REINSTATING DEFAULT JUDGEMENT OF DIVORCE


REINSTATING DEFAULT JUDGEMENT OF DIVORCE

 

#TERRY TALKS “Ideas worth sharing “

# 06012014, -TOPIC REINSTATING DEFAULT JUDGEMENT OF DIVORCE

 

Flint Divorce Attorney Terry R. Bankert P.C., 810-235-1970,  DATE: 06/01/14 TIME:5:00 a.m.

 

Issues:

 

Divorce;

Whether the trial court abused its discretion in reinstating the default judgment of divorce;

Draggoo v. Draggoo;The parties agree that we review this issue for an abuse of discretion.

See Dragoo v Dragoo, 223 Mich App 415, 429; 566 NW2d 642 (1997).

 

Division of the marital property;

Koy v. Koy;Even in light of the default, the trial court

was obligated to equitably divide the marital property. Koy v Koy, 274 Mich App 653, 659-660;

735 NW2d 665 (2007).

 

MCL 552.18 & MCL 552.101(4);Plaintiff was awarded

one-half of the portion of defendant’s pension that accrued during the marriage and defendant

was awarded one-half of the portion of plaintiff’s defined contribution account that accrued

during the marriage. This is consistent with the provisions of MCL 552.18 and MCL

552.101(4).

 

AlimonyThe awarding of spousal support is within the trial court’s discretion. Koy, 274 Mich

App at 660.

Court: Michigan Court of Appeals (Unpublished) UNPUBLISHED

May 6, 2014

Case Name: Vail v. Vail

 

No. 313431  ,Genesee Circuit Court , LC No. 11-301594-DO

PRIMARY SOURCE THIS ARTICLE e-Journal Number: 57060, THIS ARTICLE HAS MODIFIED THIS PRIMARY SOURCE

 

Judge(s): Per Curiam – Hoekstra, Sawyer, and Gleicher

 

REINSTATING DEFAULT JUDGEMENT

The court held that it was not persuaded that the trial court abused its discretion in reinstating the default judgment of divorce.

 

DIVISION OF MARITAL ESTATE

 

It also held that the trial court equally divided the marital estate. Further, the court was not persuaded that the trial court erred in denying alimony to the defendant-husband.

 

BACKGROUND

 

The parties were married in 1989 and the plaintiff-wife filed for divorce in 2011. Defendant was served on 8/15/11, and failed to file an answer. He claimed he was served while in court on a criminal matter. He turned the documents over to his criminal defense attorney who assured him that he “would handle it” but did not. Then, he secured new counsel who moved to set aside the default. On 5/2/12, the trial court issued an order granting the motion to set aside the default, conditioned upon the filing of an answer and the payment of $700 to plaintiff’s counsel within 30 days. After the deadline passed, defendant had only paid $200 of that amount and plaintiff’s counsel filed a motion to show cause as to the non-payment. At the July 9 hearing, the matter was adjourned to July 12, the scheduled trial date. On July 12, defendant still had not paid the remaining balance and the trial court entered a second default. The trial court permitted defense counsel to argue the merits of the proposed judgment of divorce. On appeal, defendant’s issue was whether the trial court erred in reinstating the default. First, the court noted that he defaulted not once, but twice in this case. Second, the trial court imposed the $700 assessment under the provisions of MCR 2.603(D)(4) with the requirement that it be paid within 30 days. More than 2 months later, only $200 had been paid. Nor was the court persuaded by defendant’s argument that there had been no mention of the possibility of reinstating the default at either the June 20 settlement conference or the July 9 show cause hearing. He failed to abide by the conditions imposed to set aside the original default and plaintiff had filed a motion to show cause. As to whether the trial court indicated that it was considering reinstating the default, the court held that defendant should have known that it was a very real possibility due to his noncompliance with the May 2 order. The court was equally unpersuaded by his argument that the trial court failed to respond to the offer made in the courtroom that defendant’s sister was willing to access her line-of-credit to pay the remaining $500. Defendant had time in advance of the last minute to raise the necessary funds to comply with the trial court’s order and failed to do so. Affirmed.

 

REINSTATING DEFAULT JUDGEMENT OF DIVORCE

_______________________________________________________

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