Opinion
No. WD 52736
OPINION FILED: September 23, 1997
Appeal from Circuit Court of Boone County, Missouri, The Honorable Cary Augustine, Judge.
John Rogers, Esq., Columbia, MO, Attorney for Respondent.
Leonard L. Meyer, Esq., Independence, MO, Attorney for Appellant.
Before: BRECKENRIDGE, P.J., SPINDEN and HOWARD, JJ.
Sherry Hayes appeals from the trial court's decree dissolving her marriage to Clay E. Hayes, Jr. Sherry Hayes contends that the decree of dissolution was invalid because of violations of § 487.030, RSMo 1994, because the trial court lacked jurisdiction to enter the decree, and because Clay Hayes allegedly advised the court that the marriage was not irretrievably broken. Sherry Hayes also claims there was error in the division of the marital property.
The judgment of the trial court is affirmed in part, and reversed and remanded in part.
On September 14, 1995, Clay Hayes filed a petition to dissolve his twenty-seven year marriage to Sherry Hayes. Although Sherry Hayes was duly served, she did not file any kind of responsive pleading and she did not appear at the November 8, 1995, dissolution hearing before a commissioner of the family court. Accordingly, the commissioner found Sherry Hayes to be in default, and issued a decision based on the unrebutted evidence supplied by Clay Hayes. In her November 8, 1995, decision, the commissioner awarded Sherry Hayes all marital property in her possession, and awarded Clay Hayes the marital home and all personal property in his possession, including his retirement benefits, two automobiles, household goods, and a life insurance policy. On December 8, 1995, Clay Hayes married Sherley McBride Hayes. Twelve days later, on December 20, 1995, Clay Hayes died. On February 8, 1996, Sherry Hayes filed a motion to set aside the commissioner's decision on the grounds that the commissioner's findings had not been adopted by a circuit court judge, and because Sherry Hayes had not received notice of the commissioner's findings or of her right to file a motion for a rehearing. The motion alleged that these omissions were violations of § 487.030, which provides that, upon conclusion of a hearing before a commissioner of the family court,
the commissioner shall transmit to the judge all papers relating to the case, together with his findings and recommendations in writing. Notice of the findings of the commissioner, together with a statement relative to the right to file a motion for rehearing, shall be given to the parties whose case has been heard by the commissioner, and to any other person that the court may direct. This notice may be given at the hearing, or by certified mail or other service directed by the court.
The motion also sought relief under Rule 74.06(b), claiming that the division of marital property was weighted so heavily in favor of Clay Hayes as to amount to an abuse of discretion.
On March 7, 1996, the commissioner held a hearing on Sherry Hayes' motion to set aside the decision. Sherry Hayes appeared at the hearing, and testified that her sole income was $601.00 a month in Social Security disability benefits. She stated that she had worked during the marriage as a housekeeper at the Truman Medical Center, where she had been employed for eighteen years. She further testified that her income contributed to payments on the marital home. In addition, Sherry Hayes testified that the value of the pension plan awarded to Clay Hayes was $28,251.15.
Sherry Hayes' motion to set aside the commissioner's decision was overruled in a March 19, 1996, order issued by the commissioner. However, the order also contained the following provisions:
It appearing there is no record in the court's file that the notice of right to rehearing was mailed along with the judgment and decree of dissolution, the clerk is directed to provide to petitioner and respondent a notice of right to rehearing, along with this order, and each party shall have 15 days thereafter to file a motion for rehearing before a family court judge.
On March 28, 1996, Sherry Hayes filed a motion for rehearing, incorporating the claims set out in her motion to set aside the commissioner's findings.
On April 24, 1996, Sherry Hayes' motion for rehearing was denied by the trial court, which found that there was insufficient evidence to support a conclusion that the distribution of property was unfair, inequitable, or unconscionable. The trial court also denied relief on Sherry Hayes' claim that she did not receive notice of her right to a rehearing, holding that any prejudice to Sherry Hayes was remedied by the March 19, 1996, order, which allowed her additional time to file a motion for rehearing. The court also determined that, in the case of a default judgment, a failure to provide notice of a right to a rehearing does not void the commissioner's original findings.
The trial court also denied relief on Sherry Hayes' claim that the commissioner's findings had not been adopted by a circuit court judge, finding that the claim was resolved by Boone County Family Court Administrative Order 28-94, which was in effect at the time that the commissioner entered her decree of dissolution in the case at bar. Administrative Order 28-94 provided that the commissioner's findings and recommendations "are confirmed and made the order of the judge of the family court upon the expiration of the fifteen (15) days from the date that all the parties received notice and could have filed but did not file a motion for rehearing as provided by Section 487.030, RSMo."
In her first point on appeal, Sherry Hayes claims that the decree of dissolution is invalid because of a failure to comply with the provisions of § 487.030. Specifically, Sherry Hayes complains of the commissioner's initial failure to provide notice of her right to file a motion for rehearing, and she claims that the commissioner failed to transmit the file to the circuit court judge.
Rule 43.01 provides, in part, that
every written notice . . . that by statute, court rule or order is required to be served shall be served upon each of the parties affected thereby, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons.
Sherry Hayes was in default in the case at bar, and therefore, pursuant to Rule 43.01, the statutory notice requirements contained in § 487.030 did not apply to her. To the extent there is a conflict between a Supreme Court rule and a statute, the rule always prevails if it addresses procedure. State ex rel. Union Elec. Co. v. Barnes , 893 S.W.2d 804, 805 (Mo. banc 1995).
This court cannot consider Sherry Hayes' claim that the decree of dissolution is invalid because of the commissioner's failure to transmit the file to the circuit court judge. At the trial court level, Sherry Hayes sought relief on the ground that the commissioner's findings were not adopted by the circuit court judge, and this specific issue was addressed in the trial court's ruling. Sherry Hayes did not seek relief on the issue of whether the commission transmitted a file, and therefore the trial court did not address that particular question. Review on appeal is limited to the same theories heard by the trial judge. Lazzari v. Director of Revenue , 816 S.W.2d 21, 23 (Mo.App.E.D. 1991). Point denied.
In her second point on appeal, Sherry Hayes claims that the trial court failed to adopt the decision of the commissioner before Clay Hayes' death, and therefore the trial court lost jurisdiction over this case before a final judgment could be entered. Therefore, Ms. Hayes argues, the trial court's final judgment in this case is void.
However, pursuant to Administrative Order 28-94, the commissioner's decision was adopted by the trial court "upon the expiration of the fifteen (15) days from the date that all of the parties received notice and could have filed but did not file a motion for rehearing as provided by Section 487.030, RSMo." As discussed in the previous point on appeal, the statutory notice requirements did not apply to Sherry Hayes because she was in default. Therefore, the fact that Sherry Hayes did not receive notice did not prevent the fifteen-day provision in Administrative Order 28-94 from taking effect in this case. Point denied.
In her third point on appeal, Sherry Hayes claims that the commissioner's division of property was erroneous because the commissioner failed to consider her contribution to the marital estate, as required by § 452.330.1(2), RSMo 1994, when the commissioner awarded virtually all the property to Clay Hayes. Sherry Hayes also complains that Clay Hayes offered no evidence as to the value of the pension plan or the insurance policy, and offered incorrect evidence as to the value of the marital home and household goods. Consequently, Sherry Hayes argues, the commissioner could not consider the real nature and extent of the marital property it was distributing.
Sherley Hayes does not dispute Sherry Hayes' contention that she received only a negligible amount in the distribution of property. Instead, Sherley Hayes argues that Sherry Hayes has no right to complain because she was in default.
Section 452.330, RSMo 1994 requires the trial court to make a just division of marital property, and this statutory obligation is not dependent upon whether the dissolution is contested, uncontested, or by default. Green v. Green , 623 S.W.2d 265, 266 (Mo.App.E.D. 1981). This statutory obligation is consistent with the general policy that courts disfavor default judgments in dissolution cases, and that strict rules pertaining to default judgments are less rigorously applied in dissolution cases, because of the state's interest in the welfare of the parties. Saloma v. Saloma-Orozco , 788 S.W.2d 799, 800 (Mo.App.E.D. 1990).
In the case at bar, it appears that the commissioner has not met the statutory obligation to make a just division of marital property even in the case of default. The commissioner awarded virtually all of the marital property to Clay Hayes, including the marital home, which Clay Hayes had valued at $20,000.00, and all of Clay Hayes' pension, which Sherry Hayes had testified was worth $28,251.15. This inequity is all the more glaring in light of Sherry Hayes' testimony that she contributed to the marital estate from her eighteen-year employment at the Truman Medical Center. Consequently, we must reverse the trial court's order distributing the property, and remand for further proceedings consistent with this opinion.
Sherry Hayes' fourth point on appeal concerns Clay Hayes' testimony at the dissolution hearing, where he responded to the following questions from his attorney:
Q. Are you stating to the Court that there is no reasonable likelihood that the marriage of you and your wife can be preserved?
A. No.
Q. You are stating that there is no reasonable likelihood?
A. No.
Later at the hearing, the commissioner questioned Clay Hayes and the following exchange occurred:
Q. Mr. Hayes, do you believe that your marriage is over?
A. I do.
Q. Do you believe that it's irretrievably broken or there's no likelihood that you and your wife will get back together?
A. No. No.
Sherry Hayes is claiming that, by his responses, Clay Hayes was advising the court that the marriage was not irretrievably broken, and therefore the trial court did not have the authority to issue a decree of dissolution. However, a review of the entire transcript confirms that the above responses were due to confusion over the wording of certain questions. Point denied.
The trial court's order dissolving the parties' marriage is affirmed; however, the trial court's order distributing the property is reversed and remanded for further proceedings consistent with this opinion.
All concur.