BRIAN E. METTLACH, Petitioner-Appellant vs. RHONDA METTLACH, Respondent-Respondent
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In Re the Marriage of: BRIAN E. METTLACH, Petitioner/Appellant, vs. RHONDA METTLACH, Respondent/Respondent. ) ) ) ) ) ) ) ) ) ) ) No. SD31242 APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable Kevin L. Selby, Associate Circuit Judge REVERSED AND REMANDED WITH DIRECTIONS. Appellant Brian E. Mettlach ( Husband ) appeals from a judgment of the motion court denying his Motion to Set Aside Default Judgment and subsequent Motion to Reconsider. We reverse and remand. Respondent Rhonda Mettlach ( Wife ) filed a Motion to Modify Judgment of Dissolution of Marriage and Mediated Agreement and Application for Order to Show Cause on February 2, 2010. A default judgment was entered in favor of Wife on August 16, 2010.1 Husband filed a Motion to Set Aside Default Judgment, which was overruled without an evidentiary hearing. He then filed a Motion to Reconsider, which was also overruled without an evidentiary hearing. Husband filed a timely notice of appeal. Husband asserts two points claiming error in denying his motions and for denying him an evidentiary hearing. On October 25, 2011, Wife, in lieu of a brief, forwarded correspondence to this Court stating that while denying any negative behavior, which resulted in the Court entering a Judgment in the civil court[,] . . . [Wife] agrees that the matter should be remanded to the Trial Court for hearing on the merits of [Wife] s Motion to Modify Child Support. Accordingly, pursuant to Wife s announcement, and Rule 84.14,2 we reverse the motion court s Judgment denying Husband s Motion to Set Aside Default Judgment and Motion to Reconsider and remand this matter to the motion court for an evidentiary hearing on Wife s Motion to Modify Judgment of Dissolution of Marriage and Mediated Agreement and Application for Order to Show Cause. William W. Francis, Jr., Presiding Judge Bates, J. - Concur Scott, J. - Concur 1 The motion court was in error to enter a default judgment for Husband s failure to file a responsive pleading because none is required to a Motion to Modify, as thoroughly explained in Schwermer v. Schwermer, 350 S.W.3d 460 (Mo.App. W.D. 2011). 2 All rule references are to Missouri Court Rules (2011). Opinion Filed: December 8, 2011 Appellant s Attorney: Jared L. Thomas, of Neosho, Missouri Respondent s Attorney: Tina M. Longnecker, of Joplin, Missouri Division II
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