In re the Marriage of Hanners

Missouri Court of Appeals

In re the Marriage of Hanners

549 S.W.2d 941, 1977 Mo. App. LEXIS 2073

CourtMissouri Court of Appeals

DecidedApril 18, 1977

DocketNo. 10415

StatusPublished

Cited by5 cases

This text of 549 S.W.2d 941 (In re the Marriage of Hanners) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Marriage of Hanners, 549 S.W.2d 941, 1977 Mo. App. LEXIS 2073 (Mo. Ct. App. 1977).

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Opinion

BILLINGS, Chief Judge.

The trial court entered a default judgment dissolving the marriage and dividing the marital property of Ethele Fogle Han-ners and Franklin Thomas Hanners. Appellant husband had been personally served and employed an attorney, but no answer was filed to the wife’s petition for dissolution and neither he nor his counsel appeared for trial. Thereafter, appellant filed his “Motion To Set Aside Judgment Entry.” The trial court held a hearing on the motion and overruled the same. We affirm.

Appellant’s motion to set aside the default judgment did not allege any facts showing he had a meritorious defense or that he had a reasonable excuse for default. Whitledge v. Anderson Air Activities, 276 S.W.2d 114 (Mo.1955); Uldrich v. Tharp, 547 S.W.2d 498 (Mo.App.1977). As to his excuse for default, appellant testified at the hearing on the motion to set aside that he had made no effort to ascertain the status of the dissolution action filed by his wife. The wife testified she had told appellant she was going to proceed with the dissolution. There were no allegations of facts and no evidence was adduced that appellant or his attorney exercised reasonable diligence to prevent a default judgment. And counsel’s negligence in permitting a default judgment is, in the absence of fraud or collusion, imputable to the client. Fulton v. International Telephone & Telegraph Corp., 528 S.W.2d 466, 469 (Mo.App.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1111, 47 L.Ed.2d 317; Askew v. Brown, 450 S.W.2d 446, 450 (Mo.App.1970). Under these circumstances the trial court did not abuse its discretion in refusing to set aside the default judgment. See Clinton v. Clinton, 444 S.W.2d 677, 681 (Mo.App.1969).

Appellant’s remaining point attempts to raise an issue not presented to the trial court in the motion to set aside default judgment. Since the point was raised for the first time on appeal, we decline to review it.

The judgment is affirmed.

All concur.

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BILLINGS, Chief Judge.

The trial court entered a default judgment dissolving the marriage and dividing the marital property of Ethele Fogle Han-ners and Franklin Thomas Hanners. Appellant husband had been personally served and employed an attorney, but no answer was filed to the wife’s petition for dissolution and neither he nor his counsel appeared for trial. Thereafter, appellant filed his “Motion To Set Aside Judgment Entry.” The trial court held a hearing on the motion and overruled the same. We affirm.

Appellant’s motion to set aside the default judgment did not allege any facts showing he had a meritorious defense or that he had a reasonable excuse for default. Whitledge v. Anderson Air Activities, 276 S.W.2d 114 (Mo.1955); Uldrich v. Tharp, 547 S.W.2d 498 (Mo.App.1977). As to his excuse for default, appellant testified at the hearing on the motion to set aside that he had made no effort to ascertain the status of the dissolution action filed by his wife. The wife testified she had told appellant she was going to proceed with the dissolution. There were no allegations of facts and no evidence was adduced that appellant or his attorney exercised reasonable diligence to prevent a default judgment. And counsel’s negligence in permitting a default judgment is, in the absence of fraud or collusion, imputable to the client. Fulton v. International Telephone & Telegraph Corp., 528 S.W.2d 466, 469 (Mo.App.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1111, 47 L.Ed.2d 317; Askew v. Brown, 450 S.W.2d 446, 450 (Mo.App.1970). Under these circumstances the trial court did not abuse its discretion in refusing to set aside the default judgment. See Clinton v. Clinton, 444 S.W.2d 677, 681 (Mo.App.1969).

Appellant’s remaining point attempts to raise an issue not presented to the trial court in the motion to set aside default judgment. Since the point was raised for the first time on appeal, we decline to review it.

The judgment is affirmed.

All concur.

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549 S.W.2d 941, 1977 Mo. App. LEXIS 2073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-hanners-moctapp-1977.

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