Setting aside of default judgment appropriate when good cause shown and meritorious defense; Ability to pay supports award of attorney's fees
Father appeals from the trial court's judgment of November 8, 2011, dissolving his marriage with Mother and entering a child custody and support award for their minor child ("Minor"). The trial court's judgment granted joint physical custody to the parties, with Mother as the residential parent, and ordered Father to pay child support to Mother.
Based on Rule 74.05(d), the Court did not find that the trial court abused its discretion in setting aside the parties' March 4, 2009 default judgment of dissolution because the motion to set aside was filed within one year. Mother presented good cause and a meritorious defense, and Father was not substantially harmed by the trial court's Judgment setting aside the default judgment. Further, due to the trial court's judgment setting aside the default judgment, Father's retirement plan is considered marital property because the parties were restored to their original positions as though the default judgment had never been entered.
Also, the trial court did not abuse its discretion by awarding joint physical custody, ordering Mother as the residential parent, and adopting the GAL's parenting plan as the evidence did not clearly preponderate in favor of either parent. Additionally, including Father's average monthly income from his secondary-employment for purposes of determining Gross Income on Form 14 was not an abuse of discretion as the income was demonstrated to be consistent and reliable.
Because, one spouse's greater ability to pay is sufficient to support an award of attorney's fees to the other spouse, the trial court did not abuse its discretion in awarding Mother attorney's fees since Father had a greater ability to pay. Finally, the trial court properly exercised its broad and sound discretion in the final determination of the child support award by increasing Father's Form 14 child support payments due to Father's ability to claim the dependent tax exemption, in that Section 452.340.9 permits the trial court to account for all relevant factors in determining whether a Form 14 calculation would be unjust or inappropriate.