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‘Parade Of Errors’ In Divorce Proceeding Required Nixing Trial Court Orders

Posted on Wednesday, August 15, 2018

A spousal support award and the division of property in a divorce case must be vacated because the trial court engaged in a “parade of errors” – namely, denying the husband’s constitutional right to counsel, the Michigan Court of Appeals has ruled.

In Geivett v Geivett (Docket No. 338319), the trial court had entered a default judgment of divorce, ordering the defendant husband to pay $2,000 per month in spousal support. The trial court also awarded the plaintiff wife certain property valued at nearly $40,000.

The Court of Appeals vacated the trial court’s orders, finding they were inappropriately entered because the defendant did not receive timely notice of “critical orders” that had been entered during the divorce proceedings.

The “most fundamental error” in the case, however, was the denial of the defendant’s right to counsel at the evidentiary hearing, the Court of Appeals said. “The deprivation of [the defendant’s] rights to due process and counsel compel us to vacate the spousal support and property division provisions of the default judgment of divorce and remand for further proceedings.”

Default Divorce Judgment

On February 24, 2016, the plaintiff personally served divorce papers on the defendant. The defendant did not respond, allegedly because he believed the parties would amicably resolve their dispute.

The plaintiff then secured a default judgment against the defendant on March 28, 2016. She waited until April 22, 2016 to serve the defendant by mail with 1) the default, 2) a motion for the entry of a default judgment of divorce and 3) a proposed judgment. The plaintiff sent the documents to the defendant’s old address and, thus, the documents were returned as undeliverable.

On April 27, 2016, the plaintiff’s attorney emailed the documents to the defendant. This is when the defendant realized the matter would not be resolved amicably and the divorce was moving forward. Therefore, the defendant retained counsel, who filed an appearance and an objection to the default and the terms of the proposed default judgment.

An evidentiary hearing was scheduled to address spousal support and the division of property. When ordering this hearing, the trial court indicated that, although it was setting aside the default, it was “not reinstating” the defendant’s right to have counsel assist him at the hearing. Defense counsel objected, pointing out he was the attorney of record. The trial court responded: “You can assist your client during recesses. He’s going to advocate for himself because he chose not to retain an attorney in a timely fashion and we would have avoided all of this confusion at the end of the case.”

The trial court ultimately awarded the plaintiff nearly $40,000 in property and entered a modifiable spousal support award of $2,000 monthly for 10 years. Defense counsel filed a motion for reconsideration, which the trial court denied.

Trial Court ‘Went Too Far’

On appeal, the Court of Appeals said the trial court “interfered” with the defendant’s right to counsel by demanding that he proceed without full assistance of counsel.

The plaintiff argued, however, the trial court could limit the defendant’s right to counsel as a sanction under Draggoo v Draggoo, 223 Mich App 415 (1997), for his failure to respond to the initial service of divorce papers. “Draggoo does not stand for this proposition,” the Court of Appeals wrote. “The defendant in Draggoo was not relieved of representation; his counsel continued to appear in court and contemporaneously advise his client as the trial proceeded. … This case presents a completely different scenario.”

According to the Court of Appeals, the trial court ordered the defendant to proceed in pro per, “with only brief respites” to confer with his lawyer and was not permitted to sit with his client, thus placing him “in a lesser position than even standby counsel.”

“The trial court went too far and denied [the defendant] his constitutional right to representation by retained counsel,” the Court of Appeals concluded. 

‘Breakdown In Notice’

Equally troublesome was the “breakdown in notice” in the case, the Court of Appeals said, calling the divorce proceedings a “parade of errors.”

The plaintiff, her attorney and the trial court “repeatedly failed” to timely serve orders on the defendant and his lawyer, the Court of Appeals observed. While some failures appeared intentional, other times counsel and the trial court “seemed oblivious to their duties.” As a result, the defendant’s ability to participate in the proceedings “was severely impaired.”

The Court of Appeals pointed out that MCR 2.107(A)(1) says “every party who has filed a pleading, an appearance, or a motion must be served with a copy of every paper later filed in the action.” Moreover, even when a default is entered, “further service of papers” is required if the defendant “has filed an appearance or a written demand for service of papers.”

Here, the trial court told the defendant his default eliminated the plaintiff’s duty to serve further court orders upon him. “This is false,” the Court of Appeals wrote. “MCR 3.210(B)(2)(e) provides: ‘A party in default must be served with the notice of default and a copy of every paper later filed in the case as provided by MCR 3.203, and the person serving the notice or other paper must file a proof of service with the court.’”

No Meaningful Participation

Because of the repeated failures to notify the defendant of the nature of the proceedings and the denial of his right to counsel, the defendant “was not permitted to participate in any meaningful way at the evidentiary hearing,” the Court of Appeals stated.

Rather, the trial court awarded spousal support and divided the property “based completely” on the plaintiff’s version of the facts, the Court of Appeals explained. The defendant “was not permitted to challenge [the] testimony or present his own witnesses or evidence,” the Court said. “He was left with only his testimony elicited by the court and [plaintiff’s counsel], unable to fill in any blanks through questioning by his own counsel or even through his own narrative.”

Accordingly, the Court of Appeals vacated the spousal support and property division provisions of the default judgment. “On remand, the court must allow [the defendant] an opportunity to meet the conditions set forth in the July 1 order. If [he] does not, the circuit court may reinstate the default against him. However, the court may not deprive [him] of the right to counsel. If [he] fulfills his obligations, the court should proceed to a hearing to consider the financial provisions of the Geivetts’ divorce judgment.”

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