused its discretion in not setting aside the Judgment
under Rule 74.06(b),3 which states:
On motion and upon such terms as are just, the court may relieve a party or his
legal representative from a final judgment or order for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (3) the judgment is irregular; (4) the judgment is
void; or (5) the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment remain in force.
2
All statutory references are to RSMo (2019) unless otherwise indicated.
3
All rule references are to Mo. R. Civ. P. (2019) unless otherwise indicated.
3
Appellant argues it was an abuse of discretion to not set aside the Judgment when he was
not provided notice of the hearing because “the cornerstone foundation of our legal system is due
process and opportunity to be heard.” We agree.
The trial court has a duty to send parties notice of their trial setting once ordered.
Breckenridge, 194 S.W.3d at 919; Rule 74.03 (“Immediately upon the entry of an order or
judgment, the clerk shall serve a notice of the entry by mail in the manner provided for in Rule
43.01 upon each party who is not in default for failure to appear and who was not present in
court in person or by attorney at the time of the entry of such order or judgment….”). Rule
43.01(a) states, “Each party shall be served with: (1) Every pleading subsequent to the original
petition; (2) Every written motion, other than one that may be heard ex parte; and (3) Every
written notice, appearance, demand, offer of judgment, order, and similar paper that by statute,
court rule, or order is required to be served.” Under Rule 43.01(c)(2), service is to be made on
parties not represented by an attorney: “(A) By delivering or mailing a copy to the party; (B) By
facsimile transmission; (C) By electronic mail; or (D) By serving a copy in the manner provided
for service of summons in Rule 54.13.”
“A judgment entered without notice to an adversely affected party is irregular and
can be set aside pursuant to Rule 74.06(b)(3).” Greasel Conversions, 399 S.W.3d
at 462. “This is because constitutional due process requires that for a judgment
entered against a party not in default to be valid, there must have been notice of
the trial setting and an opportunity to be heard must have been granted at a
meaningful time and in a meaningful manner.” Id. (quotation omitted).
“Therefore, a party not in default who does not receive formal written notice of
trial setting is entitled to a new trial, or to have a judgment entered against him set
aside.” Id. (quotation omitted).
Edwards, 418 S.W.3d at 519.
Appellant was not in default. “It is the failure to file a responsive pleading that causes a
party to be in default, not the party’s failure to appear for trial.” Kerth v. Polestar Entertainment,
4
325 S.W.3d 373, 379 (Mo. App. E.D. 2010), quoting Breckenridge, 194 S.W.3d at 921 (internal
quotations omitted). Therefore, if Appellant did not receive formal written notice of the trial
setting, he was entitled to have the Judgment set aside.
There is no showing of service in the record. Instead, the record shows an attempted
service by mail; however, the clerk mailed the order to 69 Hickory Hill instead of 39 Hickory
Hill. The record further reflects this order was returned marked “Insufficient Address.” The
transcript from the hearing shows the trial court did not inquire into whether Appellant received
notice of the setting. “Unless the record establishes that the complaining party was provided
notice of a trial setting, we may conclude the complaining party did not receive notice.” Id. at
380, quoting Breckenridge, 194 S.W.3d at 920 (internal quotations omitted).
The record shows Appellant’s last involvement prior to filing his motion to set aside was
when the mediation compliance report was filed with the trial court indicating Appellant and
Respondent had reached an agreement. Because the record does not establish Appellant was
provided notice of a trial setting, we may conclude he did not receive notice. Further, because
Appellant was not in default and did not receive notice, he is entitled to have the Judgment set
aside. Point I is granted.
Because Point I is dispositive, we do not address Point II.
Conclusion
The trial court’s denial of Appellant’s motion to set aside is reversed and remanded, with
instructions to set aside the Judgment and allow the case to proceed on the merits.
SHERRI B. SULLIVAN, J.
Robin Ransom, P.J., and
Lisa P. Page, J., concur.
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