concurring in part and dissenting in part.
I agree that the case should be retrans-ferred to the Court of Appeals. The re-transfer, under the guidance of the principal opinion, would presumably result in the republication of Judge Reinhard’s majority opinion written for that court. I cannot agree with the statement in his opinion that, except for one point questioning subject matter jurisdiction over a part of the case,
we are without jurisdiction to entertain the remainder of husband’s points on appeal.
I believe that the dissenting opinion of Judge Crist perceives the flaw in the majority opinion and expounds the correct legal analysis.
The procedures in the trial court were proper. The defendant was in default because of failure to answer. The trial court then conducted a hearing and entered judgment on October 14, 1981. The judgment so entered was subject to control of the trial court for 30 days, just as any other judgment, and the defendant could have moved the court, within that period, to set the default aside. Rule 75.01. When no motions were filed, the judgment became “final.”
Notice of appeal was required to be filed within ten days after the judgment became final, Rule 81.04, and so the notice filed November 20, 1981, was timely. I perceive no reason why that notice was not sufficient to transfer the case from the circuit court to the Court of Appeals, and find no statute or rule which would deny that court its usual power to affirm, modify, or reverse the judgment of the circuit court in accordance with its views of the governing law. The rules do not distinguish between judgments by default and other judgments. The Court of Appeals, indeed, has exercised its jurisdiction by reversing that portion of the judgment as to which it found an absence of subject matter jurisdiction.
The rule enunciated in the principal opinion, that a litigant should not be afforded relief on appeal as to matters which could have been, and were not, presented to the trial court, is eminently sound, and our appellate courts are entirely justified in *426applying it to cases which come before them. The rule, however, is a rule of appellate procedure and not a rule of jurisdiction. The Court of Appeals, if of the opinion that an appealing defendant should be denied further relief because of his default in the trial court, would have full authority to affirm the judgment. It should do this, rather than dismissing the appeal for want of jurisdiction.
This is because there are exceptions to the rule of preclusion. The majority opinion in the Court of Appeals has applied one of these, in reversing a portion of the judgment. There is also the concept of plain error (Rule 84.13(c)). There is no reason why the Court of Appeals should not correct plain error in a default case, just as it could in a jury case in which certain points have not been presented to the trial court and preserved in motion for new trial. I join in Judge Crist’s queries. What if the trial court had awarded $40,000 per month maintenance, or a $60,000 attorney’s fee? Would the Court of Appeals be powerless? I hardly think so.
The circuit court is not justified in entering judgment by default on unliquidated claims without a hearing to explore the economic elements of the judgment sought. Rule 74.11 announces the fundamental proposition that the relief granted may not exceed the prayer of the petition. In cases under Chapter 452, the plaintiff is not required to indicate a monetary amount but may simply ask for “reasonable” maintenance or “reasonable” attorneys’ fees, and. “just” distribution of marital property. It might be argued that an egregious award is in excess of the prayer of the petition, so as to constitute an excess of jurisdiction, or is an “irregularity” subject to review under Rule 74.32. Cf. ABC Fireproof Warehouse Co. v. Clemans, 658 S.W.2d 28 (Mo. banc 1983). I would avoid the need for collateral attack by recognizing the jurisdiction of the Court of Appeals in cases in which notice of appeal is timely filed.
The holding of the majority places a great premium on filing a motion to set aside default, by a person who has slept on the right to file a responsive pleading. If the sleeper does not wake up in 30 days, serious disadvantage results. This of course is the fault of the litigant, but a total denial of appellate power is not necessarily an appropriate solution.
I of course express no opinion as to whether relief for “plain error” is appropriate in this case. This is for the Court of Appeals to decide. That court of course may weigh the default heavily against the defendant, to the point of denying relief on meritorious claims. We should, however, correct the Court of Appeals in its misapprehension of its powers, by retransferring the case for further proceedings consistent with the views I express.