LORI ANN JONES-JUDGE V JOSEPH JUDGE JR
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STATE OF MICHIGAN
COURT OF APPEALS
LORI ANN JONES-JUDGE,
UNPUBLISHED
December 19, 2006
Plaintiff-Appellee,
V
No. 261481
Washtenaw Circuit Court
LC No. 02-000551-DM
JOSEPH JUDGE, JR.,
Defendant-Appellant.
Before: Sawyer, P.J., and Wilder and Servitto, JJ.
PER CURIAM.
Defendant appeals as of right, challenging the default judgment of divorce entered
against him and the subsequent denial of his motion to set aside the default judgment. The
default judgment was entered after defendant failed to appear at trial. On appeal, he challenges
the portion of the default judgment pertaining to the division of property. We affirm.
Plaintiff and defendant were married on August 6, 1988, and plaintiff filed for divorce in
March 2002. Pursuant to a stipulation of the parties, the scheduled trial date of March 6, 2003
was adjourned by the trial court to April 24, 2003. At the time of the stipulation between the
parties, defendant was not represented by counsel, and defendant authorized plaintiff’s counsel to
sign in his (defendant’s) behalf. In addition, pursuant to the stipulated order, defendant was
required to respond to plaintiff’s interrogatories and request for his financial records.
Although his newly hired counsel was present, defendant failed to appear at trial and
plaintiff requested entry of a default judgment. Defendant contends that he was informed by
plaintiff’s counsel that the new trial date was April 29, 2003, and that he did not receive written
notice of the new trial date because it was sent to an incorrect address.
Noting that defendant had apparently given the incorrect address to two different people,
the trial court found that, even if defendant did not receive notice from plaintiff’s counsel
regarding the new trial date, he should have contacted the court or counsel regarding the
requested adjournment. Accordingly, the trial court granted the default and permitted plaintiff to
proceed with her case. Defendant subsequently moved to set aside the default pursuant to MCR
2.603(D)(2), arguing that there was good cause for his failure to appear because he thought the
trial was scheduled for April 29, 2003.
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Despite concluding that there was “weak” evidence that defendant had demonstrated
good cause to set aside the default judgment, the trial court agreed to set aside the portion of the
judgment relating to the division of property and have a full hearing on the issue on the condition
that defendant provide full and complete answers to plaintiff’s interrogatories and pay plaintiff’s
counsel $1000 in costs and fees within two weeks.
Six months later, after a hearing on defendant’s third motion to set aside the default
judgment, however, the trial court denied defendant’s motion, noting that, even if his
interrogatory answers were satisfactory, defendant had failed to make the $1000 payment for
costs and fees that was ordered as a condition of setting aside the default judgment. On February
23, 2005, the trial court entered an order completely reinstating the property division of the May
22, 2003 judgment of divorce.
On appeal, defendant first argues that the trial court erred by denying his motion to set
aside the default judgment. We disagree. A trial court’s ruling on a motion to set aside a default
judgment will be reversed only if there is a clear abuse of discretion. Alken-Ziegler, Inc v
Waterbury Headers Corp, 461 Mich 219, 227; 600 NW2d 638 (1999). The standard of review is
highly deferential and, “[w]here there has been a valid exercise of discretion, appellate review is
sharply limited.” Id. at 227-228.
Pursuant to MCR 2.603(D), a motion to set aside a default judgment should be granted
only on a showing of good cause and the filing of an affidavit of facts showing a meritorious
defense. Alken-Ziegler, supra at 223. Good cause for setting aside a default judgment exists if
(1) there is a substantial irregularity or defect in the proceeding on which the default is based, or
(2) there is a reasonable excuse for failure to comply with the requirements that created the
default. ISB Sales Co v Dave’s Cakes, 258 Mich App 520, 531; 672 NW2d 181 (2003).
Despite its determination that there was no good cause to set aside the default judgment,
the trial court agreed to do so provided that defendant fully responded to plaintiff’s
interrogatories and paid $1000 in costs and fees to plaintiff’s counsel within two weeks.
Pursuant to MCR 2.603(D)(4), an order setting aside a default judgment must be conditioned on
the payment of costs incurred by the other party in reliance on the judgment, and the order “may
also impose other conditions the court deems proper, including a reasonable attorney fee.”
Given that the order conditionally setting aside the default judgment was not entered until
October 2003, it is clear that defendant did not comply with the conditions imposed by the trial
court by June 25, 2003, as originally required. Although the trial court was apparently willing to
give defendant additional time to comply, he had failed to do so by January 2004. Therefore,
even if there was good cause to set aside the default judgment, the trial court correctly refused to
set it aside after defendant failed to comply with the conditions imposed by the trial court.
Further, to the extent that the trial court’s decision not to set aside the default judgment
was based on its conclusion that defendant had not demonstrated good cause, we conclude that
the trial court acted within its discretion. Under some circumstances, failure to mail a summons
to the correct address may constitute a reasonable excuse for failure to appear, and therefore
provide good cause for setting aside the default. See Mason v Marsa, 141 Mich App 38, 41-42;
366 NW2d 74 (1985). In this case, however, the trial court did not find defendant credible with
regard to his assertion that the address used by plaintiff’s counsel was incorrect. This Court
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gives “special deference” to findings of the trial court that are based on an assessment of a
witness’s credibility. Draggoo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642 (1997).
Further, despite retaining an attorney, defendant still had not complied with plaintiff’s
discovery requests by the date of trial, even though the parties were ordered to do so as early as
December 2002. The trial court may reasonably have concluded that defendant was deliberately
delaying or avoiding the divorce proceedings, and a default judgment is an appropriate remedy in
such circumstances, given that one of the purposes of the default procedure is to prevent a
“procrastinating defendant from impeding the plaintiff in the establishment of his claim.” See
Mason, supra at 41. Therefore, particularly in light of the deference afforded a trial court’s
decision regarding a motion to set aside a default judgment, we conclude that the trial court did
not err in denying defendant’s motion to set aside the default judgment. See Alken-Ziegler,
supra at 227-228.
Defendant next argues that the division of property in the default judgment was
inequitable. Specifically, he challenges the award of the entire marital home and fifty percent of
his business interest to plaintiff. We disagree. The circuit court’s findings of fact with regard to
the division of marital property are reviewed for clear error. Byington v Byington, 224 Mich App
103, 109; 168 NW2d 141 (1997). If the findings of fact are upheld, this Court then determines
whether the ultimate dispositional ruling was fair and equitable in light of those facts. Id. at 109.
The dispositional ruling is discretionary and should be reversed only if this Court is left with the
firm conviction that the distribution was inequitable. Gates v Gates, 256 Mich App 420, 423;
664 NW2d 231 (2003).
When apportioning a marital estate, the goal of the court is to reach an equitable division
in light of all the circumstances. Byington, supra at 114. Although each spouse need not receive
a mathematically equal share, “significant departures from congruence must be explained clearly
by the court.” Id. at 114-115. Relevant factors include “the duration of the marriage, the
contribution of each party to the marital estate, each party’s station in life, each party’s earning
ability, each party’s age, health, and needs, fault or past misconduct, and any other equitable
circumstance.” Id. at 115, citing Sparks v Sparks, 440 Mich 141, 158-160; 485 NW2d 893
(1992). The weight given to each factor need not be equal and will vary from case to case
depending on the circumstances. Byington, supra at 115. Assets earned by one spouse during
the marriage are presumed to be marital property and therefore subject to equitable division. See
id. at 112-113.
With the exception of the award of the entire marital home to plaintiff, the distribution of
property was roughly equal, including the award of 50 percent of defendant’s business interest to
each party. We conclude that the trial court did not err in awarding 50 percent of defendant’s
interest in his business to plaintiff. The business was an asset that appreciated in value during
the marriage, and plaintiff testified that she assumed a greater share of the responsibility for their
children so that he could devote more time it. See Hanaway v Hanaway, 208 Mich App 278,
293-294; 527 NW2d 792 (1995).
With regard to the marital home, the trial court did not divide the property equally
between the parties. The trial court stated when it awarded the entire home to plaintiff that it
“would have been in a better position to formulate an equitable division of property if
information had been given by [defendant].”
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A trial court is generally required to make findings of fact with regard to those factors
relevant to reaching an equitable division of property. Gates, supra at 424. In cases in which
property is distributed pursuant to the consent of the parties or by default, however, concerns
about fairness and equity “are less salient.” Applekamp v Applekamp, 195 Mich App 656, 661;
491 NW2d 644 (1992). Further, when the lack of fact-finding is due to a defendant’s default, the
defendant cannot later complain that the trial court erred in its factual findings, and a party’s
failure to comply with discovery is a relevant factor in determining an equitable division of
property. See Draggoo, supra at 430. Given that the limitations on the trial court’s findings of
fact were attributable to defendant, we conclude that the division of property was sufficiently fair
and equitable. Plaintiff was awarded custody of the children and testified that it would be in
their best interests to remain in the home to which they were accustomed. Further, as noted by
the trial court, there was only modest equity in the home and a fairly large debt. We therefore
conclude that the trial court did not abuse its discretion in its division of property.
Affirmed.
/s/ David H. Sawyer
/s/ Kurtis T. Wilder
/s/ Deborah A. Servitto
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