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Tennille v. Tennille

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Argued September 5, 2001

Concurring opinion by Associate Judge Schwelb at p. 11.

These appeals present the tension between a calculated refusal to respond to a complaint and summons and the preference by this and other courts for adjudication on the merits. Appellant, Norton F. Tennille, Jr., appeals from the entry of default judgment on a breach of contract action where he agreed to pay his former wife a fixed percent of his income in lieu of alimony. He also appeals the denial of a motion for relief from that judgment pursuant to Super. Ct. Civ. R. 60 (b)(6). Mr. Tennille deliberately ignored the complaint after proper service on him and also ignored discovery requests. He argues that the trial court abused its discretion in its consideration of the factors under Rule 60 (b)(6), specifically, that he has a meritorious defense, and that appellee, Cheryl L. Tennille will not be prejudiced by a trial on the merits. Mr. Tennille also argues that his income was inappropriately imputed to him since the pleadings did not provide adequate notice that the award would be based on the extrapolation of past gross income. As to this last argument, we note that it was not presented with any degree of precision in the Rule 60 (b)(6) motion and only mentioned briefly during the hearing on the motion. The two appeals are consolidated, but the only issue is whether the denial of relief from judgment was an abuse of discretion. We affirm.

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