On April 11, 2006, Husband filed for dissolution. During discovery, Husband sought to depose Wife. Wife did not attend the deposition originally scheduled for September 13. That deposition was rescheduled to a date approximately sixty days later.
Separately, Wife’s counsel wrote to Husband’s counsel and demanded “full and complete responses” to her discovery requests by the following day.
Husband filed a motion for a protective order regarding the scope of Wife’s discovery requests, specifically the uniform interrogatories and the request for production of documents.
Wife responded by filing a motion to compel Husband to fully answer the uniform interrogatories, comply with the requests for production, and to produce a complete affidavit of financial information. Wife also asked the court to sanction Husband by ordering him to pay Wife’s attorney’s fees related to the motion to compel.
On November 13, the day before the rescheduled deposition, the court held an emergency telephonic hearing. Wife’s attorney informed the court that Wife could not participate in the scheduled deposition due to unspecified “medical reasons.” The court ordered that unless Wife provided a “signed letter from her doctor … stating that Wife’s health is in imminent danger by appearing for the deposition … the Court will not grant a continuance of Wife’s deposition.” That order further instructed Husband’s attorney to notify the court if Wife failed to appear at the deposition without that detailed letter.
The next day, Wife’s attorney sent a second letter from Wife’s doctor to Husband’s attorney. In that letter, the doctor opined that Wife “should not be placed in any undue stressful situations at this time” and that “[t]here is concern that she may be at risk for her life if she is exposed to a stressful situation.” Wife did not attend the rescheduled deposition.
A few days later, Husband filed a motion seeking sanctions against Wife for her failure to attend the deposition. Husband sought various sanctions including entry of default judgment against Mother.
The family court found that Wife’s failure to appear for the rescheduled deposition was unjustified and that the second letter from the doctor was too general and “inadequate.” The court granted Husband’s motion for entry of default as a sanction and awarded Husband his attorney’s fees.
After the court deemed Husband’s application for attorney’s fees to be deficient, it set an evidentiary hearing on “damages” and the entry of the default decree. Husband filed a motion for clarification and argued that Wife’s participation should be limited to cross-examination. Wife argued that she should be allowed to participate fully. The family court granted Husband’s motion and limited Wife’s participation to cross-examination.
Wife filed an expedited motion to set aside default and an expedited motion to stay the proceedings. The court denied both of Wife’s motions.
Following entry of the default decree, Wife appealed.
Default judgment or dismissal as a sanction for discovery misconduct
Family courts have broad discretion to impose sanctions against litigants for violations of court orders, including discovery orders. But the case law limits that discretion when it comes to sanctions that effectively end litigation, like dismissal of a petition or entry of default judgment.
Because dismissal and default judgment are far more severe than other types of sanctions like monetary fines, courts are required to hold an evidentiary hearing to determine whether: (1) the litigant or their attorney is responsible for the conduct to be sanctioned; (2) the violation was committed willfully or purposefully; and (3) the violation is serious enough to warrant dismissal or default judgment.
In her appeal, Wife argued that the family court erred when it entered default judgment as a sanction because (1) it did not conduct an evidentiary hearing or make specific findings supporting default; (2) Wife was not allowed to present evidence on her own behalf at the hearing on damages; and (3) there was no legal justification to enter default judgment.
Husband essentially argued that default judgment was appropriate and that the court followed the correct procedure before it imposed that sanction against Wife. He also argued that Wife waived the evidentiary hearing.
The Court of Appeals analyzed these questions in greater detail but ultimately concluded that the family court erred because it did not hold the evidentiary hearing as required.
Conclusion
Violating court orders, including discovery orders, can invite serious consequences including dismissal or default judgment. More commonly though, family courts prefer lesser sanctions to compel compliance including monetary fines or ordering the violating party to reimburse the other party's attorneys fees. Courts also can prohibit a litigant from testifying or presenting evidence on specific issues within the case if it determines the litigant failed to make disclosures or cooperate with discovery related to those issues. Most family law attorneys can help clients avoid this type of exposure, so these rules sometimes become more important for self-represented litigants. If you are representing yourself and there is a discovery dispute, you really should consult with an experienced family law attorney. Most family law firms, including ours, offer free initial consultations. In addition to the free initial consultation, we actually offer a line of limited legal services designed to help you effectively represent yourself.