State v. Tselios, 90-149

Decision Date08 July 1991
Docket NumberNo. 90-149,90-149
Citation593 A.2d 243,134 N.H. 405
PartiesThe STATE of New Hampshire v. George TSELIOS.
CourtNew Hampshire Supreme Court

John P. Arnold, Atty. Gen. (David S. Peck, Sr. Asst. Atty. Gen., on the brief), by brief for State.

Ray Raimo, Manchester, by brief for defendant.

THAYER, Justice.

The defendant appeals the denial by the Superior Court (Murphy, J.) of his motion to strike a default judgment in a suit to determine paternity and support. Finding error, we vacate the default judgment as it pertains to the defendant's support obligations and remand for a hearing on that issue alone.

In April of 1987, the New Hampshire Division of Human Services (the division) brought an action against the defendant to determine paternity, recover public assistance benefits and enforce the defendant's obligation to support his alleged illegitimate daughter. The defendant filed a timely answer denying paternity. Pursuant to an agreement between the parties, blood tests were conducted and a hearing on the merits was scheduled for October 19, 1989. At the hearing, the defendant's counsel appeared but the defendant did not. The trial court accepted the blood test results, found the defendant in default and ordered him to reimburse the State $11,785.58. Upon the State's subsequent motion for clarification, the court also found the defendant to be the father of the child, ordered the reimbursement of the public assistance benefits to be held in abeyance, and further ordered the defendant to pay $100 a week to the division for the ongoing support of the minor child.

The defendant then filed a motion to strike the default, arguing that his failure to appear at the hearing was "due to accident, mistake, or misfortune and not neglect." The State objected, and the motion was denied without a hearing. The defendant then brought a motion to reconsider, asserting that he was not required to appear personally in court because he was represented by counsel, did not plan to testify, and was not subpoenaed. The motion to reconsider was also denied without a hearing.

On appeal, the defendant argues that the trial court erred as a matter of law in ordering him in default for failure to appear when his counsel was present at the hearing and ready to proceed. The defendant takes the position that the finding of paternity should be upheld, but asserts that the trial court abused its discretion when it ordered him to repay public assistance benefits and provide ongoing support in excess of the amount requested by the State, despite his assertion that he is unemployed and has no income. The State contends that the defendant failed to preserve his objection to the default order. In the alternative, the State argues that even if the trial court's default order constitutes error, the record does not demonstrate that the defendant suffered any prejudice which requires reversal of the decision in this case.

We begin our analysis by noting that this court will not disturb a default judgment unless the trial court clearly abused its discretion or erred as a matter of law. See Sununu v. Clamshell Alliance, 122 N.H. 668, 673, 448 A.2d 431, 434 (1982). The defendant asserts that the trial court erred in holding him in default for not appearing, when his counsel was present at the hearing and was ready to proceed. This court has held that 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. Carveth v. Latham, 110 N.H. 232, 233, 265 A.2d 1, 2 (1970), cited in Moore v. Conifer Corp., 130 N.H. 795, 800, 547 A.2d 298, 301 (1988). Therefore, the trial court erred in holding the defendant in default.

The State contends that the defendant did not properly preserve this issue for appeal when he...

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33 cases
  • Mortg. Specialists, Inc. v. Davey
    • United States
    • New Hampshire Supreme Court
    • July 26, 2006
    ...We have recognized that "parties may not have judicial review of matters not raised at the earliest possible time." State v. Tselios, 134 N.H. 405, 407, 593 A.2d 243 (1991). "[T]he rationale behind the rule is that trial forums should have an opportunity to rule on issues and to correct err......
  • Mortgage Specialists, Inc. v. Davey
    • United States
    • New Hampshire Supreme Court
    • July 26, 2006
    ...We have recognized that "parties may not have judicial review of matters not raised at the earliest possible time." State v. Tselios, 134 N.H. 405, 407, 593 A.2d 243 (1991). "[T]he rationale behind the rule is that trial forums should have an opportunity to rule on issues and to correct err......
  • Marcotte v. Timberlane/Hampstead Sch. Dist.
    • United States
    • New Hampshire Supreme Court
    • February 9, 1999
    ...the trial court and the school district with an adequate and timely opportunity to address the issue. Cf . State v. Tselios , 134 N.H. 405, 407, 593 A.2d 243, 245 (1991).Regarding the merits, RSA 507–B:4, I, provides that the "[l]iability of a governmental unit for bodily injury, personal i......
  • Marcotte v. Timberlane/Hampstead School Dist., 94-061
    • United States
    • New Hampshire Supreme Court
    • February 9, 1999
    ...abate provided the trial court and the school district with an adequate and timely opportunity to address the issue. Cf. State v. Tselios, 134 N.H. 405, 407, 593 A.2d 243, 245 Regarding the merits, RSA 507-B:4, I, provides that the "[l]iability of a governmental unit for bodily injury, pers......
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