PER CURIAM.
In this matrimonial matter, defendant Sean Greeley appeals from the order denying his motion to vacate a default final judgment of divorce (FJD), filed eight months later, alleging there was excusable neglect under
The parties were married in 1987. They have four children, born in 1988, 1991, 1995, and 2001. They separated in 2006, and the children resided primarily with plaintiff Kristen Greeley, staying at the home the parties had rented for the past twenty years in Rumson. Defendant has been residing with his in-laws, also located in Rumson. The parties unsuccessfully saw two mediators within a three-year period.
Plaintiff filed a complaint for divorce on April 28, 2010. On May 5, 2010, her attorney mailed defendant a copy of the complaint with an acknowledgement of service. Defendant refused to acknowledge service, thus on May 29, 2010, he was personally served with the complaint.
On June 15, 2010, plaintiff served defendant with interrogatories and a notice to produce, which he also ignored. On July 30, 2010, plaintiff filed a request to enter default. On August 31, 2010, a notice of application for equitable distribution was successfully served upon defendant. The first default hearing was scheduled for September 22, 2010. However, defendant sought an adjournment of six weeks stating, because of "constraints at work and sending two children off to college, I have not finalized an attorney and need to postpone the date."
Plaintiff's attorney sent defendant a letter on September 21, 2010, confirming the rescheduled hearing date, and attached a second notice of application for equitable distribution. The hearing proceeded on October 6, 2010.
At the onset, the judge informed defendant she was not going to take testimony from him, although she permitted him to sit at counsel table. Plaintiff answered questions pertaining to her marriage, children, and application for equitable distribution. She testified that defendant is a vice president of JP Morgan Chase, where he has been employed for twenty years. Based on defendant's 2007 and 2009 W-2 forms, plaintiff represented that defendant's average income is approximately $240,000 annually. Plaintiff testified that she does not currently work but was employed as an aide at an elementary school one summer in which she earned $15,000. Plaintiff agreed to have primary residential custody of her children and joint legal custody. Her requested equitable distribution notice also included a provision for child support for the two youngest children at $425 per week calculated under the child support guidelines based upon defendant's above-referenced income. At the time of the hearing, defendant paid the college tuitions of the two older children, and the equitable distribution provided that he would continue to pay 100% of the costs. It further provided that defendant would continue to maintain medical insurance for the children and pay for 80% of unreimbursed medical expenses, with plaintiff paying the remaining 20%.
The proposed equitable distribution also provided for permanent spousal support in the amount of $6250 per month. Plaintiff believed this amount represented sufficient funds "to live a lifestyle comparable to that which [she] lived during the marriage." Defendant was currently providing plaintiff with a "similar level of support by way of direct payment and by paying [her] rent and [her] utilities."
Plaintiff did not have "any specific information about [defendant's] various bank accounts, stocks, investments, [or] retirement accounts," which she was proposing be divided evenly. She advised that defendant had refused to provide her attorney with any financial information. She also proposed that both parties keep their respective cars. She proposed, however, that defendant satisfy her credit card debt of about $18,000, which she accumulated over the last thirty years, and maintain his existing life-insurance policy.
The judge was satisfied that plaintiff understood the terms of the equitable distribution and cause of action. She then expressed that she was not going to determine the fairness or reasonableness of the equitable distribution and the other requested services. Consistent with the proofs presented, she entered a judgment dissolving the marriage and incorporating the proposed equitable distribution. After a brief recess, the judge permitted defendant an opportunity to cross-examine plaintiff.
Defendant advised he was "in agreement with everything" except for some of the financial aspects. Defendant stated the amount plaintiff was requesting was more than he could provide. The judge responded:
Defendant then asserted that he understood he would be heard. The judge replied, "I don't know why you understood that," and explained "[t]his is going by way of default. You did not respond at any stage of this proceeding." She added:
Pursuant to plaintiff's notice of application for equitable distribution, the judge also ordered defendant to pay three years of rehabilitative alimony at $1000 per month to allow her to return to school, and a $2500 counsel fee. The FJD was entered on October 6, 2010.
On June 7, 2011, defendant, through counsel, filed a notice of motion to vacate the FJD. He also sought discovery and a dependency exemption for federal and state income tax purposes.
Plaintiff filed a cross-motion opposing defendant's motion and seeking to enforce her rights for defendant's failure to comply with the FJD, and set forth a list of demands including: to set defendant's child support arrears at $37,657.58 as of June 17, 2011, require defendant to bring his arrears current within thirty days, enter judgment against defendant for the support arrears, require defendant to turn over all information concerning his bank and retirement accounts within seven days in compliance with the FJD, sanction defendant daily if he fails to turn over all this information, require proof that defendant paid 100% of her credit cards, require defendant to provide copies of his annual bonus each year, require defendant to pay $2500 towards her counsel feels in compliance with the FJD within seven days or issue a bench warrant for his arrest, require defendant to turn over all information regarding plaintiff's life insurance and provide proof that he has maintained his own life insurance within seven days, and require defendant to pay an additional $5000 to plaintiff's counsel.
According to defendant, during the week of July 11, 2011, his counsel was advised by the judge's law clerk that the judge would not be hearing oral argument because she was sick. Therefore, defendant's motion was heard on the papers. On October 12, 2011, the judge issued an order denying defendant's application in its entirety and granting plaintiff's application in its entirety under
The judge explained that pursuant to
The judge held that pursuant to
The judge also gave no credence to defendant's argument that he was entitled to relief under
Similarly, the judge rejected defendant's argument that he was entitled to relief under
The judge denied without prejudice defendant's application to claim his children as dependents, finding he was "currently $49,808.84 in arrears on his child support obligation." She explained that if defendant had been current on his child support obligations, she would have been inclined to grant him the exemptions. This appeal ensued.
Defendant then moved before the trial court for reconsideration and other relief, and plaintiff filed a cross-motion. By order of January 24, 2012, another Family Part judge granted defendant's motion to stay the October 6, 2010 FJD and enforcement of the October 12, 2011 order pending appeal, and granted defendant's request permitting him to claim the parties' four children as dependency exemptions for federal and state income tax purposes.
An application to vacate a default judgment is "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached."
Defendant contends his extensive travel itinerary and inability to afford counsel, due to his financial obligations to plaintiff and his children, which included two college tuitions, qualifies as excusable neglect pursuant to
Moreover, "a defendant seeking to reopen a default judgment [because of excusable neglect] must show that the neglect to answer was excusable under the circumstances and that he has a meritorious defense."
Pursuant to
We are satisfied the trial judge did not abuse her discretion in rejecting defendant's argument that he did not respond to pleadings and discovery due to excusable neglect. Defendant has failed to demonstrate due diligence in seeking to defend the divorce action. To the contrary, defendant's attempt to delay the proceedings was evident from the outset—he refused to acknowledge service of the complaint and ignored the notice to produce. Defendant had ample time to respond to the complaint and plaintiff's application for equitable distribution despite his travel itinerary. Moreover, he was granted an adjournment from the initial default hearing and still failed to retain counsel. Additionally, plaintiff certified that defendant told her he did not want to retain an attorney because he did not want a divorce, which is consistent with defendant's behavior.
We further note that defendant was present and heard the terms of the divorce default judgment in October 2010. Nevertheless, he waited eight months to file his motion to vacate the default judgment, and provided no explanation for the delay. We do not deem this to be a reasonable time under the circumstances.
Furthermore, defendant did not support his claim that he could not afford to retain counsel. Defendant provided virtually no information about his financial assets, but what he did provide significantly undermines this claim. Defendant's June 2011 case information statement reflects that he had a net annual income of $152,299.98 in 2010, was receiving gross average weekly income of $3010.42 and net average weekly income of $1799.62, and received a $106,560 bonus in January 2011.
Defendant next argues the FJD "is so inequitable and one-sided, on its face, that in the interests of justice, equity and fairness," it should be set aside. More specifically, defendant argues the court improperly calculated his average gross annual income, and it is inequitable to require him to pay for 100% of the children's college costs, extracurricular activities, and medical and automobile insurance, since plaintiff holds 40% of the income before child support; that his alimony and child support payments represents nearly 57% of his average annual gross income; that he has to pay for all of the marital debt incurred by the parties; and that he has to pay $2500 towards plaintiff's counsel fees, despite plaintiff not incurring that amount in fees.
Since finality is important to judgments, "relief under
As the trial judge noted, the FJD was based upon minimal financial information within plaintiff's possession because defendant failed to cooperate with discovery. Plaintiff relied mainly on defendant's 2007 and 2009 tax information in her possession. As she testified at trial, defendant's failure to provide his financial information was also the primary roadblock for a resolution during mediation. The judge advised defendant that he should have been involved in the process from its outset if he thought the equitable distribution was unfair.
It would have been preferable for the court to have acknowledged the factors and made findings based on plaintiff's testimony regarding her proposed equitable distribution,
Defendant has not convinced us that the equitable distribution is a "grave injustice" or a "truly exceptional circumstance" that calls for relief.
The $2500 counsel fee award, however, is a slightly different situation. In determining whether a counsel fee award is merited, courts consider several factors, including the requesting party's need, the other party's financial ability to pay, and the requesting party's good faith in instituting or defending the action.
Similarly,
We will not reverse a counsel fee ruling unless the parties can show an abuse of discretion involving a clear error in judgment.
Facially it appears that the $2500 fee was reasonable, and it was proper for the court to require defendant to pay it, particularly considering his obstreperous behavior in failing to acknowledge service of the complaint and ignoring the discovery request. Nevertheless, the record contains no evidence of the actual counsel fee incurred by plaintiff as of the FJD. Accordingly, we affirm the FJD in all respects, except that we direct plaintiff to provide the court with a copy of that bill to review and analyze on remand. The court, within its discretion as guided by legal principles, shall determine whether plaintiff's $2500 counsel fee request is reasonable and appropriate, or whether to award a lesser amount.
We note that the judge found defendant's application for federal and state tax dependency exemptions for the parties' four children was legally correct but denied it without prejudice based on the assumption that he was almost $50,000 in arrears on child support. That assumption was mistaken and presumably stemmed from plaintiff's June 23, 2011 certification in opposition to defendant's motion to vacate the FJD and in support of her cross-motion for enforcement, which advised that defendant's "support" arrears was $37,657.58, which was unallocated child and spousal support. Defendant responded that he paid the child support obligation in full since the FJD was entered, explaining that his "wages have consistently been garnished since his November 30, 2010 pay check . . . in the amount of approximately $2421.97 per paycheck." He calculated that from October 6, 2010 through July 6, 2011 (a total of 39 weeks), a total of $16,575.00 had been owed and paid in child support. For argument sake, even if defendant had missed every child support payment for two years, his arrears would only be approximately $44,200.
It appears defendant already obtained recourse in the January 24, 2012 order, which granted him the federal and state income tax dependency exemptions. To the extent it is relevant at this time, we note that the basis for the court's denial of the exemptions was in error.
Lastly, defendant challenges the $5000 counsel fee awarded by the court to plaintiff for defending against defendant's motion to vacate the FJD as arbitrary and an abuse of discretion. He notes that in plaintiff's counsel's June 28, 2011 certification of services, she requested only $1430 for actually incurred legal services (receipt and review of motion, preparation of cross motion—2 hours, preparation of motion and cross motion—2 hours, at $350 per hour, and filing fees). The total amount sought originally was $2305, but included an "anticipated court appearance" of 2.5 hours ($875), which never took place because the motions were heard on the papers by the court. Defendant emphasizes that the court placed no reasons on the record for the award, let alone any explanation for more than doubling the amount that plaintiff's attorney certified was even incurred in defending the motion.
"Trial judges are under a duty to make findings of fact and to state reasons in support of their conclusions."
The FJD is affirmed as modified; the October 12, 2011 order is affirmed as modified. We remand for review and analysis of the counsel fee awards under both orders. We do not retain jurisdiction.