BEATRICE M SQUIRE V JAMES E SQUIRE
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STATE OF MICHIGAN
COURT OF APPEALS
BEATRICE M. SQUIRE,
UNPUBLISHED
October 23, 2007
Plaintiff-Appellee,
V
No. 271697
Ingham Circuit Court
LC No. 06-000370-DO
JAMES E. SQUIRE,
Defendant-Appellant.
Before: Zahra, P.J. and White and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right from a judgment of divorce, entered as the result of default
proceedings, and without the trial court’s having decided pending motions for change of venue
and to set aside the default. We reverse. This case is being decided without oral argument in
accordance with MCR 7.214(E).
I
Plaintiff filed a complaint for divorce in February 2006. Defendant was served on March
15, 2006, but did not answer the complaint. He did, however, file a motion for change of venue
in June 2006. The motion was noticed for hearing on June 9, 2006, but then adjourned to June
20, then July 28, 2006.
The circuit court, on May 15, 2006, issued a notice of no progress call to take place on
June 20, 2006. The day before the hearing, plaintiff filed a default, application, entry, and
affidavit, citing defendant’s “failure to plead or otherwise defend.” At the no progress hearing,
which defense counsel did not attend,1 the circuit court recalled that defendant had filed a motion
to change venue. The court granted plaintiff until June 30, 2006 to take the proofs and enter a
judgment of divorce, explaining that if the plaintiff failed to do so on that date, the case would be
dismissed, because of new parameters from the Supreme Court on time deadlines.” Two days
later, defendant filed a motion to set aside the default.
1
Defendant asserts that he received no notice of this hearing.
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At the June 30, 2006, hearing, defense counsel informed the court that he had believed
that there was an understanding that a default would not be filed until the venue issue was
decided, and that the parties had executed a stipulation and order to set aside the default.
Plaintiff’s attorney explained that he did not agree that there had been such an understanding, but
that he had signed a stipulation to set aside the default, while adding that he had alternatively
prepared a proposed judgment of divorce. The circuit court responded:
Well, you can refile this divorce. My interest in this is to see that justice is
done and to have my docket control comply with the orders of the Michigan
Supreme Court. I don’t know why they’re in a hurry, but they are. And so those
are my goals.
I have no interest in forcing people to settle their disagreements before
they’re ready to settle their disagreements. So I am going to dismiss this action
....
Plaintiff’s attorney then protested that the court had agreed to take proofs that day. The court
agreed, and took the proofs. At the end of the proceeding, over defense counsel’s objection, the
court granted the divorce and entered the judgment.
II
We will assume that the default was properly entered.2 “Review of a trial court’s
decision on a motion to set aside a default or a default judgment is for a clear abuse of
2
MCR 2.108(A)(1) requires a defendant to “serve and file an answer or take other action
permitted by law or these rules within 21 days after being served . . . .” Defendant admits to
never having filed an answer, but argues that his motion to change venue constituted an
alternative action satisfying the requirement to answer for purposes of this rule. Under the
circumstance that defendant’s motion to change venue was not filed within 21 days after
defendant was served, we disagree. A motion for change of venue must normally be filed
before, or with, an answer. MCR 2.221(A). While defendant correctly notes that MCR 2.221(B)
gives the court discretion to grant an untimely motion, it does not follow that an untimely motion
satisfies the requirements of MCR 2.108(A)(1). Defendant seems to suggest that, as long as
there is no answer, a defendant may, with no time constraints, answer a complaint by filing a
motion to change venue. This is a strained argument. MCR 2.221(A) ties the timing of a motion
to change venue to the answer, thus incorporating the time constraints applicable to answers.
MCR 2.221(B) in turn recognizes a motion filed after the answer is filed as untimely, while
setting forth a limited basis for excusing that deficiency. Assuming that a timely motion for
change of venue may itself substitute for an answer for purposes of avoiding a default under
MCR 2.108(A)(1), Marposs Corp v Autocam Corp, 183 Mich App 166, 169-170; 454 NW2d 194
(1990), nothing in MCR 2.221 suggests that when such a motion serves as the first response to a
complaint, the timing requirements of MCR 2.108(A)(1) are rendered inapplicable. Moreover,
(continued…)
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discretion.” Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). “[A]n abuse of
discretion occurs only when the trial court’s decision is outside the range of reasonable and
principled outcomes.” Id. “A motion to set aside a default or a default judgment, except when
grounded on lack of jurisdiction over the defendant, shall be granted only if good cause is shown
and an affidavit of facts showing a meritorious defense is filed.” MCR 2.603(D)(1).
We conclude that the court abused its discretion in failing to consider and grant
defendant’s motion to set aside the default, and in proceeding to enter the judgment of divorce.
The court entered the default judgment without ever considering defendant’s motion to set aside
the default.
A trial court’s failure to exercise its discretion, when properly asked to do so, is itself an
abuse of discretion. See People v Stafford, 434 Mich 125, 134, n 4; 450 NW2d 559 (1990). It is
uncontested that defense counsel wrote to plaintiff’s counsel regarding the venue issue
approximately two weeks after defendant was served. There were additional communications
between the attorneys, and defendant’s motion to change venue was filed two months after
defendant was served. While plaintiff correctly observes that defense counsel’s asserted
understanding that there was an agreement that he would not be filing an answer until the venue
issue was resolved is not supported by the letters and faxes exchanged by the attorneys, it is
nonetheless clear that, whether justified or not, defense counsel had such an understanding.
More important, the parties stipulated to set the default aside. To be sure, a court is not obliged
to accept stipulations of the parties; but here, the court gave no reason for declining to do so
except that it was required to dispose of the case within a certain time frame.3
(…continued)
defendant does not assert that he filed his motion to change venue belatedly because some
pertinent fact came to light 14 or fewer days before he filed it, and thus MCR 2.221(B) is
inapplicable in any event.
3
The following transpired at the June 30 hearing:
THE COURT: Thank you. And this is the time set for a motion to set
aside a default?
MR. PEARSON: We have actually two things. The Court scheduled this
for a pro con hearing as well as the Motion to Set Aside the Default.
THE COURT: Did we already take proofs, Mr. Pearson?
MR. PEARSON: My client was not here the last time.
THE COURT: Okay. And Mr. Mertens, you wanted to make a motion?
MR. MERTENS: Thank you very much, your Honor. Your Honor, first
and foremost, I would note for the record that Mr. Pearson and myself have
executed a stipulation and order to set aside the default, if this Court would be
willing to entertain such a stipulation.
I would – in support of that stipulation I would submit to the Court that I
know that this case has been going on for a little while. In fact I think it was filed
(continued…)
-3-
(…continued)
in March. And I know that this Court is under some very strict guidelines from
the Supreme Court.
I believe that the Court can rectify its concerns in regards to its docket by
implementing some sort of strict scheduling conference ensuring that the case is
done in the next month or month and-a-half.
I believe that in essence what we have here is a miscommunication,
perhaps, between two attorneys, one attorney believing that the answer – no
default would be entered if his answer wasn’t filed because he had filed a motion
for change of venue, and another attorney who says that’s not the position.
The only two people damaged are the parties. I would submit to the Court
by setting aside the default judgment and putting a strict scheduling order in place
that requires the parties to get this done very quickly would rectify those
concerns.
Your Honor, I would incorporate the motion that was filed by Mr. Path
into my arguments. I believe that he details the transactions and has some
attached correspondence for this Court’s review.
Your Honor, I have nothing further to add to that. Thank you.
THE COURT: Mr. Pearson.
MR. PEARSON: I have filed my written response to the motion to make it
clear that there was not an agreement or meeting of the minds regarding
extension of time to file pleadings. I don’t believe there’s anything in the attached
correspondence that indicates other, nor was there any oral agreement.
However, having said that, I concur with counsel that my client’s position
– I did sign a stipulation to set aside default. In the alternative, I have also
prepared a proposed Judgment of Divorce, because the Court indicated that last
time we were here that we should have that. So we will defer with the Court.
THE COURT: Have the parties settled all the property disputes, Mr.
Pearson?
MR. PEARSON: Not to my knowledge. I prepared a judgment doing the
best I could with the information available.
THE COURT: Mr. Mertens.
MR. MERTENS: Your Honor, if I may, Mr. Path has advised me, and
I’ve also discussed with Mr. Pearson the likelihood – and I’m sure this Court has
heard this a million times in regard to cases, but the likelihood is this case will
settle in mediation. There aren’t many legal issues. It’s relatively straight up DO
case where assets are to be divided equally.
Your Honor, If I may just add one more thing – and I would appreciate the
Court’s indulgence, because I’m kind of getting into this thing at the last minute.
I would note for the record, your Honor, that MCR 2.108 states that defendant
(continued…)
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(…continued)
must serve and file an answer or take other action permitted by law within 21
days after being served. There is a court rule in regards to the venue statute. It
says a motion for a change of venue must be filed before or at the time the
defendant files an answer.
I would submit that the motion was filed before the answer was filed. And
I believe under the court rules that that is another action that the court rule says
should be engaged in before a default is entered.
Thank you, your Honor.
THE COURT: Mr. Pearson, anything else you’d like to say?
MR. PEARSON. Well, counsel is correct on that. I note in my written
response that MCR 2.108 provides that these actions must be taken within 21 days
after being served with a summons and a copy of the complaint. As shown by the
files and records, this defendant was served on March 15th, and the motion was
filed on June 14th, so approximately 91 days after that.
Again, I would indicate that we did sign the stip, so.
THE COURT: Well, you can refile this divorce. My interest in this is to
see that justice is done and to have my docket control comply with the orders of
the Michigan Supreme Court. I don’t know why they’re in a hurry, but they are.
And so those are my goals.
I have no interest in forcing people to settle their disagreements before
they’re ready to settle their disagreements. So I am going to dismiss this action,
and you can – Mr. Pearson.
MR. PEARSON: I’m sorry. The court said – when we were in court last
time the Court indicated it would be saved with the understanding that we would
take our proofs today.
THE COURT: I’m willing to do that, but not if the -MR. PEARSON: Okay –
THE COURT: -- you’ve said –
MR. PEARSON: -- okay –
THE COURT: -- that they haven’t settled their disagreements, so I’ll not
interested in forcing them to.
MR. PEARSON: My client is willing to take the final proofs. I went to
some length to prepare the judgment. And the Court the last time we were in
court –
THE COURT: But apparently they haven’t agreed.
MR. PEARSON: I don’t believe that there’s been any agreement
regarding settlement because there simply hasn’t been time to do it. My client
shouldn’t be penalized.
(continued…)
-5-
Under the circumstances that defendant contacted his attorney promptly; his attorney
contacted opposing counsel promptly, and had a good-faith, if mistaken, belief that his answer
was not expected until the venue issue had been resolved; the parties stipulated to set aside the
(…continued)
THE COURT: There’s been since March.
MR. PEARSON: Well, we filed our notice of default, and we’re here to
take our proofs. And the Court indicated we could proceed today. When we were
in court last time the case was on no the progress docket.
THE COURT: But you think he’s filed his change of venue motion, and
that in effect is an answer in a timely fashion?
MR. PEARSON: No. No. He didn’t file it until 91 days after service.
THE COURT: I misunderstood you.
MR. PEARSON: The court rule employs 21 days.
THE COURT: So you believe you have properly defaulted him?
MR. PEARSON: The default is proper, yes, because there was no action
within 21 days as require by the court rule MCR 2.108, which I’ve cited in my
response.
THE COURT: All right. I misunderstood you. Mr. Mertens, something
else you wanted to say?
MR. MERTENS: Just real quick, and I don’t’ mean to delay things, but
before they proceed, procedural speaking, if I file a complaint and don’t default
someone for 100 days after, and an answer is filed, I can’t go back and ask for a
default.
The answer has been filed. And I would submit to the Court that the
Motion for a Change of Venue was filed before the request for the default was
filed.
THE COURT: All right. Now, let’s go over this judgment and see if it’s
fair and equitable. Mr. Mertens, is your client’s interest protected? Is it a fair and
equitable judgment?
MR. MERTENS:
the judgment and –
Your Honor, respectfully, I have not seen a copy of
THE COURT: Well, I would suggest that you have a look at it.
MR. MERTENS: Thank you, your Honor.
THE COURT: In fact, have a look at it and come back in the courtroom.
I’m going to do some other business while you’re looking at it. [Emphasis
added.]
-6-
default and proceed with the case expeditiously; and the court gave no reason for not accepting
the stipulation other than the time standards, we conclude that the court abused its discretion in
failing to honor the stipulation and set aside the default.
Reversed and remanded for proceedings consistent with this opinion. Under the
circumstances, although defendant is the prevailing party on appeal, he shall not be entitled to
costs. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Helene N. White
/s/ Peter D. O’Connell
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