Summary
In Bernfeld the court stated that on a motion to vacate a judgment of divorce "an affidavit of a party should be accepted as proof of the statements contained therein for purposes of determining whether there is sufficient cause to vacate a default judgment."
Summary of this case from In re the Marriage Syphard v. SyphardOpinion
No. 90.
Argued: January 2, 1969.
Decided: February 4, 1969.
APPEAL from a judgment and an order of the circuit court for Milwaukee county: WILLIAM R. MOSER, Circuit Judge. Reversed.
This is an action for divorce which was commenced by the respondent, Allan Bernfeld (hereinafter referred to as the "plaintiff"). Service of the summons and complaint was by publication and mailing. The appellant, Patricia Bernfeld (hereinafter referred to as the "defendant"), was living with her parents in Manchester, England, when the suit was started on June 28, 1967. The parties were intermarried on June 27, 1962, in Manchester, England. A child, Sharon, was born of this marriage on May 3, 1963.
A local attorney, Mr. David Rothstein, filed a notice of retainer on behalf of the defendant about September 5, 1967. (A letter of retainer was sent to plaintiff's attorney on July 19, 1967.) On or about September 8, 1967, the matter was noticed for trial as a default. No answer or counterclaim was ever filed.
The case came on for trial on January 16, 1968. Mr. Rothstein appeared on behalf of the defendant and made the following opening statement:
"May it please the Court, this matter was originally placed on the default calendar. My client, who is the defendant wife, now resides in Manchester, England, with her child, and I have a corresponding attorney in England, and we have been writing back and forth, back and forth [sic] for quite sometime.
"In any event, for quite sometime, we here in Milwaukee have been attempting to work out some kind of agreement as to the property settlement, and there seems to be an irreconcilable conflict in that respect.
". . .
"Not only that, but the wife now informs me, through her attorneys in England, that she wants to contest this matter, Judge, and wants leave to file the necessary pleadings and, of course, they have to be sent over there and signed and so forth."
The court treated this request as a motion for a continuance. The plaintiff opposed the motion. The trial court then made his determination:
"This Court would turn to Section 270.145 and under subsection (1) they require motions. Continuances require motions. Motions must be presented to the opposing side eight days before the date of the hearing, and they must be supplemented by affidavits. I don't see an affidavit. I don't see a motion. I must deny the motion."
"Continuances. (1) Motions for continuances (except from day to day or to some day during the term) shall be made on the first day of the term unless the cause alleged therefor occur or be discovered thereafter. No cause noticed for trial shall be continued without the consent of the parties or cause shown.
"(2) An affidavit for a continuance shall state that the moving party has a valid cause of action or a defense, . . ."
The trial court, however, did acknowledge that it had previously been the
". . . unwritten rule [in the Family Court] that defendants in default actions, on the day set for the default trial, could walk up to the bench and bar and serve up an answer and counterclaim and say, `I want an adjournment' and they got it.
". . .
"Now, that apparently was the rule of thumb here that these things could be accomplished, but there is no law that allows for that proceeding."
This quotation is from the decision of the trial court wherein the defendant's motion to vacate the default divorce was denied.
The trial court therefore ordered the parties to proceed to the merits of the divorce. No evidence was presented on the defendant's behalf, although the plaintiff and his "residence" witness were cross-examined quite thoroughly.
One other witness supported the plaintiff's testimony to establish the grounds of cruel and inhuman treatment. That witness was not cross-examined.
The plaintiff's evidence tended to establish that the defendant had left for England, without notice and without giving any reason. The plaintiff was in the hospital for a hernia operation at the time. The defendant took the only child of the parties with her. Plaintiff's evidence also showed that defendant was a poor housewife, that she was quarrelsome and fault-finding, that she employed physical violence on the plaintiff on at least one occasion, and that plaintiff's health was affected by this behavior.
Sharon was four years old when the defendant left for England.
The trial court found that the plaintiff's evidence established cruel and inhumane treatment. He awarded an absolute divorce to the plaintiff, but he gave the custody of the minor child to the defendant. The court awarded about 80 percent of the estate property to the plaintiff and about 20 percent to the defendant. A decision on alimony was specifically reserved, but none was ordered in the judgment. The trial court ordered support for the minor child of $80 per month, but he directed the clerk of the circuit court to retain the money until further order of the court. The judgment of absolute divorce was declared on January 17, 1968. The judgment was reduced to writing on February 6, 1968, and the notice of entry of judgment was dated February 7, 1968.
It is obvious from the decision that the court ordered the support money withheld because he was concerned with the husband's visitation rights. The trial court felt that the plaintiff had effectively been denied visitation rights when the child was taken to England.
On February 19, 1968, defendant filed a motion requesting that the judgment of divorce be vacated and that a new trial be ordered. The motion was heard on March 29, 1968. Shortly before the motion was heard, Attorney Irvin B. Charne was substituted by the defendant for Attorney David I. Rothstein.
Although many grounds for a new trial were alleged, the defendant particularly requested the trial court to vacate the default judgment based on sec. 247.37(2), Stats. Attorney Charne attempted to show that there was "sufficient cause" to vacate the default judgment because of two affidavits from the defendant.
"(2) So far as said judgment affects the marital status of the parties the court has the power to vacate or modify the same for sufficient cause shown, upon its own motion, or upon the application of either party to the action, at any time within one year from the granting of such judgment, provided both parties are then living. . . ."
The first affidavit was attached to an order to show cause why temporary alimony and support should not be awarded to the defendant. This order to show cause was dated December 21, 1967, but it was not returnable until January 23, 1968 (a week after the default divorce had been scheduled). The affidavit supporting the order to show cause (which was notarized in England) was dated December 13, 1967. This order to show cause and affidavit had been delivered to the sheriff's department for service on the plaintiff on January 12, 1968. The sheriff served the papers on January 19, 1968, and they were filed with the clerk of courts on January 22, 1968. Therefore, these papers were not a part of the record in the default proceeding which was held on January 16 and 17, 1968. This first affidavit stated, among other things, that the defendant
". . . was driven from the home of the parties because she was in fear of her own life and the life of her child, . . ."
In addition, the motion for a new trial was supported by a second affidavit (also notarized in England) which was dated March 25, 1968. This affidavit stated, among other things, that:
". . . your affiant has always believed and still believes that she has a meritorious defence to the complaint of the Plaintiff and that she has always desired and still does desire to file a counterclaim for an absolute divorce from the Plaintiff."
The affidavit also states:
"That during the pendency of the action, commencing in the month of September 1967 and from time to time thereafter, she had requested counsel representing her in this matter, through her counsel in England, to file an answer and counterclaim on her behalf, but that contrary to her request and the request of her counsel in England, no such answer or counterclaim was in fact prepared or filed."
The affidavit then took specific issue with numerous statements which had been part of plaintiff's testimony at the default divorce proceeding.
The trial court denied the motion for a new trial. Defendant appealed both from the judgment of divorce and the order denying the new trial. However, at oral argument, defendant's case rested primarily on the contention that the trial court abused its discretion in denying the motion to vacate the judgment and order a new trial. Defendant is no longer contending that the trial court abused its discretion in originally denying the motion for continuance.
For the appellant there were briefs by Charne, Tehan Taitelmann of Milwaukee, and oral argument by Irvin B. Charne.
For the respondent there was a brief by Ben L. Chernov, attorney, and Aaron E. Goodstein of counsel, both of Milwaukee, and oral argument by Mr. Chernov.
HANLEY, J.
The following issues are presented on this appeal:
1. Did the trial court abuse its discretion in denying the defendant's motion for a new trial;
2. Did the trial court abuse its discretion in dividing the estate of the parties;
3. Was the order directing the clerk of circuit courts to refrain from paying the support money to the defendant a proper order; and
4. Should a new trial be granted in the interest of justice?
Motion to Vacate Judgment and Grant New Trial.
The defendant's trial court motion to vacate judgment and grant a new trial was based on sec. 269.46(3) and 247.37(2), Stats. Under 269.46(3), the alleged errors which occurred in the default trial could be corrected. Under 247.37(2), the default divorce could be set aside even if the proceedings were free from error.
"(3) All judgments and court orders may be reviewed by the court at any time within 60 days from service of notice of entry thereof, but not later than 60 days after the end of the term of entry thereof."
See footnote 6.
On this appeal the defendant contends the trial court abused his discretion under 247.37(2), Stats., when he failed to vacate the default divorce.
It is well settled in Wisconsin that a motion to vacate a default divorce is directed to the discretion of the trial court.
"The motion to open the judgment and set aside the default and allow the defendant to plead was a motion addressed to the sound discretion of the court." Lessig v. Lessig (1908), 136 Wis. 403, 405, 117 N.W. 792.
"Defendant's motion to vacate the judgment is addressed to the discretion of the court. That appears from the language of the statute, sec. 247.37(2), which provides that `the court shall have power to vacate or modify the same for sufficient cause shown,' at any time within one year from the granting of the judgment." Starzinski v. Starzinski (1953), 263 Wis. 104, 108, 56 N.W.2d 784. See also Roddis v. Roddis (1962), 18 Wis.2d 118, 122, 118 N.W.2d 109.
This court has occasionally undertaken the task of explaining what constitutes an "abuse of discretion":
"The term ` abuse of discretion' exercised in any case by the trial court, as used in the decisions of courts and in the books, implying in common parlance a bad motive or wrong purpose, is not the most appropriate. It is really a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." Murray v. Buell (1889), 74 Wis. 14, 19, 41 N.W. 1010.
". . . Abuse of discretion does not necessarily mean ulterior motive, arbitrary conduct, or wilful disregard of the rights of a litigant, but it may mean a failure to apply principles of law applicable to a situation if prejudice results." Endeavor-Oxford Union Free High School Dist. v. Walters (1955), 270 Wis. 561, 569, 72 N.W.2d 535.
In this case there could be no abuse of discretion unless the defendant positively established that there was "sufficient cause" to vacate the default judgment of divorce.
Defendant's affidavits, if taken together, allege that the defendant was driven from her home because she was in fear of her own life and the life of the child, that she has a meritorious defense to the divorce action, and that since September, 1967, she had been requesting that her attorney file an answer and counterclaim in the action. The second affidavit also stated that the defendant:
". . . has always been and is willing to return to the State of Wisconsin to give testimony in connection with the trial of this matter."
The questions which must be answered are whether these statements should be accepted as fact for the purposes of establishing "sufficient cause" and whether these statements, even if taken as the truth, establish "sufficient cause."
Although it does not appear that the question has ever been considered by this court, an affidavit of a party should be accepted as proof of the statements contained therein for purposes of determining whether there is sufficient cause to vacate a default judgment. The courts have always looked with disfavor on default judgments. This is particularly true of default divorces.
". . . a default judgment of divorce does not stand upon the same plane as a judgment in an ordinary civil action, and the rule still obtains in a somewhat modified degree that a default judgment of divorce will be vacated upon slight showing." Subacz v. Subacz (1924), 183 Wis. 427, 434, 198 N.W. 372. See also: Kilmer v. Kilmer (1946), 249 Wis. 41, 45, 23 N.W.2d 510, and Jermain v. Jermain (1943), 243 Wis. 508, 513, 11 N.W.2d 163.
"Divorces are not favored in the law and especially by default which should be surrounded by proper safeguards." Bottomley v. Bottomley (1968), 38 Wis.2d 150, 156, 157, 156 N.W.2d 447.
However, even if the affidavits of defendant are accepted as true, it is still necessary to determine if they establish "sufficient cause."
The plaintiff contends that "sufficient cause" to vacate a default divorce can only be shown by discovering new evidence that affects the marital status of the parties. Here the alleged "sufficient cause" was the failure of the defendant's attorney to file the requested pleadings on time. The defendant does not offer any evidence affecting the marital status of the parties which was unknown to her at the time of the divorce hearings.
It must be conceded that no "new" evidence has been discovered in this case. It does not appear that this is the only standard upon which to vacate a default divorce, however. On the contrary, a default divorce can also be set aside on a lesser showing than that required under sec. 269.46(1), Stats.
"(1) The court may, upon notice and just terms, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him obtained, through his mistake, inadvertence, surprise or excusable neglect and may supply an omission in any proceeding . . . ."
"It is the contention of the defendant that under this statute [sec. 247.37(2)] the plaintiff did not support her motion to vacate the judgment by facts showing sufficient cause. As a practical matter, if the contentions of the defendant were upheld, an interlocutory judgment of divorce could not be set aside except upon showing sufficient cause to set aside a judgment under sec. 269.46(1), Stats. Sec. 247.37(2) should be liberally interpreted." Kilmer v. Kilmer, supra, at page 45.
This case, therefore, is to be distinguished from those previous cases cited by plaintiff which involved newly discovered evidence.
" One of the purposes of this statute [247.37(2)] is to give the trial court the authority to consider the conduct of the prevailing party subsequent to the divorce." Roddis v. Roddis, supra, at page 122. (Emphasis supplied.)
In this case the defendant wanted to contest the divorce, albeit tardily, but she never had the opportunity to present her case. It is difficult to believe that counsel for the defendant did not know, at least eight days before the scheduled trial of the default divorce, that defendant wanted to contest the divorce. Counsel could have submitted the proper written motion for continuance in advance of trial. Obviously he did not do so because, relying on his past experience, he thought he could get the case transferred from the default calendar to the contest calendar at the last minute. The trial court ruled that this procedure was improper. While the trial court was undoubtedly correct in his application of the law, it certainly appears that this abrupt change from the prior "rule of thumb" worked a hardship in the instant case. When it became obvious, on the motion to vacate the judgment, that the defendant was going to be denied her day in court because of her counsel's reliance on extra statutory procedure, the trial court abused his discretion in refusing to vacate the judgment.
The order to show cause why temporary support and alimony should not be granted was dated December 21, 1967. This was almost a month before the scheduled default trial date. The affidavit supporting the order to show cause was dated December 13, 1967. These documents would hardly have been executed, nor would the return date of the order to show cause have been set for January 23, 1968, if the defendant had intended to consent to a default divorce at the trial which was scheduled for January 16, 1968.
We do not reach the remaining issues inasmuch as we hold that the trial judge improperly exercised his discretion in denying the defendant's motion for a new trial.
By the Court. — Judgment and order reversed, cause remanded for a new trial.