DEFAULT SHOULD NOT BE YOUR ‘DEFAULT’ IN FAMILY COURT

DEFAULT SHOULD NOT BE YOUR ‘DEFAULT’ IN FAMILY COURT

By:  Austin E. Williamson and Heather Rooney McBride

 

We have all heard the saying “sticking your head in the sand”, meaning someone who willfully refuses to acknowledge what is happening around him.  It is true that divorce and custody disputes (even the most amicable) are typically not pleasant; these matters signify change and likely some varying degrees of sadness, hurt and frustration. However, not acknowledging the process is perhaps the worst decision that a person can make in Family Court.

 

Each divorce, modification, parenting action, and every other domestic matter is initiated with the filing of a Petition.  Once a Petition is filed, the County Court Clerk will prepare a summons, which requests that the recipient participate in the litigation and outlines certain deadlines for doing so.  The Petition and summons must then be served on the other party in a Court-approved manner (See Missouri Rules of Civil Procedure, Rule 4).  The Summons normally provides that the served party must respond to the Petition within thirty (30) days or risk default.

 

Default is the failure to file an Answer or respond to a Petition in a timely fashion.  If that happens, the defaulting party may no longer receive notices about what is going on in the case; more importantly, the filing party can request the matter be set for a default hearing where the Court could enter a default judgment.  A default judgment is generally a “final” judgment resulting in final disposition of property and custody, even if the defaulting party never testified or presented any evidence at the hearing.  Almost always, a default judgment will grant the filing spouse whatever relief was sought in the petition and/or requested at the hearing.

The purpose of the default judgment is to encourage the timely prosecution of a case and to prevent parties from refusing to participate in the legal process; however, our judicial system does hold a distaste for default judgments.  Snelling v. Reliance Automotive, Inc., 144 S.W.3d 915, 917 (Mo. App. E.D. 2004).  As a matter of policy, Missouri law favors the disposition of cases upon the merits because justice is best served when all litigants have a chance to be heard.  Peet v. Randolph, 103 S.W.3d 872, 877-78 (Mo. App. E.D. 2003).  Thus, if a default judgement is granted, there may be hope to set the judgment aside, albeit at significant time and expense and potentially with fewer rights than the defaulting party had before he defaulted.  A party wishing to set aside a default judgment is required to file the motion within a reasonable time, show good cause for default, and show the existence of a meritorious defense.  Supreme Court Rule 74.05(d).  Importantly, a Court is never required to set a default judgment aside, and the process will require hiring an attorney to ensure the Rules of Procedure are followed.

The primary lesson to be learned is that a party needs to be an active participant in litigation.  “Sticking your head in the sand” could have significant and long-lasting ramifications for your life and the lives of your loved ones.  If you have questions about your options in a Family Law matter, or if a default judgment has been entered against you in a Family Law matter, please contact Rooney McBride & Smith, LLC at 417-708-9681 to discuss your options.