APARNA L. DAS v. SANJAY K. DAS (FM-11-0609-16, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 24, 2022
• Docket: A-1491-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1491-19

APARNA L. DAS,

Plaintiff-Respondent,

v.

SANJAY K. DAS,

Defendant-Appellant. _______________________

Argued February 9, 2022 – Decided February 24, 2022

Before Judges Gilson, Gooden Brown, and Gummer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-0609-16.

Daniel K. Newman argued the cause for appellant.

Amie E. DiCola argued the cause for respondent (Fusco & Macaluso, PC, attorneys; Amie E. DiCola, on the brief).

PER CURIAM Defendant appeals a supplemental final judgment of divorce, which was

entered after the trial judge had stricken defendant's answer and counterclaim

for failure to comply with a court order, had entered default on behalf of

plaintiff, and had conducted an evidentiary hearing. We affirm the judgment

substantially for the reasons set forth in Judge Robert Lougy's comprehensive,

written decision. We add only the following brief remarks.

Defendant faults Judge Lougy for entering default and proceeding to final

judgment by default. We see no merit in that argument. After defendant failed

to comply with a May 1, 2018 order directing defendant to submit to a diagnostic

evaluation with a court-appointed expert, Judge Lougy issued an order on

September 17, 2018, noting defendant's failure to comply with the May 1, 2018

order and again directing him to cooperate with the evaluation. The judge

expressly placed defendant on notice of the consequences of failing to comply,

providing in the order that "[i]f defendant fails to comply with Paragraph 1 of

this [o]rder, the [c]ourt will strike his pleadings, enter default on behalf of

plaintiff, and schedule a default hearing." When defendant again failed to

comply with his order, consistent with the notice he had given defendant, Judge

Lougy entered an order on October 19, 2018 striking defendant's answer and

counterclaim, entering default, and scheduling a "default hearing" to take place

A-1491-19 2 on December 10, 2018, which was the previously scheduled first day of trial.

While we recognize that striking a pleading may be "a remedy of last resort,"

Aetna Life & Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 369

(App. Div. 1998), we discern no abuse of discretion in Judge Lougy's decision

to strike defendant's pleadings and enter default given defendant's persistent and

continued non-compliance during this case and the time and opportunities the

judge had given him.

Defendant contends Judge Lougy erred in "failing to vacate the default

judgment under R[ule] 4:50-1 and the case law interpretation thereof." That

argument is fundamentally flawed. Defendant never filed a motion to vacate

default judgment under Rule 4:50-1. On or near the eve of the default hearing,

defendant filed an order to show cause, seeking an order vacating the default

entered against him, reinstating his pleadings, and striking plaintiff's pleadings .

Judge Lougy denied that application, finding plaintiff had done nothing to

warrant the striking of her pleadings and that defendant's "11th hour gesture of

compliance" was an "effort . . . to delay the proceeding and not move the matter

substantively forward" and did not "constitute[] a basis to vacate default." We

discern no abuse of discretion in Judge Lougy's denial of defendant's

application.

A-1491-19 3 Defendant's remaining arguments are likewise unpersuasive. "In our

review of a non-jury trial, we defer to a trial judge's factfinding 'when supported

by adequate, substantial, credible evidence.'" Slutsky v. Slutsky, 451 N.J. Super.

332, 343-344 (App. Div. 2017) (quoting Cesare v. Cesare, 154 N.J. 394, 412

(1998)). "We also note proper factfinding in divorce litigation involves the

Family Part's 'special jurisdiction and expertise in family matters,' which often

requires the exercise of reasoned discretion." Id. at 344 (quoting Cesare, 154

N.J. at 413). "Reversal is warranted when the trial court's factual findings are

'so manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting

Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

Defendant has not met that standard. We see no reason to disturb Judge Lougy's

findings, which were supported by adequate, credible evidence and based on a

correct interpretation of the law.

Affirmed.

A-1491-19 4