Last year, the Arizona Court of Appeals issued a decision regarding setting aside default divorce decrees. The case involved two parties who were both licensed attorneys who made several procedural errors. In its decision Duckstein v. Wolf, the Arizona Court of Appeals set forth some standards for trial courts in setting aside default divorce decrees.

WHAT IS A DEFAULT DIVORCE DECREE?

A default divorce decree is the divorce decree that the court issues after the default process. When the petitioner serves the respondent with divorce papers, either by a process server or by the respondent signing an acceptance of service (as was the case in Duckstein), the respondent has 20 days to file his or her response. If the respondent does not file a response within 20 days, the petitioner may file an application for and affidavit on default alerting the court to the fact that the respondent did not file a response and asking the court to consider the matter to be in default. If the respondent still does not file a response within ten business days after the day the petitioner files the application for default, the respondent is in default. The petitioner then may set a default hearing during which he or she will present a default decree for the court to enter. After the court signs the proposed decree, it is a default divorce decree.

Sometimes, parties who have already made an agreement regarding all issues in their divorce use the default process. After they reach their agreement, the petitioner files for divorce and asks the court to enter a decree reflecting the terms of the parties’ agreement. The respondent does not file a response and the petitioner presents a decree to the court that reflects the parties’ agreement. Other times, the respondent just does not respond for any number of reasons.

WHAT HAPPENED IN DUCKSTEIN?

Note: Duckstein was a divorce matter without minor children. Trial courts are much more likely to set aside default in divorces with minor children.

The Petitioner filed a divorce petition that did not include a signed verification page as required by law. She also filed an acceptance of service that did not include a notary as required by law. The Respondent did not file a response and the Petitioner pursued the default process, presenting a proposed decree and a property settlement agreement that appeared to bear the signatures of both parties. The court issued the divorce decree incorporating the property settlement agreement.

Ten months later, the Respondent filed a motion to set aside the default decree, arguing that the he had not signed the acceptance of service or the property settlement agreement, and that the defects in the petition and acceptance of service made the decree void. The Respondent asked the trial court to set aside the default decree or, alternatively, hold an evidentiary hearing on whether he signed the acceptance of service and property settlement agreement. The trial court entered an order declining to set aside default or hold an evidentiary hearing. The Respondent appealed.

Because Respondent waited ten months to file his motion, the trial court and the appellate court focused on whether the judgment was void (as opposed to voidable). A motion to set aside a judgment for most other reasons has a time limit of six months.

Therefore, the two practicing attorneys who were the parties to this case made three basic errors:

THE ARIZONA COURT OF APPEALS REMANDED THE CASE.

The Arizona Court of Appeals held that when a motion to set aside a default judgment presents contested issues of material fact and a party requests an evidentiary hearing, the trial court should conduct an evidentiary hearing before ruling on the motion. In Duckstein, the contested issue of material fact was whether the Respondent had signed the acceptance of service.

The Respondent made three arguments on appeal: 1) the unverified petition deprive the trial court of jurisdiction; 2) the lack of notary on the acceptance of service deprived the trial court of jurisdiction; and 3) the trial court should have held an evidentiary hearing on these issues before ruling.

The appellate court first held that, although the Petitioner violated the rules by not verifying her petition, it did not deprive the trial court of jurisdiction. The rules provide for other remedies short of depriving the trial court of jurisdiction.

The appellate court then held that the lack of a notary on the acceptance of service does not render the default decree void as a matter of law. The court reasoned that the real issue is whether the Respondent actually signed the acceptance of service and whether the trial court should have held an evidentiary hearing to make the determination.

On the issue of whether the trial court should have held an evidentiary hearing, the appellate court held that the lack of a proper notarization does not necessarily require an evidentiary hearing, in the Duckstein case the trial court should have held an evidentiary hearing because the notarization was defective, there was a dispute of fact as to whether the Respondent was properly served, and the Respondent had requested an evidentiary hearing on that issue.

The appellate court reasoned that a judgment is void if a trial court did not have jurisdiction because of lack of proper service. If a judgment is void, the trial court has no discretion but to vacate it. Therefore, when a notarization on an acceptance of service is defective, on a motion to vacate a decree, it is up to the trial court, after determining the evidence before it, whether the movant has provided clear and convincing evidence for relief from the default decree. The way to determine and evaluate the evidence is to have an evidentiary hearing on the issues raised.

Therefore, the appellate court said, the trial court erred in denying the Respondent’s motion without having an evidentiary hearing. The appellate court remanded the matter back to the trial court to hold an evidentiary hearing on whether the Respondent actually signed the acceptance of service.

CONCLUSION

Procedural errors such as the errors in Duckstein can be costly and time consuming. Even practicing attorneys make very basic procedural errors on their own cases when in the emotional turmoil of a divorce. An experienced attorney who can handle and analyze your divorce without emotion can be key in avoiding costly and time consuming errors. Thomas A. Morton has been representing Phoenix area divorce litigants since 2004 and is available to consult with you on your divorce.