In re the Adoption of L.A.M.K., )

 )

C.M.J. and J.A.J., )

 )

Respondents, )

 )

vs. ) No. SD33912

 )

B.G.R., ) FILED: February 25, 2016

 )

Appellant. )

APPEAL FROM THE CIRCUIT COURT OF CEDAR COUNTY

Honorable James R. Bickel, Judge

(Before Scott, P.J., Bates, J., and Sheffield, C.J.)

REVERSED AND REMANDED 

PER CURIAM. We reverse a step-parent adoption judgment that terminated 

parental rights and remand for further proceedings.1

 

1 We refer to key parties only as “Father,” “Mother,” and “Child” to maintain privacy. For 

convenience, we omit most references to Mother’s spouse, who was co-petitioner for adoption 

and the proposed step-parent. Mother did not favor us with a brief, so we do not have the 

benefit of any explanation or insight she might have offered. Rule references are to Missouri 

Court Rules (2015). 
2

Background

Child was born out of wedlock to Father and Mother in 2010. The parents 

later broke up and Father moved away, but paid child support. 

In 2014, Father filed a Cedar County action to establish his paternity. Mother 

then filed a separate Cedar County action for step-parent adoption and to terminate 

Father’s parental rights.

All lawyers, including the appointed GAL, believed Father had timely filed and 

served his answer to Mother’s petition. In fact, although Father’s counsel served the 

answer on all attorneys, it was not filed with the court.

The GAL filed a motion for cost deposit and noticed it for hearing on April 13, 

2015. Father’s counsel, knowing also that Mother’s counsel planned that day to 

request a future trial setting, did not attend the motion hearing and assumed that 

trial would be set for the next Cedar County juvenile court day.

In court on April 13th, it apparently came to light that Father’s answer had 

been served, but not also filed.2 Mother took judgment that day for the relief sought 

in her petition, including termination of Father’s parental rights.

 

2 We glean this from a colloquy at the hearing on Father’s motion to set aside the judgment:

[FATHER’S COUNSEL]: I understand [the GAL’s] suggestions that a cost deposit 

for some fees might be appropriate in a case like this, however, [Mother’s counsel] 

was here on that date at any rate, and so far as I know, she intended to take up a 

Motion for a Trial Setting. And then apparently, our position would be, she realized 

that my Answer was defective.

[MOTHER’S COUNSEL]: I was told by the Judge.

[FATHER’S COUNSEL]: Okay, you were told by the --

[MOTHER’S COUNSEL]: [The GAL] and I said that we thought you had filed an 

Answer.

[FATHER’S COUNSEL]: Okay.

[MOTHER’S COUNSEL]: No, we were very forth right with the Court.
3

Father immediately moved to file his answer out of time and, eight days later, 

to set aside the judgment. The latter motion cited no specific court rule, but alleged 

excusable neglect in not filing the answer and a meritorious defense in that Father 

was paying child support and had been denied contact with Child.

After a May 11 hearing, the trial court denied Father’s motions, finding that 

his default was not excusable and that he had no meritorious defense.

Cotleur v. Danziger

“Supreme Court Rules 74.05, 74.06, and 75.01 each provide procedural means 

by which to set aside judgments, each rule having its own standard for relief.”

Cotleur v. Danziger, 870 S.W.2d 234, 236 (Mo. banc 1994).

• “Rule 75.01 contains the least stringent standard because it inheres 

while the trial court retains jurisdiction of the case. The trial court may 

set aside its judgment before it becomes final, for ‘good cause.’ Rule 

75.01.”

• “Rule 74.05(c), governing defaults, requires more, allowing a court to 

set aside a default judgment for ‘good cause’ if the party can show ‘facts 

constituting a meritorious defense.’” 

• “Finally, Rule 74.06(b), as pertinent here, allows a court to set aside a 

final judgment after a court has ruled on the merits of a case, but only if 

the party is able to show excusable neglect. Rule 74.06(b) is, therefore, 

read to require the highest standard of the three rules for setting aside a 

judgment, giving effect to the interests in stability of final judgments 

and precedent.”

Cotleur, 870 S.W.2d at 236 (re-formatting with bullet points ours).3

 

3 Failure to cite a specific rule “does not preclude judicial review of the motion.” Bothe v. 

Bothe, 266 S.W.3d 321, 324 n.6 (Mo.App. 2008).
4

Analysis

Even had Father needed to show a meritorious defense to have the judgment 

set aside, the trial court erred in proceeding to decide “the believability of witnesses 

and testimony” and rule credibility issues against Father in denying relief.4 Movants

who must show a meritorious defense need only allege appropriate facts; the 

credibility of supporting witnesses and evidence is determined after the judgment is 

set aside at a subsequent trial on the merits, not at this stage. See T.T. v. Burgett, 

380 S.W.3d 577, 580-81 (Mo.App. 2012); Sastry v. Sastry, 302 S.W.3d 264, 267 

(Mo.App. 2010); Pyle v. FirstLine Transp. Sec., Inc., 230 S.W.3d 52, 60 

(Mo.App. 2007); Marriage of Balough, 983 S.W.2d 618, 624 n.8 (Mo.App. 

1999).

That said, Father’s set-aside motion was filed and ruled within the 30 days 

that the trial court retained control over the judgment, so Rule 75.01 applies. Bothe, 

266 S.W.3d at 324-25 (citing cases); Brueggemann v. Elbert, 948 S.W.2d 212, 

214 (Mo.App. 1997).5 This provides the easiest standard to set aside a judgment. It 

 

4 We quote the court’s statements at the close of the hearing:

THE COURT: Well, here is what the Court is reviewing: I have to make a 

determination as to the believability of witnesses and testimony. The testimony at the 

hearing was that Mr. Getz-Reel had, I guess, in fact, yes, in fact paid child support, but 

made no efforts to have visitation.

The Court did review the paternity case that was filed and when [sic] I was asked 

to take judicial notice of. It was filed September 10th. Answer was filed in October. 

But nothing was done on behalf of anyone until February, some five months after the 

filing when the interrogatories were served. There was never an application for any 

visitation.

The Court believes that the allegation of a meritorious defense fails.

5 The judgment was not based upon default nihil dicit and is not subject to Rule 74.05(d)

because, on the April 13 motion hearing date, the trial court and other attorneys proceeded with 

a trial and presentation of Mother’s evidence as though Father’s answer had been filed. See

Weidner v. Anderson, 174 S.W.3d 672, 679-80 (Mo.App. 2005). Rule 74.06 applies to final 
5

requires only “good cause,” but no need to show a meritorious defense (as in Rule 

74.05(d)) or “excusable neglect” by counsel (see Rule 74.06(c)). Brueggemann, 

948 S.W.2d at 214.

Rule 75.01 is not just an easier standard overall; it also invites a broader view 

of “good cause.” Cowger v. Livingston, 182 S.W.3d 783, 788 (Mo.App. 2006). 

“Rule 74.05 always looks specifically to the actions of the defendant in failing to 

defend,” id., as the trial court did here.6 But Rule 75.01 can look to the whole case, 

not just the defendant’s actions, Cowger 182 S.W.3d at 788, with “good cause” 

interpreted so as “not only to prevent a manifest injustice but to avoid a threatened 

one especially in cases tried without a jury where evidence on one side only is 

presented.” Brueggemann, 948 S.W.2d at 214 (quoting Dattilo v. Am. Family 

Ins., 902 S.W.2d 361, 362 (Mo.App. 1995)) (our emphasis). 

We need not reach other potential bases for appellate relief. Had the trial 

court realized the proper legal standard, we are confident that it would have set aside 

its termination of Father’s parental rights; to do otherwise in these circumstances 

would amount to an abuse of discretion. Pursuant to Rule 84.14 and in the interest 

of judicial economy, we reverse the judgment and remand the case for further 

proceedings. All pending motions are denied.

 

judgments. Brueggemann, 948 S.W.2d at 214. This judgment did not become final until after 

Father’s motion and the trial court’s denial thereof. Thus, Rule 75.01 applies. Id.

6 Again quoting the trial court at the end of the May 11 hearing: “I think that their Motion to Set 

Aside was timely made, but the issue of whether a new secretary didn’t know about E-filing, as 

opposed to faxing, I can’t take that as being a valid excuse.”