45 Mass. App. Ct. 76 | Mass. App. Ct. | 1998
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.
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 judg
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 (1997) (under Mass.R.Civ.P. 12[h][l], 365 Mass. 757 [1974], personal jurisdiction may be waived through nonassertion). 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
When the plaintiff filed his motion to amend the complaint, changing its label from a bill in equity to a complaint under G. L. c. 208, § 34, and setting forth the necessary detail to bring the complaint in compliance with the pleading requirements of the Probate Court, this did not change the substance of the action. Regardless of its original label, the action was one for a division of marital assets. See Cappello v. Cappello, 23 Mass. App. Ct. 941, 942 n.l (1986) (court could treat relief sought according to its obvious character rather than its label). Her participation in that litigation prior to the filing of the amended complaint and her dilatoriness in the assertion of a defense of lack of personal jurisdiction constituted a waiver of this defense. Compare Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass. App. Ct. at 533. See Precision Etchings & Findings, Inc. v. LGP Gem, Ltd., 953 F.2d 21, 25-26 (1st Cir. 1992) (the defense of lack of personal jurisdiction under cognate Fed.R.Civ.P. 12[h][l] may be waived by express submission, conduct, or failure to assert the defense). Contrary to the defendant’s argument, all that was required for service of the amended complaint was service upon counsel of record. Mass. R.Dom.Rel.P. 5(a) (1975). The judge properly denied the motion to dismiss.
2. Motion for default. The plaintiff requested a default judgment when the defendant failed to file an answer in response to the court’s order. As noted, we treat the plaintiff’s amended complaint as one for relief under G. L. c. 208, § 34. The Massachusetts Rules of Domestic Relations Procedure do not provide for the éntry of default judgments. Those rules are designed to govern “the procedure in the Probate and Family Court Department in all proceedings for divorce, separate support, and custody of minor children, annulment or affirmation of marriage, an action for spousal and/or child support, an action to determine paternity and/or support for a child born out of wedlock, modification thereof, contempt and abuse prevention as enumerated in General Laws, Chapters 207, 208, 209, 209A, 209C, 215 and 209D.” Mass.R.Dom.Rel.P. 1, as amended (1995). Although there is no explicit reference within rule 1 to proceedings involving the assignment or division of marital assets, we conclude they are implicitly covered by the Domestic
So ordered.
At the time of the entry of the Florida judgment, the defendant owned a home in Florida in her own name and the parties owned real estate in Westminster as tenants by the entirety.
The record does not disclose who filed the letter in the Probate Court.