Appeals from the Superior Court of the District of Columbia (CA-6964-97) (Hon. Jose M. Lopez, Trial Judge)
Before Schwelb and Reid, Associate Judges, and Nebeker, Senior
The opinion of the court was delivered by: Nebeker, Senior Judge
Concurring opinion by Associate Judge Schwelb at p. 11.
These appeals present the tension between a calculated refusal to respond to a complaint and summons and the preference by this and other courts for adjudication on the merits. Appellant, Norton F. Tennille, Jr., appeals from the entry of default judgment on a breach of contract action where he agreed to pay his former wife a fixed percent of his income in lieu of alimony. He also appeals the denial of a motion for relief from that judgment pursuant to Super. Ct. Civ. R. 60 (b)(6). Mr. Tennille deliberately ignored the complaint after proper service on him and also ignored discovery requests. He argues that the trial court abused its discretion in its consideration of the factors under Rule 60 (b)(6), specifically, that he has a meritorious defense, and that appellee, Cheryl L. Tennille will not be prejudiced by a trial on the merits. Mr. Tennille also argues that his income was inappropriately imputed to him since the pleadings did not provide adequate notice that the award would be based on the extrapolation of past gross income. As to this last argument, we note that it was not presented with any degree of precision in the Rule 60 (b)(6) motion and only mentioned briefly during the hearing on the motion. The two appeals are consolidated, but the only issue is whether the denial of relief from judgment was an abuse of discretion. We affirm.
Norton F. Tennille and Cheryl L. Tennille were married in 1966. The couple had three children. The parties separated in August 1989, and entered into a Voluntary Separation and Marital Agreement ("Agreement") dated February 24, 1992, which was ultimately incorporated into a judgment for divorce on March 2, 1992.
Sections 5 and 6 of the Agreement provided that beginning on January 1, 1993, appellant was obligated to pay twenty-five percent of his gross income as defined by the Agreement. The parties defined gross income, inter alia, as "compensation for personal and professional services, whether by salary, commission or otherwise."
In December 1993, Mr. Tennille was asked to leave his position as an environmental lawyer and partner with his former law firm. In 1994, Mr. Tennille moved to South Africa to work as the president, executive director, and treasurer of a non-profit entity he established in conjunction with several colleagues. In September 1997, Mrs. Tennille commenced her breach of contract action for failure to provide spousal support.
The complaint alleged, inter alia, that Mr. Tennille agreed "to pay as spousal support twenty five per cent of his gross income to [Mrs. Tennille] commencing January 1, 1993," and that he breached the terms of the Agreement for his failure to pay her one quarter of the $189,476.79 received as final distributions from his former law firm. Mrs. Tennille also sought "one quarter share of all gross income earned by the [appellant], as defined by and in accordance with the terms of the Agreement, during the three year period immediately preceding the filing of this Complaint, including but not limited to the sum of $31,964.20 plus interest for [appellant's] breach of his contract with regard to his payments from his [former law firm] made on September 30, 1994, in compensation for the loss she suffered as a result of [appellant's] breach of contract." Mrs. Tennille further alleged that "[a]t the time of his employment with [his former law firm], [Mr. Tennille] was earning in excess of Three Hundred Thousand Dollars ($300,000) per year in his practice as an attorney," and that "[s]ince the fall of 1994, [he] has been residing in South Africa and professionally associated with [a nonprofit organization]." Mrs. Tennille stated that it was her belief that her former husband "has received income, as defined by the Agreement, from this employment and from other sources." Mrs. Tennille also sought "reasonable attorney's fees and costs incurred in this action" in accordance with Section 20 of the Agreement that allows for such liability by either party who breaches or defaults.
Mr. Tennille was properly served with the summons and complaint on April 6, 1998, in South Africa. No answer to the complaint or responses to the subsequent requests for discovery were forthcoming. Indeed, the record reflects a deliberate choice to ignore the matter. On July 10, 1998, a default was entered against the appellant, subject to ex parte proof. On March 19, 1999, the trial court held a damages hearing on the complaint for breach of contract after notice to Mr. Tennille. Mr. Tennille failed to appear. We need not decide here whether Mr. Tennille's failure to appear after proper and timely notice at the post-default damages hearing precludes him from raising the arguments he presents, for in any event they fail.
During the ex parte hearing, the trial court found that Mr. Tennille breached the Agreement, and that based on the evidence presented had failed to pay his former wife the sum of $31,964.20 from his final distributions received from his former law firm, in accordance with the Agreement. *fn1 With no appearance by Mr. Tennille, the trial court allowed Mrs. Tennille to qualify a vocational expert to establish Mr. Tennille's "wage earning capacity as a proxy in establishing [his] monetary obligation" to Mrs. Tennille from October 1994 to October 1997. The trial court credited the vocational expert's testimony that based on Mr. Tennille's education, work experience and past earnings, and with reference to research in the field, his wage earning capacity for the relevant period was, at a minimum, $1,820,000.00. *fn2 The trial court awarded twenty-five percent of the established wage earning capacity or $455,000.00, plus interest at the statutory rate from the time of the filing of the complaint, as spousal support due in accordance with Section 5 of the Agreement. The trial court also found that Mr. Tennille breached the terms of the Agreement, and in accordance with Section 20, ordered him to pay his former wife's legal fees and costs of $3,772.00. A timely appeal from this order followed.
In determining whether the requested relief should be granted, the trial court applied the factors set forth in Clay v. Deering, 618 A.2d 92, 94 (D.C. 1992), and found that the only factor that weighed in Mr. Tennille's favor was that he had presented an adequate prima facie defense to the allegations in the complaint. This factor alone was not deemed dispositive. The trial court also noted that Mr. Tennille failed to present any extraordinary circumstance justifying ...