In re the Marriage of Dickey, 553 S.W.2d 538 (Mo. Ct. App. 1977). · Go Syfert
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In re the Marriage of Dickey, 553 S.W.2d 538 (Mo. Ct. App. 1977). Cases Citing This Book View Copy Cite
59 citation events (15 in the last 25 years) across 4 distinct courts.
Strongest positive: Wyatt W. Lee v. Beverly J. Lee, 680 S.W.3d 501 (Mo. Ct. App. 2023)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
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At page 539 Judgment following discovery sanction is not default judgment15 citing casesdefault judgment as sanction “renders the cause uncontested and subject to judgment1 citing court put it this way · 14 listed here
  • Roberts, No. 26-04015 (Bankr. E.D. Mo. Aug. 28, 2026).
    Mo. 2008); Treetop Village Property Owners Association v. Miller, 139 S.W.3d 595, 600 (Mo. Ct. App. S.D. 2004); In re Marriage of DeWitt, 946 S.W.2d 258, 261 (Mo. Ct. App. W.D. 1997); In re Marriage of Dickey, 553 S.W.2d 538, 539 (Mo. App.…
  • John Marcus Sommers v. Dustin Matthews, 690 S.W.3d 227 (Mo. Ct. App. 2024).published 3 cites
    “The rendition of judgment which follows the disallowance of a pleading for failure to obey a discovery order does not come by default, in the ordinary sense [where 5 no answer is filed], but is treated as a judgment upon trial by the cour…
  • Duvall v. Maxey (In Re Maxey), 395 B.R. 665 (Bankr. W.D. Mo. 2008).published
    Treetop Village Property Owners Ass’n v. Miller, 139 S.W.3d 595, 600 (Mo.App.2004) (“a judgment ... that follows the striking of pleadings for failure to obey a discovery order; it is not considered a default judgment, ‘but is treated as a…
  • Treetop Vill. Prop. Owners Ass'n v. Miller, 139 S.W.3d 595 (Mo. Ct. App. 2004).published 2 cites
    As more fully explained below, the same is true of a judgment, as here, that follows the striking of pleadings for failure to obey a discovery order; it is not considered a default judgment, "`but is treated as a judgment upon trial by the…
  • In re the Marriage of DeWitt, 946 S.W.2d 258 (Mo. Ct. App. 1997).published
    In Re Marriage of Dickey, 553 S.W.2d 538, 539 (Mo.App.1977).
  • Simpkins v. Ryder Freight Sys., Inc., 855 S.W.2d 416 (Mo. Ct. App. 1993).published 2 cites
    It “does not come by default in the ordinary sense, but is treated as a judgment upon trial by the court.” In re Marriage of Dickey, 553 S.W.2d 538, 539 [1] (Mo.App.1977); Hayes v. Hayes, 677 S.W.2d 933, 934 (Mo.App.1984).
  • State ex rel. Webster v. Ames, 791 S.W.2d 916 (Mo. Ct. App. 1990).published
    Relying on In re Marriage of Dickey, 553 S.W.2d 538, 539 [1] (Mo.App.1977), this Court held in Hayes that the rendition of judgment which follows the disallowance of a pleading for failure to obey a discovery order does not come by default…
  • Hoodenpyle v. Schneider Bailey, Inc., 748 S.W.2d 683 (Mo. Ct. App. 1988).published
    The facial appeal of this point is dispelled by In Re Marriage of Dickey, 553 S.W.2d 538, 539-40 (Mo.App.1977).
  • Houchins v. Houchins, 727 S.W.2d 181 (Mo. Ct. App. 1987).published
    Both cases cite and rely on In Re Marriage of Dickey, 553 S.W.2d 538, 539 (Mo.App.1977), which adopted the same reasoning, but not in the context of the requirement that a motion to vacate be filed as a condition to appeal from the judgmen…
  • J.B.C. v. S.H.C., 719 S.W.2d 866 (Mo. Ct. App. 1986).published 2 cites
    This standard applies both to a determination to strike pleadings, In re Marriage of Dickey, 553 S.W.2d 538, 539 (Mo.App.1977) and to a determination to deny the right to cross-examine witnesses or present defenses.
Show 4 more citing cases
  • Hayes v. Hayes, 677 S.W.2d 933 (Mo. Ct. App. 1984).published 2 cites
    It has been observed, “[t]he rendition of judgment which follows the disallowance of a pleading for failure to obey a discovery order does not come by default, in the ordinary sense, but is treated as a judgment upon trial by the court.” I…
  • Caldwell Paint Mfg. Co. v. LeBeau, 591 S.W.2d 1 (Mo. Ct. App. 1979).published
    Bussmann v. Bussmann, 573 S.W.2d 462 (Mo.App.1978); In re Marriage of Dickey, 553 S.W.2d 538, 539 [1] (Mo.App.1977).
  • Carmed 45, LLC v. Wesley Adam Huff, 630 S.W.3d 842 (Mo. Ct. App. 2021).published
    (default judgment as sanction “renders the cause uncontested and subject to judgment)
  • Norber v. Marcotte, 134 S.W.3d 651 (Mo. Ct. App. 2004).published
    W.D. 1993); see also, In re Marriage of Dickey, 553 S.W.2d 538, 539 (Mo.App.K.C.Dist. 1977), Hayes v. Hayes, 677 S.W.2d 933, 934 (Mo.App.
At page 541 Invoking default judgment for contumacious disregard of court authority13 citing cases“.. . a drastic punishment and is most aptly invoked where the party has shown a contumacious and deliberate disregard for the authority of the court.”the opinion's own words at *541, quoted by 1 later opinions · 12 listed here
  • Luster v. Gastineau, 916 S.W.2d 842 (Mo. Ct. App. 1996).published
    It has been said that dismissal of a petition with prejudice is a drastic punishment which is most aptly invoked when the party has shown a “ ‘contumacious and deliberate disregard for the authority of the court.’ ” Wipke v. Louisiana Farm…
  • Jacobs v. Corley, 793 S.W.2d 512 (Mo. Ct. App. 1990).published
    In re Marriage of Dickey, 553 S.W.2d 538, 541 (Mo.App.W.D.1977); Baughn v. Rapidways Truck Leasing Co., 698 S.W.2d 618, 620 (Mo.App.E.D.1985).
  • Patton v. May Dep't Stores Co., 762 S.W.2d 38 (Mo. 1988).published
    In re Marriage of Dickey, 553 S.W.2d 538, 541 (Mo.App. 1977).” Great Western Trading v. Mercantile Trust Co., 661 S.W.2d 40, 43 (Mo.App.1983).
  • Moseley v. Moseley, 744 S.W.2d 874 (Mo. Ct. App. 1988).published
    In re Marriage of Dickey, 553 S.W.2d 538, 541 (Mo.App.1977).
  • Marriage of Giesler v. Giesler, 731 S.W.2d 33 (Mo. Ct. App. 1987).published
    In re Marriage of Dickey, 553 S.W.2d 538, 541 (Mo.App.1977).
  • Baughn v. Rapidways Truck Leasing Co., 698 S.W.2d 618 (Mo. Ct. App. 1985).published
    In re Marriage of Dickey, 553 S.W.2d 538, 541 (Mo.App.1977).
  • Hayes v. Hayes, 677 S.W.2d 933 (Mo. Ct. App. 1984).published 2 cites
    It has been observed, “[t]he rendition of judgment which follows the disallowance of a pleading for failure to obey a discovery order does not come by default, in the ordinary sense, but is treated as a judgment upon trial by the court.” I…
  • Russo v. Webb, 674 S.W.2d 695 (Mo. Ct. App. 1984).published
    “The default of a party is a drastic punishment and is most aptly invoked where the party has shown a contumacious and deliberate disregard for the authority of the court.” In re Marriage of Dickey, 553 S.W.2d 538, 541 (Mo.App.1977).
  • Great W. Trading Co. v. Mercantile Trust Co. Nat'l, 661 S.W.2d 40 (Mo. Ct. App. 1983).published
    In re Marriage of Dickey, 553 S.W.2d 538, 541 (Mo.App.1977).
  • Portell v. Portell, 643 S.W.2d 18 (Mo. Ct. App. 1982).published
    Co. v. Haake, 604 S.W.2d 1, 10 (Mo.App.1980); In re Marriage of Dickey, 553 S.W.2d 538, 541 (Mo.App.1977).
Show 2 more citing cases
  • Wipke v. Louisiana Farm Supply, Inc., 622 S.W.2d 772 (Mo. Ct. App. 1981).published
    We recognize that a dismissal with prejudice is “.. . a drastic punishment and is most aptly invoked where the party has shown a contumacious and deliberate disregard for the authority of the court.” In re Marriage of Dickey, 553 S.W.2d 53…
  • N.K.M. v. Lem, 606 S.W.2d 179 (Mo. Ct. App. 1980).published 2 cites
    Doyle v. Doyle, 577 S.W.2d 64, 67 (Mo.App.1978); In re Marriage of Dickey, 553 S.W.2d 538, 541 (Mo.App.1977).
At page 540 Determining mandatory nature of dissolution notice requirements8 citing cases“no standing to make a contested issue.”4 citing courts quote it
  • Wyatt W. Lee v. Beverly J. Lee, 680 S.W.3d 501 (Mo. Ct. App. 2023).published
    (The failure of notice . . . did not affect the validity of the judgment against him, if for no other reason than that his presence could add no efficacy to the proceedings. The court had stricken his answer so the husb…)
  • John Marcus Sommers v. Dustin Matthews, 690 S.W.3d 227 (Mo. Ct. App. 2024).published 3 cites
    “The rendition of judgment which follows the disallowance of a pleading for failure to obey a discovery order does not come by default, in the ordinary sense [where 5 no answer is filed], but is treated as a judgment upon trial by the cour…
  • In re the Marriage of JANET DAVIS & JONATHAN DAVIS JANET DAVIS, Petitioner-Respondent v. JONATHAN DAVIS, 493 S.W.3d 452 (Mo. Ct. App. 2016).published
    See, e.g., Bell v. Bell, 987 S.W.2d 395, 400, n. 3 (Mo.App.1999); Sher v. Chand, 889 S.W.2d 79, 81 (Mo.App.1994); Hoskins v. Hoskins, 833 S.W.2d 20, 21 (Mo.App.1992); Courtin v. McGraw Const. Co., 639 S.W.2d 286, 288, n. 4 (Mo.App.1982); I…
  • Cosby v. Cosby, 202 S.W.3d 717 (Mo. Ct. App. 2006).published
    (within trial court’s discretion to strike party’s pleadings for continuous refusals by party to disclose the state of his property, which deprived the court of information necessary to reach a considered decision)
  • Simpson ex rel. Simpson v. Revco Drug Centers of Missouri, Inc., 702 S.W.2d 482 (Mo. Ct. App. 1985).published
    Normally, the court’s discretion is enforcing rules of discovery will not be disturbed unless done unjustly, In Re Marriage of Dickey, 553 S.W.2d 538, 540-41 (Mo.App.1977).
  • State v. Perkins, 680 S.W.2d 331 (Mo. Ct. App. 1984).published
    In re Marriage of Dickey, 553 S.W.2d 538, 540, n. 2 (Mo.App.1977); Bank v. Pfeil, 537 S.W.2d 680, 681 [2] (Mo.App.1976).
  • Hayes v. Hayes, 677 S.W.2d 933 (Mo. Ct. App. 1984).published 2 cites
    It has been observed, “[t]he rendition of judgment which follows the disallowance of a pleading for failure to obey a discovery order does not come by default, in the ordinary sense, but is treated as a judgment upon trial by the court.” I…
  • Schulz v. Schulz, 612 S.W.2d 380 (Mo. Ct. App. 1980).published
At page 538 “the rendition of judgment which follows the disallowance of a pleading for failure to obey a discovery order does not come by default, in the ordinary sense, but is treated as a judgment upon trial by the court.”0 citing cases1 citing court quotes it
    Retrieving the full opinion text from the archive…
    In Re the MARRIAGE OF Glenda L. DICKEY, Petitioner-Appellee, and Robert P. Dickey, Respondent-Appellant
    KCD 28665.
    Missouri Court of Appeals.
    Jun 27, 1977.
    Published opinion
    553 S.W.2d 538
    1977 Mo. App. LEXIS 2181
    John J. Hager, Donald M. Fehr, Gant, Jolley, Moran, Walsh, Hager & Gordon, Kansas City, for respondent-appellant., Donald L. Allen, Donald L. Allen, a Professional Corp., Lee’s Summit, for petitioner-appellee.
    Shangler, Wel-Born, Higgins.
    Cited by 39 opinions  |  Published
    SHANGLER, Presiding Judge.

    The husband appeals from a dissolution of marriage decree and an award of $75,000 as maintenance in gross in favor of the wife after hearing conducted without notice to the husband and without his appearance.

    The answer of the husband to the petition for dissolution, which denied that the marriage was irretrievably broken, had been stricken by the trial court for the recurrent and obdurate refusal of the husband to make discovery. The cause was then placed on the default docket for hearing. Notice of the proceeding was nevertheless attempted by mail upon the defendant husband, but was misdirected. The cause was heard on evidence and went to judgment without the appearance of the husband.

    The appeal contends that the requirement of § 452.320.1 [and of counterpart Rule 4.07 of the Sixteenth Judicial Circuit], that where the parties allege the marriage is irretrievably broken [or one party so alleges and the other does not deny] notice be given the absent party by mail in the manner specified before the court shall enter the decree of dissolution, is mandatory and jurisdictional to the decree. The argument contends that the order which struck his pleading effectively rendered him to the status of a party who had not denied the allegation that the marriage was irretrievably broken, and so entitled him to the notice benefit of § 452.320.1. The appeal contends also that the refusal of the court to set aside its orders was error since he made proof of meritorious defense and legal excuse for the default — the predicates necessary to the requested relief.

    The rendition of judgment which follows the disallowance of a pleading for failure to obey a discovery order does not come by default, in the ordinary sense, but is treated as a judgment upon trial by the court. Jewell v. Jewell, 484 S.W.2d 668, 672[2] (Mo.App.1972). Thus, the principles which govern this appeal do not relate to default judgments as such, but to the discretion of the court — in the circumstances— to impose a sanction which renders the cause uncontested and subject to judgment.

    The chronology of events which led to the order to strike the answer and eventual judgment against the defendant show:

    On July 8, 1974, the wife filed the petition for dissolution which alleged the marriage was irretrievably broken.
    The husband answered and denied that allegation.
    Two months later the wife served interrogatories on counsel for the husband. A month later, she moved to compel answers. That motion was sustained. Another month later, the wife moved to strike the answer for failure of the husband to comply with the order to make answers to interrogatories.
    Then counsel for the husband made application for legislative continuance. Application granted and motion to strike answer overruled.
    [After conclusion of legislative session] the wife moved again to strike the answer for failure to comply with the order. Notice given to husband of hearing on the motion.
    Order of the court to strike answer of the husband.
    Within days the husband moved to set aside this order on the allegations that the records sought had been with his bookkeeper who had just died and were then in the possession of persons unknown.
    This motion was sustained and the original answer reinstated.
    [*540] On September 5,1975, the wife moved (1) for an order of contempt against the husband’s failure to comply with the November 26,1974, order to answer interrogatories; (2) to strike the answer and give notice that hearing on the motions be set for September 8, 1975.
    On September 8, 1975 — the husband did not appear; the answer of the husband is ordered stricken.
    On November 4, 1975, the wife filed request with the Court Administrator for the Sixteenth Judicial Circuit to mail notice of hearing for dissolution of marriage in the form of § 452.320. This request listed the incorrect address for the husband: 160th and Highway 291 South, Lee’s Summit, Missouri instead of 160th and Highway 291 South, Greenwood, Missouri — where he had been personally served.
    The notice was mailed as requested without copy to counsel for the husband. The notice was returned addressee unknown. On December 11, 1975, hearing was held on the petition for dissolution of marriage. The husband was neither present nor represented by counsel. The court noted the notice had been sent out and returned. The wife was the only witness and on her testimony the court found that the husband made default, that the marriage was irretrievably broken, and entered judgment for dissolution of marriage, maintenance in gross to the wife and an attorney fee.

    The appeal rests entirely on the premise that the notice requirement of § 452.320.1 [1] [and counterpart Rule 4.07 of the Sixteenth Judicial Circuit] is mandatory, and absent compliance — as where notice is sent to the wrong address — the court may not proceed. As asserted by the husband on this appeal, this premise subsumes another proposition: that § 452.320.1 requires notice prior to the order of dissolution. That is the effect which local Rule 4.07 [2] gives to the statute and explains the request by the wife for a notice on the husband by mail in the manner prescribed by § 452.320.1 ten days before the date for hearing on dissolution. We do not reach that definitive issue of statutory meaning. We do note, however, Brand v. Brand, 534 S.W.2d 628 (Mo.App.1976) treats the notice procedure of § 452.320.1 as operative after the determination of dissolution [l.c. 630-1[1 — 3]] and holds, in any event, that by the plain text of that statute failure of the party to receive notice does not affect the power of the court to enter a decree.

    The failure of notice to the husband in these circumstances did not affect the validity of the judgment against him, if for no other reason than that his presence could add no efficacy to the proceedings. The court had stricken his answer so the husband had no standing to make a contested issue. The authority of the court to proceed to judgment derived not from § 452.320.1 — as the husband contends — but from the sanction provisions of Rule 61.-01(b). Our courts have consistently held that a default judgment which results from a sanction does not deny a defendant due process of law. Miles v. Armour, 239 Mo. 438, 144 S.W. 424, 426 (1912); Divilbiss,[*541] Practice and Procedure in Missouri, 27 Mo. L.Rev. 557 (1962). The rationale is that the lawmaker has the power, from the failure of a defendant to produce information necessary to the disposition of a cause, to create a presumption that there is no merit in the asserted defense. Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909). See, also, Annotation: Pre-Trial Proceedings — Nonappearance, 6 A.L.R.3d 714, 719.

    Rule 61.01(b) and § 510.060 empower a court to strike pleadings and enter a default judgment against a party who fails to obey an order to answer interrogatories. The discretion allowed by this rule is subject to review and will not be disturbed unless exercised unjustly. In re M, 446 S.W.2d 508, 513[13-16] (Mo.App.1969). The default of a party is a drastic punishment and is most aptly invoked where the party has shown a contumacious and deliberate disregard for the authority of the court. 27 C.J.S. Dismissal and Nonsuit § 59, p. 407.

    The sanction of the court which led to the default was a reasonable response to the resistance of the husband to the lawful orders for discovery. The history of the litigation shows that his pleading was struck two times for the same disobedience, once set aside but finally given effect by the default. Even these continuous refusals by the husband to disclose the state of his property deprived the court of information necessary to a considered decision. We will not hear him now say that his absence at that adjudication placed him at a disadvantage. [3]

    The judgment is affirmed.

    All concur.

    1

    . The relevant portion of § 452.320.1 provides: If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court . . . after a hearing thereon shall make a finding whether or not the marriage is irretrievably broken, and where one of the parties has not denied it the court shall cause to be deposited in the United States mail an envelope . . . deliver to addressee only . . . enclosing a notice to the party not denying that absent objection from said party being filed within ten days . that a finding the marriage is irretrievably broken and an order of dissolution of the marriage may be entered of record. The failure of such party to receive such notice shall not impair the power of the court to enter an order dissolving the marriage or the validity of such an order. [Emphases added]

    2

    . The husband argues the effect of local Rule 4.07 for the first time on appeal. The text of the rule was not in evidence and we may not take judicial notice of the rules of the circuit court. Cusack v. Green, 252 S.W.2d 633, 635[2] (Mo.App.1952). The procedures adopted by the wife can be understood only by reference to the general purport of that rule.

    3

    . Many of the cases cited in the briefs of the parties — such as Hinson v. Hinson, 518 S.W.2d 330 (Mo.App.1975) and Czapia v. Czapia, 538 S.W.2d 53 (Mo.App.1975) — do not bear on the decision and so are not mentioned.