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DIVORCE 21: No proofs were taken regarding the substance of the submitted property settlement.

Plaintiff filed a complaint for divorce. The parties engaged in mediation, in an attempt to resolve their various disputes. Defendant received the assistance of an interpreter throughout mediation. According to the mediation status report, the case was to be set for trial because the parties could not settle.

At the hearing, plaintiff’s counsel advised the trial court that the matter had been settled and that counsel had prepared a proposed consent judgment which plaintiff had signed. Plaintiff’s counsel told the court that she expected defendant to sign the consent judgment prior to the hearing and thought that the only matter to address at the hearing would be the placing of statutory proofs on the record.

In reply, defense counsel stated that defendant wished to sign the agreement in front of the court but that English was not her first language and she had not yet been able to review the proposed consent judgment with the assistance of a translator.

Plaintiff’s counsel gave the impression that this review would be easily accomplished and that thereafter defendant would sign the consent judgment. However, at no time during the hearing did defendant testify or otherwise state that she had agreed to the terms of the proposed consent judgment.

The trial court took statutory proofs, but no proofs were taken as to the settlement itself. The court issued an Order Scheduling Date for Return of Judgment, directing that the parties either submit a consent judgment signed by both parties, or appear for a pretrial hearing on that date.

At some point during these events, defendant told her attorney that she no longer wished her to serve in that capacity and hired new counsel.

Despite the fact that no settlement documents had been signed by defendant and that there was a pretrial hearing set for March 29, 2017, plaintiff filed a motion for entry of judgment to be heard on March 22, 2017.3 According to defendant’s then-attorney, she was very ill at the time and did not inform defendant of the motion, believing that defendant’s new counsel would be aware of it. However, because new counsel had not yet filed an appearance, he was not served with the motion. As a result, defendant never learned of the hearing and neither defendant nor her counsel appeared at the March 22, 2017 hearing.

At that hearing, the trial court signed the proffered judgment of divorce, which it now characterized as a default judgment despite the fact that no default had been entered, nor had plaintiff ever filed a motion for entry of default judgment.

Following the entry of judgment, defendant, represented by new counsel, promptly filed a motion to set aside, which was denied.

On appeal, defendant argues that the trial court abused its discretion by declining to set aside the default judgment of divorce.  The appeals court concluded that entry of a default judgment in this divorce case was inconsistent with the court rules. No proofs were taken regarding the substance of the proffered property settlement at the February hearing, and defendant never signed the proposed consent judgment.  They reversed and remanded.

At the Plymouth and Ann Arbor law firm of Aldrich Legal Services, our attorneys have the skill and experience you need to address all family law issues that may arise during your divorce.

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