After years of debate, the domestic relations default judgment rule, MCR 3.210(B), was amended and expanded effective January 1, 2015. As Judge Janice Cunningham explained at this year’s Family Law Institute, the amended rule codifies some practices that were already taking place in several counties. For example, many courts permitted defaulted parties to participate in proceedings to a certain extent after default. Now, MCR 3.210(B)(2)(d) specifically provides that the court may allow a defaulted party to engage in discovery, file motions, and participate in court hearings, referee hearings, and alternative dispute resolution proceedings. There are, however, aspects of the amended rule that alter prior practices.
Pleading and Hearing Requirements
Under amended MCR 3.210(B)(3), in most cases, a party need only file a verified motion showing good cause to set aside a default. This is a looser standard than the previously applicable general default rule, MCR 2.603, which requires parties to file an affidavit of facts showing a meritorious defense in addition to a show-cause motion. Additionally, in cases where a hearing is required, the proposed default judgment must now be served on the defaulted party at least 14 days before the hearing. MCR 3.210(B)(4)(a). Interestingly, the amended rule further indicates that there are some cases where a hearing may not be necessary, although it’s unclear from the face of rule exactly what kind of case fits this category. See MCR 3.210(B)(4)(b).
Consent Judgments
Most significantly, under the old rule, default judgments were sometimes used when the parties reached a settlement and submitted an agreed-upon judgment to the court. Now, MCR 3.210(E) separately governs consent judgments and provides rules for their entry. Theoretically, this should end the practice of parties stipulating to withdrawing defendant’s pleadings and going through the default process when they want to enter a consent judgment.
Evidence Required?
At least one of the changes brought on by the new rule has practitioners concerned. MCR 3.210(B)(5)(c) states that a party moving for default judgment “may be required to present evidence” to the court showing the proposed judgment terms comply with the law. ICLE contributor Judith Curtis sees potential due-process issues with this provision. She notes that it “seems to dispense with, or allow the trial court to dispense with, the requirement that evidence be presented prior to entry of a default judgment.” Judith explains that “MCR 2.603 requires the submission of admissible evidence so that a trial judge can make the necessary determinations and findings,” so it’s unclear “why the due process requirements in a domestic relations default case would be different than any other civil default case.” It will be interesting to see how the courts interpret MCR 3.210(B)(5)(c).
For more a detailed discussion of the nuances of the rule amendments, see Judith’s recently updated chapter, Judgments and Posttrial Procedures, in Michigan Family Law. To review Judge Cunningham’s annual family law update from the Family Law Institute, click here.