Depaul v. Acosta

• Court: Superior Court of Guam
• Decided: July 27, 2012
• Docket: DM0583-11
• Status: Unknown

Opinion

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4 IN THE SUPERIOR COURT OF GUAM 5

6 ROBERT ANTHONY DEPAUL, ) CASE NO. DM0583-11 7 ) Plaintiff, ) 8 ) DECISION AND ORDER vs. ) 9 ) 10 THAMISHA OMAYRA ACOSTA, ) ) 11 Defendant. ) 12

14 INTRODUCTION 15 This matter came before the Honorable Alberto C. Lamorena IlIon 16 Defendant Thamisha Omayra Acosta's Motion to Set Aside the Default Judgment of 17 Divorce. Attorney Daniel S. Somerfleck represented Defendant. Attorney Ron 18 Moroni represented Plaintiff, Robert Anthony Depaul. Following the hearing the 19 Court took the matter under advisement. The Court now issues its Decision and 20 Order. 21 FACTUAL HISTORY 22 Plaintiff filed a complaint for dissolution of marriage on August 15, 2011. The 23 parties were married in 2009 and there is one minor child of the marriage. Plaintiff 24 personally served Defendant with the Summons and Complaint. Defendant made 25 an appearance at one child support hearing on September 22, 2011, but otherwise 26 failed to answer or defend against the complaint, despite the urging of the court to 27 do so. Following the child support hearing, Defendant left Guam and returned to 28 California where both parties now reside. Plaintiff applied for entry of default, Decision and Order Case No.

which the clerk granted on October 19, 2011. Plaintiff then filed a Notice of Hearing 2 for Entry of Default Judgment requesting a hearing date: This Court scheduled the 3 hearing for December 27, 2011. It is undisputed that Defendant did not receive 4 written notice of the default hearing date, though there is disagreement as to

5 whether Defendant had actual notice of the hearing.

6 Plaintiff and his counsel attended the hearing on December 27, 2011.

7 Defendant was not present. Following the hearing, this Court entered default judgment against Defendant. Thereafter, Plaintiff returned to California where he 8 attempted to enforce the default judgment. Defendant claims that she was unaware 9 of the entry of default or the entry of default judgment against her until Plaintiff 10 attempted to enforce the judgment in California. On February 16, 2012, Plaintiff 11 filed a motion to set aside the default judgment based on her assertion that she was 12 never provided notice of the default hearing as required by Guam Rule of Civil 13 Procedure 55(c). The issues to be decided by this Court are (1) whether Defendant 14 received sufficient notice of the default hearing; and, if not then (2) whether the lack 15 of notice warrants setting aside the default judgment. 16

17 DISCUSSION 18 1. Legal Standard 19 Defendant seeks to set aside default judgment pursuant to GRCP 60(b)(1), 20 (3), and (4). GRCP 60(b) allows a court to grant relief from judgments in certain 21 instances, and provides in relevant part: 22 (b) Mistakes; Inadvertence; Excusable Neglect; Newly 23 Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal 24 representative from a final judgment, order, or proceeding for the 25 following reasons: 26 (1) mistake, inadvertence, surprise, or excusable neglect; 27 (2) newly discovered evidence which by due diligence 28 could not have been discovered in time to move for a new trial under Rule 59(b);

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(3) fraud (whether heretofore denominated intrinsic or 2 extrinsic), misrepresentation, or other misconduct of an adverse 3 party; 4 (4) the judgment is void. 5 ... ; or 6

7 (6) any other reason justifying relief from the operation of the judgment. 8

9 GRCP 60(b). Under GRCP 55, entry of a valid default judgment entails a two-step process 10 involving entry of default by the clerk, which is then followed by entry of default 11 judgment by either the clerk or the court. That rule provides, in relevant part: 12

13 Rule 55. Default. 14 (a) Entry. When a party against whom a judgment for 15 affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to 16 appear by affidavit or otherwise, the clerk shall enter the 17 party's default. 18 (b) Judgment. Judgment by default may be entered as follows: 19 (1) By the Clerk. When the plaintiffs claim against a 20 defendant is for a sum certain or for a sum which can 21 by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the 22 amount due shall enter judgment for that amount and costs against the defendant, if the defendant has 23 been defaulted for failure to appear and is not an 24 infant or incompetent person.

25 (2) By the Court. In all other cases the party entitle to a 26 judgment by default shall apply to the court therefore .... If the party against whom judgment 27 by default is sought has appeared in the action, the party ... shall be served with written notice of the 28

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application for judgment at least 3 days prior to the 2 hearing on such application . ...

3 GRCP 55(a), (b) (emphasis added). Under the rule, a defendant who appears in the 4 action, notwithstanding that party's default status, is entitled to receive at least 5 three days' notice prior to the default hearing. Such notice is required to enable the 6 defendant to exercise his or her right to contest the entry of default or to contest the 7 amount of damages. See Tarr v. Superior Court In & For Pima County, 690 P.2d 68, 8 70 (Ariz. 1984); First Nat. Bank of Telluride v. Fleisher, 2 P.3d 706, 716 (Colo. 9 2000); lOA Charles Alan Wright et. aI., Fed. Prac. and Proc. § 2684 (3d ed.) (West). 10

11 II. Legal and Factual Analysis 12 The crux of Defendant's argument in this case is that the judgment is void 13 because Defendant did not receive notice of the default hearing. This Court finds 14 that Defendant did not receive proper notice of the default hearing and that the 15 deprivation of due process constitutes sufficient grounds to vacate the judgment. 16 a. Defendant Did Not Receive Proper Notice Under Rule 55(b) 17 Plaintiff expends great effort to refute Defendant's claim that she did not 18 have notice of the default hearing. Both parties have engaged in lengthy discussions 19 of their versions of the facts in this case and both parties' memoranda are 20 accompanied by declarations supporting their version of the facts. Before reaching 21 the legal merits of Defendant's argument regarding the lack of notice, this Court 22 briefly addresses the parties' dispute as to whether Defendant received proper 23 notice of the default hearing. 24 Plaintiff asserts that Defendant had actual knowledge of the default hearing 25 date and that her failure to appear at that hearing constitutes willful neglect. 26 Plaintiff claims that during a telephone call between Plaintiff and Defendant, 27 Defendant stated that she had called the court regularly to inquire as to the status 28 of the proceedings. (PI.'s Decl. '1 18, Mar. 20, 2012) As such, Plaintiff contends that

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he is "virtually certain that [Defendant] knew of the exact date of the default 2 hearing." Id. Defendant's own declaration states that Defendant had absolutely no 3 prior knowledge of the default hearing. (Def.'s Decl. ~ 5, Feb 27,2012) 4 This Court simply cannot find that Defendant received proper notice. First, 5 Plaintiff has no affirmative evidence that Defendant had notice of the hearing- 6 Plaintiffs only offer of proof is Plaintiffs own statement of belief that Defendant

7 was apprised of the hearing at some point during Defendant's telephone

8 communication with the court. However, any speculation as to what notice

9 Defendant may have received through her communications with the court is irrelevant as Rule 55(b) requires that a party who has appeared in a case receive 10 written notice of the default hearing. Plaintiff does not dispute that Defendant did 11 not receive written notice. As such, the facts here support Defendant's contention 12 that she did not receive proper notice as required by Rule 55(b). l3 b. Failure to Provide Notice Under Rule 55(b) Renders the 14 Judgment Void 15 Notwithstanding a defendant's clear right to reCeIve notice of a default 16 hearing under Rule 55(b), Plaintiff asserts that other courts have viewed their 17 identical notice provision as procedural rather than substantive, and that any lack 18 of notice is but one consideration when determining whether to set aside a default 19 judgment. This Court is not persuaded by the cases cited by Plaintiff. 20 In O'Brien v. Eubanks, 701 P.2d 614 (Colo. App. 1984), the court concluded 21 that the default judgment was proper because the defendant admitted that he had 22 actual notice of the default hearing and had simply chosen not appear. 701 P.2d. at 23 616. In contrast, in the present case Defendant submitted an affidavit stating that 24 she had no prior notice or knowledge of the entry of default or of the default 25 hearing. (Def.'s Decl. ~ 5) More recent Colorado Supreme Court precedent appears

26 to support Defendant's position that under these circumstances, the judgment must

27 be set aside. In First Nat. Bank of Telluride v. Fleisher, 2 P.3d 706, 713 (Colo.

28 2000), the Colorado Supreme Court noted that it has "required 'fastidious' compliance with C.R.C.P. 55(b) before allowing a default judgment to stand." 2 P.3d

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at 713 (citing Civil Servo Comm'n V. Doyle, 424 P.2d at 372 (Colo. 1967». Upon 2 determining that a lack of notice of a default hearing violated Fleisher's due process 3 rights, the court held that the judgment entered against Fleisher was void under 4 Rule 60(b). Id. 5 In Nesbitt V. Nesbitt, 402 P.2d 228 (Ariz. Ct. App. 1965), another case cited by 6 Plaintiff, the Arizona Court of Appeals stated in dicta 1 that the failure to give notice

7 under rule 55(b) is "not jurisdictional, but merely a procedural irregularity." 402

8 P.2d at 230. However, as evidenced by the Fleisher decision, a procedural

9 irregularity may constitute a due process violation sufficient to render a judgment void. Indeed, at least one subsequent Arizona case belies the dicta cited by Plaintiff. 10 In Tarr v. Superior Court, 690 P.2d 68 (Ariz. 1984) the Arizona Supreme Court 11 considered whether a defendant's answer, filed after the entry of default, 12 constitutes an appearance for the purposes of Arizona's identical Rule 55(b). Id. at 13 70-71. The court held that an untimely answer does qualify as an appearance, 14 which thereby entitles a defendant to the notice requirements under Rule 55(b). The 15 court, recognizing that the defendant had not received written notice of the default 16 hearing, upheld the trial court's ruling in which that court vacated the entry of 17 default judgment, but left the entry of default undisturbed. Id. at 71. Both Tarr and 18 Fleisher involved defendants who did not receive proper notice of a default hearing 19 and in both cases the respective state supreme courts held that the default 20 judgment should be set aside. 21 Winfield Associates, Inc. V. Stonecipher, 429 F.2d 1087 (10th Cir. 1970) 22 provides stronger support for Plaintiffs argument. In that case, the Seventh Circuit, 23 in considering the appellant's contention that the trial court's entry of default 24

26 The issue before the Nesbitt court was whether the failure to appoint a 27 representative for a minor in a divorce action rendered the judgment void. See Nesbitt v. Nesbitt, 1 Ariz. App. 293, 295, 402 P.2d 228, 230 (1965) (outlining appellant's assignments 28 of error on appeal). The court was not presented with and did not address whether a failure to provide notice under Rule 55(b) renders a judgment void.

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judgment was void for failure to provide three days' notice of the hearing, stated 2 that: 3 A procedural defect, such as failure to give notice as required, may be 4 sufficient to afford relief from a default judgment on appeal or for 5 relief under Rule 60(b) or together with other irregularities shown by the facts of a particular case may render the judgment void, however 6 the error should not usually be treated as so serious as to render the judgment void. Such a procedural defect should be considered 'in the 7 light of surrounding circumstances and will at times be harmless.' 8 429 F.2d at 1091 (quoting 7 Moore's Federal Practice P60.25(2». Thus, Stonecipher 9 directs courts to apply a totality of circumstances test in determining whether 10 judgment should be set aside in cases involving a violation of default hearing notice 11 requirements under the federal rules. 12 However, more recent cases in other jurisdictions, including the Ninth 13 Circuit, have held that a default judgment issued in derogation of Rule 55(b)(2)'s 14 notice requirements should be vacated, unless special circumstances exist. See In re 15 Roxford Foods, Inc., 12 F.3d 875 (9th Cir. 1993); Case v. Winters, 689 P.2d 467, 470 16 (Alaska 1984) (lack of notice for default judgment was fatally defective); Cordell v. 17 Jarrett, 301 S.E.2d 227, 229-30 (W. Va. 1982) (holding that failure to provide notice 18 to defendant of default hearing as required by Rule 55 constituted sufficient cause 19 to set aside judgment under Rule 60(b)(6»; Radioear Corp. v. Crouse, 547 P.2d 546, 20 548-49 (Idaho 1975) ("A default judgment entered without the requisite three day

21 notice is voidable as it has been irregularly obtained."). Rather than apply a totality

22 of the circumstances test, based on the overwhelming case law finding that a

23 default judgment issued in violation of Rule 55(b)'s notice requirements is generally void or voidable, this Court adopts the treatment in the Ninth Circuit whereby a 24 default judgment will be set aside absent a showing of special circumstances. 25 Plaintiff here offers no special circumstances warranting a denial of 26 Defendant's motion to set aside the default judgment. Plaintiff simply contends that 27 Defendant displayed an intention to ignore this Court's jurisdiction in this case, and 28 that her own culpable conduct led to the entry of default. Furthermore, Plaintiff

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contends that vacating the judgment will cause prejudice as Plaintiff will be 2 required to reapply for default judgment here in Guam at great expense. 3 The circumstances presented by Plaintiff do not outweigh the substantial 4 deprivation of rights that would result if the default judgment in this case were to 5 stand. Even a willfully defaulting defendant is entitled to notice when the 6 defendant has appeared in the case, and such notice allows the defendant to appear

7 again to contest the amount for which he or she will be liable. BYS Inc. v. Smoudi,

8 P.3d 1197, 1202 (Ariz. Ct. App. 2012); Cordell v. Jarrett, 301 S.E.2d 227,229-30 (W.

9 Va. 1982); c.f Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (due process is fundamentally the right to be heard 10 and that right has little worth unless one is informed of the pending matter). To 11 deprive a defendant of the right to notice of a default hearing constitutes a 12 deprivation of due process, rendering the judgment void. See Smoudi, P.3d at 1197. 13 Defendant in this case did not receive proper notice of the default hearing. 14 Therefore, Defendant was not afforded the opportunity to appear at the default 15 hearing to contest the entry of default or to address the substantial property and 16 custody issues in this divorce action. 2 As such, this Court finds that Defendant was 17

19 2 Also of note is Defendant's contention that the judgment in this case fails to address 20 significant issues regarding division of community property and community debts. Upon 21 closer inspection of the Interlocutory Decree of Divorce and Final Decrees of Divorce submitted by Plaintiffs attorney for this Court's signature, it is apparent that these 22 documents do not constitute valid divorce decrees. Under the Final Decree of Divorce, this Court granted Plaintiffs request for divorce based on irreconcilable differences. Such a 23 finding triggers a statutory duty whereby the Court must identifY and characterize the 24 party's assets and debts and thereafter strive to effect an equal distribution of the community property and debts. See 8 Guam Code Ann. § 8411(b) (2005). The bare bones 25 Decree submitted by Plaintiff fails to identify any particular community property or separate property, and the Final Decree of Divorce fails to mention community debts, 26 despite the affirmation by Defendant that such debts exist. It is unlikely that such a vague Divorce Decree is valid. Given Defendant's claim that she was not properly served notice of 27 the default hearing, and given that the Final Decree of Divorce lacks any identification or 28 equal distribution of the community property and debts, this Court finds that the defective decree also justifies setting aside the default judgment in this case.

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denied due process and that the default judgment must be set aside pursuant to 2 GRCP rule 60(b)(4).3 3 CONCLUSION 4

5 Based on the foregoing, Defendant's motion to set aside the default

6 judgments is GRANTED. The default judgments consisting of the Interlocutory and

7 Final Decrees of Divorce are void and are set aside pursuant to GRCP 60(b)(4). However, as Defendant failed to file an answer or otherwise defend against the 8 Complaint, and as Defendant offers no compelling argument contesting the validity 9 of the Clerk's entry of default, Defendant remains in default. A default hearing is IO scheduled for September 17, 2012 at 2:00 p.m. Plaintiff shall prepare an appropriate 11 written Notice of Hearing and serve Defendant in accordance with GRCP 5. 12

13 It is SO ORDERED this 27th day of Jul~ 14

22 3 Whether dismissal is proper under GRCP 60(b)(4) or 60(b)(6) largely depends on 23 whether the relevant jurisdiction considers the failure to provide notice as a defect that 24 renders the judgment void, or merely voidable. This Court agrees with those courts that find that a failure to provide notice constitutes a deprivation of due process, thereby 25 rendering the judgment void under rule 60(b)(4). First Nat. Bank of Telluride v. Fleisher, 2 P.3d 706, 716 (Colo. 2000) ("A default judgment rendered in violation of the defaulting 26 party's due process rights is a legal nullity.") In re Ctr. Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir. 1985) (judgment may be set aside on voidness grounds under Rule 60(b)(4) for 27 failure of due process). However, even if the judgment is voidable, rather than void, this 28 court still finds that the circumstances of this case merit setting aside the judgment under GRCP 60(b)(6).

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