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Melcher v. Melcher

The husband reasonably believed that no final hearing on his divorce action was imminent where the parties had engaged in settlement negotiations for several months and the wife's attorney sent a letter indicating that negotiations were still open without mentioning that the final hearing had been scheduled.

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We granted an application for discretionary appeal in this case to consider the extent of a trial court’s discretion to grant a new trial when a final divorce decree is entered without notice to and in the absence of the defendant. We conclude that, under the circumstances of this case, the trial court did not err in granting a new trial.

In the present case, Ms. Melcher filed the divorce action in June 2000. Although Mr. Melcher did not file an answer, his attorney maintained contact with Ms. Melcher’s attorney, and engaged in settlement negotiations during the fall of that year. Ms. Melcher’s attorney scheduled the final hearing on the divorce action, without notice to Mr. Melcher, for December 18, 2000, even though she had previously filed for a leave of absence for a two-week period that included December 18. On December 14, 2000, Ms. Melcher’s attorney wrote Mr. Melcher’s attorney a letter discussing the parties’ settlement negotiations and stating that Ms. Melcher’s settlement proposal to Mr. Melcher remained open. At the time of the December 14 letter, Ms. Melcher’s attorney had already scheduled the case for trial on December 18, yet her letter made no mention of the trial date. Ms. Melcher and her counsel appeared for the final hearing, but Mr. Melcher and his attorney did not have notice of the hearing and did not appear. Shortly after the hearing, the trial court entered a final judgment. Mr. Melcher, however, timely filed a motion for new trial, which the trial court granted based upon the conduct of Ms. Melcher’s attorney in scheduling the final hearing for a date on which she had obtained a leave of absence and in sending a letter continuing the parties’ negotiations after she had already scheduled the case for a final hearing.

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