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Orten v. Orten8/26/2005
default judgment against Mr. Orten is too drastic a measure in this case.
A review of the evidence indicates that Ms. Orten filed for divorce on October 30, 2003; Mr. Orten answered and denied that grounds for divorce existed. On February 27, 2004, Ms. Orten sent Mr. Orten interrogatories and a request for production of documents. The discovery requests are not in the record, but from statements in Mr. Orten's deposition, it appears that among other things, records requested included cancelled checks and credit card statements for the past five years. On April 2, 2004, when Mr. Orten's answers were two days late, Ms. Orten filed a motion to compel responses to the interrogatories and request for production of documents. There was no hearing date set for this motion.
On April 15, 2004, a Trial Management Order was entered setting a Trial Management Conference for April 19, 2004, and setting the case for trial on July 21, 2004. This order included the language noted by the majority that both counsel and parties must be present in open court.
On April 16, 2004, an Interim Order was entered, upon motion of Ms. Orten and the agreement of the parties, which, inter alia, ordered Mr. Orten to move out of the marital residence within 30 days.
On April 19, 2004, Mr. Orten appeared at the first Trial Management Conference. On that same date, the parties filed a joint property and debt listing as required by court rules. On that same date, April 19, 2004, a second Trial Management Order was entered which set a second Trial Management Conference for June 28, 2004, and left unchanged the trial date of July 21, 2004. This order also contained the mandatory appearance language of the first Trial Management Order. Also on April 19, 2004, an order was entered which required the parties to attend mediation.
On April 30, 2004, an order was entered from the first Trial Management Conference which provided, inter alia, that the trial date was still set for July 21, 2004, and ordered Mr. Orten to produce requested discovery to Ms. Orten by April 30, 2004. This order also set the date for the second Trial Management Conference for June 28, 2004, but, unlike the previous Order, it did not contain the mandatory attendance language.
Mr. Orten appeared at a discovery deposition on Friday, June 25, 2004, where he was deposed by Ms. Orten's attorney.
On Monday, June 28, 2004, the trial court commenced the second Trial Management Conference, but Mr. Orten was not present. His counsel advised the trial court:
We did have depositions on Friday and in the course of agreeing to continue those depositions until a subsequent date, I have to assume, without having spoken to my client, I have to assume that must have caused some confusion in his mind. But I have no idea, your honor.
We have sent correspondence to him. He has indicated in the past he has not received all that correspondence. It has not come back to us. So I know that I have sent him notices with respect to today's hearing, but as I have indicated, perhaps as a result of some confusion as a result of continuing the depositions, I can only imagine. Clearly this matter was set for today.
Ms. Orten's counsel requested that a default judgment issue against Mr. Orten. Mr. Orten's counsel requested the trial court issue sanctions against Mr. Orten rather than a default judgment. The trial court responded: "It is a severe blow to the husband's case, but it is one he has brought upon himself. So motion denied. I am sorry." The trial court awarded Ms. Orten a default judgment based on Mr. Orten's failure to attend the conference and his failure to comply with disco
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