Vonsmith v. Vonsmith

666 S.W.2d 426

• Court: Missouri Court of Appeals
• Decided: March 19, 1984
• Docket: 45149
• Status: Published

Opinions

REINHARD, Judge.

This case comes to the writer on reassignment. Husband was personally served with summons and a petition for dissolution, but filed no responsive pleading. Subsequently, on October 14, 1981, a default judgment was entered against him. Husband neither filed a motion to set aside nor a motion to vacate the decree, but did file a notice of appeal on November 20, 1981.

This court was recently confronted with an appeal from a default judgment in a dissolution proceeding. In Blackmore v. Blackmore, 639 S.W.2d 268 (Mo.App.1982), we recognized the general rule that an appeal may not be taken from a default judgment.¹ Judge Snyder, speaking for the court, at pages 268-69, stated:

There are few Missouri cases on the question of an appeal from a default judgment in the absence of a prior motion to set aside. The vast majority of cases which address the issue of whether a party can appeal a default judgment are concerned with appeals from an order of a trial court which either grants or denies a motion to set aside or vacate a default judgment....

Is a default judgment appealable in the absence of a motion to set aside or vacate the judgment? This court rules it is not and dismisses the appeal.

An exception is made to the general rule where on appeal, the party against whom default was entered raises a question of subject matter jurisdiction or the sufficiency of the petition.

In the present case, husband was in default for failure to file an answer.² On appeal, husband raises six points which he contends entitle him to relief, but only one of these, Point V, concerns one of the exceptions noted in Blackmore, lack of subject matter jurisdiction.

Wife’s petition requested that the parties’ 1973 automobile be awarded to husband. The court, however, awarded it to the wife. Husband contends this was error. Supreme Court Rule 74.11 provides that relief in a default judgment cannot exceed that requested. As Judge Simeone stated in Rook v. John F. Oliver Trucking Co., 505 S.W.2d 157, 161 (Mo.App.1973), “there is good reason for the rule that a judgment by default should not exceed the prayer. A defendant may desire to let judgment go by default when he is aware of the” prayer for relief, but would not be so desirous if he could be subjected to judgment in excess of the relief prayed for. This principle has been applied to the award of marital property in default dissolution proceedings. Govero v. Govero, 579 S.W.2d 152, 153-54 (Mo.App.1979).

We have concluded that the court lacked subject matter jurisdiction to award the automobile to wife, but we are without jurisdiction to entertain the remainder of husband’s points on appeal. In State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25, 29 (1909), the Supreme Court announced the rule in Missouri that subject matter jurisdiction, “of a concrete case in equity of law is only acquired by a court through pleadings filed, process issued or appearance entered, and decrees entered within the lines of the issues framed by pleadings.” (emphasis added). See Weatherford v. Spiritual Christian Union Church, 163 S.W.2d 916, 918 (Mo.1942); Charles v. White, 214 Mo. 187, 112 S.W. 545, 549 (1908). A court is without subject matter jurisdiction to enter a decree which grants relief beyond that prayed for in the petition. Weatherford v. Spiritual Christian Union Church, 163 S.W.2d 916, 918 (Mo.1942).

Accordingly, the dissolution decree is modified to order the 1973 automobile set off to husband.³ The remainder of the appeal, Points 1 — IV and VI are dismissed.

CRANDALL, P.J., concurs. CRIST, J., dissents in separate opinion.

1 . The rationale for the limitation on the right to appeal from a default judgment is that defendant, at his election, did not choose to appear in court and oppose petitioner’s case. A defaulting party is not without redress however. While the trial court retains jurisdiction the defaulting party can file a motion to set aside the default judgment before it is final. Supreme Court Rules 75.01, 74.07. A denial of such motion is appealable and in dissolution cases strict rules pertaining to the setting aside of such judgments are less rigorously applied. See Hinson v. Hinson, 518 S.W.2d 330 (Mo.App.1975). After the judgment is final, various other avenues are available to a defaulting party. See Rook v. John F. Oliver Trucking Co., 505 S.W.2d 157 (Mo.App.1973); Comment, "Procedure — Setting Aside Final Judgments in Missouri, 28 Mo.L. Rev. 281 (1963).

2 . The rule recognized in Blackmore applies in those cases in which defendant fails to file an answer. It does not apply to the so-called default judgment in which pleadings have been filed but ordered stricken or in which pleadings have been filed but a party fails to appear on the date set for trial. See Metis v. Metis, 625 S.W.2d 896 (Mo.App.1981); Matter of Estate of Scholz, 615 S.W.2d 459 (Mo.App.1981).

3 . The relief here exceeded the prayer because wife requested the automobile be set off to husband. If the prayer in wife’s petition had requested the marital property be divided without mention of the automobile or had the automobile been mentioned but not requested that it be assigned to husband, the award of the automobile to wife would not have exceeded the prayer. Under the dissolution act, this would have placed husband on notice that the automobile could have been awarded to wife.