In the Matter of Joan Marden and Edward Marden

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0366, In the Matter of Joan Marden and
Edward Marden, the court on September 17, 2018, issued the
following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The respondent, Edward Marden, appeals the order of the Circuit Court
(Introcaso, J.) denying his motion to vacate a final decree of divorce from the
petitioner, Joan Marden, arguing that he was denied an adequate opportunity
to be heard because he allegedly failed to receive the court’s orders and notices.
We will not disturb the trial court’s decision denying a motion to vacate a final
decree absent an unsustainable exercise of discretion. See In the Matter of
Birmingham & Birmingham, 154 N.H. 51, 55 (2006). To show that the trial
court’s decision is not sustainable, the respondent must demonstrate that the
court’s ruling was clearly untenable or unreasonable to the prejudice of his
case. Walker v. Walker, 158 N.H. 602, 607 (2009).

The respondent does not dispute that the petitioner served him with a
copy of the petition for divorce, which he received by certified mail, even though
it was addressed to an incorrect post office box. The record shows that the
respondent signed the card acknowledging receipt of service, which was filed
with the court, and that he provided his correct post office box on the return
card. Enclosed with the petition was a blank appearance form, together with
the court’s notice to the respondent that he must file his appearance with the
court within 15 days if he wished to be heard in the matter. The notice further
informed him that if he did not file his appearance by the return date, the court
would assume that he did not wish to participate, and that he agreed with the
petitioner’s factual statements and requests. The notice also advised the
respondent that if he did not wish to participate, the court would grant the
petitioner a divorce and issue other necessary orders. Enclosed with the
court’s notice, in addition to an appearance form, was a notice of Circuit Court
Family Division Rule 1.25-A’s mandatory disclosure requirements.

The respondent failed to timely file an appearance, and the trial court
granted the petitioner’s motion for default. The respondent then filed a motion
for mediation, which the trial court granted, striking its order of default. On
November 14, 2016, the court held a scheduling conference, which both parties
attended. On the same day, the court issued a scheduling conference order,
which contained a discovery schedule. Prior to the scheduling conference, the
court had granted the petitioner’s motion to vacate the order striking the
default. However, on the date of the conference, the court granted, in part, the
respondent’s motion to clear the default, stating in its order that the
respondent’s motion would be heard at the next scheduled hearing, on
December 13, 2016.

Both parties appeared at the December 13 hearing. After the hearing,
the trial court issued an order on the same date granting the petitioner a
divorce on grounds of adultery by default, based upon the respondent’s failure
to file an answer or appearance. The court ordered that the terms of the
divorce would be determined after a further hearing, scheduled for February 6,
2017. The court ordered the parties to complete their Rule 1.25-A disclosures
within 14 days and advised them that any failure to comply with the order may
result in an order limiting the admission of evidence submitted at the February
6 hearing. On December 15, 2016, the court ordered the parties to appear for
mediation on January 13, 2017. The respondent failed to appear at the
mediation. Although he appeared at the February 6 hearing, the court did not
allow him to introduce evidence at the hearing because he failed to complete
his Rule 1.25-A disclosure requirements.

The respondent first asserts that he never received the court’s December
13, 2016 order. However, at the June 1, 2017 hearing on his motion to vacate
the final decree, the court clerk informed the trial court that on December 13,
2016, the order was mailed to the address that the respondent previously had
confirmed, during the February 6 hearing, was his correct address. We note
that the respondent also claimed, during the February 6 hearing, that he failed
to appear for the mediation because he did not receive the court’s mediation
notice, which was issued on December 15, 2016, two days later. When the
clerk informed the trial court during the February 6 hearing that the mediation
notice was mailed to the respondent’s correct address, he responded that he
was “probably on the Cape working,” and that he did not check his mail.

The only orders that the trial court acknowledged may not have been
sent to the respondent’s correct address were the November 7, 2016 order
granting the petitioner’s motion to vacate its prior order striking the default,
and the November 14, 2016 scheduling conference order. However, the court
subsequently granted, in part, the respondent’s motion to clear that default,
and in its December 13 order, the court gave the respondent additional time to
provide discovery and to complete his Rule 1.25-A disclosures. In addition, the
evidence, including an envelope from the court that the respondent left behind
in a vehicle used by the petitioner, supports the trial court’s finding that he
was receiving the court’s incorrectly addressed notices because “the post office
was correcting the post office box number.” The trial court also noted that, at
each hearing, it “took a considerable amount of time to explain to [the
respondent] clearly what he needed to do, [and] when he needed to do it by.”

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After considering the respondent’s presentation at the June 1 hearing, the
court found that his assertions regarding lack of notice were not credible. We
note that the respondent appeared at every scheduled hearing. Based upon
this record, we conclude that the trial court was not compelled to find that the
respondent did not receive the court’s December 13 order.

The respondent also asserts that he did not receive the court’s February
6, 2017 final decree by mail, to the prejudice of his appellate rights. The trial
court recalled that the respondent received a copy of the decree by hand on the
date of the hearing. As we noted in our November 17, 2017 order granting, in
part, the petitioner’s motion to dismiss the respondent’s appeal, even if we
assume, without deciding, that the respondent did not receive the decree until
March 24, 2017, when he allegedly went to the court to obtain a copy, he still
failed to file a timely appeal from that date. Accordingly, he has failed to show
prejudice resulting from the alleged lack of notice by mail.

The respondent also argues that he was deprived of due process under
the State and Federal Constitutions by the alleged denial of an adequate
opportunity to be heard in this matter. The record fails to show that he raised
a constitutional claim in the trial court. Accordingly, this issue is not
preserved for review. See State v. Winstead, 150 N.H. 244, 246 (2003).

Based upon this record, we conclude that the respondent has failed to
demonstrate that the trial court unsustainably exercised its discretion in
denying his motion to vacate the final decree. See Walker v. Walker, 158 N.H.
at 607.

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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