In the Matter of Cheryl Bordeleau and Kevin Rocheville ( 2015 )


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  •                    THE STATE OF NEW HAMPSHIRE
    SUPREME COURT
    In Case No. 2014-0531, In the Matter of Cheryl Bordeleau
    and Kevin Rocheville, the court on December 4, 2015, issued the
    following order:
    Having considered the brief 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, Kevin Rocheville (father), appeals the final parenting
    plan and temporary support order issued by the Circuit Court (Introcaso, J.),
    arguing that the court erred in entering a final default against him at the
    pretrial conference. He argues that he was not provided with reasonable notice
    that his conditional default would be addressed at the conference.
    We will not disturb the trial court’s default ruling absent an
    unsustainable exercise of discretion or error of law. Douglas v. Douglas, 
    143 N.H. 419
    , 422 (1999); State v. Lambert, 
    147 N.H. 295
    , 296 (2001). To show
    that the trial court’s decision is not sustainable, the father must demonstrate
    that the court’s ruling was clearly untenable or unreasonable to the prejudice
    of his case. See Lambert, 
    147 N.H. at 296
    .
    The record shows that on January 27, 2014, the trial court notified the
    parties that a pretrial conference would be held on June 12, 2014, and that the
    final hearing would be held on July 17, 2014. On March 27, 2014, the
    petitioner, Cheryl Bordeleau (mother), sent the father interrogatories and
    requests for documents to be answered within thirty days. See Fam. Div. R.
    1.25(E)(2). In her discovery requests, the mother primarily sought information
    relating to the father’s employment and income for purposes of child support.
    On May 20, 2014, having not received the father’s discovery responses within
    thirty days, the mother moved for conditional default, and two days later, the
    trial court granted the motion, giving the father ten days in which to answer
    the interrogatories and move to strike the conditional default. See Fam. Div. R.
    1.25(E)(11). The father neither answered the interrogatories within ten days
    nor moved to strike the conditional default within that time.
    On June 12, 2014, the parties appeared with counsel for the scheduled
    pretrial conference. The mother’s attorney advised the court that the father
    had not responded to her discovery requests. The father’s attorney explained
    that the discovery requests had been timely forwarded to the father, but that
    he had not yet responded. Neither the father nor his counsel offered any
    explanation for his failure to respond to discovery, nor did they represent to the
    court that responses would be provided. Based upon the record before it and
    the representations by counsel, the court entered a final default against the
    father. The court explained that, as a result of the default, the father would be
    allowed to comment on the mother’s proposals at the final hearing, and the
    court would consider his alternative proposals, but he would not be allowed to
    present evidence. See Bursey v. Bursey, 
    145 N.H. 283
    , 285 (2000) (default in
    domestic matters results in admission of well-pleaded allegations).
    The father argues that the trial court erred in entering a final default
    against him at the pretrial conference because he had no notice that the court
    would address his conditional default at the conference and, as a result, his
    counsel was not prepared to address the issue. He also argues that Family
    Division Rule 1.25 provides that before the court may enter a default, the party
    whose interrogatories have not been answered must file a written motion for
    default. We note that the father raised neither of these arguments at the
    pretrial conference. Nor did he move within ten days for the court to
    reconsider its decision. See Fam. Div. R. 1.26(F). Assuming, without deciding,
    that the father preserved these issues for review, but see In the Matter of
    Mannion & Mannion, 
    155 N.H. 52
    , 54 (2007) (contemporaneous and specific
    objection is generally required to preserve an issue for appellate review), we
    cannot conclude based upon this record that the trial court unsustainably
    exercised its discretion in defaulting him.
    The purpose of a pretrial conference is “to identify contested issues,
    identify witnesses, mark exhibits, exchange documents, and complete any
    other matters the Court deems appropriate.” Fam. Div. R. 2.21(A). In this
    case, the father was already in conditional default when he and his counsel
    appeared at the pretrial conference. We conclude that Rule 2.21(A) placed the
    father on notice that his conditional default for failure to produce discovery on
    issues pertaining to trial could be one of the matters that the court would
    address at the conference.
    The father does not dispute the trial court’s finding that the mother,
    through counsel, orally moved at the pretrial conference for entry of final
    default. Nothing in Family Division Rule 1.25(E)(11) states that the court may
    act only on a written motion for default. In addition, Family Division Rule 1.2
    provides that the court may waive the requirements of any rule as good cause
    and justice may require. In this case, the mother’s attorney explained that he
    did not bring a written motion for final default to the pretrial conference
    because he “half expected” that the father would provide his interrogatory
    answers at the conference, in which case, the attorney would assert only that
    he needed “an opportunity to review [them] to make sure [they were] complete.”
    Moreover, as to the parenting plan, the father has failed to show that he
    was prejudiced by the court’s ruling. See Lambert, 
    147 N.H. at 296
    . At the
    2
    final hearing, both parties proceeded by offers of proof. Although the court
    instructed the father’s counsel to comment only on the offers of proof provided
    by the mother’s counsel, the record shows that the court considered the offers
    of proof provided by the father’s counsel, which included affirmative
    representations regarding the father’s strong relationship with the children and
    the mother’s alleged non-compliance with temporary orders. Although the
    father asserts in his brief that the trial court adopted the mother’s proposed
    orders “in their entirety,” the court denied the mother’s request for sole
    decision-making responsibility, which was the primary parenting issue in
    dispute. In addition, although the father sought parenting time with both
    children every other weekend, the court awarded him parenting time with the
    older child every other weekend and with the younger child, who is four years
    old, from 9:00 a.m. to 5:00 p.m. on Sundays of the same weekends.
    To the extent that the father argues the court erred in precluding him
    from introducing evidence of his financial condition, we cannot conclude that
    the trial court unsustainably exercised its discretion. “The purpose of
    interrogatories is to narrow the issues of the litigation and prevent unfair
    surprise by making evidence available in time for both parties to evaluate it
    and adequately prepare for trial.” Bursey, 
    145 N.H. at 286
     (brackets and
    quotation omitted). “In order to prevent unfair surprise, a party may be
    precluded from presenting evidence that he fails to disclose during discovery.”
    
    Id.
     The record shows that the father provided the mother with his
    interrogatory answers on July 1, 2014, prior to the final hearing, but after final
    default had been entered against him. However, the mother, through counsel,
    represented to the court that the responses were “incomplete, curt or non-
    responsive; deficient to the point of leaving [the mother] unprepared for trial.”
    Accordingly, the record supports the trial court’s decision to base its support
    order upon an estimate of the father’s prior earnings, and to make its order
    temporary, giving the father an opportunity to present evidence regarding child
    support at the 90-day review hearing.
    To the extent that the father raises a constitutional due process issue, we
    conclude that his argument is insufficiently developed to warrant judicial
    review. See Douglas, 
    143 N.H. at 429
     (noting that “off-hand invocations” of
    constitutional rights without developed legal argument warrant no extended
    discussion).
    Affirmed.
    Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.
    Eileen Fox,
    Clerk
    3
    

Document Info

Docket Number: 2014-0531

Filed Date: 12/4/2015

Precedential Status: Non-Precedential

Modified Date: 11/12/2024