The opinion of the court was delivered by: Terry, Associate Judge
Appeals from the Superior Court of the District of Columbia
(Hon. Evelyn E.C. Queen, First Trial Judge) (Hon. John H. Suda, Second Trial Judge)
Cameron C. Powell, with whom Sybil Meloy was on the brief, for appellant.
This is an appeal from the denial of a motion to set aside a default divorce judgment obtained by appellee Sarmiento. Appellant Cruz contends that the trial court abused its discretion when it refused to reopen the case, arguing that the Judge who originally entered the default judgment erred when she granted Mr. Sarmiento's motion for substituted service by publication. According to Ms. Cruz, Mr. Sarmiento's motion was deficient because it lacked information required by D.C. Code § 13-338 (1996) and by our decision in Bearstop v. Bearstop, 377 A.2d 405 (D.C. 1977). For that reason, she maintains, the service by publication was invalid, and as a result the default judgment was void. Ms. Cruz also contends that the trial court erred when it ruled that certain Discussions between Mr. Sarmiento and his attorneys were protected by the attorney-client privilege. We hold that the first trial Judge erred in granting the motion for substituted service, and that the second trial Judge therefore abused his discretion when he denied Ms. Cruz's motion under Super. Ct. Dom. Rel. R. 60 (b)(4) *fn1 to vacate the default judgment and reopen the case. We therefore reverse the denial of Ms. Cruz's Rule 60 (b)(4) motion and remand the case for further proceedings. *fn2
A. The Default Judgment and the Rule 60 (b)(4) Motion
On December 14, 1992, appellant Cruz and appellee Sarmiento separated after six years of marriage when Ms. Cruz and her children *fn3 moved out of the couple's home on Park Road, Northwest. Approximately one month later, they met to sign a separation agreement disposing of their marital property. Some time thereafter Ms. Cruz and her children moved into a house on Eleventh Street which she and Sarmiento jointly owned. The parties met again on July 20, 1993, to cross-deed certain property. At that meeting Mr. Sarmiento executed a promissory note for $20,000, payable to Ms. Cruz, which would become due at the time he sold the Park Road house. *fn4 In February of the following year, unable to pay the mortgage because of a lack of work as a baby sitter, Ms. Cruz and her children moved out of the Eleventh Street house and went to live with friends.
The legal proceedings underlying this appeal began several months later when Mr. Sarmiento filed a complaint for absolute divorce on September 29, 1994. Among other things, the complaint alleged that the parties had no real or personal property to be distributed by the court. After failing to serve Ms. Cruz with the summons and complaint during the ensuing months, Mr. Sarmiento filed a motion for substituted service by publication on January 9, 1995. To the motion Mr. Sarmiento attached his own affidavit cataloguing the various attempts he had made to locate Ms. Cruz and serve her with process. *fn5 Relying on the motion and the attachments, the court granted the motion and allowed Mr. Sarmiento to effect service by publication. On July 18, 1995, a default judgment of absolute divorce was entered for Mr. Sarmiento against Ms. Cruz. The decree reflected Mr. Sarmiento's representation that there were no property rights to be adjudicated between the parties.
Unaware of the default judgment, Ms. Cruz filed a complaint for absolute divorce on October 23, 1995. With respect to property, her complaint attacked the property settlement agreement as having been secured by fraud and duress, and asked that the court set aside the agreement and distribute the parties' property equitably between them. Despite being personally served, Mr. Sarmiento did not respond to the complaint, prompting the trial court initially to enter a default against him. That default was vacated on June 12, 1996, when Mr. Sarmiento appeared before the court. A few months later, on September 25, Ms. Cruz finally became aware of the earlier default judgment when Mr. Sarmiento's attorney contacted Ms. Cruz's attorney to inform her that Mr. Sarmiento planned to file a motion to dismiss the complaint based on the prior divorce decree. On October 3, two days after a copy of the earlier default judgment was finally sent to her attorney, Ms. Cruz filed a motion under Rule 60 (b)(4) to reopen the earlier case and consolidate it with her own case against Mr. Sarmiento, or in the alternative to set aside the default judgment.
B. The Hearing on the Motion
The hearing on the Rule 60 (b)(4) motion, held before a new Judge, focused primarily on the sufficiency of Mr. Sarmiento's original motion for substituted service by publication and on evidence that several factual assertions in that motion and affidavit were incorrect. First, in both the motion and the affidavit, Mr. Sarmiento said that he had not had any contact with Ms. Cruz since they separated on December 14, 1992. It was established, however, that the parties had met on at least two occasions, once in January 1993 to sign the property settlement agreement and again in July 1993 to execute and deliver the promissory note. Ms. Cruz also testified that Mr. Sarmiento had visited her at the place where she was employed as a baby sitter and that she had called him when she moved out of the house on Eleventh Street. Mr. Sarmiento admitted that he had been in contact with Ms. Cruz "several times" after their separation. Second, the motion and affidavit listed Ms. Cruz's last known address as 1819 Nineteenth Street, Northwest, and stated that the property at that location was jointly owned by the parties. In fact, Ms. Cruz had not lived at that location since 1986, when she and Mr. Sarmiento had shared an apartment there after they were first married. Mr. Sarmiento admitted that he knew Ms. Cruz had not lived there since 1986, but he said he had put that address in the affidavit by mistake, relying on information he had obtained from motor vehicle records. The hearing also revealed that shortly after Mr. Sarmiento had signed his complaint for absolute divorce but before he filed it, he received a call from Ms. Cruz's attorney, Lisbeth Kamborian, who told him that Ms. Cruz intended to challenge the property settlement. Despite that conversation, Mr. Sarmiento went ahead and filed his complaint without ever attempting to locate Ms. Cruz through her attorney.
Ms. Cruz's brother, José Roberto Cruz, testified that he had been in contact with Mr. Sarmiento on a weekly basis from August until November 1994, and that he had lived in the Eleventh Street house from August 1994 until April 1995 at Mr. Sarmiento's request. According to Mr. Cruz, Mr. Sarmiento asked him on numerous occasions if he had talked to his sister or if she had contacted him, but never asked where she was or how to contact her. Nor did Sarmiento ever mention that he was seeking a divorce and needed to serve her with the divorce complaint. Ms. Cruz confirmed in her own testimony that her brother and her father did not know where she was living after she moved out of the Eleventh Street house in April 1994. She said she was afraid of Mr. Sarmiento because she believed he had sexually assaulted her daughter. *fn6 She therefore had instructed her mother not to disclose her whereabouts to her brother or her father and had not contacted Mr. Sarmiento except through her own attorney. *fn7
At the end of the hearing, the Judge found that "both parties were trying to get into a position where one could not get in touch with the other and be the first to file a divorce case in court without the other knowing." Since both parties were difficult to find, the Judge concluded that the previous Judge who had entered the default judgment "appropriately permitted Mr. Sarmiento to proceed with service by publication." Moreover, the Judge found that Mr. Sarmiento had no obligation to alert either the court or his attorneys that he had received a call from Ms. Cruz's attorney and no duty to tell her of his own planned filing. Finally, the Judge ruled that Ms. Cruz had not presented clear and convincing evidence of fraud and concluded "that the divorce decree could not ...