Rahsalyn C. Scott, By and Through Her Next Friend, Damon A. Scott, II and Damon A. Scott v. Emerald K. Borden

• Court: Missouri Court of Appeals
• Decided: July 5, 2022
• Docket: WD84788
• Status: Published

Opinion

IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT RAHSALYN C. SCOTT, ) By and Through Her Next Friend, ) DAMON A. SCOTT, II and ) DAMON A. SCOTT, ) Respondent, ) ) v. ) WD84788 ) EMERALD K. BORDEN, ) FILED: July 5, 2022 Appellant. ) Appeal from the Circuit Court of Jackson County The Honorable Marco A. Roldan, Judge Before Division One: Lisa White Hardwick P.J., and Alok Ahuja and Mark D. Pfeiffer, JJ.

In this paternity action, the Circuit Court of Jackson County entered a

default judgment granting Damon Scott (“Father”) sole legal and physical custody of

the child he purportedly shares with Emerald Borden (“Mother”). The circuit

court’s judgment awarded Mother two hours of supervised visitation per week.

Mother appeals, arguing that the circuit court erred in refusing to set aside the

default judgment. We reverse because Mother was never properly served with

process, and the default judgment entered against her is accordingly void. Factual Background

According to the circuit court’s default judgment, Mother and Father share a

daughter, R.S., who was born in September 2012.

Father’s pleadings in the circuit court acknowledged that Mother and R.S.

left Missouri and relocated to Harford County, Maryland in February 2020.

On June 18, 2020, Father filed the present paternity action in the Circuit of

Jackson County. His Petition listed Mother’s and R.S.’s “last known address” as

16908 E. 29th Street South in Independence.

A summons was issued to Mother at the Independence address. On a return

of service, the process server stated that, on June 29, 2020, he had completed

service by “leaving a copy of the summons and a copy of the petition at the dwelling

place or usual abode of [Mother] with Dean Witmer – Father, a person of [Mother]’s

family over the age of 15 years who permanently resides with [Mother].”

On July 30, 2020, Witmer returned the summons and petition to the circuit

court, along with a handwritten affidavit. Witmer’s affidavit explained that he had

told the process server multiple times that Mother no longer lived at Witmer’s

Independence residence, nor had she for “quit[e] some time.” Nonetheless, the

process server left the “papers . . . between [the] front doors of [the] residence” when

Witmer refused to accept them.

On October 13, 2020, Father filed a Case Management Statement which

indicated he “does not currently have any information regarding [Mother]’s current

place of residence or employment.”

2 On October 16, 2020, Father requested that the circuit court issue an alias

summons to be served on Mother at her purported place of employment, an assisted

living center in Whiteford, Maryland. Father requested a second alias summons,

for service at the same place of employment in Maryland, on December 14, 2020.

On January 21, 2021, Father filed a further Case Management Statement.

The Statement indicated that Mother “was just served on January 15, 2021 and has

not filed a responsive pleading.” The Statement also asserted that “shortly before

this action was filed [Mother] moved to Maryland with the minor child.”

On March 13, 2021, Mother filed a pro se motion to strike Father’s

representations that Mother had been served in Maryland on January 15, 2021.

Mother’s motion stated that, “[a]t no time was [she] ever served with the initial

pleadings in this case.” Mother’s motion asserted that she was at a Baltimore,

Maryland hospital with her son the entire day of January 15, and thus could not

have been served on that date.

Father filed a response to Mother’s motion to strike on March 22. Father’s

response asserted that his counsel had initially been told by the Harford County

Sheriff’s Department “that service had been obtained upon [Mother] on January 15,

2021.” Father’s response admitted, however, that “[d]uring a follow up call to the

Harford County Sheriff’s Department regarding obtaining a return of service, it was

determined the deputy misspoke and no service had been obtained upon [Mother] in

Maryland.” (Emphasis added.)

3 Father’s January 2021 Case Management Statement had asserted that

Mother had moved from Missouri prior to the filing of his paternity action, and that

she had “just [been] served [in Maryland] on January 15, 2021.” Nevertheless, in

his response to Mother’s motion to strike Father argued that effective service had

been obtained upon Mother in June 2020, when a process server left a copy of the

summons and petition with Dean Witmer at his residence in Independence. Despite

his claim that Mother had been effectively served by leaving papers with her father

in Independence in June 2020, Father’s response to the motion to strike noted that,

at the time Father filed his petition, Mother “had fled the state with [R.S.] . . . and

was . . . staying with friends or family in Maryland.” Father’s response also

speculated, without evidentiary support, that Mother’s “father probably forwarded a

copy of the paperwork that he received to [Mother], and that is why she refused to

accept service from the Harford County Sheriff’s Deputy who made numerous

attempts to serve her at her place of employment or residence addresses in

Maryland.”

On April 30, 2021, the circuit court denied Mother’s motion to strike without

explanation.

Father filed a motion for entry of an interlocutory judgment of paternity on

May 18, 2021. The court granted the motion the same day. Remaining issues were

tried to the court on July 14, 2021. Only Father and his attorney were present.

The circuit court entered a default judgment against Mother on July 26,

2021. The judgment found that Mother “was served with summons on June 30,

4 2020.” The judgment granted Father sole legal and physical custody of R.S., and

limited Mother to a maximum of two hours of supervised visitation per week. The

judgment also ordered Mother to pay Father $323.00 in monthly child support.

On August 5, 2021, Mother filed a motion to set aside the default judgment,

and alternatively for a new trial. Mother sought relief pursuant to Rules 74.05(d)

and 74.06(b). In her motion, Mother alleged that she had good cause for her failure

to respond to Father’s petition. Mother also contended that she had a meritorious

defense to Father’s requests for custody. Mother alleged that giving Father custody

of R.S. was not in the child’s best interests due to Father’s alleged substance abuse,

acts of domestic violence, and sexual abuse of one of Mother’s other children.

Mother’s motion alleged that R.S. “has never had a relationship with [Father],” and

that Father “has been out of the home and away from the child since at least 2017.”

The motion also alleged that the judgment should be set aside because Mother “has

never been personally served in this matter.”

Father filed a response to Mother’s motion to set aside the default judgment

on August 13, 2021. Father asserted that he believed, at the time of filing the

paternity action, that Mother was residing in Independence with her father; but he

admitted that, “[s]ubsequent to the filing of this action, [Father] learned that

[Mother] had fled the State of Missouri with the minor child sometime in February

of 2020.” Father also asserted that Mother “had full knowledge of the filing of this

action and its contents, but chose to not actively participate in this litigation,” other

than filing her motion to strike Father’s representations that she had been served.

5 On August 24, 2021, the circuit court denied Mother’s motion to set aside the

default judgment without explanation. Mother appeals.

Standard of Review

Ordinarily, a decision on a motion to set aside a default judgment is reviewed

for an abuse of discretion. In re Marriage of Callahan, 277 S.W.3d 643, 644 (Mo.

2009) (citing Brungard v. Risky's Inc., 240 S.W.3d 685, 687–88 (Mo. 2007)). “An

abuse of discretion occurs when a [circuit] court's ruling is clearly against the logic

of the circumstances then before the court and is so unreasonable and arbitrary that

it shocks the sense of justice and indicates a lack of careful, deliberate

consideration.” Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. 2003). “There is,

however, ‘a strong preference for deciding cases on the merits’ and against resolving

litigation by default.” Callahan, 277 S.W.3d 643, 644 (Mo. 2009) (citation omitted).

Consequently, courts have narrower discretion when overruling a motion to set

aside a default judgment than when sustaining such a motion. Id.

The circuit court’s discretion is limited even further in cases involving child

custody. Dozier v. Dozier, 222 S.W.3d 308, 311-12 (Mo. App. W.D. 2007). “[W]here

child custody is concerned, ‘strict rules pertaining to the setting aside of [default]

judgments are less rigorously applied,’” because “‘the welfare of the child becomes

paramount.’” Id. at 311 (citations omitted). “Because the adversarial process better

protects the child's interest in a custody proceeding, default judgments in custody

cases are strongly disfavored and a refusal to set aside such a judgment is reviewed

6 with heightened scrutiny.” Cutter-Ascoli v. Ascoli, 32 S.W.3d 167, 169 (Mo. App.

E.D. 2000) (citing Hinson v. Hinson, 518 S.W.2d 330, 332 (Mo. App. 1975)).

“‘[W]hether a judgment should be vacated because it is void is a question of

law that we review de novo; we give no deference to the circuit court's decision.’”

Prof’l Funding Co. v. Bufogle, 617 S.W.3d 509, 512 (Mo. App. E.D. 2021) (quoting

Kerth v. Polestar Entm't, 325 S.W.3d 373, 378 (Mo. App. E.D. 2010)).

Discussion

Mother raises two Points on appeal. In the first, she contends that the circuit

court erred in overruling her motion to set aside the default judgment under Rule

74.05(d) because she alleged facts establishing good cause for her failure to timely

respond, and a meritorious defense. In her second Point, she argues that the

default judgment was void under 74.06(b), because she had not been properly

served and the circuit court accordingly never established personal jurisdiction over

her. We conclude that the judgment must be reversed because Mother was never

properly served with process. We accordingly find it unnecessary to address

Mother’s first Point.1

1 Mother’s first Point relies in large part on the record of other cases, and on exhibits which were not before the circuit court when it denied Mother’s motion to set aside the default judgment. Relying on these documents, Mother contends that Father has been guilty of serious acts of misconduct which should disqualify him from having custody or unsupervised visitation with R.S. To this point, no court has made factual findings concerning Mother’s allegations of misconduct by Father. We would normally not consider, for the first time on appeal, the sort of extra-record and post-decisional materials on which Mother’s first Point depends. Given our disposition, facts relating to the parties’ fitness to serve as R.S.’s custodians, and concerning the custody arrangement which is in the child’s best interests, can be fully developed and decided on remand.

7 “Proper service of process is a prerequisite to personal jurisdiction.”

Killingham v. Killingham, 530 S.W.3d 633, 635 (Mo. App. E.D. 2017) (citing Maul v.

Maul, 103 S.W.3d 819, 820 (Mo. App. E.D. 2003)).

Only by service of process authorized by statute or rule . . . can a court

obtain jurisdiction to adjudicate the rights of a defendant. When the

requirements for manner of service are not met, a court lacks power to

adjudicate. Actual notice is insufficient. Satisfying minimum

standards of due process . . . does not obviate the necessity of serving

process in the manner prescribed in our statutes and rules.

Worley v. Worley, 19 S.W.3d 127, 129 (Mo. 2000) (citations and internal quotation

marks omitted).

Under Missouri Supreme Court Rule 54.13, service may be effected upon an

individual within the State “by delivering a copy of the summons and petition

personally to the individual or by leaving a copy of the summons and petition at the

individual's dwelling house or usual place of abode with some person at least 18

years of age residing therein . . . .” Rule 54.13(b)(1). In the circuit court, Father

argued that service on Dean Witmer, Mother’s father, at Witmer’s Independence

residence in June 2020 was sufficient to satisfy Rule 54.13(b)(1). It was not.

Father’s own filings in the circuit court asserted that Mother relocated to Maryland

in February 2020, months before the attempted service at the Independence

address. Further, Father contended in his second Case Management Statement

8 that Mother had “just [been] served” in January 2021 – months after the attempt to

serve her at her father’s residence in Independence.

Finally, Father’s action of twice seeking the issuance of alias summonses for

service of Mother in Maryland – after the purported service in Independence – is

inconsistent with his current claim that Mother was properly served by leaving

papers with her father. See, e.g., Springer v. Springer, 690 S.W.2d 426, 426 (Mo.

App. W.D. 1985); Kennon v. Citizens Mut. Ins. Co., 666 S.W.2d 782, 785 (Mo. App.

E.D. 1983) (“Plaintiff’s order to issue an alias summons constitutes an abandonment

of the original service.”). Although he had repeatedly contended in the circuit court

that Mother had been properly served in June 2020 in Independence, at oral

argument Father’s counsel conceded that he could not rely on that purported

service, given the later issuance of alias summonses at his request.

Father asserted in the circuit court that Mother was aware of the pendency of

this action, and that her father “probably forwarded a copy of the paperwork that he

received to [Mother].” But even if that were true, “[a]ctual notice is insufficient to

confer jurisdiction.” Gabbert v. State, 636 S.W.3d 194, 196 (Mo. App. W.D. 2021).

“[N]o amount of actual notice supplants proper service of process.” Id.

Father has also asserted that Mother was served with process in Maryland.

But despite Mother’s repeated assertions that she was never served in Maryland,

Father submitted nothing to the circuit court to establish that service was actually

effected in Maryland. Generally, where the defendant does not acknowledge that

they were served, Rule 54.20(b) requires that out-of-state service be proved by an

9 affidavit of the process server “stating the time, place and manner of such service.”

Rules 54.20(b)(1), (2).

“Service of process is a prerequisite to the exercise of personal jurisdiction over a defendant.” To prove that the “proper method of service has been followed,” a plaintiff must present proof of service in accordance with Rule 54.20. “In the absence of proof of service in accord with the rule, the court lacks the proof established by the Supreme Court as necessary to determine that the court has jurisdiction of the person of the defendant.” Morris v. Wallach, 440 S.W.3d 571, 576 (Mo. App. E.D. 2014) (citations omitted);

accord, Scholz v. Schenk, 489 S.W.3d 306, 310 (Mo. App. W.D. 2016). Unless the

defendant has consented to jurisdiction, or waived any jurisdictional objection,

“proper service itself is inadequate to confer jurisdiction in the absence of the rule

mandated proof of that service.” Indus. Personnel Corp. v. Corcoran, 643 S.W.2d

816, 818 (Mo. App. E.D. 1981).2

Besides the lack of any proof that Mother was served in Maryland, Father

also admitted in the circuit court that, as of March 22, 2021, “no service had been

obtained upon [Mother] in Maryland.” Father’s counsel repeated this concession at

oral argument. These concessions defeat any claim that Mother was properly

served in Maryland.

The record demonstrates that Mother was not properly served in this action.

The circuit court never acquired personal jurisdiction over Mother, and the default

2 At oral argument, Father made clear that he was not contending that Mother had waived any objection to service. We note that, in her only appearance prior to the entry of the default judgment, Mother contested that she had been properly served. Because Mother did not engage in any “overt act constituting a general appearance” by which she “submitt[ed] . . . to the jurisdiction of the court,” Mother did not waive her objections to service. Heineck v. Katz, 509 S.W.3d 116, 121 (Mo. App. E.D. 2016) (citations omitted).

10 judgment it entered is void for lack of personal jurisdiction. The circuit court erred

in denying Mother’s motion to set aside the judgment as void under Rule 74.06(b).

Rather than being decided by default, the “best interest [of R.S. is better] served by

an adversary hearing” at which appropriate custody arrangements can be litigated.

Hinson v. Hinson, 518 S.W.2d 330, 333 (Mo. App. 1975); see also Cutter-Ascoli v.

Ascoli, 32 S.W.3d 167, 169-70 (Mo. App. E.D. 2000).

We note that, after Father filed this paternity action, Mother filed her own

lawsuit in Maryland to adjudicate issues concerning custody over R.S. Both the

Maryland and Missouri courts concluded that Missouri was the appropriate forum

to resolve this custody dispute under the Uniform Child Custody Jurisdiction and

Enforcement Act (the “UCCJEA”), § 452.700, RSMo et seq. On appeal, Mother does

not challenge the circuit court’s determination that it had authority under the

UCCJEA to resolve issues concerning R.S.’s custody. At oral argument, her counsel

represented to this Court that Mother had moved back to Jackson County after

entry of the default judgment. Mother’s counsel stated that, if we reversed the

judgment, Mother would not challenge the circuit court’s authority to proceed on

remand, but would instead submit the merits of the child custody dispute to the

circuit court for its prompt resolution.

Conclusion

Because Mother was not properly served with process, the default judgment

entered by the circuit court is void for lack of personal jurisdiction. The judgment is

11 reversed, and the case is remanded to the circuit court for further proceedings

consistent with this opinion.

Alok Ahuja, Judge All concur.