(dissenting).
My problem with the court’s decision is that the record requires us to speculate that the original dissolution decree is wrong on the merits. Respondent husband did not *724file an answer in defense to petitioner’s petition for dissolution, and in respondent’s own petition to vacate the dissolution decree he did not aver a defense to the original petition. Presumably the original petition sought and the original decree granted the usual three main items of relief: dissolution, custody, and economic provisions. If respondent has an objection or complaint as to any terms of the decree, he should aver his defenses since he did not plead to the original petition. A court should not set aside a decree where the applicant does not aver a meritorious defense.
From earliest days this court has required that the applicant allege he has a meritorious claim or defense, as the case may be. Piggott v. Addicks, 3 G. Greene 427, 429 (Iowa) (“There is no propriety in setting aside a judgment and opening the door for further litigation if the result is to be the same.”). From the Revision of 1860 to the Code of 1939 Iowa had two procedures for vacating judgments, one to be commenced by the first day of the next term of court, and the other (like the present one) to be commenced within a year in most cases. Rev. 1860, §§ 3150, 3499-3506; see Code 1939, §§ 11589,12787, and 12791-12800. In both procedures the statutes required a showing as to the merits. § 11589 (“but not unless an affidavit of merits is filed”); § 12796 (“The judgment shall not be vacated on motion or petition until it is adjudged there is a cause of action or defense to the action in which the judgment is rendered.”).
Illustrative cases under these statutes are Messenger v. Messenger, 188 Iowa 367, 368, 176 N.W. 260 (“In support of her application to set aside the [divorce] decree, it was necessary for the defendant to show prima facie a good defense.”); In re Estate of Kinnan, 218 Iowa 572, 577, 255 N.W. 632, 635 (“It is the uniform holding of this court that, where there is no showing of a defense to the action in which the judgment was obtained, it should not be set aside.”); Beardsley v. Clark,, 229 Iowa 601, 294 N.W. 887; and Thoreson v. Central States Electric Co., 225 Iowa 1406, 283 N.W. 253.
This court promulgated the rules of civil procedure in 1943. Rule 236 and rules 252 and 253 supplanted the cited statutes. The rules of civil procedure started the movement away from terms of court, and rule 236, which took the place of § 11589, requires that the motion be filed within 60 days, instead of by the first day of the next term. The rule does not expressly mandate the allegation of a meritorious claim or defense, but this court so requires in order for the movant to fulfill the “good cause” condition in the rule. Flexsteel Industries, Inc. v. Morbern Industries Ltd., 239 N.W.2d 593 (Iowa). Respondent here cannot utilize rule 236, as he did not file his petition to vacate within 60 days.
Respondent’s petition falls under rules 252 and 253. Rule 253 expressly requires that a meritorious defense (or action) be alleged, with only one exception — when the party alleged a meritorious defense or action in his original pleading. The language of the rule on this requirement is:
Unless the pleadings in the original action alleged a meritorious action or defense the petition shall do so. It shall be supported by affidavit as provided in rule 80 “⅛ ”.
Just as this court had the requirement that a meritorious action or defense be alleged under the former statute, so this court has that requirement under rule 253. In re Marriage of Maskel, 225 N.W.2d 115, 118 (Iowa) (“Rule 253(a) of the Rules of Civil Procedure requires that a petitioner such as Mrs. Maskel must in her petition aver a meritorious defense unless her original answer does so.”); Dragstra v. Northwestern State Bank, 192 N.W.2d 786 (Iowa) (same rule).
In respondent’s petition to vacate and supporting affidavit, he spells out at length the grounds he relies on to set aside the original decree. But he does not aver what his defense is to the dissolution prayed, if any he has; so far as appears the dissolution decreed may be proper. He may intend not to try to defend against a dissolution itself, since we have no-fault dissolution. In re Williams’ Marriage, 199 N.W.2d *725339 (Iowa). In any event, he does not aver his defense if any to the child custody claim of petitioner-wife; so far as one can tell, the custody decreed is right. Nor does he aver a defense to the wife’s original request for economic provisions; for all that we know, those terms of the decree are equitable. Respondent’s petition is fatally deficient.
Although corresponding rule 60 of the Federal Rules of Civil Procedure does not expressly require a defendant seeking to vacate a judgment to aver a meritorious defense, the federal courts so require. Illustrative decisions are Central Operating Co. v. Utility Workers of America, 491 F.2d 245, 252 (4 Cir.) (“In order to obtain relief under rule 60(b)(1), a party must show that he had an acceptable excuse for lapsing into default and that he has a meritorious defense to the action.”); Wokan v. Alladin International, Inc., 485 F.2d 1232, 1234 (3 Cir.) (“On a motion to set aside a default or a default judgment, the moving party must show that he has a meritorious defense.”); Gomes v. Williams, 420 F.2d 1364, 1366 (10 Cir.) (“that party must show that there was good reason for the default and that he has a meritorious defense to the action”); Consolidated Masonry & Fireproofing, Inc. v. Wagman Const. Corp., 383 F.2d 249 (4 Cir.); Bell Tel. Laboratories, Inc. v. Hughes Aircraft Co., 73 F.R.D. 16 (D.Del.); Aberson v. Glassman, 70 F.R.D. 683, 684 (S.D.N.Y.) (“A court may set aside a default if the defaulting party shows good cause for his default and a meritorious defense.”); Usery v. Weiner Bros., Inc., 70 F.R.D. 615 (D.Gonn.).
I am unwilling to speculate that the original decree is wrong on the merits. I would affirm.