NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0434-23
KRITHIGA SADEESHKUMAR,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. February 9, 2024
APPELLATE DIVISION SADEESHKUMAR VENUGOPAL,
Defendant-Appellant. ________________________________
Argued January 29, 2024 — Decided February 9, 2024
Before Judges Sabatino, Mawla, and Vinci.
On appeal from an interlocutory of the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2082-22.
Derek Matthew Freed argued the cause for appellant (Ulrichsen Rosen & Freed, LLC, attorneys; Derek Matthew Freed, of counsel and on the briefs; Neethi Vasudevan, on the briefs).
Roy Joseph Thibodaux, III argued the cause for respondent (Berkowitz Lichtstein Kuritsky Giasullo & Gross, LLC, attorneys; Roy Joseph Thibodaux, III, of counsel and on the brief).
The opinion of the court was delivered by
MAWLA, J.A.D. Defendant Sadeeshkumar Venugopal appeals from a July 6, 2023 order
denying a motion to amend his answer to a complaint for divorce filed by
plaintiff Krithiga Sadeeshkumar. He also challenges an August 29, 2023 order
denying his motion for reconsideration. We reverse both orders.
The parties were married for over thirty years when plaintiff filed her
complaint for divorce in May 2022. The complaint alleged irreconcilable
differences and, in addition to dissolution of the marriage, sought an award of
equitable distribution, open durational alimony, and counsel fees. In October
2022, defendant filed an answer to the complaint, along with affirmative
defenses. The answer denied "the existence of a cause of action in favor of
[p]laintiff." It also noted there was a separate litigation in the Law Division,
commenced by defendant, regarding a business founded during the marriage.
Plaintiff is a third-party intervenor in the business case and the defendant is
Selvakumar Murugan.
In May 2023, defendant moved to amend his answer to the divorce
complaint to include a counterclaim for divorce on grounds of extreme cruelty
and irreconcilable differences. Defendant certified he and plaintiff met
Murugan in 2000. Murugan claimed to possess mythical and astrological
powers given to him by a Hindu goddess. According to defendant, plaintiff
declared Murugan as the family's Swamiji, a spiritual guru or teacher, and
A-0434-23 2 unilaterally devoted herself to him. Defendant claimed because of Murugan's
manipulation, plaintiff and Murugan took actions in the business and divorce
litigation that adversely affected his personal and financial wellbeing and caused
him stress, anxiety, and emotional distress. He also learned plaintiff and
Murugan had what he characterized as "an inappropriately intimate
relationship," which "devastated" him and "violated all acceptable social norms
and . . . further violated [the parties'] cultural values." Defendant urged the court
to permit him to amend his answer in the interest of justice.
Pursuant to the Rules of Court, defendant's answer appended a proposed
answer and counterclaim for divorce. The counterclaim alleged the extreme
cruelty began in 2013 and attached an eleven-paragraph schedule detailing the
acts of extreme cruelty.
According to the schedule, in 2017, plaintiff told defendant she wanted to
"involve . . . Murugan in their business" and compensate him with "a
disproportionately large renumeration," which "placed a financial strain on
[d]efendant." Defendant claimed plaintiff "supported . . . Murugan's improper
conduct as it relates to the parties' business," and her "actions . . . adversely
affected [d]efendant['s] . . . reputation and finances." Moreover, "[p]laintiff
improperly hindered [d]efendant['s] attempt to conduct a thorough inquiry" into
the issues with the business.
A-0434-23 3 The schedule further alleged that in November 2018, defendant suffered
from chest pain and called plaintiff, who was in India at the time. Plaintiff
refused to speak with defendant and "forced" him to speak with Murugan.
Shortly thereafter, defendant underwent a cardiac procedure and plaintiff did not
return to the United States to support him. Plaintiff allegedly then pressured
defendant into flying to India against medical advice.
Defendant asserted that during the COVID-19 pandemic from February
2020 to October 2020, plaintiff and Murugan were living together in India, in a
"villa . . . improperly purchased with the funds from the parties' business."
Because plaintiff would not communicate with defendant or family who were in
India, he requested local police perform a welfare check on plaintiff and
"retrieve her from the villa." When police found plaintiff, she allegedly told
defendant that Murugan gave her "'divine water' to cure all her illnesses, but that
the same had made her feel extremely drowsy." She told defendant she wanted
to "maintain her distance" from Murugan.
Defendant alleged Murugan manipulated plaintiff into leaving the United
States and traveling to India sometime after September 2022. He reiterated that
he learned plaintiff and Murugan "had been engaging in an inappropriately
intimate relationship" causing him to "suffer[] . . . anxiety and severe emotional
distress," which "endangered [his] health and safety."
A-0434-23 4 Plaintiff's counsel filed a letter brief in opposition to the motion to amend,
arguing Rule 5:4-2(e) controlled and "only permits the filing of an amended
pleading when 'a cause of action [] has arisen or become known since the filing
of the original complaint.'" (emphasis added) (alteration in original). Therefore,
defendant forfeited the opportunity to amend his pleadings because he knew
about plaintiff's alleged conduct as early as 2013 but did not file a counterclaim.
Counsel argued the court should not credit defendant's certification because it
was based "upon information and belief" and he "fail[ed] to identify the source
of such 'information and belief.'"
In reply, defendant's counsel argued his client learned about the details of
plaintiff's conduct during the divorce. Counsel also pointed out defendant's
frequent travels to India "reinforced" the "need for [d]efendant to have a separate
and independent cause of action for divorce to ensure that the divorce move[d]
forward." If plaintiff remained in India and withdrew her complaint for divorce,
defendant would be unable to obtain a divorce and would be compelled to begin
the process again, which would be a waste of money and judicial resources.
Counsel reminded the court of the liberal standard to amend pleadings "without
consideration of the ultimate merits of the amendment."
The motion judge denied the motion. Although his written findings noted
plaintiff had filed a "diametrically opposing certification," as we noted, there
A-0434-23 5 was only a letter brief submitted in opposition to defendant's motion. The judge
found
[d]efendant's request fails to add any substantive context to his counterclaim . . . and serves only to further exacerbate the contentious rapport between the parties during this litigation. The case is well over 427 days old and both parties plead irreconcilable differences. Therefore, based on the discretion offered to the [c]ourt by R[ule] 4:9-1[,] . . . [d]efendant's request is denied without prejudice.
Defendant moved for reconsideration. He certified the judge was
mistaken because he never pled irreconcilable differences, as his initial pleading
was just an answer with affirmative defenses. Defendant explained he filed the
motion to amend because when he filed his answer he was opposed to a divorce.
He did not believe plaintiff "independently and free of duress, actually sought a
divorce. . . . However, as discovery progressed, and based upon information
learned in the context of [this litigation], it . . . became clear . . . that
irreconcilable differences did exist between the parties." Defendant argued that
at the pleadings stage, he did not have to provide the "substantive context" the
court claimed was lacking because the court does not consider the ultimate
merits on a motion to amend. Further, the court failed to consider defendant
pled independent grounds for divorce and that it was important to obtain a
divorce in the event plaintiff failed to prosecute her complaint.
A-0434-23 6 Plaintiff's counsel filed a letter brief in opposition to the reconsideration
motion. Counsel argued plaintiff "vehemently denied" the reasons defendant
asserted for amending his answer and defendant had not given a reason why he
waited to amend. The brief reiterated an amendment was barred by operation of
Rule 5:4-2(e). Therefore, the motion should be denied because defendant had
not met the criteria for reconsideration and was merely dissatisfied with the
judge's first order.
The motion judge denied the reconsideration motion. His written opinion
recounted each party's argument, recited the law, and concluded that he
"agree[d] with . . . [p]laintiff's position." We granted defendant leave to appeal
from the July and August 2023 orders.
I.
On appeal, defendant repeats the standard for amending pleadings is
liberal and he should have been permitted to amend to include a counterclaim
because he discovered the salient facts underlying his causes of action during
discovery. Further, the judge applied the wrong legal standard when he denied
the motion to amend on grounds defendant failed to add any substantive context.
Defendant asserts the judge should have granted his motion in the interest of
justice to enable defendant to be divorced. The judge also erred when he found
defendant had pled a cause of action for irreconcilable differences and denied
A-0434-23 7 the motion to amend and reconsideration. Moreover, the judge applied Rule
4:49-2 when he denied reconsideration and instead should have used Rule 4:42-
2 because his initial ruling was interlocutory.
II.
Rule 4:9-1 describes when a party in a civil case may amend a pleading,
including "at any time before a responsive pleading is served or, if the pleading
is one to which no responsive pleading is to be served, and the action has not
been placed upon the trial calendar, at any time within [ninety] days after it is
served." Thereafter, a party may also amend "by written consent of the adverse
party or by leave of court which shall be freely given in the interest of justice."
Ibid.
In exercising its discretion whether to grant leave to amend, the court is
guided by the fact that leave is "liberally granted and without consideration of
the ultimate merits of the amendment." Pressler & Verniero, Current N.J. Court
Rules, cmt. 2.1 on R. 4:9-1 (2024); see also Kernan v. One Washington Park,
154 N.J. 437, 456-57 (1998). "The broad power of amendment should be
liberally exercised at any stage of the proceedings, including on remand after
appeal, unless undue prejudice would result . . . ." Ibid. (citing Bustamante v.
Borough of Paramus, 413 N.J. Super. 276, 298 (App. Div. 2010)).
A-0434-23 8 Despite the liberal standard of Rule 4:9-1, judges may deny leave to
amend when the granting of relief would be "futile," as when the new claim
lacks merit and would ultimately be dismissed for failure to state a claim upon
which relief may be granted. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501
(2006). Even if the new claim possesses marginal merit, leave to amend may be
denied if the claim would unduly protract the litigation or cause undue prejudice.
Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 484 (App.
Div. 2012); Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994).
A.
Guided by these principles, we conclude the judge erred when he denied
defendant's motion to amend his pleadings. At the outset, we note the judge
made a mistaken finding of fact when he found defendant had pled a cause of
action for irreconcilable differences. Defendant never filed a counterclaim for
divorce.
Moreover, the judge misapplied the law when he considered the merits of
the allegations contained in the proposed answer and counterclaims, and then
denied defendant's motion because the allegations lacked "substantive context."
The Legislature has described the causes of action for extreme cruelty and
irreconcilable differences as follows:
c. Extreme cruelty, which is defined as including any physical or mental cruelty which endangers the safety
A-0434-23 9 or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant; provided that no complaint for divorce shall be filed until after [three] months from the date of the last act of cruelty complained of in the complaint, but this provision shall not be held to apply to any counterclaim;
....
i. Irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.
[N.J.S.A. 2A:34-2(c) and (i).]
Defendant's proposed counterclaim clearly pled sufficient grounds for
divorce on both extreme cruelty and irreconcilable differences. The schedule
attached to the counterclaim outlined alleged conduct by plaintiff that
endangered defendant's health and caused the breakdown of the marriage. That
conduct, if proven, would not make it reasonable for the parties to remain
married.
We do not share the motion judge's view that defendant's ability to amend
a pleading should be denied because it would "exacerbate the contentious
rapport between the parties during this litigation." There is no doubt Family
Part judges handle contentious cases in every docket type. Their job,
particularly in dissolution cases, is to cool the temperature and decide cases
A-0434-23 10 based on objective evidence to enable the parties to move on with their lives.
However, subject to leave of court, in interest of justice, the court should permit
the parties to timely allege why the marriage should be dissolved—unless a party
seeks to file a futile, frivolous, or harassing pleading. To do otherwise would
frustrate the statutory right to a divorce.
Indeed, "the Legislature has adopted liberal grounds for citizens to end
their marriages . . . ." Steiner v. Steiner, 470 N.J. Super. 112, 120 (App. Div.
2021). In Steiner, the plaintiff sought a divorce on irreconcilable differences
grounds. Id. at 116. At trial, she testified the parties had personal differences,
the defendant physically mistreated her, and his control of the parties' finances
during the marriage led her to seek a divorce. Id. at 120-21.
On appeal, the defendant argued the trial judge's finding the plaintiff
established irreconcilable differences was against the weight of the evidence.
Id. at 124. We upheld the trial judge's decision to grant the plaintiff a divorce
on those grounds; the point being "that divorce isn't available on mere request
or demand. . . . Even a 'no fault' divorce requires more than the desire to divorce
by imposing on the [party seeking the divorce] an obligation to show" they have
met the statutory elements. Id. at 119.
We are also unpersuaded the age of the case was a reason to prevent
defendant from filing his counterclaim. The parties did not have a trial date,
A-0434-23 11 discovery was still outstanding, and this was not a run-of-the-mill divorce. Not
only were the parties engaged in a business litigation, plaintiff sought alimony,
equitable distribution, and counsel fees. Defendant's proposed counterclaim
sought equitable distribution and counsel fees. These issues were all
interrelated, and if the matter proceeded to a trial, it could not be adjudicated
with just half of the picture.
On its surface, defendant's counterclaim suggests the case is complex
because it involved Murugan, who defendant claimed influenced the business,
and a potential dissipation claim impacting alimony, equitable distribution, and
counsel fees. The dissipation of assets is a consideration in equitable
distribution. N.J.S.A. 2A:34-23.1(i); see also Kothari v. Kothari, 255 N.J.
Super. 500, 506 (App. Div. 1992). Further, we have held alimony may be denied
for an otherwise deserving spouse where that spouse engages in egregious
conduct by secreting assets or income from the marriage affecting the parties'
economic life. Clark v. Clark, 429 N.J. Super. 61, 76-77 (App. Div. 2012). And
an award of counsel fees requires the court to consider the parties' good faith or
lack thereof. R. 5:3-5(c). This consideration applies when parties seek fees for
litigating dissipation claims. See Orlowski v. Orlowski, 459 N.J. Super. 95,
100-01, 108 (App. Div. 2019) (affirming an award of counsel fees related to the
A-0434-23 12 prosecution and defense of dissipation claims from the dissipating party's
retirement funds.).
B.
Although the judge did not rely upon Rule 5:4-2(e) to deny the motion,
we take this opportunity to address plaintiff's interpretation of it. Plaintiff
argued defendant was barred by Rule 5:4-2(e) from amending his answer to
include a counterclaim because he alleged acts of extreme cruelty and
irreconcilable differences beginning in 2013, yet failed to include a counterclaim
when he filed his first responsive pleading. Further, at oral argument before us,
plaintiff's counsel asserted the standard articulated under Rule 5:4-2(e) is not
the liberal interest of justice standard of Rule 4:9-1.
Rule 5:4-2(d) reads as follows:
Counterclaim. A counterclaim may state any family cause of action, and any other cause or causes of action which exist at the time of service of the counterclaim. A counterclaim not stated in an answer may be filed by leave of the court at any time prior to final judgment. Failure to file a counterclaim for divorce, dissolution of civil union, termination of domestic partnership, or nullity shall not bar such cause of action. . . .
Rule 5:4-2(e) states:
Amended or Supplemental Complaint or Counterclaim in Dissolution Matters. In any action for divorce, dissolution of civil union, termination of domestic partnership, nullity, or separate maintenance, a supplemental complaint or counterclaim may be
A-0434-23 13 allowed to set forth a cause of action which has arisen or become known since the filing of the original complaint, and an amended complaint or counterclaim may be allowed to change the action from the originally pleaded cause to any other cognizable family or family type action.
Rule 5:4-2(e)'s origins can be traced to the adoption of the 1947 State
Constitution. The proposed source Rule was Rule 3:83-5, which read as follows:
(a) In any action for divorce, nullity, annulment or separate maintenance, an amendment to the complaint or counterclaim may be allowed to set forth a cause of action which has arisen since the filing of the original complaint, or to change the action from separate maintenance, absolute divorce or divorce from bed and board to any other one of the said actions.
(b) This [Rule] shall not permit an amendment to recite a cause of action for desertion which had not accrued at the time of the filing of the complaint.
[N.J. Ct. R. 3:83-5 (Tentative Draft 1948).]
The annotation to the draft Rule explained its purpose:
From a technical standpoint, this proposed [Rule] refers to what would be called now a supplemental petition. However, under the present law a new cause of action cannot be stated by supplemental pleading, (Szelewa v. Windeler, 110 N.J. Eq. 299, 159 [(Ch. 1932)]). But there is no real reason why a petitioner in a divorce action should be required to file an independent suit for a cause which arose since the commencement of the original action. One action should be enough to encompass grounds for divorce which existed when the suit was started or which have come into being since that time.
A-0434-23 14 For example, if a divorce is sought for desertion and, subsequently, the defendant commits adultery, the [plaintiff] ought to be permitted to charge that offense, also, by way of amendment. The same should be true in the case of an original suit for extreme cruelty with a later adultery, or in the case of an original suit for adultery and another act arising at a later time.
[N.J. Ct. R., 3:83-5 cmt. (Tentative Draft 1948).]
The final rule was adopted as Rule 3:84-4 with minimal alteration and
read as follows:
(a) In any action for divorce, nullity of marriage, or separate maintenance, an amendment to the complaint or counterclaim may be allowed to set forth a cause of action which has arisen or became known since the filing of the original complaint, or to change the action from separate maintenance, absolute divorce or divorce from bed and board to any other one of the said actions.
(b) This [Rule] shall not permit an amendment to state a cause of action for desertion which had not accrued at the time of the filing of the complaint or counterclaim.
[N.J. Ct. R. 3:84-4 (1948).]
The source rule eventually became Rule 5:4-2(e).1 The annotation to the
Rule recounts "[t]he significant change which the source rule had made in
1 Rule 3:84-4 became Rule 4:95-4 in 1958. R. 4:95-4 (1958). It changed again to Rule 4:77-4 in 1969. R. 4:77-4 (1969). Rule 5:4-2(e) replaced Rule 4:77-4 and "follow[ed] its source rule . . . almost verbatim. The only change is the substitution of the phrase 'family actions' for the former phrase 'matrimonial actions.'" Pressler, Current N.J. Court Rules, cmt. 4, R. 5:4-2 (1986). A-0434-23 15 previous practice was the elimination of the prohibition against the filing of an
amended or supplemental pleading to allege a cause of action for desertion
which had not accrued at the time of the filing of the complaint or counterclaim."
Pressler & Verniero, Current N.J. Court Rules, History and Analysis of Rule
Amendments to R. 5:4-2, note 5, www.gannlaw.com (2024). The Rule was later
amended in September 2011 to include domestic partnerships and civil unions
and its caption was amended in September 2015 to denote its application only
to dissolution matters. Ibid. See also 2015 Sup. Ct. Fam. Prac. Comm. Rep. 13.
There is no precedent applying Rule 5:4-2(e) in the manner suggested by
plaintiff. Existing precedent has interpreted the predecessor, Rule 4:77-4, and
N.J.S.A. 2A:34-2 to permit the amendment of a complaint or counterclaim where
a cause of action arose after the filing of the original pleading. See Semely v.
Semely, 113 N.J. Super. 411, 414-15 (App. Div. 1971); Indiero v. Indiero, 116
N.J. Super. 193 (Ch. Div. 1971).
Aside from the Rule 5:4-2(e)'s history, a reading of its plain language
explains why plaintiff's argument is misplaced. The Rule governs the process
of amending a counterclaim, not amending an answer to include a counterclaim
as defendant sought to do here. Defendant never filed a counterclaim, which he
later sought to amend. Rule 5:4-2(e) is inapplicable here.
A-0434-23 16 Further, unlike Rule 4:9-2, which permits an amendment of the pleadings
where issues not raised in the pleadings are revealed at trial; or Rule 4:9-3, which
permits an amendment to relate back to the date of the original pleading if "the
amended pleading arose out of the conduct, transaction or occurrence set forth
or attempted to be set forth in the original pleading"; Rule 5:4-2(e) is unique to
dissolution cases. The Rule envisions the following example: a spouse uncovers
facts about the party or the marriage itself previously unknown to that spouse
during the divorce proceedings, including the existence of other relationships or
the presence or absence of assets or liabilities affecting the parties' rights in a
divorce. The Rule permits that party to amend the counterclaim accordingly.
"Civil family actions [are] governed by the rules in Part IV insofar as
applicable and except as otherwise provided by the rules in Part V." R. 5:1-1.
Therefore, Rule 5:4-2(e), being one that is applied in a court of equity such as
the Family Part, supplements Rule 4:9. Rule 5:4-2(e) does not alter the interest
of justice standard set forth in Rule 4:9-1, which governs all amended pleadings.
In Family Part matters, an amendment to a responsive pleading to include a
counterclaim is governed by Rule 5:4-2(d), which like Rule 4:9-1 requires leave
of court, but in recognition of the Family Part's inherent equitable authority
stipulates leave can be granted "at any time prior to final judgment." The logic
undergirding the ability to seek leave at any time emanates from the salutary
A-0434-23 17 procedure often employed in divorce matters, whereby parties who had initially
filed pleadings alleging grounds other than irreconcilable differences can later
amend their pleadings to assert irreconcilable differences as a peaceable means
of ending the divorce.
Plaintiff's interpretation of Rule 5:4-2(e) would impede divorce litigants'
access to justice because they would be barred from pursuing causes of action
revealed to them during the case. This would create, rather than remove, barriers
to the resolution of cases, turn up the temperature of a divorce case, and work
the opposite result of what the motion judge professed was his goal.
For these reasons, we conclude there was an ample basis, both as a matter
of fact and law, to grant defendant's motion to amend his pleadings in the interest
of justice. In reaching this conclusion, we recognize that our decision is the first
published opinion that harmonizes Rule 5:4-2(d) and (e) with Rule 4:9-1, and
that the motion judge and counsel did not yet have the benefit of that guidance.
The July 6, 2023 order is reversed.
III.
Because we have reversed the July 2023 order, the August 29, 2023 order
requires little discussion. However, we add the following as guidance.
"[A] trial court's reconsideration decision will be left undisturbed unless
it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. v. ABC
A-0434-23 18 Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "[R]eversal is
required when the [trial judge's decision] . . . 'is clearly unfair or unjustly
distorted by a misconception of law or findings of fact that are contrary to the
evidence.'" M.G. v. S.M., 457 N.J. Super. 286, 294 (2018) (quoting Wadlow v.
Wadlow, 200 N.J. Super. 372, 382 (App. Div. 1985)). We owe no deference to
a trial court on questions of law. Reese v. Weis, 430 N.J. Super. 552, 568 (App.
Div. 2019).
An order "which adjudicates fewer than all of the claims as to all the
parties" is interlocutory and shall be subject to revision at any time before the
entry of final judgment in the sound discretion of the court in the interest of
justice. R. 4:42-2(b). "Reconsideration under this rule offers a 'far more liberal
approach' than Rule 4:49-2, governing reconsideration of a final order." JPC
Merger Sub LLC v. Tricon Enters., Inc., 474 N.J. Super. 145, 160 (App. Div.
2022) (quoting Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021)).
The motion judge applied the incorrect legal standard when he decided
the reconsideration motion, because he relied on the non-interlocutory Rule
4:49-2 standard. Pursuant to our de novo review and applying the "far more
liberal approach" under Rule 4:42-2, we conclude the motion for reconsideration
should have been granted. For these reasons, the August 29, 2023 order denying
reconsideration is reversed.
A-0434-23 19 Reversed and remanded. We do not retain jurisdiction.
A-0434-23 20