In Kline v. Kline, the Arizona Court of Appeals upheld default judgment for a request for spousal maintenance made in an amended pleading that was never served under Rule 44, Arizona Rules of Family Law Procedure.
This case involved interrelated family court and civil court proceedings. Wife filed for divorce in Arizona in March 2005. Husband retained an attorney and successfully moved the family court to dismiss the divorce for lack of personal jurisdiction.
Later that year, Wife refiled her petition for divorce in Arizona. Husband was personally served with that petition. A week later, Wife amended her petition to request spousal maintenance. Wife alleged she delivered a copy of the amended petition to the attorney Husband previously retained, though there was no record of service.
Approximately a month later, a different law firm appeared to represent Husband and again contest personal jurisdiction. After a trial on this issue, the family court ruled that it had necessary jurisdiction (and this ruling was upheld in a special action Husband filed).
A few months later, Wife filed and served a petition for temporary orders, including a request for temporary spousal maintenance. Husband appeared at the temporary orders trial and acknowledged he was aware of the amended petition’s request for spousal maintenance. The trial court ordered temporary spousal maintenance in the amount of $5,000 per month.
After the temporary orders hearing, when Husband still did not file a response to the petition for dissolution, Wife filed an application for entry of default judgment. Husband did not respond and a hearing was held where default judgment was entered to extend the award of spousal maintenance for an additional five years.
During the family court litigation, Wife was sued by an LLC formed or controlled by Husband’s original divorce attorney. The civil lawsuit sought to collect Husband’s former interest in the marital residence, which he apparently quit claimed to his original divorce attorney. Wife filed a third-party complaint against Husband where she sought quiet the title dispute and alleged various causes of action, including: fraudulent transfer, civil conspiracy to commit fraud, and breach of fiduciary duty.
Again, Husband did not respond to this complaint and Wife applied for entry of default judgment. Husband did not appear at the hearing or contest the proposed findings of fact and conclusions of law, so default judgment was entered in the amount of $385,155.56.
Husband appealed both default judgments.
As a general rule, default judgments are not appealable, though exceptions do exist. Such exceptions include contests to jurisdiction or the validity of the default judgment.
Husband argued that the spousal maintenance judgment was invalid because it was not specifically pleaded, pursuant to Rule 44G, in the complaint Wife served.
The Court of Appeals first distinguished between a petition and a motion, the latter of which is not considered a “pleading” and cannot satisfy the requirement in Rule 44. It further dissected the rules of personal service, including service on a litigant’s attorney or agent. After this review, the Court concluded that Husband’s original attorney was not expressly or impliedly authorized to accept service on Husband’s behalf.
Ultimately, the Court of Appeals found that Husband had actual notice of the amended petition and therefore was not prejudiced by the technically defective service. The Court stated “ARFLP 44(G) was intended to serve as a shield for those prejudiced by a lack of notice, not as a sword for those who, with full information, elect to be defaulted.”
Both default judgments were upheld and an award of Wife’s attorney’s fees and costs was entered against Husband and his attorneys.