Vangel v. Martin
| Decision Date | 15 June 1998 |
| Docket Number | No. 97-P-0126,97-P-0126 |
| Citation | 695 N.E.2d 223,45 Mass.App.Ct. 76 |
| Parties | George N. VANGEL v. Ruth W. Grady MARTIN. |
| Court | Appeals Court of Massachusetts |
John W. Spillane, Worcester, for defendant.
William Sullivan, for plaintiff.
Before KASS, JACOBS and PORADA, JJ.
The defendant appeals from a postdivorce judgment of the Probate Court dividing the marital assets of the parties and the denial of her motion for a new trial. Among her claims of error, the defendant alleges that the judge erred in denying her motion to dismiss based on lack of personal jurisdiction over her and in allowing the plaintiff's motion for a default judgment against her. We conclude the judge rightly denied the motion to dismiss but should not have defaulted the defendant. We vacate the judgment and remand the case for trial.
We summarize the procedural maze created by the parties. The defendant obtained a divorce from the plaintiff in the State of Florida on September 18, 1989. The Florida judgment did not provide for alimony or specify any division of the marital assets of the parties. On November 29, 1989, the plaintiff filed in the Probate Court of Worcester County, where he resided, a one-paragraph complaint requesting a division of the marital assets of the parties. 1 The complaint was labeled a "bill in equity." In response to the complaint, the defendant wrote a letter to plaintiff's counsel in Massachusetts, which document was subsequently filed in the Probate Court and docketed as the defendant's answer to the complaint. 2 The document did not allege lack of personal jurisdiction over the defendant. Subsequent to its filing, an attorney filed a general appearance for the defendant. Thereafter, both parties filed motions for temporary orders and engaged in discovery.
On December 7, 1992, the plaintiff filed a motion to amend his complaint by substituting for his one-paragraph complaint a detailed complaint in which he sought a division of marital assets under G.L. c. 208, § 34. The plaintiff served the motion to amend the complaint on counsel for the defendant. The defendant responded by filing an opposition to the motion to amend the complaint on the ground that the court lacked subject matter jurisdiction. The motion to amend the complaint was allowed on December 30, 1992, and defendant's counsel was served with a copy of the amended complaint. On March 3, 1993, the plaintiff filed a request for a default judgment based on the failure of the defendant to file a responsive pleading to the amended complaint. In response, the defendant filed a "special" appearance and an opposition to the request for default on the grounds of lack of subject matter jurisdiction, insufficient service of process, and (arguably) lack of personal jurisdiction. After a hearing, the judge ordered the defendant to file an answer to the amended complaint by June 26, 1993, or a default would enter.
On June 25, 1993, the defendant filed a motion to dismiss on several grounds, including lack of personal jurisdiction, and the plaintiff responded by renewing his motion for a default judgment. After a hearing on those motions, the judge ruled that the filing of a motion to dismiss did not comply with the court's order requiring the defendant to file an answer by June 26 and ordered that a default judgment issue on the amended complaint. On the same date, the judge filed a document labeled "equity judgment" in which he decreed that, upon the default of the defendant, a hearing would be held to divide the marital assets of the parties. From this "judgment" the defendant filed an appeal to a single justice of this court, who dismissed the appeal.
A judge of the Probate Court then held a hearing to divide the marital assets of the parties but barred the defendant's right to present any evidence because of the default. In the ensuing judgment, he allowed the defendant to retain the Florida real estate and personal property held in her own name but determined that the plaintiff was entitled to all of the proceeds resulting from the sale of the real estate in Westminster. From this judgment and the denial of her motion for a new trial, the defendant has filed this appeal.
We address the defendant's claims.
1. Motion to dismiss. The defendant claims that the Probate Court lacked jurisdiction to entertain a complaint for the division of marital assets under G.L. c. 208, § 34, because the court did not have personal jurisdiction over the defendant. Under G.L. c. 208, § 34, the Probate Court may divide the marital assets of the parties after the entry of a divorce judgment in this Commonwealth or another jurisdiction, provided it has personal jurisdiction over the parties at the time of the entry of judgment. Personal jurisdiction is a matter which can be waived. Mass.R.Dom.Rel.P. 12(h)(1) (1975). See and compare Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass.App.Ct. 527, 533, 678 N.E.2d 440 (1997) (). For three years after the filing of the initial complaint in this action, the defendant participated in this litigation by filing an appearance, opposing numerous requests for temporary orders by the plaintiff, filing a motion for a temporary order, and conducting discovery. During this period she did not challenge the court's jurisdiction over her. She raised this defense for the first time in March, 1993, in opposition to the plaintiff's request for a default. Although the judge did not state his grounds for ordering the defendant to answer the complaint and his subsequent entry for defaulting the defendant, his ruling constitutes a rejection of the defendant's argument that the court lacked personal jurisdiction over her and the defendant's motion to dismiss. There was no error.
When the plaintiff filed his motion to amend the...
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