Duclos v. Duclos, 90-138

Decision Date13 March 1991
Docket NumberNo. 90-138,90-138
Citation587 A.2d 612,134 N.H. 42
PartiesMarcel A. DUCLOS v. Elaine M. DUCLOS.
CourtNew Hampshire Supreme Court

Hampe and McNicholas (Richard A. Hampe, on brief and orally), Concord, for plaintiff.

Nixon, Hall and Hess P.A. (Frank E. Kenison, on the brief, and Francis G. Murphy, Jr., on the brief, and orally), Manchester, for defendant.

JOHNSON, Justice.

The Superior Court (Manias, J.; Larry Pletcher, Master) granted the plaintiff, Marcel A. Duclos, a default judgment on his divorce action brought against his wife, Elaine M. Duclos. She asserts on appeal that the notice she received of the final hearing in this action failed to inform her adequately of the nature of the proposed hearing, and thus that her motion to set aside her default and stay the divorce decree should have been granted. We agree and therefore reverse and remand.

The parties had been married for eighteen years and were raising six children when, on July 14, 1989, Mr. Duclos commenced a divorce proceeding against his wife. After filing this action, Mr. Duclos continued to reside in the homestead with Mrs. Duclos and the children. Mrs. Duclos was served with a libel for divorce, but she failed to file an appearance, either by counsel or personally. Apparently, Mrs. Duclos did not want a divorce and hoped her husband would change his mind and abandon the action.

On November 27, 1989, the superior court sent Mrs. Duclos a document entitled "Notice of Hearing," which recited the name of the case and stated, "A hearing in the above case has been scheduled at 9:00 a.m., December 15, 1989, in the matter of: Default Hearing...." Copies were shown on the notice as having been sent to Richard Hampe, Esquire, counsel for Mr. Duclos, and to "Elaine M. Duclos, Defendant."

At the December 15 hearing, Mr. Duclos presented testimony to support a finding that a divorce should be granted because of irreconcilable differences. The master so found and incorporated into his recommended decree a three-page proposed decree prepared by Mr. Duclos' counsel that determined custody and visitation rights as to the children, support for the children, and the disposition of real estate, personal property, retirement benefits earned by Mr. Duclos, and other property and debts of the parties. Mrs. Duclos was never presented with a copy of the proposed decree, and, thus, never had an opportunity to consider it or respond to it prior to the December 15 hearing. The master's recommendation was approved by the court, and a final decree was issued on December 27, 1989.

It was not until early January, 1990, that Mrs. Duclos received the clerk's notice, mailed January 3, 1990, enclosing a copy to the "Final Decree." She then realized that the hearing on "default judgment" was in reality a final hearing on the merits of her husband's libel for divorce which included not only the issue of the dissolution of the marriage, but also property division, spousal support, and child custody issues. She immediately sought legal assistance, whereupon she filed a motion to set aside the default judgment and stay the divorce decree, which the court denied.

The issue before us is whether the notice of the December 15, 1989 hearing adequately apprised Mrs. Duclos of the nature of the proceeding, so that she could make an informed decision as to whether or not to appear.

The applicable Superior Court Rules are as follows:

"159-A. No divorce, legal separation or annulment will be heard on its merits in any case where no appearance has been made by the opposing party unless an affidavit is filed by the...

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3 cases
  • Douglas v. Douglas
    • United States
    • New Hampshire Supreme Court
    • March 10, 1999
    ...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......
  • Snyder v. New Hampshire Sav. Bank, 90-055
    • United States
    • New Hampshire Supreme Court
    • March 13, 1991
  • Town of Swanzey v. Liebeler, 94-743
    • United States
    • New Hampshire Supreme Court
    • April 9, 1996
    ...is reasonably calculated to give the defendant actual notice of the issue to be decided at the hearing. See Duclos v. Duclos, 134 N.H. 42, 44-45, 587 A.2d 612, 613-14 (1991); cf. Petition of Smith, 139 N.H. 299, 305, 652 A.2d 154, 158-59 (1994) (due process requires a reasonably complete st......

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