Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Do I Have A Right To Have A Lawyer At A Default Divorce Hearing?

            Yes.  If you are served with a Notice of a Default Hearing against you in a New Jersey Family Court, you should hire a New Jersey divorce lawyer who only handles these types of cases.  At a minimum, your attorney will be successful in having the default court date adjourned as you now have a lawyer to protect you.  At a maximum, you should have a lawyer with you at the default hearing as the New Jersey Family Court Judge must give your attorney to represent your interests during the Default Hearing including testimony. 

            In Mora v. Mora, Debora Mora appealed from an order of the Superior Court of New Jersey, Family Part of Bergen County, dated October 21, 2015, that denied her motion to set aside a final judgment of divorce dated June 10, 2015. Debora wanted to set aside the final judgment of divorce because the Family Part had entered it after she had defaulted. The New Jersey Appellate Division affirmed the order of the Family Part.

Jaime and Debora Mora got married twice. In 1979 they divorced for the first time. They then got remarried in 1988, and then separated in 2010. Jaime filed a divorce complaint again in 2014. Debora did not answer this complaint for divorce. Then, on May 13, 2015, Jaime filed a Notice of Proposed Final Judgment. This notice included an itemization of all the marital assets, including property in Union City and Englewood, a business, three vehicles, a bank account, and personal property. A proposed trial date of June 10, 2015 was also specified in the notice.

The Family Part conducted a hearing on June 10, 2015, and a final judgment of divorce was entered at the end of this hearing. Debora was present at this hearing. According to the final judgment of divorce, the parties were ordered to list the Union City and Englewood  properties for sale by specific dates and split the net profits equally. The final judgment of divorce also enumerated numerous things such as who would stay at the marital home before its sale, who would collect the rents from the rental properties, and how the carrying costs from the properties would be allocated. The final judgment of divorce further enumerated terms by which the former couple’s jointly owned business should be sold, and how the salaries should be paid during the sale. According to the final judgment of divorce, title and possession of the 2003 Cadillac Escalade was granted to Debora, and title and possession of the 2007 Chevrolet Avalanche was granted to Jaime. Furthermore, the parties were ordered to transfer the title to their 2005 Acura 3.2 TL to their son.

Jaime was supposed to keep possession of his own personal Wells Fargo bank account, which contained about $ 2,500. The safe deposit box at Wells Fargo was supposed to be relinquished to the back, with the contents to be divided appropriately. Finally, the final judgment of divorce provided for the equitable distribution of the former couple’s bank account and personal property.

Almost three months after the trial and the entry of the final judgment of divorce, on September 4, 2015, Debora filed a motion to vacate the final judgment of divorce. The Family Part held a hearing to hear her motion on October 21, 2015. Debora claimed  that Jaime’s attorney had a conflict of interest, that she had not been served with the divorce complaint, and was unaware of the pending divorce.

Even though Debora claimed that she had not been served with a divorce complaint, the affidavit of service established that the complaint for divorce had been served upon her twenty three year old son. Furthermore, the Family Part judge stated that during the June proceeding, he had noticed that Debora had received notices in January, March, and May 2015. Additionally, Debora had personally asked Jaime for an attorney in July 2014, which logically leads to the conclusion that she knew about the divorce proceedings from the beginning. During the June 10 proceedings, the Family Part judge noted on the record that there were sufficient proofs to establish that Debora was in fact properly served with the complaint for divorce, and was properly served with the notice of proposed final judgment in accordance with the court rules.

Debora had also argued that the court proceedings were hard to understand and that she was not given a chance to speak. In response, the Family Part judge stated that the court had used an interpreter, Debora had responded to the judge numerous times when she was directly addressed, and that she chose not to ask any questions even though the judge informed her of her right to do so. Instead of asking any questions, Debora only complained about her lack of alimony and her “pittance salary.”

In response to Debora’s arguments supporting her motion to vacate the default judgment, the Family Part noted that it had already addressed the issues of equitable distribution and alimony quite extensively on the record during the hearings on June 10. The Family Part judge explained that Jaime had not provided for alimony in his proposed final judgment of divorce because both parties would simply continue to take the same amount out of their business, and Debora would collect the rental income from the rental properties. Such an arrangement would provide Debora with a far more comfortable lifestyle than Jaime who would only be receiving a salary and no rental income.

The Family Part judge analyzed Debora’s motion to vacate the default judgment under Court Rule 4:50-1, and stated that, “we must exercise great liberality and should tolerate every reasonable ground with a view to opening default judgments in order that a just result is reached.” In general, if a person wished to reopen a default judgment under the doctrine of excusable neglect, he or she must establish that the failure to answer was excusable under the specific circumstances and that there is a reasonable and meritorious defense.

Ultimately, the Family Part court found that there was no showing of excusable neglect for failing to answer the complaint or otherwise failing to take part in the litigation. As such the Family Part affirmed the final judgment of divorce in an order dated October 21, 2015. Debora appealed the decision.

On appeal, the New Jersey Appellate Division found that Debora’s arguments were completely devoid of any substantial discussion of the standard of review applicable for vacating a default judgment. Instead, Debora, claimed that the equitable distribution was not fair, and that she should have the chance to be heard about alimony. Additionally, the final judgment of divorce ordered the business to be sold four years after the final judgment of divorce was entered, with the net proceeds to be divided equally. On appeal, Debora contended that she should not be prohibited from getting her 50% from the business and her commercial property by a four year period.

The New Jersey Appellate Division explained that the Family Part decided Debora’s motion under Rule 4:50-1, which states that the court can relieve a party from a final judgment or order for: mistake, inadvertence, surprise or excusable neglect. This doctrine is especially important in family law cases, because judgments by default are not favored in divorces.

However, a Family Part court's decision under Rule 4:50-1 is given substantial judicial deference on appeal, and should not be reversed, unless it is clear that it resulted from an abuse of discretion. An abuse of discretion happens when a decision is made without any rational explanation, is unexplainably departed from established policies, or rests on an impermissible basis.

In Mora v. Mora, the New Jersey Appellate Division found that the Family Part’s decision to deny Debora’s motion to set aside the default judgment was not an abuse of discretion. Debora filed a motion for relief under Rule 4:50-1, but the grounds she asserted to support her motion was not supported by, and in some parts, contrary to, the established facts. Moreover, the Family Part gave her the chance to participate in the evidentiary hearing by questioning Jaime, but Debora refused to do so. Finally, Debora failed to establish that the Family Part’s decision was inherently unfair or contrary to applicable legal principles.

Please contact our New Jersey divorce law firm if you or a loved one needs legal representation.