NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2703-24
ARDIST RIVERS,
Plaintiff-Respondent,
v.
PATRICIA PERSON and FRANK J. PERSON,
Defendants-Appellants. _________________________
Submitted January 26, 2026 – Decided March 3, 2026
Before Judges Sabatino and Bergman.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. C-000064-24.
Hoffman & Hoffman, attorneys for appellants (Gary D. Hoffman and Brian L. Hoffman, on the brief).
Respondent has not filed a brief.
PER CURIAM In this one-sided appeal, defendants Patricia Person and Frank J. Person
contest an April 17, 2025 order of the Chancery Division denying their motion
to vacate a default judgment entered against them. The underlying judgment
ordered partition and sale of their residential property owned by them and
plaintiff Ardist Rivers as tenants in common, appointed plaintiff as attorney in
fact to list the property for sale and directed the proceeds be divided equally.
Having considered the record, defendants' arguments and the applicable legal
principles, we reverse and remand for further proceedings consistent with this
opinion.
I.
This dispute concerns a two-unit residential property in Rahway originally
purchased in 1968 by the defendants and Leroy and Lillie Mae Rivers as tenants
in common. The property is a two-unit residential building with one central
common adjoining wall and shared front and rear common spaces. Over nearly
six decades, defendants have maintained possession of one unit, while the
Rivers' possessed the other. During this time period, defendants assert no
disputes arose with the Rivers, including both paying separately metered utility
costs and sharing in other costs on an equal basis, including property taxes.
After Leroy passed away in 1994, and the subsequent passing of Lillie Mae in
A-2703-24 2 2011, plaintiff acquired his mother's one-half interest by deed in 2021 through
her estate. It is undisputed that plaintiff and defendants each own their
respective units and the property as a whole as tenants in common.
On July 22, 2024, plaintiff filed a complaint seeking partition and sale of
the property. Default judgment was entered on February 28, 2025, ordering a
partition and sale of the property, appointing plaintiff as attorney in fact to list
the property and ordering the proceeds of sale to be divided equally between the
parties. Defendants assert they only learned of the judgment through notice
from their tenant, immediately retained counsel and moved to vacate the default
judgment approximately 26 days later on March 26. Defendants alleged they
did not recall receiving the complaint, did not respond timely to the complaint
or attend the proof hearing ordered due to their advanced age and infirmities.
Following oral argument defendants' motion was denied. In its oral
decision, the court found no "undue hardship" was shown by defendants, noted
that defendants were properly served according to certifications of service
provided by plaintiff and found no excusable neglect for defendants' failure to
respond. The court found "perhaps [there was] a lack of memory" but
determined the lack of memory or ill health of defendants did not constitute good
cause, mistake, or excusable neglect sufficient to vacate the judgment under
A-2703-24 3 Rule 4:50-1. The court also found it did not "see any meritorious defense . . .
[and] the parties cannot get along, which is why there's normally a basis for a
partition under the rules when the property is co-owned."
The court also concluded there were no exceptional circumstances
warranting relief from the judgment. The order further permitted defendants to
inspect plaintiff's portion of the property to determine if a buyout amount could
be agreed upon, which did not come to fruition. The trial court granted
defendants' motion to stay the judgment pending appeal by consent of the
parties.
On appeal, defendants contend the trial court erred in denying their motion
to vacate the default judgment, specifically asserting the court failed to liberally
apply Rule 4:50-1(a), which permits a court to vacate default judgments for
mistake, inadvertence, surprise, or excusable neglect. Defendants, citing to their
advanced ages—now 85 and 86 years old—and significant infirmities, assert the
situation warranted special consideration under both the rule and various statutes
intended to protect the elderly from legal and financial harm. They emphasize
the almost immediate filing of their motion after discovering the judgment
against them, and argue had they been properly heard, they would have prevailed
on the merits given their status as tenants in common. They argue, as tenants in
A-2703-24 4 common, plaintiff had the legal ability to sell his portion of the property without
forcing the defendants' half to be sold, and alternatively, that their long-term
improvements to the property entitles them to a larger share of the sale proceeds.
II.
The law concerning the vacation of a default judgment is well settled. A
motion to vacate a default judgment pursuant Rule 4:50-1(a) must be brought
"within a reasonable time" but not later than one year after judgment. R. 4:50-
2. Although not expressly included in the Rule, our common law requires a
defendant claiming excusable neglect must also demonstrate a meritorious
defense. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.
1964), aff'd, 43 N.J. 508 (1964). A court is required to "examine defendant's
proposed defense to determine its merit." Bank of N.J. v. Pulini, 194 N.J. Super.
163, 166 (App. Div. 1984).
"A court should view 'the opening of default judgments . . . with great
liberality,' and should tolerate 'every reasonable ground for indulgence . . . to
the end that a just result is reached.'" Mancini v. EDS ex rel. N.J. Auto. Full
Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993) (omissions in original)
(quoting Marder, 84 N.J. Super. at 319). "All doubts . . . should be resolved in
favor of the parties seeking relief." Ibid. That is so, because of the importance
A-2703-24 5 we attach to securing a decision on the merits. Davis v. DND/Fidoreo, Inc., 317
N.J. Super. 92, 100-01 (App. Div. 1998).
Our courts have also recognized that a defendant's promptness in moving
to vacate a default judgment is a factor that supports granting the motion. Reg'l
Constr. Corp. v. Ray, 364 N.J. Super. 534, 541 (App. Div. 2003) (affirming a
finding of excusable neglect "when examined against the very short time period
between the entry of default judgment and the motion to vacate"); Jameson v.
Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 428 (App. Div. 2003) (noting
the "speed and diligence with which [the party] moved to attempt to vacate the
default judgment"). "[W]here the judgment has been in effect for only a brief
period of time before the motion to vacate is filed[,] . . .
Free access — add to your briefcase to read the full text and ask questions with AI
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-2703-24
ARDIST RIVERS,
Plaintiff-Respondent,
v.
PATRICIA PERSON and FRANK J. PERSON,
Defendants-Appellants. _________________________
Submitted January 26, 2026 – Decided March 3, 2026
Before Judges Sabatino and Bergman.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. C-000064-24.
Hoffman & Hoffman, attorneys for appellants (Gary D. Hoffman and Brian L. Hoffman, on the brief).
Respondent has not filed a brief.
PER CURIAM In this one-sided appeal, defendants Patricia Person and Frank J. Person
contest an April 17, 2025 order of the Chancery Division denying their motion
to vacate a default judgment entered against them. The underlying judgment
ordered partition and sale of their residential property owned by them and
plaintiff Ardist Rivers as tenants in common, appointed plaintiff as attorney in
fact to list the property for sale and directed the proceeds be divided equally.
Having considered the record, defendants' arguments and the applicable legal
principles, we reverse and remand for further proceedings consistent with this
opinion.
I.
This dispute concerns a two-unit residential property in Rahway originally
purchased in 1968 by the defendants and Leroy and Lillie Mae Rivers as tenants
in common. The property is a two-unit residential building with one central
common adjoining wall and shared front and rear common spaces. Over nearly
six decades, defendants have maintained possession of one unit, while the
Rivers' possessed the other. During this time period, defendants assert no
disputes arose with the Rivers, including both paying separately metered utility
costs and sharing in other costs on an equal basis, including property taxes.
After Leroy passed away in 1994, and the subsequent passing of Lillie Mae in
A-2703-24 2 2011, plaintiff acquired his mother's one-half interest by deed in 2021 through
her estate. It is undisputed that plaintiff and defendants each own their
respective units and the property as a whole as tenants in common.
On July 22, 2024, plaintiff filed a complaint seeking partition and sale of
the property. Default judgment was entered on February 28, 2025, ordering a
partition and sale of the property, appointing plaintiff as attorney in fact to list
the property and ordering the proceeds of sale to be divided equally between the
parties. Defendants assert they only learned of the judgment through notice
from their tenant, immediately retained counsel and moved to vacate the default
judgment approximately 26 days later on March 26. Defendants alleged they
did not recall receiving the complaint, did not respond timely to the complaint
or attend the proof hearing ordered due to their advanced age and infirmities.
Following oral argument defendants' motion was denied. In its oral
decision, the court found no "undue hardship" was shown by defendants, noted
that defendants were properly served according to certifications of service
provided by plaintiff and found no excusable neglect for defendants' failure to
respond. The court found "perhaps [there was] a lack of memory" but
determined the lack of memory or ill health of defendants did not constitute good
cause, mistake, or excusable neglect sufficient to vacate the judgment under
A-2703-24 3 Rule 4:50-1. The court also found it did not "see any meritorious defense . . .
[and] the parties cannot get along, which is why there's normally a basis for a
partition under the rules when the property is co-owned."
The court also concluded there were no exceptional circumstances
warranting relief from the judgment. The order further permitted defendants to
inspect plaintiff's portion of the property to determine if a buyout amount could
be agreed upon, which did not come to fruition. The trial court granted
defendants' motion to stay the judgment pending appeal by consent of the
parties.
On appeal, defendants contend the trial court erred in denying their motion
to vacate the default judgment, specifically asserting the court failed to liberally
apply Rule 4:50-1(a), which permits a court to vacate default judgments for
mistake, inadvertence, surprise, or excusable neglect. Defendants, citing to their
advanced ages—now 85 and 86 years old—and significant infirmities, assert the
situation warranted special consideration under both the rule and various statutes
intended to protect the elderly from legal and financial harm. They emphasize
the almost immediate filing of their motion after discovering the judgment
against them, and argue had they been properly heard, they would have prevailed
on the merits given their status as tenants in common. They argue, as tenants in
A-2703-24 4 common, plaintiff had the legal ability to sell his portion of the property without
forcing the defendants' half to be sold, and alternatively, that their long-term
improvements to the property entitles them to a larger share of the sale proceeds.
II.
The law concerning the vacation of a default judgment is well settled. A
motion to vacate a default judgment pursuant Rule 4:50-1(a) must be brought
"within a reasonable time" but not later than one year after judgment. R. 4:50-
2. Although not expressly included in the Rule, our common law requires a
defendant claiming excusable neglect must also demonstrate a meritorious
defense. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.
1964), aff'd, 43 N.J. 508 (1964). A court is required to "examine defendant's
proposed defense to determine its merit." Bank of N.J. v. Pulini, 194 N.J. Super.
163, 166 (App. Div. 1984).
"A court should view 'the opening of default judgments . . . with great
liberality,' and should tolerate 'every reasonable ground for indulgence . . . to
the end that a just result is reached.'" Mancini v. EDS ex rel. N.J. Auto. Full
Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993) (omissions in original)
(quoting Marder, 84 N.J. Super. at 319). "All doubts . . . should be resolved in
favor of the parties seeking relief." Ibid. That is so, because of the importance
A-2703-24 5 we attach to securing a decision on the merits. Davis v. DND/Fidoreo, Inc., 317
N.J. Super. 92, 100-01 (App. Div. 1998).
Our courts have also recognized that a defendant's promptness in moving
to vacate a default judgment is a factor that supports granting the motion. Reg'l
Constr. Corp. v. Ray, 364 N.J. Super. 534, 541 (App. Div. 2003) (affirming a
finding of excusable neglect "when examined against the very short time period
between the entry of default judgment and the motion to vacate"); Jameson v.
Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 428 (App. Div. 2003) (noting
the "speed and diligence with which [the party] moved to attempt to vacate the
default judgment"). "[W]here the judgment has been in effect for only a brief
period of time before the motion to vacate is filed[,] . . . a plaintiff's expectations
regarding the legitimacy of the judgment and the court's interest in the finality
of judgments are at their nadir." Reg'l Constr. Corp., 364 N.J. Super. at 545.
Prejudice to the plaintiff if default judgment is vacated is also a relevant
consideration. In this regard, Rule 4:50-1 permits the court to condition an order
vacating default judgment "upon such terms as are just." Any relief granted
under this provision of the Rule must be "reasonably proportionate to the
prejudice suffered by plaintiff." Reg'l Constr. Corp., 364 N.J. Super. at 543. A
court may compel a party seeking to vacate default to reimburse the judgment
A-2703-24 6 holder for the fees and costs "in the pursuit of the default judgment or in
responding to the motion to vacate." Ibid.
The decision whether to grant a motion to vacate a default judgment is
generally "left to the sound discretion of the trial court and will not be disturbed
absent an abuse of discretion." Mancini, 132 N.J. at334. "The [Rule] is designed
to reconcile the strong interests in finality of judgments and judicial efficiency
with the equitable notion that courts should have authority to avoid an unjust
result in any given case." Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n,
74 N.J. 113, 120 (1977). That said, we have occasionally set aside orders
denying relief requested under section (a) of the Rule when the circumstances
warranted. See, e.g. Professional Stone, Stucco and Siding Applicators, Inc. v.
Carter, 409 N.J. Super. 64 (App. Div. 2009); Allen v. Heritage Court Associates,
325 N.J. Super. 112 (App. Div. 1999); Febus v. Barot, 260 N.J. Super. 322 (App.
Div. 1992).
The record reflects defendants initially moved to vacate the default
judgment less than thirty days after it was entered, which we determine to be a
reasonable period of time. In addition, defendants are of advanced age, and as
the record shows, Mr. Person alleged he experienced severe medical issues and
was hospitalized for over a month and thereafter, was placed into a rehabilitation
A-2703-24 7 facility for approximately three months. Defendants also asserted Mr. Person's
nieces traveled about an hour each way twice per week to obtain his mail from
his neighbors while he was hospitalized but never received the plaintiff's initial
complaint. Although there is an affidavit from a sheriff's officer attesting that
Mr. Person was served personally, he claimed he had no recollection of ever
being served. Similarly, Mrs. Person asserted, although she recalled signing
papers, she does not recall receiving any legal documents. Defendants both
claimed if they had received, or believed they had received any legal documents,
they would have notified their counsel and taken steps to respond.
We conclude, based on the promptness of defendants in moving to vacate
the judgment coupled with their asserted difficulties in responding due to their
age and infirmities, that sufficient credible evidence existed in the motion record
to support defendants' claim of excusable neglect pursuant to Rule 4:50-1(a).
We further determine defendants provided colorable and meritorious
claims and defenses in their motion to vacate. Under the relevant statute, "[t]he
superior court may, in an action for the partition of real estate, direct the sale
thereof if it appears that a partition thereof cannot be made without great
prejudice to the owners, or persons interested therein." N.J.S.A. 2A:56 -2
(emphasis added).
A-2703-24 8 Partition is an equitable remedy allowing multiple parties to obtain an
order dividing property or compelling its sale. Newman v. Chase, 70 N.J. 254,
261 (1976); see also Greco v. Greco, 160 N.J. Super. 98, 101-02 (App. Div.
1978) (citing Newman, 70 N.J. at 263). Whether and how partition is ordered
is within the discretion of the court since "the statutory language is permissive
rather than mandatory." Greco, 160 N.J. Super. at 102 (quoting Newman, 70
N.J. at 263). A chancery court has broad discretion "to adapt equitable remedies
to the particular circumstances of a given case." Marioni v. Roxy Garments
Delivery Co. Inc., 417 N.J. Super. 269, 275 (App. Div. 2010) (citations omitted);
see also Salorio v. Glaser, 93 N.J. 447, 469 (1983) (noting equitable remedies
"are distinguished by their flexibility, their unlimited variety," and "their
adaptability to circumstances").
Defendants do not dispute the property is held by the parties as tenants in
common but assert separate units have been in existence for over fifty years,
each managed independently and, for the most part, have separate bills for costs,
including utilities. A tenancy in common is the "holding of an estate by different
persons, with a unity of possession and the right of each to occupy the whole in
common with the [other] . . . [and the] interest of a tenant in common may . . .
be transferred without the consent of the [other co-tenant]." Gonzalez v.
A-2703-24 9 Wilshire Credit Corp., 207 N.J. 557, 564 n.2 (2011) (quoting Capital Fin. Co. of
Del. Valley, Inc. v. Asterbadi, 389 N.J. Super. 219, 225 (Ch. Div. 2006) (internal
citations omitted)).
Based on the parties ownership status and the history of separate
management and payment of expenses for each unit, we conclude defendants
asserted a meritorious legal position that, in this instance, a partition ordering
the sale of only plaintiff's ownership interest could be made without great
prejudice as permitted by N.J.S.A. 2A:56-2. We make no determination as to
the strength of this position or the ultimate outcome. We determine only that
defendants have asserted a meritorious and colorable defense to plaintiff's
requested relief that a sale and equal division of the proceeds is the only
appropriate relief.
In addition, defendants certified since becoming owners 57 years ago, they
have always meticulously maintained their unit in excellent condition, and also
have considerably improved it, thus increasing the total value of the property.
By contrast, they asserted plaintiff, who has only owned his half of the property
since 2021, has failed and refused to maintain his unit thus devaluing the
property to the defendants' detriment. Defendants also assert they have paid
plaintiff's portion of property taxes at some point and are due a credit from him.
A-2703-24 10 Therefore, even if defendants' argument that a separate sale of plaintiff's
portion of the property is unsuccessful, we conclude they are entitled to a
vacation of the judgment to determine their claims requesting more than half of
the net sale proceeds. Defendants claim that the condition of their unit/half of
the property as compared to plaintiff's unit/half requires a greater award of the
proceeds to them, which they can prove at trial. They also claim entitlement to
credits from plaintiff for their payment of maintenance costs and property taxes.
When viewing defendants' motion with liberality, as we must, we
determine defendants satisfied the excusable neglect standard of Rule 4:50-1(a)
and provided a meritorious defense. Giving defendants "every reasonable
ground for indulgence" in order to ensure a just result is reached as well as
considering the importance our courts have attached to securing a decision on
the merits, we conclude the trial court misapplied its discretion in denying
defendants' motion under these circumstances.
We, therefore, reverse the trial court's order denying the defendants'
motion to vacate the judgment and remand the matter for the court to set a date
defendants' responsive pleading is due. On remand, we leave to the trial court's
discretion whether plaintiff was prejudiced due to defendants' delays and
whether reimbursement to plaintiff for the reasonable fees and costs he incurred
A-2703-24 11 "in the pursuit of the default judgment or in responding to the motion to vacate ,"
is appropriate.
Reversed and remanded. We do not retain jurisdiction.
A-2703-24 12