CAROL S NABOZNY V MARK A NABOZNY
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STATE OF MICHIGAN
COURT OF APPEALS
CAROL S. NABOZNY,
UNPUBLISHED
June 12, 2001
Plaintiff-Appellee,
v
No. 221591
Washtenaw Circuit Court
LC No. 98-012034-DO
MARK A. NABOZNY,
Defendant-Appellant.
Before: K. F. Kelly, P.J., and Smolenski and Meter, JJ.
PER CURIAM.
Defendant appeals as of right the denial of his motion to set aside the default judgment of
divorce and plaintiff’s award of attorney fees. We reverse and remand.
I. Basic Facts and Procedural History
Plaintiff filed for divorce after thirteen years of marriage. According to defendant,
plaintiff instructed him not to consult with an attorney as she would ensure that his interests
would be adequately protected and the resulting judgment fair and equitable. Relying on
plaintiff’s representations, defendant did not procure counsel, file an answer, or otherwise appear
in the proceedings. Accordingly, a default was entered against defendant. After the default was
entered, plaintiff continuously reiterated to defendant that any resulting judgment would be fair
and equitable thus obviating defendant’s need to procure the advice of independent counsel.
Believing in plaintiff’s representations, defendant did nothing and remained in default. A
hearing was held on April 6, 1999 and plaintiff put the requisite proofs on the record. The trial
judge immediately signed the default judgment of divorce submitted by plaintiff’s counsel. This
default judgment of divorce disproportionately benefited plaintiff in the distribution of the
marital estate.
Upon receipt of the default judgment, defendant filed a motion to set it aside for fraud
and misrepresentation. Defendant further contended that he did not receive notice of the hearing
or a copy of the proposed judgment until one day after the hearing where proofs were taken and
the judgment entered. The trial court denied the motion. Defendant filed an appeal as of right.
II.
The Default Judgment of Divorce
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A. Notice of Hearing
First, defendant argues that the motion to set aside the default judgment of divorce was
improperly denied because he did not receive the requisite notice pursuant to MCR
2.603(B)(1)(b)1. We review a trial court’s denial of a motion to set aside a default judgment of
divorce for an abuse of discretion. Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219;
600 NW2d 638 (1999).
The purpose of the notice requirement is to apprise the defaulting party of the possibility
of entry of judgment so that he may have an opportunity to participate in any hearing necessary to
ascertain the amount of damages or other form of remedy to be granted. Perry v Perry, 176 Mich
App 762; 440 NW2d 93 (1989). Lack of notice will establish the good cause required to set
aside a default judgment. Id. at 770; Petroff v Petroff, 88 Mich App 18, 21; 276 NW2d 503
(1979).
Here, the record contains a proof of service establishing the defendant was mailed the
notice of hearing and the proposed default judgment of divorce. Although this proof of service
indicates that opposing counsel’s office mailed the documents on March 29, 19992, the document
was not signed until the day of the hearing. Of critical importance, however, is the proof of
service stamp, signed and dated by plaintiff’s counsel. This proof of service stamp states
unequivocally that the notice of hearing and default judgment of divorce were not mailed until
the actual date of the hearing. Thus, the record supports defendant’s claim that he was not
provided notice.
The notice provision of the MCR 2.603 is mandatory. The “failure of plaintiff to give the
required notice invalidates the judgment and requires it to be vacated.” Petroff, supra at 21;
citing Harrison v VMC Building Corp, 71 Mich App 458, 461; 248 NW2d 584 (1976).
Accordingly, we hold that the trial court abused its discretion by denying defendant’s motion to
set aside the default judgment.
B. Property Distribution
Next, defendant argues that the trial court erred by not setting aside the default judgment
of divorce because of fraud and misrepresentation3. Defendant contends that plaintiff
encouraged him not to seek the advice of independent counsel or otherwise file an appearance in
the action, by impressing upon him that she would ensure that the resulting property distribution
was fair and equitable. Defendant claims that the trial court should have granted his motion
because he relied on plaintiff’s statements to his ultimate detriment. We agree. This court
reviews a trial court’s denial of a motion to set aside a default judgment for an abuse of
discretion. Heugel v Heugel, 237 Mich App 471, 478; 603 NW2d 121 (1999).
1
MCR 2.603(B)(1)(b) states: “The notice required by this subrule must be served at least 7 days
before entry of the requested judgment.”
2
This would have provided defendant with the appropriate seven day notice.
3
MCR 2.612(C)(1)(c)
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In Heugel, supra, we were called upon to address a similar circumstance. In that case,
defendant, laboring under her husband’s promise that the parties would remarry and against the
advice of her attorney, agreed not to contest the divorce filed against her by her husband. The
settlement reached in that case disproportionately benefited the plaintiff prompting the defendant
to have the judgment set aside in accordance with MCR 2.612(C)(1)(f). Id. In that case, we
recognized that the defendant was represented by counsel, but noted further that “she did not
benefit from his services because plaintiff induced her to ignore his advice.” Id. at 480. We
recognized that the “plaintiff ‘abused the unique nature of the husband-wife relationship’ to lead
defendant to believe that the entry of the divorce judgment was an irrelevant formality.” Id. at
481. Accordingly, we held that “[p]laintiff had the right to an equitable distribution of the
marital estate in light of all of the circumstances” and found the property settlement and spousal
support provisions were “unconscionable.” Id. at 482.
In this case, much like the resultant property distribution in the divorce judgment at issue
in Heugel, we similarly find that the default judgment disproportionately inured to plaintiff’s
benefit. Plaintiff’s salary was at least twice the amount of defendant’s salary, yet the default
judgment awarded plaintiff one hundred percent of the marital home, half of defendant’s pension,
“by reason of any past, present or future employment,” as well as attorney fees. Antithetically,
the default judgment did not award defendant any interest in plaintiff’s pension, it obligated
defendant to pay half of the marital debt, and it required defendant to assume responsibility for
the entire amount of the outstanding loan used by the parties’ to purchase their boat.4 Moreover,
unlike the defendant in Heugel, defendant in this case was not represented by counsel. On these
facts, we hold that given the disproportionate property distribution contained in the default
judgment, the trial court abused its discretion by denying defendant’s motion to set it aside. See
Petroff v Petroff, 88 Mich App 18, 20; 276 NW2d 503 (1979) (noting that “a default judgment is
a particularly unsatisfactory method of resolving disputes as to property divisions.”).
III. The Attorney Fee Award
Next, defendant contends that the trial court erred by awarding plaintiff attorney fees.
This court will not disturb a trial court’s decision to award attorney fees absent an abuse of
discretion. Kosch v Kosch, 233 Mich App 346; 592 NW2d 434 (1999).
MCR 3.206(C) provides that:
(1) A party may, at any time, request that the court order the other party to pay all
or part of the attorney fees and expenses related to the action.
(2) A party who requests attorney fees and expenses must allege facts sufficient to
show that the party is unable to bear the expense of the action, and that the other
party is able to pay. [See also MCL 552.13; MSA 25.93.]
4
At the time that the default judgment of default entered, the loan for the boat was in default
status.
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According to the applicable court rule, a party unable to “bear the expense of attorney
fees may recover reasonable attorney fees if the other party is able to pay.” Kosch v Kosch, 233
Mich App 346, 354; 592 NW2d 434 (1999). In addition, “[a]ttorney fees also may be authorized
when the requesting party has been forced to incur expenses as a result of the other party’s
unreasonable conduct in the course of litigation.” Hanaway v Hanaway, 208 Mich App 278,
298; 527 NW2d 792 (1995). With regard to this issue, we revisit our previous decision in
Stackhouse v Stackhouse, 193 Mich App 437; 484 NW2d 723 (1992) wherein we directed trial
courts to make specific findings of fact justifying a fee award and further placed upon counsel the
responsibility to establish those proposed findings and “to call to the trial court’s attention the
need for such findings.” Id. at 446.
In this case, the default judgment required defendant to pay $2,000 “as his portion of
attorney fees.” This was error. First, there is no indication on the record that counsel for plaintiff
was also acting in a representative capacity as counsel for defendant. The parties did not
negotiate a consent judgment of divorce. To the contrary, the judgment of divorce was entered
by default. Additionally, by including an award of attorney fees within the default judgment of
divorce, plaintiff’s counsel circumvented the proceeding wherein the trial court makes specific
findings of fact indicating that plaintiff could not otherwise maintain the divorce action if those
fees were not awarded. Indeed, a review of the record suggests that plaintiff earned $90,000 a
year, or twice the amount of defendant’s salary. Moreover, plaintiff alleged in her complaint5
that both plaintiff and defendant were capable of providing for themselves during the pendency
of the divorce action which is wholly inconsistent, on its face, with an award of attorney fees in
divorce cases generally. See MCR 3.206(C)(2).
Finally, a review of the record reveals that the trial court made no specific finding that
awarding plaintiff attorney fees was appropriate on the grounds that defendant’s “unreasonable
conduct” during the course of the litigation caused her to incur additional expenses. To establish
the threshold “unreasonable conduct,” plaintiff submits that defendant’s misconduct was evident
considering that both of the divorce cases that she instituted previously were dismissed for lack
of progress. Plaintiff argues that the no progress dismissals were due to defendant’s failure to
file an appearance or an answer. We disagree with plaintiff’s reasoning and find that plaintiff
and her attorney were responsible for the progress, or lack thereof, in those cases. The record is
devoid of any evidence indicating that defendant engaged in unreasonable conduct sufficient to
justify the attorney fee award included in the default judgment. Accordingly, we hold that the
trial court abused its discretion by awarding $2,000 in attorney fees in the default judgment of
divorce.
III. Conclusion
As a result of the foregoing, the default judgment of divorce is hereby set aside and this
matter is remanded for further proceedings consistent with this opinion. On remand, the trial
court shall conduct an evidentiary hearing to determine an equitable division of the parties’
5
Paragraph seven of plaintiff’s complaint for divorce states that “[b]oth parties are able-bodied
individuals fully capable of providing for themselves throughout this action and thereafter.”
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marital estate and should plaintiff wish to resubmit her request for attorney fees, plaintiff shall
file a new motion requesting those fees and further allege all facts required to justify the award in
accordance with MCR 3.206(C)(2)6.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Michael R. Smolenski
/s/ Patrick M. Meter
6
See also Kruger v Martin, 96 Mich App 660, 663; 293 NW2d 667 (1980) (wherein the court set
aside an award of attorney fees but permitted the party requesting the fees to file a motion
seeking reinstatement of the award upon a showing of all required factors.)
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