Missouri Court of Appeals Southern District
In Division C.D.G., a minor child, by and through ) Next Friend, CASEY GREEN, and ) CASEY GREEN, Individually, ) ) Petitioners-Respondents, ) ) v. ) Nos. SD38005 & SD38021 ) Filed: June 17, 2024 TARA JONNE GREEN, ) ) Respondent-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF BARRY COUNTY
Honorable A. Don Trotter, Special Judge
VACATED AND REMANDED
Tara Jonne Green (Mother) appeals from a judgment of paternity, child custody, and
child support in favor of the father (Father) of her child, C.D.G. (Child). On appeal, Mother
argues that the trial court erred in entering the judgment because: (1) she was not given
notice of the trial and opportunity to respond to Father’s petition; and (2) no next friend had
been appointed to represent Child in the paternity action. Because we conclude that both of
Mother’s points have merit, we vacate the trial court’s judgment and remand for further
proceedings consistent with this opinion. Factual and Procedural Background
On September 24, 2021, Child and his siblings were taken into temporary protective
custody by the Missouri Department of Social Services, Children’s Division (Division).
Three days later, the Barry County Juvenile Officer filed a petition alleging abuse and
neglect by Mother and Father. A hearing was held on September 29th, and the trial court
filed an order for protective custody on October 12th. On September 14, 2022, the trial court
held a permanency-review hearing and scheduled the next permanency-review hearing for
March 8, 2023. A docket entry on September 20, 2022, states that Father was notified of the
next hearing “in person on 9/14/22[,]” and Mother was notified “by mail.”
On February 15, 2023, Father filed a petition requesting a paternity declaration, sole
legal and physical custody of Child and his siblings, and child support payments from
Mother. Father additionally filed a proposed order, a proposed parenting plan, and a motion
to appoint himself as next friend. The record contains no indication that Father’s petition
was served upon Mother or that she was notified that it had been filed by Father.
On March 8, 2023, the trial court held its scheduled permanency-review hearing, at
which it also considered Father’s petition. Neither Mother nor her appointed counsel were
present at the hearing. The next day, the trial court entered a judgment granting Father’s
petition and approving the Division’s proposed parenting plan. The judgment declared
Father to be the father of Child, awarded Father sole legal and physical custody of Child,
and ordered Mother to make child support payments of $390 per month.
On March 10, 2023, Mother filed a motion to set aside the judgment, alleging that
she never received service of the petition, that she was not given 30 days to respond to the
petition, and that she was given no notice of the trial on the petition. On March 22nd, the
2 trial court held a hearing and denied Mother’s motion. On April 7th, Mother filed a motion
for a new trial, which was denied by the trial court. This appeal followed.
Discussion and Decision
Point 1
In her first point, Mother argues that the trial court abused its discretion by failing
to set aside the judgment pursuant to Rule 74.06(b), 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.
Id. 1 A trial court is vested with broad discretion when acting on a motion to set aside a
judgment, and we will not interfere unless the record convincingly demonstrates an abuse of
discretion. Greasel Conversions, Inc. v. Massa, 399 S.W.3d 456, 458 (Mo. App. 2013). An
abuse of discretion only occurs when the ruling “was clearly against the logic of the
circumstances then before the trial court and is so arbitrary and unreasonable as to shock the
sense of justice and indicate a lack of careful consideration.” Id. (citations omitted).
It has long been established that “the fundamental requirement of due process is to
provide notice and an opportunity to be heard to a person subjected to a denial of a protected
interest.” Laubinger v. Laubinger, 5 S.W.3d 166, 175 (Mo. App. 1999). Accordingly,
Missouri courts have held that due process for a party not in default requires “notice of the
trial setting and an opportunity to be heard … at a meaningful time and in a meaningful
1 All rule references are to Missouri Court Rules (2021). All statutory references are to RSMo (2016). 3 manner.” Breckenridge Material Co. v. Enloe, 194 S.W.3d 915, 921 (Mo. App. 2006). 2 In
the present case, the only indication that Mother received any notice of the trial setting is a
docket entry from September 20, 2022, which stated that Mother had been notified of the
next hearing “by mail.” However, this entry was made months before Father’s petition was
filed. In September 2022, the next hearing was one of several permanency-review hearings.
Such a hearing would have been entirely different than the trial that actually occurred on
Father’s petition for paternity, child custody, and child support. Therefore, any notice given
to Mother prior to Father’s petition does not constitute sufficient notice of the trial setting
on Father’s petition. Because the record does not establish that Mother was provided notice
of this trial setting, we may conclude that she did not receive notice. S.S. by and through
T.R.S. v. K.E.J., 607 S.W.3d 266, 270 (Mo. App. 2020).
Additionally, Mother was not allowed a meaningful opportunity to respond to the
allegations raised in Father’s petition. Rule 55.25(a) gives a defendant 30 days after the
service of a summons and petition to file an answer to the petition. There is no record that
Mother was actually served with Father’s petition, and even if she was served, she was not
permitted sufficient time to file her answer. Father’s petition was filed on February 15, 2023.
The trial was held on March 8th, and the trial court entered the judgment on March 9th, before
the expiration of the 30-day period in which Mother could have filed her answer.
“A judgment procured without complying with the notice and service requirements
of the rules of civil procedure is irregular by definition.” Breckenridge, 194 S.W.3d at 920.
2 Although Mother did not file an answer to Father’s petition before the judgment was entered, the trial court never ruled that Mother was in default and made no indication that its judgment against Mother was a default judgment. Even if the trial court had entered a default judgment, it would have been without authority to do so because the judgment was entered before Mother’s permitted time to file an answer had expired. See § 210.839.5; Rule 55.25(a).
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Missouri Court of Appeals Southern District
In Division C.D.G., a minor child, by and through ) Next Friend, CASEY GREEN, and ) CASEY GREEN, Individually, ) ) Petitioners-Respondents, ) ) v. ) Nos. SD38005 & SD38021 ) Filed: June 17, 2024 TARA JONNE GREEN, ) ) Respondent-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF BARRY COUNTY
Honorable A. Don Trotter, Special Judge
VACATED AND REMANDED
Tara Jonne Green (Mother) appeals from a judgment of paternity, child custody, and
child support in favor of the father (Father) of her child, C.D.G. (Child). On appeal, Mother
argues that the trial court erred in entering the judgment because: (1) she was not given
notice of the trial and opportunity to respond to Father’s petition; and (2) no next friend had
been appointed to represent Child in the paternity action. Because we conclude that both of
Mother’s points have merit, we vacate the trial court’s judgment and remand for further
proceedings consistent with this opinion. Factual and Procedural Background
On September 24, 2021, Child and his siblings were taken into temporary protective
custody by the Missouri Department of Social Services, Children’s Division (Division).
Three days later, the Barry County Juvenile Officer filed a petition alleging abuse and
neglect by Mother and Father. A hearing was held on September 29th, and the trial court
filed an order for protective custody on October 12th. On September 14, 2022, the trial court
held a permanency-review hearing and scheduled the next permanency-review hearing for
March 8, 2023. A docket entry on September 20, 2022, states that Father was notified of the
next hearing “in person on 9/14/22[,]” and Mother was notified “by mail.”
On February 15, 2023, Father filed a petition requesting a paternity declaration, sole
legal and physical custody of Child and his siblings, and child support payments from
Mother. Father additionally filed a proposed order, a proposed parenting plan, and a motion
to appoint himself as next friend. The record contains no indication that Father’s petition
was served upon Mother or that she was notified that it had been filed by Father.
On March 8, 2023, the trial court held its scheduled permanency-review hearing, at
which it also considered Father’s petition. Neither Mother nor her appointed counsel were
present at the hearing. The next day, the trial court entered a judgment granting Father’s
petition and approving the Division’s proposed parenting plan. The judgment declared
Father to be the father of Child, awarded Father sole legal and physical custody of Child,
and ordered Mother to make child support payments of $390 per month.
On March 10, 2023, Mother filed a motion to set aside the judgment, alleging that
she never received service of the petition, that she was not given 30 days to respond to the
petition, and that she was given no notice of the trial on the petition. On March 22nd, the
2 trial court held a hearing and denied Mother’s motion. On April 7th, Mother filed a motion
for a new trial, which was denied by the trial court. This appeal followed.
Discussion and Decision
Point 1
In her first point, Mother argues that the trial court abused its discretion by failing
to set aside the judgment pursuant to Rule 74.06(b), 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.
Id. 1 A trial court is vested with broad discretion when acting on a motion to set aside a
judgment, and we will not interfere unless the record convincingly demonstrates an abuse of
discretion. Greasel Conversions, Inc. v. Massa, 399 S.W.3d 456, 458 (Mo. App. 2013). An
abuse of discretion only occurs when the ruling “was clearly against the logic of the
circumstances then before the trial court and is so arbitrary and unreasonable as to shock the
sense of justice and indicate a lack of careful consideration.” Id. (citations omitted).
It has long been established that “the fundamental requirement of due process is to
provide notice and an opportunity to be heard to a person subjected to a denial of a protected
interest.” Laubinger v. Laubinger, 5 S.W.3d 166, 175 (Mo. App. 1999). Accordingly,
Missouri courts have held that due process for a party not in default requires “notice of the
trial setting and an opportunity to be heard … at a meaningful time and in a meaningful
1 All rule references are to Missouri Court Rules (2021). All statutory references are to RSMo (2016). 3 manner.” Breckenridge Material Co. v. Enloe, 194 S.W.3d 915, 921 (Mo. App. 2006). 2 In
the present case, the only indication that Mother received any notice of the trial setting is a
docket entry from September 20, 2022, which stated that Mother had been notified of the
next hearing “by mail.” However, this entry was made months before Father’s petition was
filed. In September 2022, the next hearing was one of several permanency-review hearings.
Such a hearing would have been entirely different than the trial that actually occurred on
Father’s petition for paternity, child custody, and child support. Therefore, any notice given
to Mother prior to Father’s petition does not constitute sufficient notice of the trial setting
on Father’s petition. Because the record does not establish that Mother was provided notice
of this trial setting, we may conclude that she did not receive notice. S.S. by and through
T.R.S. v. K.E.J., 607 S.W.3d 266, 270 (Mo. App. 2020).
Additionally, Mother was not allowed a meaningful opportunity to respond to the
allegations raised in Father’s petition. Rule 55.25(a) gives a defendant 30 days after the
service of a summons and petition to file an answer to the petition. There is no record that
Mother was actually served with Father’s petition, and even if she was served, she was not
permitted sufficient time to file her answer. Father’s petition was filed on February 15, 2023.
The trial was held on March 8th, and the trial court entered the judgment on March 9th, before
the expiration of the 30-day period in which Mother could have filed her answer.
“A judgment procured without complying with the notice and service requirements
of the rules of civil procedure is irregular by definition.” Breckenridge, 194 S.W.3d at 920.
2 Although Mother did not file an answer to Father’s petition before the judgment was entered, the trial court never ruled that Mother was in default and made no indication that its judgment against Mother was a default judgment. Even if the trial court had entered a default judgment, it would have been without authority to do so because the judgment was entered before Mother’s permitted time to file an answer had expired. See § 210.839.5; Rule 55.25(a). 4 Because Mother did not have notice and an opportunity to respond to Father’s petition, the
judgment was irregular and the trial court abused its discretion in failing to set the judgment
aside pursuant to Rule 74.06(b). See S.S., 607 S.W.3d at 270. Mother’s first point is granted.
Point 2
Although the resolution of Point 1 requires vacation and remand, we choose to
address Mother’s second point because it may arise on remand. In Point 2, Mother argues
that the trial court erred in entering a judgment under Missouri’s Uniform Parentage Act
(UPA) because a next friend had not been appointed to represent Child’s interests. We agree.
Section 210.830 requires that a child subject to a paternity action under the UPA
must be made a party to the case. See J.L. ex rel. G.L. v. C.D., 9 S.W.3d 733, 734-35 (Mo.
App. 2000). Because Child was a minor at the time Father’s petition was filed, he was
required to be made a party to the action. Additionally, Rule 52.02(a) states that “[c]ivil
actions by minors may be commenced and prosecuted only by a duly appointed guardian of
such minor or, if there is no such guardian, by a next friend appointed in such civil action[.]”
Therefore, Child could not be a plaintiff in the paternity petition unless he was represented
by a duly appointed guardian or next friend.
There is no record of the court appointing a next friend to represent Child. With
Father’s petition, he filed a motion to be appointed next friend for Child’s two siblings, and
the trial court issued an order to that effect. However, no mention was made by Father or
the court of a next friend for Child. Although Father’s petition and the trial court’s judgment
both state that Child was represented by Father as next friend, these statements are
insufficient without an explicit order from the court. See J.L., 9 S.W.3d at 735. “Father’s
mere allegation that he is [the child’s] next friend did not create a legally valid next friend
relationship.” A.M.C.B. v. Cox, 292 S.W.3d 428, 432 (Mo. App. 2009). Because a minor
5 child must be represented by a guardian or next friend in order to comply with the UPA’s
requirement that a child subject to a paternity action be made a party to the case, a trial
court’s failure to appoint a guardian or next friend for a child in a UPA case is reversible
error. Id. 3 Mother’s second point is granted.
The judgment of the trial court is vacated and the case is remanded for further
proceedings consistent with this opinion.
JEFFREY W. BATES, J. – OPINION AUTHOR
DON E. BURRELL, J. – CONCUR
JENNIFER R. GROWCOCK, J. – CONCUR
3 Rule 52.02(m) provides that a failure to appoint a next friend for a minor shall not invalidate a proceeding if the court finds that the interests of the minor were adequately protected. However, the record here contains no finding that Child’s interests were adequately protected, and thus, the trial court’s failure to appoint a next friend cannot be excused. See A.M.C.B., 292 S.W.3d at 432. 6