In Kinman v. Donahoo, No. ED113380, the Missouri Court of Appeals, Eastern District, clarified that a party who files a motion to set aside a default judgment under Rule 74.05 is entitled to request a change of judge without cause under Rule 51.05—even though the underlying case has already proceeded to judgment.
The Court held that because a Rule 74.05 motion is an independent action from the underlying action in which the default judgment was entered, the clock for seeking a change of judge under Rule 51.05 is restarted notwithstanding the procedural posture of the underlying action. As long as the party filing the motion to set aside the default judgment makes the Rule 51.05 request to change judge within 30 days of filing the motion, the trial court must grant it.
Background
The case involved a custody dispute over a minor child whose parents divorced in Iowa. Although the Iowa court awarded custody to the child’s mother, the child had been living with the maternal grandparents in Missouri since 2017. In 2023, the grandparents filed a petition for custody in Knox County, Missouri. The child’s father did not respond, and the circuit court entered a default judgment in April 2024, awarding custody to the grandparents.
After later taking the child to Iowa with permission—and refusing to return—the father filed several motions in Missouri court, including:
- A motion to set aside the default judgment
- A motion to dismiss, and
- A motion for change of judge under Rule 51.05.
The trial court granted the change of judge, and the new judge ultimately granted the motion to set aside and dismissed the case. The grandparents appealed, arguing that the change of judge was untimely.
The Court’s Analysis
The Eastern District rejected the grandparents’ argument that the motion for change of judge was time-barred because the father first requested a change of judge came after the original custody case had been assigned and resolved.
In rejecting grandparents’ argument, the Eastern District emphasized a key point: a motion to set aside a default judgment is treated as a new and independent proceeding.
Even though a motion to set aside a default judgment is filed under the same case number as the underlying case in which the default judgment was entered, the pleading allows the parties the right to request a change of judge under the newly filed pleading. The timing requirements of Rule 51.05 are calculated from the date the motion to set aside the default judgment was filed. As long as the request for change of judge is made within 30 days after the motion was filed, the court must grant the change of judge. The appellate court cited Brungard v. Risky’s Inc., 240 S.W.3d 685 (Mo. banc 2007) and Roberts v. Roberts, 580 S.W.3d 600 (Mo. App. 2019), reaffirming the principle under Missouri law that default judgment proceedings stand apart from the original underlying action.
Because the father’s motion for change of judge was filed within 30 days of filing his Rule 74.05 motion, the motion was timely filed—and the circuit court had no discretion to deny it. See State ex rel. King v. Huesemann, 776 S.W.2d 488 (Mo. App. 1989).
Practical Takeaway
This decision underscores the procedural significance of post-judgment motions. A Rule 74.05 motion to set aside a default judgment is not merely a footnote to the original action—but opens a new window for procedural rights, including the right to disqualify the judge without cause under Rule 51.05.
Attorneys should treat such motions not just as remedies, but as opportunities for a clean procedural slate—particularly where concerns about judicial neutrality or litigation strategy may arise.
