Sprague v. Sprague

¶1Dissenting Opinion by

¶21 find it unnecessary at this time to consider whether the record supports a finding of divorce because the *50court below erred in closing the proceedings without giving any prior notice of such action.

¶3On December 15, 1371, the court below, because of delays, wrote1 the master in divorce and counsel for both sides that: “. . . this Court would respectfully suggest that you schedule dates for hearings, with the understanding that no continuances Avill be accepted for any reason whatsoever. If a party is not able to attend a scheduled Master’s hearing, you are directed to proceed with the hearing in the absence of that party.” Appellant’s counsel and his client, for diverse reasons, did not appear at a master’s hearing on December 28, 1971. The lower court directed the master to close the proceedings even though no prior notice of such an order Avas given to counsel for appellant. Appellant’s counsel requested a conference about the order. A conference was held on January 4, 1972, during which appellant’s counsel was asked to give the names of Avitnesses and an offer of proof. He refused to do so. On the folloAving day, a formal order, directing the closing of hearing, was filed. The order was thereafter twice reconsidered by the court but remained unchanged. A petition to the Supreme Court for a writ of special certiorari was also denied.

¶4If the original order was invalid, affirmations of that order are likeAvise invalid. The denial of special certiorari by the Supreme Court as to a non-appealable order does not preclude this Court from reviewing that order when an appeal is taken to this Court from a final order. The issue of the validity of the original order is therefore properly before us.

¶5The lower court’s letter of December 15, 1971, was only a polite suggestion, and made no reference to a compulsory closing of hearings. The direction of the *51court, on or about December 28, 1971, to close the hearings was without any notice or hearing. That determination was a significant step in the proceedings. Due process of law requires that a party be given notice of every new significant step in the proceedings and a reasonable opportunity to be heard. Griffin v. Griffin, 327 U.S. 220 (1946). The unconstitutionality of the order was not cured by the granting of an informal conference in which a demand was made for the furnishing of information, since no notice of such a demand had been given.

¶6The decree should be reversed and the matter remanded for hearings to be held by the court below to bring the matter to a prompt final determination.