NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1330-15T2
JAIME MORA,
Plaintiff-Respondent,
v.
DEBORA MORA,
Defendant-Appellant.
______________________________
Submitted February 27, 2017 – Decided March 16, 2017
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-000252-15.
Gilberto M. Garcia, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant Debora Mora appeals from an October 21, 2015 trial
court order denying her motion to set aside a June 10, 2015 final
judgment of divorce ("FJOD"). The court entered the FJOD after
defendant defaulted. For the reasons that follow, we affirm. We derive the following facts from the sparse appellate
record. Plaintiff and defendant were married twice. The parties
divorced in 1979, remarried in 1988, and separated in 2010. In
2014, plaintiff filed a divorce complaint. Defendant failed to
answer the complaint.
Plaintiff filed a Notice of Proposed Final Judgment on May
13, 2015. Plaintiff directed the notice to defendant. The notice
included an itemization of the parties' assets, which included
real property in Englewood and Union City, a business, three
vehicles, a bank account, and personal property. The notice also
specified June 10, 2015, as the proposed trial date.
On June 10, 2015, the trial court conducted a hearing and
entered a FJOD at its conclusion. Defendant was present at the
hearing. The FJOD ordered the parties to list the Englewood and
Union City properties for sale by specified dates and divide the
net proceeds equally. The FJOD addressed who would remain at the
residential property pending its sale, who would collect the rents
from the rental properties, and how the properties' carrying costs
would be allocated. The FJOD provided terms on which the parties'
jointly owned business was to be sold and the salaries to be paid
pending the sale. The FJOD granted possession and title of the
2003 Cadillac Escalade to defendant, and possession and title of
2 A-1330-15T2 the 2007 Chevrolet Avalanche to plaintiff. It ordered the parties
to transfer title to the 2005 Acura 3.2 TL to their son.
Plaintiff was to retain possession of his personal Wells
Fargo bank account, containing approximately $2500. The Wells
Fargo safe deposit box was to be relinquished to the bank and its
contents divided as appropriate. Lastly, the FJOD provided for
the equitable distribution of the parties' personal property and
bank account.
On September 4, 2015, nearly three months after the trial and
entry of the FJOD, defendant moved to vacate the FJOD. On October
21, 2015, the trial court held a hearing on defendant's motion.
Defendant has not included in the appellate record the
certification she presumably filed in support of her motion to
vacate the default judgment. We glean from the parties' and
court's comments during oral argument that defendant claimed
plaintiff's attorney had a conflict of interest and should have
told her to seek other counsel; she had not been served with the
divorce complaint; and was unaware of the pending divorce.1
When oral argument commenced, the court asked defense counsel
whether he had obtained transcripts of "the two proceedings which
occurred on June 10th of this year." Counsel had not. The court
1 The appellate record does not include a copy of the June 10, 2015 proceedings.
3 A-1330-15T2 explained that plaintiff's attorney had filed a responding
certification which demonstrated no conflict of interest existed.
In addition, though defendant certified she had not been served
with a divorce complaint, the affidavit of service established the
complaint had been served on her twenty-three-year-old son, a fact
plaintiff verified.
The judge also recounted that during the June proceedings he
noted defendant received notices in January, March, and May 2015,
and "[w]hen [he] went through that, [he] made sure that the notices
were sent to [defendant] in both English and Spanish." Further,
defendant asked plaintiff for an attorney in July 2014, "which
leads one to the conclusion . . . she knew about the divorce
proceedings from the inception[.]" The court noted on the record
during the June 10 proceedings "there were ample proofs [defendant]
was properly served with the request for divorce and she was
properly served with a notice of proposed final judgment in
accordance with our [c]ourt rules."
In response to defendant's arguments that the proceedings
were difficult to understand and she was not given an opportunity
to speak, the judge noted the court utilized an interpreter,
defendant answered the judge several times when addressed
directly, and defendant did not ask any questions despite the
4 A-1330-15T2 clarification of her right to do so. Instead, defendant complained
about her "pittance salary" and lack of alimony.
Turning to defendant's arguments in support of her motion to
vacate the default judgment, the court noted it had "addressed the
issues of alimony and equitable distribution extensively on the
record during [the June 10] hearings." The court explained
plaintiff did not provide for alimony in his proposed final
judgment because the parties "would continue to take the same
amount out of [their business]" and defendant would collect the
rental income from their rental properties. That arrangement
provided defendant with "a more comfortable lifestyle than . . .
plaintiff, who is only receiving a salary and has no rental
income."
Defendant alleged a potential Sheridan2 issue, as she believed
plaintiff signed defendant's name on their joint tax returns. The
judge evaluated and dismissed this contention as a non-issue.
The judge analyzed defendant's motion to vacate the default
judgment under Rule 4:50-1. He noted:
[while] mindful that our [a]ppellate courts have told us . . . we must exercise great liberality and should tolerate every reasonable ground for . . . indulgence . . . with a view to opening default judgments in order that a just result is reached[,]
2 Sheridan v. Sheridan, 247 N.J. Super. 552 (App. Div. 1990).
5 A-1330-15T2 . . . .
[g]enerally, a defendant seeking to reopen a default judgment because of excusable neglect must show that the failure to answer was excusable under the circumstances and that a meritorious defense is available.
The court ultimately determined "there was no showing of
excusable neglect in failing to answer the complaint or otherwise"
failing to participate in the litigation, and affirmed the FJOD
in an October 21, 2015 order.
Defendant appeals. In arguments devoid of any significant
discussion of the standard of review for vacating a default
judgment, defendant contends the equitable distribution was
unfair, she should have the opportunity to be heard as to alimony,
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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-1330-15T2
JAIME MORA,
Plaintiff-Respondent,
v.
DEBORA MORA,
Defendant-Appellant.
______________________________
Submitted February 27, 2017 – Decided March 16, 2017
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-000252-15.
Gilberto M. Garcia, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant Debora Mora appeals from an October 21, 2015 trial
court order denying her motion to set aside a June 10, 2015 final
judgment of divorce ("FJOD"). The court entered the FJOD after
defendant defaulted. For the reasons that follow, we affirm. We derive the following facts from the sparse appellate
record. Plaintiff and defendant were married twice. The parties
divorced in 1979, remarried in 1988, and separated in 2010. In
2014, plaintiff filed a divorce complaint. Defendant failed to
answer the complaint.
Plaintiff filed a Notice of Proposed Final Judgment on May
13, 2015. Plaintiff directed the notice to defendant. The notice
included an itemization of the parties' assets, which included
real property in Englewood and Union City, a business, three
vehicles, a bank account, and personal property. The notice also
specified June 10, 2015, as the proposed trial date.
On June 10, 2015, the trial court conducted a hearing and
entered a FJOD at its conclusion. Defendant was present at the
hearing. The FJOD ordered the parties to list the Englewood and
Union City properties for sale by specified dates and divide the
net proceeds equally. The FJOD addressed who would remain at the
residential property pending its sale, who would collect the rents
from the rental properties, and how the properties' carrying costs
would be allocated. The FJOD provided terms on which the parties'
jointly owned business was to be sold and the salaries to be paid
pending the sale. The FJOD granted possession and title of the
2003 Cadillac Escalade to defendant, and possession and title of
2 A-1330-15T2 the 2007 Chevrolet Avalanche to plaintiff. It ordered the parties
to transfer title to the 2005 Acura 3.2 TL to their son.
Plaintiff was to retain possession of his personal Wells
Fargo bank account, containing approximately $2500. The Wells
Fargo safe deposit box was to be relinquished to the bank and its
contents divided as appropriate. Lastly, the FJOD provided for
the equitable distribution of the parties' personal property and
bank account.
On September 4, 2015, nearly three months after the trial and
entry of the FJOD, defendant moved to vacate the FJOD. On October
21, 2015, the trial court held a hearing on defendant's motion.
Defendant has not included in the appellate record the
certification she presumably filed in support of her motion to
vacate the default judgment. We glean from the parties' and
court's comments during oral argument that defendant claimed
plaintiff's attorney had a conflict of interest and should have
told her to seek other counsel; she had not been served with the
divorce complaint; and was unaware of the pending divorce.1
When oral argument commenced, the court asked defense counsel
whether he had obtained transcripts of "the two proceedings which
occurred on June 10th of this year." Counsel had not. The court
1 The appellate record does not include a copy of the June 10, 2015 proceedings.
3 A-1330-15T2 explained that plaintiff's attorney had filed a responding
certification which demonstrated no conflict of interest existed.
In addition, though defendant certified she had not been served
with a divorce complaint, the affidavit of service established the
complaint had been served on her twenty-three-year-old son, a fact
plaintiff verified.
The judge also recounted that during the June proceedings he
noted defendant received notices in January, March, and May 2015,
and "[w]hen [he] went through that, [he] made sure that the notices
were sent to [defendant] in both English and Spanish." Further,
defendant asked plaintiff for an attorney in July 2014, "which
leads one to the conclusion . . . she knew about the divorce
proceedings from the inception[.]" The court noted on the record
during the June 10 proceedings "there were ample proofs [defendant]
was properly served with the request for divorce and she was
properly served with a notice of proposed final judgment in
accordance with our [c]ourt rules."
In response to defendant's arguments that the proceedings
were difficult to understand and she was not given an opportunity
to speak, the judge noted the court utilized an interpreter,
defendant answered the judge several times when addressed
directly, and defendant did not ask any questions despite the
4 A-1330-15T2 clarification of her right to do so. Instead, defendant complained
about her "pittance salary" and lack of alimony.
Turning to defendant's arguments in support of her motion to
vacate the default judgment, the court noted it had "addressed the
issues of alimony and equitable distribution extensively on the
record during [the June 10] hearings." The court explained
plaintiff did not provide for alimony in his proposed final
judgment because the parties "would continue to take the same
amount out of [their business]" and defendant would collect the
rental income from their rental properties. That arrangement
provided defendant with "a more comfortable lifestyle than . . .
plaintiff, who is only receiving a salary and has no rental
income."
Defendant alleged a potential Sheridan2 issue, as she believed
plaintiff signed defendant's name on their joint tax returns. The
judge evaluated and dismissed this contention as a non-issue.
The judge analyzed defendant's motion to vacate the default
judgment under Rule 4:50-1. He noted:
[while] mindful that our [a]ppellate courts have told us . . . we must exercise great liberality and should tolerate every reasonable ground for . . . indulgence . . . with a view to opening default judgments in order that a just result is reached[,]
2 Sheridan v. Sheridan, 247 N.J. Super. 552 (App. Div. 1990).
5 A-1330-15T2 . . . .
[g]enerally, a defendant seeking to reopen a default judgment because of excusable neglect must show that the failure to answer was excusable under the circumstances and that a meritorious defense is available.
The court ultimately determined "there was no showing of
excusable neglect in failing to answer the complaint or otherwise"
failing to participate in the litigation, and affirmed the FJOD
in an October 21, 2015 order.
Defendant appeals. In arguments devoid of any significant
discussion of the standard of review for vacating a default
judgment, defendant contends the equitable distribution was
unfair, she should have the opportunity to be heard as to alimony,
and the trial court's consideration of her Sheridan argument was
inadequate. As to the business, the FJOD ordered it be sold four
years after entry of the FJOD, the net proceeds to be divided
equally. Defendant asserts she should not be "precluded from
obtaining her 50% in the business and her commercial property for
a four-year period[.]"
The trial court decided defendant's motion under Rule 4:50-
1, which provides:
On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or
6 A-1330-15T2 excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
When a trial court considers a motion to vacate a default
judgment, the motion must be "viewed with great liberality, and
every reasonable ground for indulgence is tolerated to the end
that a just result is reached." Marder v. Realty Constr. Co., 84
N.J. Super. 313, 319 (App. Div.) (citation omitted), aff'd, 43
N.J. 508 (1964). This is especially so in family actions, because
"a judgment by default is not favored in divorce suits." Curry
v. Curry, 108 N.J. Super. 527, 530 (App. Div. 1970) (citation
omitted).
Nonetheless, a trial court's decision under Rule 4:50-1 is
entitled to "substantial deference, and should not be reversed
unless it results in a clear abuse of discretion." US Bank N.A.
v. Guillaume, 209 N.J. 449, 467 (2012) (citation omitted). As to
the first section of Rule 4:50-1, a motion to vacate a judgment
7 A-1330-15T2 under Rule 4:50-1(a) "should be granted sparingly, and is addressed
to the sound discretion of the trial court, whose determination
will be left undisturbed unless it results from a clear abuse of
discretion." Fineberg v. Fineberg, 309 N.J. Super. 205, 215 (App.
Div. 1998) (citing Hous. Auth. of Morristown v. Little, 135 N.J.
274, 283-84 (1994)). An abuse of discretion occurs "when a
decision is 'made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible
basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)
(citation omitted).
Here, the trial court's denial of defendant's motion to set
aside the default judgment did not constitute an abuse of
discretion. Although difficult to discern on this sparse record,
it appears defendant moved for relief under Rule 4:50-1(a). The
grounds defendant asserted to support her motion were unsupported
by, and in some instances contrary to, the facts. Additionally,
the court gave defendant the opportunity to participate in the
proof hearing by questioning plaintiff, but defendant declined the
opportunity to do so. Lastly, assuming defendant sought relief
under Rule 4:50-1(f), defendant has not demonstrated the trial
court's decision was inherently unfair or contrary to applicable
legal principles, nor has defendant established "any other reason
justifying relief from the operation of the judgment." Ibid.
8 A-1330-15T2 Affirmed.
9 A-1330-15T2