Peak v. Peak

• Decision Date: 17 November 2016
• Docket Number: S-15-0271
• Citation: 2016 WY 109,383 P.3d 1084
• Parties: Casey Charles Peak, Appellant (Defendant), v. Amanda Ann Peak, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

383 P.3d 1084

2016 WY 109

Casey Charles Peak, Appellant (Defendant),

v.Amanda Ann Peak, Appellee (Plaintiff).

S-15-0271

Supreme Court of Wyoming.

November 17, 2016

Representing Appellant: Richard “Zak” Szekely, Casper, Wyoming.

Representing Appellee: Kathleen B. Dixon of Dixon & Dixon, LLP, Casper, Wyoming.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

FOX

, Justice.

[¶1] Amanda Ann Peak (Mother) and Casey Charles Peak (Father) were married in 2005. Mother filed for divorce on June 2, 2015. The clerk of court entered default after Father failed to timely file an answer to Mother's complaint. Father filed a motion to set aside the entry of default. The district court held a hearing on the default, which Father did not attend. After the hearing, the district court entered a default divorce decree. Father appealed, and we stayed the appeal pending a determination of whether father received notice of the hearing on default. The district court found that Father received notice and denied Father's motion to set aside entry of default and default divorce decree. That decision was not appealed. We affirm.

ISSUES

[¶2] Father raises a host of issues which fall into two general categories: the procedure utilized by the district court, and the substance of the decree of divorce. Accordingly, we rephrase the issues as follows:

1. Did the district court violate Father's due process rights when it held the default hearing in Father's absence?

2. Did the district court abuse its discretion when it divided the parties' property and debts and ordered child support?

FACTS

[¶3] Mother and Father were married in 2005. They had three children, born in 1998, 2006, and 2010. Mother filed for divorce on June 2, 2015, and Father was served with the complaint at his place of business the following day, June 3, 2015. Father's answer or response was due twenty days later, June 23, 2015. W.R.C.P. 12(a)

. Father did not file an answer or otherwise respond by that date. Mother sought entry of default, which was entered on June 24, 2015. The following day, Mother filed a motion for the entry of a default divorce decree and requested a hearing on her motion. On June 29, 2015, the district court scheduled a hearing on Mother's motion for entry of the default divorce decree for September 17, 2015, and Father received notice of that hearing. On July 15, 2015, counsel for Father filed an answer and counterclaim, along with a motion to set aside the entry of default. Mother filed an objection to Father's motion to set aside the entry of default on August 4, 2015.

[¶4] The district court held the scheduled default hearing on September 17, 2015. Neither Father nor his counsel attended. At the hearing, the court allowed Mother to present evidence, and issued an oral ruling. It then entered a written divorce decree on September 29, 2015.

[¶5] Mother was awarded primary physical and legal custody of the three children. The decree provides that the oldest child may visit Father at his discretion. Father is allowed visitation of the younger two children, subject to certain requirements. Father was also ordered to pay child support in the amount of $1,320.91 per month until all of the children reach the age of eighteen and no longer attend high school. Father was required to pay back child support in the amount of $2,400. In addition, Mother was awarded the marital home; Father was required to pay mortgage payments on the home for one year and reimburse Mother for two months' mortgage payments. Father was awarded the interest in his business, including all of its assets and liabilities, along with numerous vehicles, an RV camper, four-wheelers, and other property.

[¶6] On October 9, 2015, Father filed a motion to set aside the entry of default and the default divorce decree. On October 22, 2015, Father filed a request for a hearing on his motion, and on October 26, 2015, Father filed an affidavit in support of his motion, asserting that he did not receive service of the setting of the default hearing. Mother filed an objection to Father's motion to set aside the entry of default and the default divorce decree on October 28, 2015. The district court had not ruled on Father's motion at the time Father timely filed his notice of appeal to this Court on October 28, 2015. This Court stayed the appeal pending the district court's ruling on Father's motion to set aside the entry of default and default judgment. The district court entered its Order Denying Defendant's Motion to Set Aside Entry of Default and Default Decree of Divorce on August 29, 2016. Father did not appeal this ruling.¹ We lifted the stay in this matter on October 3, 2016.

DISCUSSION

I. Did the district court violate Father's due process rights when it held the default hearing in Father's absence?

[¶7] Father claims that the district court violated his right to due process when it held the hearing on the default without giving him proper notice of the hearing. “Whether a trial court violated a litigant's right to due process presents a question of law that we review de novo .” Rosty v. Skaj , 2012 WY 28, ¶ 16, 272 P.3d 947, 953 (Wyo. 2012)

.

The party claiming an infringement of his right to due process has the burden of demonstrating both that he has a protected interest and that such interest has been affected in an impermissible way. The question is whether there has been a denial of fundamental fairness.

Brush v. Davis , 2013 WY 161, ¶ 16, 315 P.3d 648, 653 (Wyo. 2013)

(citations omitted). “Due process contemplates the opportunity to be heard at a meaningful time in a meaningful manner.” Jones v. Jones , 903 P.2d 545, 548 (Wyo. 1995)

(citation omitted).

[¶8] The procedure for entry of default and default judgment provides the context for Father's argument. Entry of default is a “clerical act which may be performed by the clerk of court, and it does not constitute a judgment.” Spitzer v. Spitzer , 777 P.2d 587, 592 (Wyo. 1989)

. Once default has been entered, the party in default is precluded from making any defense or assertion with respect to liability or an asserted claim. Id . ; Clay v. Mountain Valley Mineral Ltd. P'ship , 2015 WY 84, ¶ 19, 351 P.3d 961, 967 (Wyo. 2015). “Although the entry of default generally establishes the fact of liability according to the complaint, it does not establish either the amount or degree of relief.” McGarvin

–

Moberly Constr. Co. v. Welden , 897 P.2d 1310, 1314 (Wyo. 1995) (quoting Vanasse v. Ramsay , 847 P.2d 993, 997 (Wyo. 1993) ). Entry of default “does not relieve the non-defaulting party of its obligation to produce an evidentiary basis for the desired relief, nor does it relieve the district court of its obligation to base its findings of fact upon such evidence.” Noonan v. Noonan , 2005 WY 145, ¶ 7, 122 P.3d 964, 966 (Wyo. 2005).

[¶9] A default judgment, by contrast, establishes the fact of liability of the defaulting party and defines the amount of liability or the nature of the relief that will be granted to the non-defaulting party. McGarvin – Moberly , 897 P.2d at 1314

; Spitzer , 777 P.2d at 592. “Where the damages or relief claimed are unliquidated or not specified with certainty in the complaint, further proceedings are indicated.” Spitzer , 777 P.2d at 592-93 ; see also W.R.C.P. 55(b)(2). Thus, in a default divorce proceeding such as this, the district court must obtain an evidentiary basis for its findings regarding property distribution, child custody and visitation, and child support. Noonan , 2005 WY 145, ¶ 12, 122 P.3d at 967 ; Spitzer , 777 P.2d at 593 ; Wyo. Stat. Ann. § 20–2–114 (LexisNexis 2015) (requiring just and equitable property division); Wyo. Stat. Ann. § 20-2-201 (LexisNexis 2015) (establishing factors to be considered by court awarding child custody and visitation); and Wyo. Stat. Ann. §§ 20–2–301 to 20-2-316 (LexisNexis 2015) (setting forth parameters for calculation of child support). This will require a hearing in most instances. See

Spitzer , 777 P.2d at 594. Here, the district court held that hearing on September 17, 2015, and Father was absent.

[¶10] The district court determined that Father received notice of the default divorce hearing. Because he had notice, his absence from the hearing does not mean that his due process rights have been violated. In Jones

, we addressed a similar situation. There, the appellant argued that his due process rights were violated when the trial court refused to continue his divorce trial and he subsequently failed to appear at the trial. Id ., 903 P.2d at 547–48. We held that “[d]ue process merely affords the opportunity to be heard and, thus, a party can waive his due process right to be heard by voluntarily absenting himself from the proceedings. ” Id . at 548 (emphasis in original; citations omitted). We concluded that the appellant had waived his right to be heard by voluntarily absenting himself from the hearing. Id . Here, because Father received notice of the hearing, he received all the process he was due. He was presented with a meaningful opportunity to be heard; his failure to appear amounts to a waiver of the right to be heard.

[¶11] Father also claims that the district court abused its discretion by entering the default divorce decree when he failed to appear at the hearing on the default instead of imposing “other sanctions.” Father fails to provide any cogent argument or citations to relevant rules or caselaw supporting his position. We consistently have refused to consider arguments not supported by cogent argument and citation to legal authority. In re General Adjudication of All Rights to Use Water in Big Horn River System , 2015 WY 104, ¶ 24, 355 P.3d 1222, 1228 (Wyo. 2015)

; Armstrong v. Wyo. Dep't of Envtl. Quality , 2013 WY 53, ¶ 9, 300 P.3d 850, 851 (Wyo. 2013) ; Forbis v. Forbis , 2009 WY 41, ¶ 10, 203 P.3d 421, 424 (Wyo. 2009). We note that the Wyoming Rules of Civil Procedure do not enumerate alternative sanctions for a party's failure to appear at a default...