Opinion
No. A-11-106.
08-09-2011
STATE OF NEBRASKA ON BEHALF OF CHASE R. PAULSON, A MINOR CHILD, APPELLEE, v. TROY L. PAULSON, DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLANT, AND JULIA S. STICKLER, THIRD-PARTY DEFENDANT, APPELLEE.
Brent M. Kuhn, of Harris Kuhn Law Firm, L.L.P., for appellant. Margaret M. Zarbano for appellee Julia S. Stickler.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Douglas County: THOMAS A. OTEPKA, Judge. Reversed and remanded for further proceedings.
Brent M. Kuhn, of Harris Kuhn Law Firm, L.L.P., for appellant.
Margaret M. Zarbano for appellee Julia S. Stickler.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Troy L. Paulson appeals from the order of the district court for Douglas County that overruled his motion for new trial in which he asked that the court's default judgment of paternity be vacated. As explained more fully below, we reverse the decision of the district court and remand the cause for further proceedings. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
STATEMENT OF FACTS
It is undisputed that Paulson and Julia S. Stickler are the parents of Chase R. Paulson, born in 2008. In August 2010, the State of Nebraska filed a complaint to establish support in which it alleged that Stickler had custody of Chase and asked for an order establishing Paulson's child support obligation. Shortly thereafter, the district court granted Stickler's motion to add her as a third-party defendant. On September 13, Stickler filed a complaint for determination of custody and parenting time in which she asked that the court determine these issues as well as the State's request for child support.
The record contains a copy of a voluntary appearance, signed by Paulson and filed on September 27, 2010. In this document, Paulson acknowledged receipt of Stickler's complaint. However, Paulson did not file an answer or request notice of hearing in the case. On December 6, Stickler filed a motion for entry of default decree, noting Paulson's failure to answer or otherwise plead in the case. The motion and notice of hearing do not show service upon Paulson.
At the hearing on the default judgment, Stickler testified that she and Paulson had lived together for more than 3 years and that the last information she had was that he earned a gross monthly income of $2,000. Paulson was also obligated to pay monthly child support of $325 for another child. Stickler testified that Paulson had last seen Chase the previous weekend and that the parties got along well with regard to Paulson's visitations with the child. Stickler introduced into evidence a default parenting plan, which gave her sole custody with visitation for Paulson at her sole discretion. On January 12, 2011, the district court entered a decree which ordered child support retroactive to April 2010, the sharing of medical expenses, and visitation times in accordance with Stickler's evidence.
On January 19, 2011, Paulson filed a motion for new trial in which he cited various subsections of Neb. Rev. Stat. § 25-1142 (Reissue 2008), as well as his contention that he had not received notice of trial and that the decree was not in Chase's best interests because Stickler was not a fit parent and custody should be awarded to Paulson. Paulson asked for a new trial and that the decree be vacated.
The hearing on Paulson's motion consisted largely of attorney arguments, as well as an affidavit from Paulson that acknowledged that he had been served with a copy of Stickler's complaint. He stated that he then attempted to acquire funds to hire an attorney and that he met with his attorney on December 11, 2010, and eventually hired the attorney to represent him in the matter. He stated that he had not been aware that trial was scheduled in the matter for December 15. He further stated that he believed the decree was not in Chase's best interests and that Stickler was not a fit person to have custody of the child, and he asked that the decree be vacated. In an order filed January 27, 2011, the district court denied Paulson's motion. Paulson timely appealed from this order.
ASSIGNMENT OF ERROR
Paulson asserts, as summarized, that the district court erred in overruling his motion for new trial.
STANDARD OF REVIEW
In reviewing a trial court's action in vacating or refusing to vacate a default judgment, an appellate court will uphold and affirm the trial court's action in the absence of an abuse of discretion. Design Builders, Inc. v. Heyd-Lamb, 10 Neb. App. 642, 635 N.W.2d 543 (2001).
ANALYSIS
In overruling Paulson's motion, the court cited Tejral v. Tejral, 220 Neb. 264, 369 N.W.2d 359 (1985), a case in which the district court entered a default judgment dissolving the parties' marriage. The wife had been personally served with summons and a copy of the petition, but did not answer or appear. After the district court entered the default judgment, she moved to vacate, arguing that she had not received notice of the dissolution hearing. The Nebraska Supreme Court held that where a party in a dissolution of marriage case is served personally with a summons and a copy of the petition in the case, and that party chooses to not file any pleading or to not enter an appearance in the case, and has not otherwise requested notice of hearing, notice of a default hearing need not be given to such party. This holding has since been applied to paternity actions. See, State on behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (2007); Starr v. King, 234 Neb. 339, 451 N.W.2d 82 (1990).
The court in State on behalf of A.E. v. Buckhalter, supra, noted that Neb. Rev. Stat. § 43-1412(2) (Reissue 2004) provides for a default judgment to be entered in a paternity action upon a showing of service and failure of the defendant to answer or otherwise appear. However, the court also stated that when the court has entered a default judgment and the defendant has made a prompt application at the same term to set it aside, with the tender of an answer or other proof disclosing a meritorious defense, the court should on reasonable terms sustain the motion and permit the cause to be heard on the merits. State on behalf of A.E. v. Buckhalter, supra. In the context of a motion to vacate a default judgment, a meritorious or substantial defense or cause means one which is worthy of judicial inquiry because it raises a question of law deserving some investigation and discussion or a real controversy as to the essential facts. Id. To vacate a default judgment, a defendant is not required to show that he will ultimately prevail, but only that he has a recognized defense that is not frivolous. Id.
In the instant case, Paulson did not file an answer, but he did make a prompt application, 5 days later, within the same term to set aside the default judgment, along with his assertion of a meritorious defense, i.e., that Stickler was an unfit person to have custody of Chase. Paulson may not prevail on this defense, but it is certainly a recognized defense in a custody matter and which, if proved, would be meritorious.
Because Paulson timely filed a motion to set aside the default judgment and tendered an answer or other proof disclosing a meritorious defense, the district court abused its discretion in refusing to sustain his motion and permit the cause to be heard on the merits. See State on behalf of A.E. v. Buckhalter, supra.
CONCLUSION
Paulson's application to vacate the default judgment was promptly filed and appears to set forth a meritorious defense. The district court abused its discretion when it failed to set aside the default judgment in favor of Stickler. For this reason, we reverse the order of the district court, and remand for further proceedings.
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.