Frieberg v. Frieberg

• Decision Date: 26 May 1993
• Docket Number: No. 18079,18079
• Citation: 509 N.W.2d 415
• Parties: Charles R. FRIEBERG, Plaintiff and Appellee, v. Alicia C. FRIEBERG, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 415

509 N.W.2d 415

Charles R. FRIEBERG, Plaintiff and Appellee, v. Alicia C. FRIEBERG, Defendant and Appellant.

No. 18079.

Supreme Court of South Dakota.

Considered on Briefs May 26, 1993.

Decided Dec. 15, 1993.

Lee M. McCahren, Vermillion, for plaintiff and appellee.

James E. McCulloch, Minick and McCulloch, Vermillion, for defendant and appellant.

PER CURIAM.

Alicia C. Frieberg (Alicia) appeals the denial of her motion for relief from a judgment and decree of divorce. We reverse and remand.

FACTS

Alicia is a citizen of the Philippine Islands. She met Charles Frieberg (Charles), a native of South Dakota, while Charles was serving on active duty in the United States Navy. The two were married in September 1985. At the time of the marriage, Alicia had a daughter, now age ten, whom Charles later adopted. Three other children were born during the course of the marriage: a son, now age five; a daughter, now age three; and, another son, now age two.

In March 1991, the parties were living in Denver, Colorado, where Charles was still serving in the military. Alicia had been hospitalized for some severe emotional problems. Charles brought the children back to South Dakota to be cared for by his parents while he could restore some order in his life. On March 27, 1991, Charles personally served Alicia with a summons and complaint for divorce. The summons provided in pertinent part:

YOU ARE HEREBY SUMMONED and required to answer the Complaint of the above-named Plaintiff, a copy of which is hereto annexed and herewith served upon you, and to serve a copy of your Answer to said Complaint on the subscriber at his office, at P. O. Box 297, Vermillion, South Dakota, 57069, within thirty (30) days after the service of this Summons upon you, exclusive of the day of such service, and if you fail to answer within said time, the Plaintiff in this action will take judgment against you by default as requested in Plaintiff's Complaint, after sixty (60) days have elapsed from the completed service of said Summons and Complaint. (emphasis added).

Although Alicia is able to read and speak English, Charles read the summons and complaint to her and explained the documents. Alicia acknowledged service with her signature on an admission of service.

Legal services were accessible to Alicia on the air base where she lived. A day or so after receiving the summons and complaint, Alicia consulted the available military legal services and was referred to Denver legal aid. On May 20, 1991, Alicia contacted the Legal Aid Society of Metropolitan Denver requesting assistance in obtaining a divorce and custody of her children. Because a South Dakota divorce was involved, an exchange of correspondence and telephone calls apparently ensued between the Denver legal aid office and East River Legal Services in Sioux Falls, South Dakota. In the interim, a default divorce judgment was entered against Alicia on May 28, 1991. The judgment awarded Charles custody of the parties' four children subject to Alicia's visitation rights.

On June 4, 1991, several days after the default divorce judgment had already been entered, East River Legal Services notified Denver legal aid that services would be provided to Alicia. On June 11, 1991, Alicia was personally served with a copy of the judgment and decree of divorce. On November 4, 1991, Alicia's South Dakota counsel served a motion for relief from the default divorce judgment. A hearing on the motion was conducted on November 19, 1991. On July 28, 1992, the circuit court entered its findings of fact, conclusions of law and order denying the motion for relief from judgment. Alicia appeals.

ISSUE

DID THE CIRCUIT COURT ABUSE ITS DISCRETION IN DENYING

ALICIA'S MOTION FOR RELIEF FROM THE DEFAULT

DIVORCE JUDGMENT?

Alicia contends her lack of fluency with the English language, her inexperience with court proceedings and the legal system, the fact she believed some notice would be given to her before trial, the series of referrals from legal aid services and her hospitalization for emotional problems all constitute excusable neglect warranting relief from the default judgment. SDCL 15-6-60(b)(1). We agree.

"The decision to grant or deny relief from a default judgment rests with the sound discretion of the trial court and we will not disturb the trial court's decision absent an abuse of that discretion." First Federal Sav. & Loan Ass'n v. Strub, 427 N.W.2d 836, 838 (S.D.1988).

The trial court's discretion should be exercised liberally in accord with legal and equitable principles in order to promote the ends of justice.

SDCL 15-6-60(b) authorizes relief from judgment based on mistake, inadvertence, excusable neglect, surprise and fraud; ... 'This Court is more inclined to reverse for failure to set aside a judgment taken by default as in the absence of a litigant and his counsel than where such judgment has been set aside and trial on the merits granted.'

A party seeking to have a judgment vacated under SDCL 15-6-60(b)(1) must meet two requirements. The applicant must show (1) the excusable neglect; and (2) a probable meritorious defense. As a procedural matter, the party seeking relief under 15-6-60(b) must meet the timeliness element of the statute. SDCL 15-6-60(b), in relevant part, states: '[t]he motion shall be made within a reasonable time, and for reasons [of subsections] (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.'

Clarke v. Clarke, 423 N.W.2d 818, 820-21 (S.D.1988) (citations omitted) (emphasis added).

Timeliness of Motion

In this instance, the default judgment was entered on May 28, 1991. Alicia filed her motion for relief from judgment on November 5, 1991. This is a delay of 160 days or approximately five months. In discussing the timeliness of the motion for relief from the default judgment in Clarke, 423 N.W.2d at 821, this Court observed:

Lynda's motion was filed within five weeks after judgment, well within the one year limitation of 15-6-60(b). The motion was also filed within a reasonable time. [Rogers v. Rogers, 351 N.W.2d 129 (S.D.1984) ] allowed a motion to vacate judgment when it was filed within six months of the original judgment. The Rogers' court, while not expressly holding that six months was reasonable, implicitly recognized its reasonableness when it allowed the judgment to be vacated under 15-6-60(b)(1). This court has also held that just under one month was a reasonable time to make a motion under SDCL 15-6-60(b)(6). Subsection (6) does not have the one year limitation that subsections (1), and (2), and (3) have. Gross v. Kouf, 349 N.W.2d 652 (S.D.1984). Therefore, a motion made within one year under SDCL 15-6-60(b)(1) which is based upon the compelling factors that exist in this case meets the timeliness element of the statute.

The time frames discussed above can be contrasted with the two and one-half year delay in the filing of the motion for relief from judgment that was found untimely in Anderson v. Somers, 455 N.W.2d 219 (S.D.1990).

In view of the time frames discussed above, we hold that, despite Alicia's five month delay in filing her motion for relief from judgment, her motion was timely. As in Clarke, supra, we reach this conclusion because of the "compelling factors" in this case that are discussed below in terms of excusable neglect warranting relief from the judgment.

Existence of Excusable Neglect

In Clarke, supra, this Court held:

A party moving for relief from judgment must show excusable neglect. Excusable neglect must be neglect of a nature that would cause a reasonable, prudent person to act similarly under similar circumstances. The term 'excusable neglect' has no fixed meaning and is to be interpreted liberally to insure that cases are heard and tried on the merits. Excusable neglect is illusive and difficult to define: 'I could never succeed [in defining it intelligibly]. But I know it when I see it.' Jacobellis v. State of Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793, 804 (1964) ( [Stewart], J. concurring, describing obscenity).

Clarke, 423 N.W.2d at 821 (citations omitted) (emphasis added). In Clarke, supra, this Court found excusable neglect in the defaulting defendant's emotional state of mind, her drinking problems and the disarray of her marriage. Similar factors are present in the instant case. Alicia was served a summons and complaint for divorce the day she left a hospital she had entered for severe emotional problems. Compounding her emotional problems, was Alicia's strained comprehension of the English language and her lack of familiarity with the American legal system. Although the circuit court found that Alicia can read and speak English and that her linguistic abilities were sufficient to present her claim in court, a review of Alicia's hearing testimony makes it readily apparent that she has limited communicative and comprehensive skills. Questions had to be repeated and Alicia's answers were frequently rambling, vague or indefinite. This Court has previously found a default defendant's foreign birth and lack of experience with court proceedings sufficient to establish excusable neglect warranting relief from a default judgment. See, Johnson v. Johnson, 50 S.D. 341, 210 N.W. 155 (1926). See also, Rosebud Lumber Co. v. Serr, 22 S.D. 389, 117 N.W. 1042 (1908).

Despite her language difficulties and emotional problems, Alicia did seek help from a legal aid office almost immediately after service of the summons and complaint. However, instead of affording Alicia the assistance she needed in defense of the divorce litigation, Alicia was caught in a bureaucratic quagmire as three separate legal aid offices attempted to determine which one of them should handle Alicia's case. Military legal aid in Denver referred Alicia to a Denver legal aid office. Alicia contacted Denver legal aid the day after service of the summons and complaint. Yet, nearly two months...