Douglas v. Douglas

Citation728 A.2d 215,143 N.H. 419
Decision Date10 March 1999
Docket NumberNo. 97–878.,97–878.
CourtSupreme Court of New Hampshire
Parties Charles G. DOUGLAS, III v. Caroline G. DOUGLAS.

Charles G. Douglas, III, of Concord, by brief and orally, pro se.

Caroline G. Douglas, of Concord, by brief and orally, pro se.


This case arises from a libel for divorce filed by the plaintiff, Charles G. Douglas, III, against the defendant, Caroline G. Douglas. On appeal, the defendant challenges a number of rulings of the Superior Court (Coffey, J.), including its order granting the plaintiff's libel for divorce and disposing of the marital assets. The defendant also challenges the order of the Superior Court (Nadeau , C.J.) reassigning the case to another judge and transferring venue from Merrimack County to Rockingham County. She further asserts that the rulings and case management of both superior court judges evince a systematic bias against her. We affirm in part, reverse in part, and remand.

The parties, both attorneys, were married in 1991. Between 1990 and 1996, they practiced law together, first under the firm name of Douglas & George, and later as Douglas & Douglas. In 1996, the plaintiff filed a libel for divorce citing irreconcilable differences which have caused the breakdown of the marriage. See RSA 458:7–a (1992) (amended 1998). The defendant filed a cross-libel alleging that the breakdown of the marriage was caused by the plaintiff's allegedly adulterous acts. See RSA 458:7, II (1992). Chief Justice Joseph P. Nadeau, the chief justice of the superior court, who initially had assigned the case to himself, later reassigned the case to Justice Patricia C. Coffey after the defendant filed a motion requesting that Chief Justice Nadeau recuse himself.

The case was set for trial in September 1997 after many months of often fierce litigation, including multiple interlocutory petitions to this court. In June 1997, notice was sent to the parties that "[c]ounsel and parties shall be available for trial during the week of September 15, 1997 as may be determined by the Court." On the day of trial, however, the defendant failed to attend, sending her brother, Gregory W. Boudette, as her co-counsel and next friend. See RSA 311:1 (Supp.1998). Boudette is not an attorney. See Super. Ct. R. 14. After allowing Boudette to argue a motion requesting Justice Coffey's removal, the court called a brief recess. During the recess, the court discovered that the defendant had failed to file a power of attorney with the court pursuant to Superior Court Rule 14. The court informed Boudette that he would be unable to continue until the defendant arrived and filed a power of attorney. Boudette then informed the court that he was unable to contact the defendant, and did not know of her location or whether she was en route to the courthouse. The court informed Boudette that unless he was able to contact her and secure her presence at the courthouse, the defendant would be in default. See RSA 514:1 (1997). The plaintiff then moved for default.

After Boudette was unable to locate the defendant two hours after the trial actually began, the superior court found the defendant to be in default. In doing so, the court noted that even if Boudette were an attorney and properly represented the defendant, "she would be defaulted." The court found that the defendant had been "noticed" about the time and date of the court proceeding, yet "I don't know where she is, [and] she hasn't notified the Court where she is." The court observed that the defendant had failed to contact the court and that Boudette had represented to the court that he had "no idea" where the defendant was that morning. The court further indicated that if the defendant had notified either the court or Boudette of her whereabouts, the court would have taken that fact into consideration in determining whether or not to default the defendant. The court then proceeded to take testimony from the plaintiff. The following day, the court issued a permanent decree granting the plaintiff's libel for divorce based on irreconcilable differences, dismissing the defendant's cross-libel, and making a final distribution of the parties' assets. This appeal followed.

On appeal, the defendant argues that the superior court erred in: (1) disqualifying Boudette from acting as her co-counsel and next friend in her absence; (2) holding her in default and ordering a final disposition of the marital assets without further hearing; and (3) ordering a disposition of the marital assets where the defendant did not receive the plaintiff's financial affidavit and proposed final decree in advance of trial. The defendant also contends that it was error for Chief Justice Nadeau to assign the case to Justice Coffey after removing himself from the case, and further that both judges' rulings "reveal[ed] paradigmatic judicial bias coupled with a plethora of circumvented constitutional mandates" that denied the defendant due process.

I. Default

We begin with the defendant's contention that the trial court erred in entering a default. The defendant argues that due process requires that she be given notice and opportunity to contest the disqualification of her brother before the default was entered. She also contends that due process requires that she be given adequate notice and opportunity to participate in a hearing on the disposition of assets.

It is well settled that we will not disturb a ruling on default absent a clear abuse of discretion or error of law. See Sununu v. Clamshell Alliance , 122 N.H. 668, 673, 448 A.2d 431, 434 (1982). We note that the defendant misconstrues the court's ruling with respect to the default. She contends that she should have had the opportunity to argue that she was improperly defaulted because her brother, acting validly as co-counsel, represented her at trial and therefore her absence was irrelevant. See State v. Tselios , 134 N.H. 405, 406–07, 593 A.2d 243, 244 (1991) (personal appearance of a party at a hearing is not required if that party is represented by counsel and has not been subpoenaed). The trial court, however, in its ruling from the bench holding the defendant in default, specifically stated that the defendant's absence as a party was the basis for the default, and that the court would have defaulted the defendant even if Boudette were properly before the court. Accordingly, we will first address the question of whether the court erred in defaulting the defendant based on her absence as a party to the action.

The defendant argues that "[a]lthough [a] Defendant is expected to attend final trial regarding her cross-libel for divorce in order to testify under oath ... there is no requirement [that] a defendant attend the entire trial when represented by counsel." Indeed, "unless a party to an action is subpoenaed, the party can be represented at the hearing or trial by an attorney, and personal appearance is not required." Tselios , 134 N.H. at 406–07, 593 A.2d at 244. The superior court, however, has the authority to default a party for material noncompliance with its orders. Cf. RSA 514:1. See generally Cole v. Hobson , 143 N.H. 14, 719 A.2d 560, 561 (1998).

We thus must decide, as a threshold matter, whether the notice that the defendant received properly informed her that she must be available in person, and that she could not simply send counsel in her absence. See Massachusetts Bonding Co. v. Nudd , 103 N.H. 1, 3, 164 A.2d 242, 243 (1960) ( "notice and an opportunity to be heard are basic essentials of a judicial proceeding" (quotation omitted)); cf. Boddie v. Connecticut , 401 U.S. 371, 376–79, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (given the fundamental importance of marriage and divorce, due process considerations regarding notice and the opportunity to be heard are implicated).

We will first analyze the defendant's due process claim under the New Hampshire Constitution, see State v. Ball , 124 N.H. 226, 231, 471 A.2d 347, 350–51 (1983), relying on cases interpreting the Federal Constitution only to aid in our analysis. See Dime Savings Bank of New York v. Town of Pembroke , 142 N.H. 235, 236, 698 A.2d 539, 540 (1997). Default judgments in a divorce case are proper when the litigants have received adequate notice of the hearing. See Boddie , 401 U.S. at 378, 91 S.Ct. 780. Under both Part I, Article 15 of the New Hampshire Constitution and the Fourteenth Amendment of the Federal Constitution, "an elementary and fundamental requirement of due process is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." City of Claremont v. Truell , 126 N.H. 30, 35, 489 A.2d 581, 585 (1985) (brackets, quotations, and ellipses omitted). In the divorce context, notice to the parties must give the defendant actual notice of the hearing and the issues to be addressed. See Duclos v. Duclos , 134 N.H. 42, 44–45, 587 A.2d 612, 614 (1991).

We hold that in this case, the defendant was adequately apprised of the fact that she was, as a party to the action, required to be available for trial the week of September 15th. The trial court specifically noted that the defendant "was noticed." That finding is supported by the record because as early as the prior June, the defendant received notice that "[c]ounsel and parties shall be available for trial during the week of September 15, 1997." In a later order, that date was confirmed, and the defendant discussed scheduling and the expected content of the final hearing in two separate hearings on pending motions held in August 1997. Furthermore, the order was conjunctive in that it required "counsel and parties" to be available. The defendant could not have understood the order to mean that she could send counsel in her stead and be completely unreachable, since the order clearly required the availability of both counsel and the parties. Becaus...

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