A Default Divorce Should not be Granted Where (1) Service is Improper, (2) a Party’s Divorce Attorney Fails to Represent Him or Her, or (3) Where a Party’s Attorney Takes Unfair Advantage of the Other Side

In this divorce, wife’s Orange County divorce lawyer filed for a legal separation.  Wife served husband, who retained his own Orange County divorce lawyer.  However, wife’s lawyer amended the petition to seek a divorce rather than legal separation and mailed a copy to the husband.  Wife’s Orange County divorce lawyer did not personally serve husband and mailed a request to enter default divorce to husband.  Wife’s Orange County divorce lawyer filed the request to enter default, which the divorce court granted, and husband’s divorce lawyer moved to set aside.  Until set aside, the default ordered restraining orders against husband, the sale of the family home, spousal support and child support, and no parenting time with his eight-year-old daughter until the completion of physical and mental abuse counseling.

In support of husband’s Orange County divorce attorney’s motion to set aside, husband testified that he could not contact wife during this process and wife’s Orange County divorce lawyer told husband that, “there was nothing [husband] should do in relation to these proceedings.”  Wife’s Orange County divorce attorney admitted that he failed to do anything on husband’s behalf.  In opposition, wife admitted that she did not advise husband of the default or its consequences.  Wife also made no effort to contact husband’s Orange County divorce lawyer and did not even know the name of husband’s Orange County divorce lawyer.  The divorce court denied the motion to asset aside and husband’s divorce lawyer filed an appeal.

The Court of Appeal in Orange County ruled that a default divorce judgment should be set aside based on only a “slight showing.” The Court of Appeal found the Orange County divorce court erred in three separate areas.

First, husband was not properly served with the amended petition by wife’s Orange County divorce attorney.

Second, husband’s divorce lawyer failed to represent him. Husband’s divorce lawyer’s actions were so egregious that he was disciplined by the State Bar. The Court of Appeal in Orange County determined that the husband’s Orange County divorce lawyer’s wrongdoing should not be transferred to husband, especially where an innocent child’s rights are at stake.

Third, wife’s Orange County divorce attorney took unfair advantage of husband by failing to contact his divorce lawyer or advise husband of the default divorce or its consequences. The Court of Appeal sent the case back to the Orange County divorce court to grant husband’s motion to set aside the default divorce.

In re Marriage of Rhoades (1981) 157 Cal. App. 3d 169