Spitzer v. Spitzer, 87-123

• Decision Date: 03 July 1989
• Docket Number: No. 87-123,87-123
• Citation: 777 P.2d 587
• Parties: Harold SPITZER, Appellant (Defendant), v. Ann Marie SPITZER, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 587

777 P.2d 587

Harold SPITZER, Appellant (Defendant), v. Ann Marie SPITZER, Appellee (Plaintiff).

No. 87-123.

Supreme Court of Wyoming.

July 3, 1989.

Clifford J. Neilson and Dallas J. Laird, Casper, for appellant.

Larry R. Clapp of Clapp and Barksdale, P.C., Casper, for appellee.

Before BROWN, ^* C.J., and THOMAS, CARDINE, ^** URBIGKIT and MACY, JJ.

MACY, Justice.

This is an appeal from a divorce decree entered as a default judgment and which awarded alimony and a general property settlement without a hearing. Appeal is also taken from a nunc pro tunc order amending the divorce decree.

We reverse.

Appellant Harold Spitzer raises the following issues:

1. Whether Mr. Spitzer, who stands in contempt of the district court, has standing under the facts of this case to present an appeal to this Court;

2. Whether it was error for the district court to enter its divorce decree which included matters outside the divorce complaint without conducting an evidentiary hearing, by affidavit or otherwise, to consider the allegations made by appellee Ann Marie Spitzer in her complaint;

3. Whether it was error for the district court to include a provision in its divorce decree making the payment of $600,000 as and for alimony the obligation of Mr. Spitzer and his executor, trustee, or successor after his death; and

4. Whether it was error for the district court to amend its divorce decree by its March 16, 1987, nunc pro tunc order without a motion or notice to Mr. Spitzer.

The approach of appellee Ann Marie Spitzer to the question of this Court's jurisdiction to hear this appeal, raised by Mr. Spitzer in his first issue, is somewhat different. She phrases the issue as being:

1. Whether an appeal may be taken from a default judgment without there having first been a motion for relief under Rule[s] 55(c) and 60(b), W.R.C.P.

On November 10, 1986, Ms. Spitzer filed a complaint praying that her marriage to Mr. Spitzer be dissolved, that the court equitably divide their assets and debts, that she be granted support while the action was pending, and that the court grant such other and further relief as it deemed just and proper. Ms. Spitzer also requested and received a temporary restraining order prohibiting Mr. Spitzer from disposing of or encumbering various assets of the parties during the pendency of the divorce action.

Mr. Spitzer answered and counterclaimed for divorce. Whereas Ms. Spitzer requested an equitable division of the marital property, Mr. Spitzer requested that the property division be determined in relation to the property and assets each party brought into the marriage. Mr. Spitzer also moved to quash the restraining order. Although this may be somewhat speculative, the record strongly indicates that Mr. Spitzer then appropriated all the property of the parties which had any liquidity and moved it out of the jurisdiction.

On January 12, 1987, Ms. Spitzer filed a notice of deposition in which she demanded that Mr. Spitzer produce certain items and documents relating to the parties' mutual assets and properties. She also filed a motion to compel, seeking court enforcement of this notice of deposition. The motion to compel was requested because, prior to that time, Ms. Spitzer had served Mr. Spitzer with a "First Request for Production of Documents" to which he had failed to respond. The deposition was scheduled for January 22, 1987. Mr. Spitzer did not appear at the deposition nor did he furnish, in any form, the various items and documents Ms. Spitzer had requested. As a result, Ms. Spitzer then filed a combined "Motion to Compel, Motion for Sanctions, and Motion for Attorney's Fees."

On January 26, 1987, the district court conducted a hearing on all of Ms. Spitzer's motions and on Mr. Spitzer's motion to quash. On February 3, 1987, the district court entered an "Order and Judgment" granting all of Ms. Spitzer's motions and denying the motion to quash. This order and judgment provided in pertinent part:

1. That [Ms. Spitzer's] Motion to Compel, Motion for Sanctions, and Motion for Attorney's Fees shall be, and hereby is, granted. [Mr. Spitzer] shall have ten (10) days from the date of the Court's entry of the within Order and Judgment in which to produce the documents requested in [Ms. Spitzer's] First Request for Production of Documents, failing, in which, [Mr. Spitzer] shall be deemed in default, and [Ms. Spitzer] shall then be granted her divorce, and [Ms. Spitzer] shall retain any and all assets she deems are properly hers. [Ms. Spitzer] shall have Judgment against [Mr. Spitzer], and [Mr. Spitzer] shall pay to [Ms. Spitzer] the sum of $125.00 as and for costs associated with the deposition of [Mr. Spitzer], which was scheduled for January 22, 1987, and which [Mr. Spitzer] did not attend, the amount for which, let execution issue.

(Emphasis added.)

Mr. Spitzer again failed to respond, and on February 17, 1987, Ms. Spitzer filed an "Application for Default Judgment." The district court made its entry of default on that same day. Also on February 17, the district court entered the divorce decree as a default judgment. The decree granted Ms. Spitzer a divorce and provided for a property division and an alimony award. The decree noted that "[Mr. Spitzer] has willfully, intentionally, and without just cause violated the Order and Judgment filed herein on February 3, 1987, thereby mandating this Decree of Divorce and Judgment to be entered by default." The decree awarded Ms. Spitzer certain real and personal property, apparently consistent with the provision in the prior order and judgment that she would retain such Mr. Spitzer thereafter filed three motions to amend the judgment. Two of the motions asserted that certain of the property awarded Ms. Spitzer did not belong to Mr. Spitzer but instead were owned by his son and daughter and should be excluded from the decree. These motions were denied. The district court did grant the other motion which requested a change in the decree to reflect the correct marriage date for the parties.

property as she deemed to be properly hers. With respect to alimony, the decree provided that Mr. Spitzer was to pay Ms. Spitzer $600,000 in monthly installments of $5,000 and that Mr. Spitzer's obligation to pay would terminate upon the death of Ms. Spitzer. The decree further provided, however, that the alimony obligation "will be an obligation of [Mr. Spitzer], [Mr. Spitzer's] executor, trustee, or successor after [Mr. Spitzer's] death."

On March 10, 1987, Ms. Spitzer filed numerous motions contained within a single document. Included in that document was a motion for contempt alleging that Mr. Spitzer had directly and intentionally violated the restraining order and original decree by improperly converting property included in those orders and by failing to make alimony payments. After a hearing, the district court entered its order granting Ms. Spitzer's motion for contempt and ordered that a bench warrant be issued for the arrest of Mr. Spitzer and that a $300,000 cash bond be posted for his release in the event he was incarcerated pursuant to that bench warrant. Additional post judgment activities are reflected by the entry, upon application of Ms. Spitzer's counsel, of several orders styled "Order Nunc Pro Tunc," which amended the original decree by adding specificity to certain of the property descriptions and by awarding additional real property to Ms. Spitzer which had not been included in the original divorce decree. This appeal was then perfected.

JURISDICTION

Ms. Spitzer contends that no jurisdiction lies for this appeal because Mr. Spitzer failed to initially seek relief at the district court level from the decree of divorce which was entered upon default. In support of her argument, Ms. Spitzer directs this Court to the cases of Wyoming Insurance Department v. Sierra Life Insurance Company, 599 P.2d 1360 (Wyo.1979), and Robison v. Sales and Use Tax Division, State Tax Commission, 524 P.2d 82 (Wyo.1974), which she believes hold that a default judgment may not be appealed until the complaining party has first moved to set aside the judgment pursuant to W.R.C.P. 55(c) and 60(b). ¹

We do not question that these cases stand for the proposition asserted by Ms. Spitzer. We note, however, that Mr. Spitzer is not contesting the facts respecting his liability as established by the entry of default. In this respect, the following language in 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 203.06 at 3-27 to 3-28 (2d ed. 1989), becomes pertinent:

In federal practice a party who suffers judgment by default in effect confesses the truth of the facts respecting the claim except for facts that in their nature require an examination of details, as, for example, the amount of damages when the claim is unliquidated. If he (Emphasis added.) Here, while not questioning his liability, Mr. Spitzer's appeal contests the procedures in the district court, including specifically the award of property and alimony from an unliquidated claim. Thus, we are not convinced that Mr. Spitzer would be precluded from bringing this appeal by a failure to move to set aside the judgment. We believe, however, that Mr. Spitzer did in fact adequately seek the required relief from the trial court.

later wishes to draw in issue the facts thus confessed, he must move in the trial court to set aside the judgment; he cannot draw in issue the facts by appealing directly from the default judgment, because on the record they stand confessed. But while the scope of review is thus limited on appeal from a default judgment, the mere fact that the party has defaulted below does not defeat his right to appeal. He may, on direct appeal from the default judgment, attack it for want of jurisdiction in the court, or for failure of the complaint to state a claim, or for procedural irregularity in the course of the proceedings below.

We recognize that W.R.C.P. 7(b)(1) provides in...