Jacquelyn J Jones v. William Keith Jones ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
JACQUELYN J. JONES, UNPUBLISHED
January 24, 2017
Plaintiff-Appellee,
v No. 329732
Lenawee Circuit Court
WILLIAM KEITH JONES, LC No. 13-039279-DM
Defendant-Appellant.
Before: BECKERING, P.J., and SAWYER and SAAD, JJ.
PER CURIAM.
Defendant appeals following the trial court’s entry of a default judgment of divorce. We
affirm.
Plaintiff filed this divorce action after a nearly 20-year marriage. Although defendant
apparently participated in various pretrial conferences and discussed the terms of the divorce
judgment, he did not answer the complaint, a default was entered, and a default judgment was
requested. After multiple adjournments, a hearing to enter the default judgment was held on
September 28, 2015. With a correction of an error in the judgment presented to the trial court at
the hearing, the trial judge entered the judgment presented by plaintiff’s counsel. Defendant now
appeals.
Defendant first argues that the trial court improperly entered the default judgment without
affording him the opportunity to be heard. Defendant relies upon this Court’s opinion in Perry v
Perry, 176 Mich. App. 762, 767-768; 440 NW2d 93 (1989), for the proposition that, even after a
default, a defendant has the right to participate in the hearing to determine the terms of the
judgment. But this Court in Dragoo v Dragoo, 223 Mich. App. 415, 427-428; 566 NW2d 642
(1997), concluded that Perry was incorrectly decided because that principle only applies to cases
where the defaulted defendant would have had a right to a jury trial and, therefore, does not
apply to equitable actions such as a divorce case. Defendant only cites to an unpublished
decision of this Court for the proposition that Dragoo only applies where the default is the result
of a discovery sanction and does not apply where the default was for failing to appear. We need
not resolve this question, however, because the record does not support defendant’s contention
that he was not allowed to participate in the hearing.
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Defendant attended the September 28 hearing. Plaintiff was called as a witness and, after
the direct examination by plaintiff’s attorney was finished, the trial judge asked defendant “do
you have any questions for your wife?” Defendant responded that he did not. Defendant was
then sworn and asked questions by the trial court. Defendant stated his objections to the
judgment. There is no indication from the record that the trial court prevented defendant from
making any argument that he wished or from presenting evidence. In short, even assuming that
Dragoo does not apply to this case and that, under Perry, defendant had the right to fully
participate in the hearing, he was not precluded from doing so.
Next, defendant argues that entry of the judgment was improper because plaintiff failed
to comply with MCR 3.210(B)(4)(a), which requires, among other things, that the plaintiff must,
14 days before the hearing, serve on the defendant a copy of the proposed default judgment.
Although defendant acknowledges that a copy of a proposed judgment was served on him at
least 14 days before the hearing, he claims that the proposed judgment presented to the trial court
differed from the proposed judgment that had been served on him.
There are two problems with analyzing this argument. First, while defendant attaches to
his brief on appeal a copy of what he claims to have been the proposed judgment sent to him, no
copy of that judgment appears in the record. Our review is limited to the record created in the
trial court. MCR 7.210. Indeed, the only indication in the record regarding the proposed
judgment as sent to defendant is the following exchange at the hearing:
THE COURT: Thank you. Mr. Jones, have you seen the judgment?
THE DEFENDANT: I have not.
[Plaintiff’s counsel]: It’s the one I mailed to you with the notice of this hearing.
THE DEFENDANT: Then yes.
Therefore, the record before us can only establish that defendant was properly served a copy of
the proposed judgment.
Second, defendant did not raise any objections at the hearing, nor move to set aside the
default judgment, based upon this claim. Therefore, the issue has not been properly preserved
for appeal. Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich. 211, 234; 507
NW2d 422 (1993).
Finally, defendant argues that the default judgment should be vacated because the
property division was inequitable. We disagree. We affirm property distribution decisions in
divorce cases unless we are left with a firm conviction that the distribution was inequitable.
Hanaway v Hanaway, 208 Mich. App. 278, 292; 527 NW2d 792 (1995). Although defendant
makes representations in his brief as to the valuations, including the attachment of documents
and an affidavit, there is no evidence in the trial court record to establish the valuations or the
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extent of any inequality in the distribution. Nor, for that matter, was there any discussion as to
the reasons for the distribution, other than a question to plaintiff by her attorney to confirm that
she had originally asked for 75%1 of defendant’s pension “to cover some of the other inequities
in this.” In any event, based upon the scant record before us, we are not left with a firm
conviction that the distribution is inequitable.
Affirmed. Plaintiff may tax costs.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Henry William Saad
1
The proposed judgment had reduced the request to 65%.
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