Randa M. Techtow vs. Jesse T. Techtow

RANDA M. TECHTOW, ) ) Respondent, ) ) v. ) ) WD87315 (Consolidated with WD87320

DECEMBER 2, 2025 JESSE T. TECHTOW, ) ) Appellant. ) Appeal from the Circuit Court of Jackson County, Missouri The Honorable Cory L. Atkins, Judge Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell, Judge and Cynthia L. Martin, Judge Randa Techtow ("Wife") filed a petition to dissolve her marriage to Jesse Techtow ("Husband"). After Husband failed to respond or appear, the trial court entered a default judgment granting the dissolution, and entering orders determining child custody and support and dividing marital and non-marital property and debt. Husband filed a motion to set aside the default judgment pursuant to Rule 74.05(d), and a motion for relief from the default judgment due to intrinsic fraud pursuant to Rule 74.06(b)(2). 1 Following a hearing, the trial court denied both motions. Husband appeals, arguing the trial court 1 All Rule references are to Missouri Court Rules, Volume I - State, 2024, unless otherwise noted.

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abused its discretion in denying the motions and in excluding evidence related to his Rule 74.06(b)(2) motion. Finding no error, we affirm. Factual and Procedural Background 2

Husband and Wife married in November 2018 and separated in June 2022. In July 2022, Wife filed a petition for dissolution of marriage and mailed Husband a letter that requested him to return an entry of appearance to avoid being served. Wife also sent Husband a packet that contained the summons and petition, a case management notice, and a form to reflect his agreement to enter his appearance in lieu of service. After receiving no response, Wife served her petition for dissolution of marriage on Husband by alias summons on August 24, 2022. The summons stated, "If you fail to file your pleading [within thirty days], judgment by default will be taken against you for the relief demanded in the petition." Husband did not file an answer or any other pleading in response to Wife's petition. Despite Husband's default, Wife mailed Husband a notice advising that a default hearing on her petition for dissolution was scheduled on November 8, 2022. Husband did not appear at the hearing. The trial court found at the hearing that Husband had been duly served with Wife's petition and was in default. Wife presented evidence and testimony in support of her petition addressing matters related to the care and custody of

2 "In the appeal of a bench-tried case, we view the evidence and reasonable inferences that may be drawn therefrom in the light most favorable to the judgment, disregarding evidence and inferences to the contrary." Copper v. Ringen, 671 S.W.3d 409, 412 n.1 (Mo. App. W.D. 2023) (citing Sweeney v. Ashcroft, 652 S.W.3d 711, 721 (Mo. App. W.D. 2022)).

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the parties' minor children, the division of the parties' marital property and debts, and the designation of certain property as non-marital. Relevant to this appeal, Wife asked the trial court to set aside One Planet Sanitation, LLC ("Company") to Wife as her sole and separate property. Wife testified that she formed the Company in July 2018 before marrying Husband in November 2018. She supported this testimony with the Company's Articles of Organization, which show that Wife was the Company's only member and organizer when the Company was formed in July 2018. She also admitted the Company's 2019 and 2021 tax returns into evidence, which showed Wife as the sole owner of the Company. Wife testified that she and Husband both worked for the Company, where she ran the financial and marketing side of the business and Husband maintained the trucks and drove a truck route. She testified that Husband received a W-2, which reflects his annual compensation from the Company. Wife testified that the Company was not presently profitable. The 2019 and 2021 K-1s confirmed that the Company operated at a loss. Following the default hearing, the trial court entered a judgment and decree of dissolution ("default judgment"). Relevant to this appeal, the trial court found that the Company was formed by Wife prior to her marriage to Husband, and that Wife had at all times been the sole and exclusive owner of the Company "as evidenced by the Articles of Organization and [Company] tax returns presented to the Court." The trial court set the Company aside to Wife as her sole and separate property. Husband learned of the default judgment and hired an attorney. On February 22, 2023, Husband offered Wife a settlement, which she rejected. On September 28, 2023,

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Husband filed a motion to set aside the default judgment pursuant to Rule 74.05(d) ("Rule 74.05(d) Motion") and an alternative motion for relief from the default judgment due to intrinsic fraud pursuant to Rule 74.06(b)(2) ("Rule 74.06(b) Motion") (collectively "Motions"). In the Rule 74.05(d) Motion, Husband acknowledged that he had been properly served, but asserted that he had good cause for his failure to answer Wife's petition because he believed that he was making "significant progress toward reconciliation" with Wife and did not want to impede that progress by contesting the dissolution. The Rule 74.06(b) Motion contended that Wife engaged in intrinsic fraud by misrepresenting that she was the Company's sole owner because Husband was also an owner of the Company and had never given up his ownership interest. Following an evidentiary hearing, the trial court entered a written judgment on February 28, 2024 ("Judgment") denying the Motions. The trial court relied on Mullins v. Mullins, 91 S.W.3d 667 (Mo. App. W.D. 2002) to conclude that Husband had not established good cause to set aside the default judgment under Rule 74.05(d) because the "stated reason for his failure to file an answer was reckless conduct, not negligent." The trial court noted that, like Husband, the "defaulting husband in Mullins also argued his hope for reconciliation with his wife was good cause for his complete failure to take any action in the litigation, but the Court of Appeals agreed with the trial court that this was insufficient." The trial court also found that Husband had not met his burden to prove intrinsic fraud under Rule 74.06(b)(2) because the testimony and evidence that Wife presented at the default judgment hearing could have been presented at a trial if Husband

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had responded to Wife's petition, and was as consistent with honesty and good faith as it was with Husband's accusation of fraud. Husband filed motions for new trial. The trial court did not rule on the motions for new trial, deeming them overruled for all purposes pursuant to Rule 78.06. Husband timely appealed the Judgment. Additional facts will be addressed as relevant to the discussion of Husband's points on appeal. Standard of Review In reviewing a court-tried case, we will affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The party challenging the judgment bears the burden of proving it erroneous. Charles v. Oak Park Neighborhood Ass'n, 685 S.W.3d 519, 527 (Mo. App. W.D. 2023). Husband's points on appeal allege trial court error that is subject to review for abuse of discretion. First Bank of The Lake v. White, 302 S.W.3d 161, 165 (Mo. App. S.D. 2009) (an appellate court reviews the trial court's disposition of a Rule 74.05(d) motion and of a Rule 74.06(b) motion for abuse of discretion); Anderson v. Monsanto Co., 719 S.W.3d 755, 765 (Mo. App. W.D. 2025) (a claim of error as to a trial court's exclusion of evidence is reviewed for abuse of discretion). "Judicial discretion is abused only when that ruling was clearly against the logic of the circumstances then before the trial court and is so arbitrary and unreasonable as to shock the sense of justice and

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indicate a lack of careful consideration." First Bank of The Lake, 302 S.W.3d at 165 (quoting Nervig v. Workman, 285 S.W.3d 335, 338 (Mo. App. S.D. 2009)). Analysis Husband brings three points on appeal. For his first point, Husband contends that the trial court abused its discretion when it denied the Rule 74.05(d) Motion by concluding that he failed to establish good cause for his failure to answer Wife's petition. For his second point, Husband asserts that the trial court abused its discretion by applying the wrong legal standard to find that he did not prove intrinsic fraud under Rule 74.06(b)(2). For his third point, Husband argues that the trial court abused its discretion when it sustained Wife's objection to the admission of evidence relevant to the Rule 74.06(b) Motion. Point One: The trial court did not abuse its discretion when it found that Husband failed to establish good cause to set aside the default judgment under Rule 74.05(d)

In his first point on appeal, Husband asserts that the trial court abused its discretion by denying the Rule 74.05(d) Motion because it did not consider the evidence regarding his hope for reconciliation with Wife when it evaluated whether he had established good cause for his failure to file an answer to the petition for dissolution. Specifically, as explained in the argument developing the point relied on, Husband argues that the trial court abused its discretion when it concluded that Husband's stated explanation for not answering Wife's petition constituted "reckless" behavior that did not qualify as "good cause" under Rule 74.05(d).

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Under Rule 74.05(d), a trial court has authority to set aside a default judgment "[u]pon motion stating facts constituting a meritorious defense and for good cause shown," as long as the motion is filed "within a reasonable time not to exceed one year after the entry of the default judgment." "A motion to set aside a default judgment does not prove itself and must be supported by affidavits or sworn testimony." Steele v. Johnson Controls, Inc., 688 S.W.3d 192, 197 (Mo. banc 2024) (quoting In re Marriage of Callahan, 277 S.W.3d 643, 644 (Mo. banc 2009)). The movant has the burden to prove good cause and a meritorious defense, and cannot succeed on the motion if he fails to prove either one. Id. A trial court's "discretion upon its denial of a motion to set aside a default judgment is much narrower than the wider discretion afforded a decision to grant a motion to set aside a default judgment because of the public policy favoring the resolution of cases on the merits and the distaste our system holds for default judgments." First Bank of The Lake, 302 S.W.3d at 165 (quoting Brungard v. Risky's Inc., 240 S.W.3d 685, 686 (Mo. banc 2007)) (internal quotation marks omitted). However, "while disposition on the merits is favored, this general policy 'must be carefully applied to the facts of each case in the interest of justice; for, the law defends with equal vigor the integrity of the legal process and procedural rules and, thus, does not sanction the disregard thereof.'" Steele, 688 S.W.3d at 197 (quoting Sprung v. Negwer Materials, Inc., 775 S.W.2d 97, 100 (Mo. banc 1989)). Here, the trial court found that Husband failed to sustain his burden to establish good cause for his failure to answer Wife's petition. "'Good cause' includes a mistake or

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conduct that is not intentionally or recklessly designed to impede the judicial process." Rule 74.05(d). "'Negligent conduct can constitute "good cause," whereas reckless conduct does not.'" Wetzel v. Root Insurance Co., 702 S.W.3d 469, 476 (Mo. App. W.D. 2024) (quoting Coble v. NCI Bldg. Sys., Inc., 378 S.W.3d 443, 448 (Mo. App. W.D. 2012)). "A person acts negligently if his inadvertence, incompetence, unskillfulness or failure to take precautions precludes him from adequately coping with a possible or probable future emergency." Id. (quoting Coble, 378 S.W.3d at 448). On the other hand, a person acts recklessly if he makes "a conscious decision to pursue a particular course of action either with knowledge of the serious danger to others involved in it or with knowledge of the facts which would disclose the danger to a reasonable man." Id. (quoting Coble, 378 S.W.3d at 448). Husband argued in his Rule 74.05(d) Motion that he had good cause for failing to answer Wife's petition for dissolution because, despite having been duly served, he was still trying to repair the marriage. Husband stated that after Wife filed for dissolution, they continued to meet up and have a "nice time," which left him with the impression that she was not moving forward with the divorce. Husband testified that although he told Wife that he had been served, he avoided talking about the dissolution proceedings because he was "walking on eggshells . . . trying to fix things" with her. On appeal, Husband claims that the trial court abused its discretion by improperly relying on Mullins to conclude his explanation for not filing an answer in response to Wife's petition was reckless because, unlike in Mullins, the trial court did not find Husband's evidence about his hopes for reconciliation to be not credible. We disagree.

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In Mullins, the trial court entered a default judgment against a husband who had failed to respond to his wife's petition for dissolution of marriage. 91 S.W.3d at 668. Ten months later, the husband filed a Rule 74.05(d) motion to set aside the default judgment, asserting that he had good cause for not responding to the petition because the parties had reconciled four or five times after the wife had filed her petition and she had told him that she was calling off the divorce. Id. at 669-70. The trial court found that the husband did not establish good cause because there was "no credible evidence that [the husband] relied on [the wife's] representation." Id. at 671. This Court held that the trial court did not abuse its discretion because the record supported a finding that the husband "ignored a known risk of default judgment and was thereby reckless" through "deliberately courting danger in the futile hope and expectation that the [wife] would not go forward with the case." Id. at 672 (quoting In re Marriage of Williams, 847 S.W.2d 896, 901 (Mo. App. S.D. 1993)) (internal quotation marks omitted). The trial court did not err in relying on Mullins. The record reflects that Wife advised Husband that she had filed for dissolution and gave him an opportunity to agree to enter an appearance without being served; initiated service of her petition for dissolution on Husband shortly after he failed to respond to her overture about entering an appearance in lieu of service; duly served Husband with the petition and a summons that explained a default judgment could be entered if Husband failed to respond to the petition within thirty days; and gave Husband notice of the hearing she had scheduled on the petition for dissolution though she was not required to do so as Husband was already in default having not timely answered the petition. The credibility determination in

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Mullins related to that husband's professed reliance on repeated reconciliations with his wife, and on wife's claimed representation that she was not going to pursue her filed divorce. Here, however, Wife and Husband never reconciled, and Wife never told Husband that she was not going to pursue her petition for dissolution of the marriage. In fact, Husband testified that he never discussed the dissolution proceedings with Wife. Though Husband testified that after Wife filed for dissolution, it was not "obvious that [they] were absolutely done" because they still were having a "nice time," a lack of contentiousness during dissolution proceedings is insufficient to establish good cause for failing to answer Wife's petition. See In re Marriage of Williford, 392 S.W.3d 509, 511 (Mo. App. S.D. 2013) (the trial court did not abuse its discretion in finding the husband did not have good cause for failing to respond to the petition for dissolution, despite the couple's "amicable relationship" and continued daily care for each other). When reviewing the trial court's determination of good cause under Rule 74.05(d), we view the evidence in the light most favorable to the ruling. Wetzel, 702 S.W.3d at

1. Sufficient evidence supports the trial court's conclusion that Husband acted

recklessly because he made "a conscious choice to ignore the litigation." Mullins, 91 S.W.3d at 672 (quoting Gering v. Walcott, 975 S.W.2d 496, 499 (Mo. App. W.D. 1998)). The trial court did not abuse its discretion when it concluded that Husband failed to establish good cause to set aside the default judgment under Rule 74.05(d). Point One is denied.

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Point Two: The trial court did not abuse its discretion in finding that Husband failed to sustain his burden to prove intrinsic fraud under Rule 74.06(b)(2)

In his second point on appeal, Husband contends that the trial court abused its discretion by applying the wrong legal standard to determine that Husband failed to meet his burden to prove fraud under Rule 74.06(b)(2). In the argument portion of his brief, Husband explains that this was an abuse of discretion because when the trial court found that Wife's representations were as consistent with honesty and good faith as they were with fraud, it "erroneously substituted Husband's burden of proof under Rule 74.06(b)[] with [the] burden of proof that a plaintiff must satisfy to prevail on a fraud claim under Missouri common law." "A trial court can abuse its discretion . . . through the application of incorrect legal principles." State v. Carpenter, 605 S.W.3d 355, 359 (Mo. banc 2020) (quoting State v. Taylor, 298 S.W.3d 482, 492 (Mo. banc 2009)). When the issue on appeal is primarily legal, as is the case with Husband's second point on appeal, "no deference is warranted and appellate courts engage in de novo review." Id. (quoting Taylor, 298 S.W.3d at 492) (emphasis added). Under Rule 74.06(b), a party may seek relief from a judgment upon a number of grounds. A "Rule 74.06(b) motion filed after a judgment becomes final is an independent action requiring the [trial] court to enter a separate judgment." Interest of M.M.B., 676 S.W.3d 504, 506 (Mo. App. S.D. 2023) (quoting McCullough v. Commerce Bank, N.A., 368 S.W.3d 296, 300 (Mo. App. W.D. 2012)). Relevant to this case, Rule 74.06(b)(2) permits a party to seek relief from a final judgment based on "fraud (whether heretofore

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denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." 3

Husband's Rule 74.06(b) Motion asked the trial court to set aside the default judgment's award of the Company to Wife as her sole and separate property because Wife engaged in intrinsic fraud by misrepresenting that she was the Company's sole owner. Fraud is "intrinsic" when a "party conceals evidence pertaining to an issue in the case and part of an underlying judgment." Smith v. Smith, 627 S.W.3d 82, 94 (Mo. App. E.D. 2021) (citations omitted). "Intrinsic" fraud can include the "knowing use of perjured testimony or otherwise fabricated evidence." Cody v. Old Republic Title Co., 156 S.W.3d 782, 784 (Mo. App. E.D. 2004) (quoting Pope v. State, 819 S.W.2d 397, 399 (Mo. App. E.D. 1991)). It was Husband's burden to prove that the award of the Company to Wife was procured by intrinsic fraud. First Bank of the Lake, 302 S.W.3d at 165. At the evidentiary hearing on his Rule 74.06(b) Motion, Husband testified that he never agreed to Wife being the sole owner of the Company and had believed that he was at least a 49 percent owner of the Company. Husband presented evidence that he ran the daily operations of the Company and that Wife had publicly said "we" own the Company together on several occasions. This testimony and evidence stood in stark contrast to Wife's evidence during the hearing which included the Company's Articles of

3 Rule 74.06(c) requires a Rule 74.06(b)(2) motion to be filed "not more than one year after the [challenged] judgment or order was entered." There is no issue in this case with the timeliness of Husband's Rule 74.06(b) Motion.

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Organization that had been filed before the marriage and named Wife as the sole member, and the Company's tax returns for the period from 2019 through 2021 which identified Wife as the sole owner of the Company. K-1s issued by the Company for this same period showed losses attributable solely to Wife. W-2s issued by the Company for this same period reflected W-2 earnings attributable solely to Husband. In finding that Husband had not met his burden to prove intrinsic fraud, the trial court noted that Wife had presented much of the same evidence during the default hearing on her petition for dissolution. The trial court found that "[h]ad [Husband] filed an answer and the dissolution of marriage case proceeded to trial," Wife could have presented the same evidence at that time. The trial court also concluded that "[j]udging [Wife's] representations about her ownership of the [Company] at the time of the November 2022 default hearing, the facts presented are as consistent with honesty and good faith as they are with [Husband's] claim of fraud." The trial court thus found that Husband had not sustained his burden to establish intrinsic fraud under Rule 74.06(b)(2). Husband argues that the trial court applied the wrong legal standard when it reached this conclusion because it substituted the burden of proof under Rule 74.06(b)(2) with the burden for proving fraud at common law. He specifically argues that the trial court abused its discretion by "consider[ing] only whether Wife could have relied upon the same evidence and testimony at issue in a contested proceeding," rather than "evaluat[ing] whether there was sufficient evidence that the property division was procured and/or tainted by fraud, misrepresentation, or misconduct." We disagree.

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Husband's brief correctly observes that "a party seeking relief from a judgment for fraud under Rule 74.06(b)(2) must prove" the nine essential elements of a common-law claim of fraud. See Hewlett v. Hewlett, 845 S.W.2d 717, 719 n.2 (Mo. App. W.D. 1993) ("We find no authority for the proposition that the standard of proof in this case [alleging fraud under Rule 74.06(b)] is any different from that in the usual fraud case"). As a result, Husband had to establish the following elements: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of the falsity or speaker's awareness that she lacks knowledge of its truth or falsity; (5) the speaker's intent for the statement to be acted upon by the other party in the manner contemplated; (6) that party's ignorance of the falsity; (7) reliance on the truth; (8) right to rely thereon; and (9) injury. Id. at 719. Husband also correctly observes that a party generally fails to establish fraud "when the facts and circumstances presented are as consistent with honesty and good faith as they are with fraud." Blanke v. Hendrickson, 944 S.W.2d 943, 944 (Mo. App. E.D. 1997) (citing Macon-Atlanta State Bank v. Gall, 666 S.W.2d 934, 941 (Mo. App. W.D. 1984)). Despite these concessions, Husband perplexingly faults the trial court for doing exactly what the law required when it found that Husband failed to establish fraud because the facts and circumstances presented by Wife during the default hearing on her petition for dissolution were as consistent with honesty and good faith as they were with Husband's assertion of fraud. In reaching this conclusion, the trial court did not erroneously shift Husband's burden because intrinsic fraud under Rule 74.06(b) requires the same proof as that required for a claim of fraud at common law.

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Husband's contention that the trial court applied an incorrect legal standard to his claim of intrinsic fraud is a result of misplaced emphasis on the trial court's separate and unrelated finding that Wife could have presented the same evidence during a contested trial as was presented during the default hearing on her petition for dissolution. This finding is distinct from the finding that Wife's default hearing testimony was as consistent with honesty and good faith as with a claim of fraud, and serves as an additional basis for the trial court's conclusion that Husband failed to prove intrinsic fraud. The "law is well settled that a court is not authorized to set aside a judgment founded on a fraudulent instrument or even upon perjured testimony, or for any other matter . . . which could have been presented at the trial which resulted in the judgment attacked." State ex rel. Missouri-Nebraska Exp., Inc. v. Jackson, 876 S.W.2d 730, 734 (Mo. App. W.D. 1994) (quoting Crowley v. Behle, 131 S.W.2d 383, 386 (Mo. App. 1939)). "Missouri has a long line of cases dating back to Payne v. O'Shea, 84 Mo. 129 (1884), which refuse to set aside a judgment based on intrinsic fraud" because the moving party must show the judgment was "concocted in fraud" rather than merely "obtained on false evidence." Id. (citations omitted); see Winchell v. Gaskill, 190 S.W.2d 266, 271 (Mo. 1945) ("It is also well settled that giving false evidence is held not to be such fraud as will authorize equity to vacate a judgment") (citation omitted). Additionally, relief is generally denied in a Rule 74.06(b)(2) motion alleging intrinsic fraud because "[s]uch a proceeding cannot be used to obtain a further hearing upon matters, which were or could have been brought before the court to make a case or defense . . . [that] the parties neglected to litigate . . . in the original case." Winchell, 190 S.W.2d at 272; see also

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Blackstock v. Kohn, 994 S.W.2d 947, 853 (Mo. banc 1999) (affirming trial court's denial of Rule 74.06(b) motion based on allegedly perjured testimony, noting "[t]here is no basis for setting aside a judgment for fraud under Rule 74.06(b) unless one party prevented the other party, through fraud, from fully trying the case," and noting that the complaining party had been "able to question the truthfulness of [opposing party's] statements" through cross examination and in closing argument). The Rule 74.06(b) Motion asserted that Wife obtained the underlying judgment through false testimony that she was the sole owner of the Company. But it is clear from the evidentiary hearing on the Rule 74.06(b) Motion that at best for Husband, evidence on this point was contested. Husband cannot use a Rule 74.06(b) Motion to litigate the contested issue of ownership of the Company in light of his conscious choice to ignore the petition for dissolution. See Missouri-Nebraska Exp., Inc., 876 S.W.2d at 734 ("Irrespective of whether the fraud is identified as intrinsic or extrinsic," even perjury "does not suffice to allow the litigant another opportunity to try the merits of the case," unless "accompanied by conduct of a suitor which prevented the appearance or meritorious defense" of the opposing party) (citations omitted). Point Two is denied. Point Three: The trial court did not abuse its discretion or commit reversible error in excluding evidence that was beyond the scope of Husband's Rule 74.06(b) Motion

Husband's third point on appeal argues that the trial court abused its discretion in sustaining Wife's objection to the admission of evidence offered by Husband in support of the Rule 74.06(b) Motion. Specifically, Husband argues that his Rule 74.06(b) Motion

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stated "multiple claims for relief based on Wife's representations" during the default hearing on her petition for dissolution relating to management of the Company and the increase in the Company's value following the contribution of marital assets including Husband's labor, and that it was an abuse of discretion to exclude evidence relating to these topics. A trial court has "'considerable discretion' in determining whether to exclude or admit evidence." Anderson, 719 S.W.3d at 765 (quoting Marcantonio v. Bd. of Curators of Lincoln Univ., 702 S.W.3d 153, 170 (Mo. App. W.D. 2024)). Even if a trial court abuses its discretion in admitting or excluding evidence, we generally will not reverse the trial court's judgment unless the appellant establishes that the error involved outcome- determinative prejudice. Id. Husband's third point on appeal focuses on his attempts during the evidentiary hearing on the Rule 74.06(b) Motion to offer testimony and evidence about how the contribution of marital assets to the Company during the marriage, including his labor, resulted in an increase in the Company's value that should have been treated as marital property. Wife repeatedly objected to Husband's attempts to introduce evidence of this nature, and argued that the evidence exceeded the scope of the Rule 74.06(b) Motion, which Wife asserted was limited to a claim of intrinsic fraud based on Wife's alleged misrepresentation about whether she was the sole legal owner of the Company. When Wife's objections were raised, the trial court sought guidance from Husband's counsel in an effort to crystallize the nature of Husband's intrinsic fraud claim. The trial court first asked Husband's counsel "to drill down for me. The motion to set

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aside makes claims for intrinsic fraud. What is the specific allegation of intrinsic fraud that you are making?" After a rambling response, the trial court interrupted and said "Counsel, I'm still really trying to get you to focus in on: What do you allege in your [Rule 74.06(b) Motion] is the fraud?" Husband's counsel responded by referring to the general principle that false statements can be intrinsic fraud, which prompted the trial court to again press Husband's counsel by noting "I am aware of that, Counsel. I'm going to ask the question one more time. I want an answer to my question. I don't want to dance around the edge of it. I don't want to talk about what the testimony has been. I want to know in your [Rule 74.06(b) Motion] what are you claiming is the intrinsic fraud?" Husband's counsel responded as follows: That [Wife] was the 100 percent owner of the [Company]; that [Husband] never had an ownership interest in this [Company]; that [Husband] from the beginning did have an ownership interest in the [Company]; and that [Husband] throughout the ownership period never gave up or stopped having an ownership interest.

The trial court then asked Husband's counsel to confirm that "when we're talking about intrinsic fraud under Rule 74.06, what I need to be focused in on is intrinsic fraud regarding ownership; is that correct?" Husband's counsel responded, "I believe so, Your Honor," though she continued by arguing that value added to the Company during the marriage should be treated as marital property. When asked by the trial court to pinpoint where this argument had been made in the Rule 74.06(b) Motion, counsel struggled and was not able to do so. In lieu of spending additional time on the subject, the trial court announced that it was taking Wife's objections under advisement, which permitted Husband's evidence and testimony to proceed, subject to Wife's objections.

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At the conclusion of the hearing, the trial court sustained Wife's objections and noted: Just so it's clear for the record, to the extent that there were objections made in regard to evidence beyond the relevant scope of the pleadings. To the extent that those objections were made, those objections are sustained and that evidence is not considered as part of my record here today.

Consistent with this ruling, the trial court stated in the Judgment that it did not consider "any evidence presented that is outside the matters that [Husband] specifically pleaded in his request for Rule 74.06(b)(2) relief." Husband now claims this was error. He highlights several generalized allegations in the Rule 74.06(b) Motion which he claims supported "multiple claims" of misrepresentation by Wife during the default hearing that were not limited to a single claim of misrepresentation about whether Wife was the sole owner of the Company. However, the generalized allegations in the Rule 74.06(b) Motion identified by Husband on appeal were not brought to the trial court's attention during the hearing on the Rule 74.06(b) Motion, despite the trial court's repeated urgings for clarification about the specific nature of Husband's intrinsic fraud claim. Tolu v. Stientjes, 703 S.W.3d 619, 635 (Mo. App. E.D. 2024) ("[p]arties are bound by the position they took in the trial court and will not be heard on a different theory on appeal") (citation omitted). Even crediting the allegations in the Rule 74.06(b) Motion that Husband now highlights on appeal, the Rule 74.06(b) Motion did not seek relief related to those allegations. The specific relief sought by the Rule 74.06(b) Motion was to set aside the default judgment's award of the Company to Wife as her sole and separate non-marital

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property because Wife misrepresented that she was the sole legal owner of the Company despite Husband's contention that he was a co-owner of the Company. Husband's Rule 74.06(b) Motion did not seek to set aside the division of marital property in the default judgment because Wife's misrepresentations deprived Husband of an award of some portion of the increase in the Company's value as marital property. Under section 452.330.2(5), marital property excludes the "increase in value of property acquired prior to the marriage . . ., unless marital assets including labor, have contributed to such increases," in which case, the extent of those contributions will be considered marital property. 4 (Emphasis added). "For a spouse to be entitled to a proportionate share of the increase in the other spouse's separate [non-marital] property, the marital labor, efforts or services must be substantiated." Knapp v. Knapp, 874 S.W.2d 520, 524 (Mo. App. W.D. 1994) (citing Meservey v. Meservey, 841 S.W.2d 240, 245-46 (Mo. App. W.D. 1992)). An argument advanced pursuant to section 452.330.2(5) presumes that the property in question is non-marital, and does not seek to recast legal ownership of the property. Instead, an argument pursuant to section 452.330.2(5) seeks to convert the increased value of non-marital property into marital property, but only to the extent that marital assets contributed to that value. Husband did not rely on or make any reference to section 452.330.2(5) in his Rule 74.06(b) Motion, and certainly made no argument to the effect that even if the Company

4 All statutory references are to RSMo 2016, as supplemented through September 28, 2023, when Husband filed the Rule 74.05(d) Motion and the Rule 74.06(b) Motion, unless otherwise noted.

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was solely owned by Wife, the Company's value attributable to contributed marital assets (including his labor) would have been treated as marital property but for Wife's misrepresentations. It is not enough that Husband's Rule 74.06(b) Motion included generalized assertions that Wife misrepresented the extent of his contributions to the Company and the effect of those contributions on the Company's value. Husband was required to connect those generalized assertions to specific relief sought from the default judgment. His Rule 74.06(b) Motion did not do so. Missouri requires trials to be "limited to the scope of the issues raised by the pleadings." Schieffer v. DeCleene, 539 S.W.3d 798, 804 (Mo. App. E.D. 2017) (quoting Int'l Div., Inc. v. DeWitt & Assoc., Inc., 425 S.W.3d 225, 228 (Mo App. S.D. 2014)). Accordingly, evidence presented at trial "must conform to the pleading" because "the pleader must not be permitted to prove that which he does not allege." Lowe v. Hill, 430 S.W.3d 346, 350 (Mo. App. W.D. 2014) (quoting Swan v. Stuart, 353 S.W.2d 805, 806 (Mo. App. 1962)). The "'trial court's authority is limited to such questions as are presented by the parties in their pleadings,' and 'where objected-to evidence is outside the scope of the pleadings, the trial court has no discretion to admit such evidence.'" Schieffer, 539 S.W.3d at 807 (citations omitted). The trial court did not abuse its discretion, therefore, in sustaining Wife's objections to the admission of evidence relating to an increase in the Company's value during the marriage based on the contribution of marital assets, including Husband's labor. Even if we were to conclude to the contrary, which we do not, the exclusion of Husband's evidence about the effect of contributed marital assets on the value of the

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Company did not result in reversible error. After the trial court took Wife's objections under advisement, Husband continued with the presentation of his evidence, including evidence that he was undercompensated while he was employed by the Company, and evidence that the Company had value notwithstanding K-1s that showed the Company operated at a loss. This evidence was offered to establish that Wife misrepresented Husband's compensation and the value of the Company during the default hearing. But, even if Wife's default hearing evidence was perjured (which we do not find), the trial court would not have been authorized to set aside all or any portion of the default judgment based on the claim of intrinsic fraud. Wife's evidence "could have been presented at the trial which resulted in the judgment attacked," and does not support Rule 74.06(b)(2) relief because "set[ting] aside a judgment under such conditions 'would be equivalent to giving [a party] another chance to be heard upon questions'" which could have been litigated in a contested proceeding. Missouri-Nebraska Exp., Inc., 876 S.W.2d at 734 (quoting Crowley, 131 S.W.2d at 386) (emphasis omitted). As discussed in addressing Husband's second point on appeal, Husband cannot use his Rule 74.06(b) Motion to litigate the merit of issues that could have been tried in a contested dissolution proceeding but for his conscious decision not to file an answer in response to Wife's dissolution petition. Husband is improvidently attempting to do just that, as demonstrated by his reliance on the "meritorious defense" evidence raised in his Rule 74.05(d) Motion to argue on appeal that outcome determinative error occurred when the trial court excluded evidence that he claims was relevant to his Rule 74.06(b) Motion. Point Three is denied.

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Conclusion The trial court's Judgment is affirmed. __________________________________ Cynthia L. Martin, Judge

All concur