Opinion
DOCKET NO. A-2733-12T2
09-11-2014
BIN WEI, Plaintiff-Respondent, v. STACIE WEI, Defendant-Appellant.
Brisolla Law Firm, LLC, attorneys for appellant (Leviston N. Brisolla, on the brief). Weiner Lesniak, LLP, attorneys for respondent (Gregory A. Pasler, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Maven and Hoffman. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-1097-11. Brisolla Law Firm, LLC, attorneys for appellant (Leviston N. Brisolla, on the brief). Weiner Lesniak, LLP, attorneys for respondent (Gregory A. Pasler, on the brief). PER CURIAM
In this matter, we consider whether a party must move before the trial court to vacate a final judgment of divorce, entered by default, before filing a direct appeal from that judgment. Defendant Stacie Wei appeals from the December 7, 2012 amended final judgment of divorce (JOD), dissolving the marriage between her and plaintiff Bin Wei, establishing custody, fixing child support, and equitably distributing marital assets and allocating marital debts. Defendant failed to comply with numerous discovery orders resulting in the dismissal of her pleadings. Defendant did not seek reinstatement and, on plaintiff's request, defendant's pleadings were dismissed with prejudice on August 28, 2012. Subsequent motions by defendant to reinstate her pleadings were denied because she neither provided discovery, which included an accounting of monies she was alleged to have dissipated, nor paid the reinstatement fee. A final proof hearing was held; defendant did not attend. The JOD was issued and defendant's appeal challenging entry of the judgment by default ensued.
Defendant contends the trial judge erred in denying her motion to vacate the JOD. Plaintiff responds, arguing defendant's appeal was not properly perfected because defendant failed to move to vacate the JOD prior to filing her appeal.
Following our review, we conclude the judge properly denied defendant's motion to reinstate her pleadings because she failed to satisfy the requisite reinstatement fee as ordered. More important, we hold a motion to vacate a judgment under Rule 4:50-1 is a prerequisite to appealing from such a judgment. Defendant failed to satisfy this requirement. Accordingly, we dismiss her appeal.
The matter does not require significant analysis of the factual underpinnings. We include a brief recitation of essential facts to provide the proper context for defendant's arguments. The facts are predominately taken from the statements of reasons accompanying the order entered by the Family Part, as defendant has omitted her motion papers from the record.
The parties were married on February 10, 1991, in Beijing, China. They have two children; the older child is emancipated and the younger child is almost thirteen. Plaintiff filed a verified complaint for divorce on June 15, 2011, alleging irreconcilable differences. Defendant filed an answer and counterclaim alleging marital fault, including extreme cruelty and abandonment.
Shortly after the litigation commenced, defendant was hospitalized for depression and anxiety. The court appointed a temporary guardian ad litem (GAL) to assess defendant's competence to stand trial. A hearing was held to review the report of the GAL, which included defendant's medical and psychological evaluations. Defendant did not attend the hearing. Through the GAL, defendant claimed her condition was managed and she was capable of representing herself in the litigation. After reviewing the evidence, the trial judge determined defendant was competent to represent herself and the GAL was discharged.
Several pendente lite motions were filed regarding temporary support, custody and possession of the marital home. Also, these highly litigious parties filed several emergent enforcement requests. At a hearing held on April 4, 2012, defendant, for the first time, requested an interpreter. The judge found the request unfounded, noting defendant, who came to the United States in 1993, demonstrated her competency in English, had earned a master's degree from the New Jersey Institute of Technology, worked several years, and demonstrated no communication deficits when filing pleadings or presenting arguments over the previous ten months of litigation.
Preceding a determination on the merits of each party's respective applications, the judge next considered plaintiff's assertion defendant had concealed and possibly dissipated assets in 2011. The judge addressed this issue and explained defendant was required to complete outstanding interrogatories or her pleadings could be dismissed. In response, defendant suggested her mental health problems precluded her ability to comply. The judge noted defendant's mental status had been reviewed, her competence determined and no new evidence supporting a change in her mental health status was offered.
An April 10, 2012 order, in addition to addressing the over thirty issues presented in the parties' cross-motions, urged defendant to comply with discovery deadlines set forth in a case management order. Should defendant fail to provide answers to interrogatories and the requests in plaintiff's notice to produce, plaintiff's request that defendant's pleadings be dismissed without prejudice would be granted. Separate provisions directed defendant to produce documents pertaining to her termination of employment, including all severance benefits, and required she file an updated case information statement within fourteen days. The judge also ordered defendant to provide an accounting of "all marital funds dissipated . . . transferred[,] etc." within seven days and, should defendant fail to do so, plaintiff was authorized to submit application for an order, on five days' notice to defendant, to strike defendant's pleadings with prejudice.
The parties appeared before a different Family Part judge for a case management conference on April 25, 2012. The judge questioned defendant, asking whether she intended to hire an attorney to provide her legal representation. Defendant declined, stating she could not afford to pay counsel because "she [was] disabled" and suggested she had no confidence in attorneys. Defendant's obligation to provide discovery regarding her alleged dissipation of assets was also reviewed. On May 8, 2012, when the ordered discovery remained outstanding, the judge dismissed defendant's pleadings without prejudice, subject to reinstatement, once she complied.
Contemporaneously, a custody evaluation was completed, which concluded defendant "ha[d] the ability to act as the parent of primary residence on a long-term basis and should immediately be allowed to return to the marital residence to care for her children." This report prompted defendant's emergent application for possession of the former marital home. The judge denied the requested relief because defendant had not provided discovery or moved to reinstate her pleadings, as required by Rule 4:23-5(a)(1). Plaintiff's cross-application was also denied.
A flurry of emergent applications were filed in June 2012, regarding defendant's failure to comply with prior orders delineating procedures governing defendant's parenting time and entry into the former marital home. On the June 26, 2012 return date, counsel appeared on behalf of defendant. The judge entered an order addressing possession of the home and scheduled the case to be reviewed by a matrimonial early settlement panel on July 9, 2012. Defendant purportedly ignored the order restricting her entry, and new emergent relief was sought by plaintiff. Another Family Part judge considered the request of each party and entered the necessary orders.
On August 14, 2012, a trial addressing custody and parenting time issues commenced. Testimony was presented by both parties. The judge also considered arguments regarding defendant's continued failure to comply with plaintiff's document production requests. Specifically, defendant had not provided copies of her bank statements or the previously ordered accounting. On August 15, 2012, after oral argument, the judge modified the discovery requirements by limiting defendant's ability to introduce evidence not previously provided and permitted reinstatement of defendant's pleadings upon payment of the $300 restoration fee, due by August 27, 2012. If defendant failed to pay as ordered, the order stated defendant's pleadings would be dismissed with prejudice. The order also denied defendant's motion to quash and authorized plaintiff to serve third-party subpoenas to gain information from defendant's former employer and documents regarding her assets. Further, the order provided in the event of defendant's failure to restore her pleadings as directed, plaintiff was authorized to file a notice of entry of final judgment pursuant to R. 5:5-10 and a final hearing would be held.
The court finalized custody and parenting time in an August 17, 2012 order. On August 28, 2012, defendant had not paid the reinstatement fee and her pleadings were dismissed with prejudice. Dates scheduling submission of a proposed final judgment with accompanying support and the final hearing were set. Ultimately, the final hearing was scheduled for October 26, 2012.
On October 18, 2012, defendant wrote a six-page letter to the Assignment Judge, outlining her view of the issues presented in the case and requesting the trial judge's removal because she was biased. Defendant then filed a motion requesting various forms of affirmative relief, including a request to vacate default and restore her pleadings, which was denied. In the statement of reasons attached to the order, the judge outlined the orders defendant disregarded and the numerous opportunities she ignored to reinstate her pleadings. The judge concluded the effect of the involuntary dismissal with prejudice operated as an adjudication on the merits pursuant to Rule 4:37-2.
Defendant did not attend the October 26, 2012 final hearing. The judge restated the basis for striking defendant's pleadings, namely her failure to comply with discovery and pay the restoration fee. Plaintiff presented testimonial and documentary evidence. She reserved her final decision but entered an order to release $25,000 to each party from an escrow account.
Defendant, representing herself, filed an emergent motion regarding parenting time on November 14, 2012. During the hearing held the same day, defendant renewed her request for an interpreter. The judge, who noted the request was untimely as it was made the day prior to the hearing, considered an interpreter unnecessary, stating:
You have been litigating for almost two years speaking just fine English. You have represented yourself throughout this litigation for a good part of the time speaking English. . . . You testified at your custody hearing in English. You've got a master's degree in the United States at the New Jersey Institute of Technology. You worked for what, [seventeen] years or more, in United States companies speaking English. You are an English speaking person.In any event, the judge allowed the defendant to submit a formal request for an interpreter during future hearings.
Defendant next filed a motion to recuse the trial judge, vacate the default, reinstate defendant's pleadings, sanction plaintiff for violating the court's order directing him to send e-mail updates regarding their child, order plaintiff to pay defendant support, release funds from the escrow trust account, and increase her holiday parenting time. Plaintiff filed a cross-motion seeking different modifications of the parenting time order.
Prior to considering the motions, the judge issued the December 4, 2012 JOD, accompanied by a thirty-six page statement of reasons supporting her conclusions. The motion hearing was held on December 7, and an order was issued denying the parties' respective requests for relief.
On December 7, 2012 an Amended JOD was issued to correct a clerical error.
Defendant moved to file an appeal from the JOD as within time, which we granted. Defendant also requested the trial court to stay enforcement of the JOD, which was denied. A similar request was not made to this court.
On appeal, defendant argues the trial judge abused her discretion in denying her motion to vacate the default judgment and reinstating her pleadings. Defendant suggests her failure to comply with the court's orders was excusable due to her mental difficulties, her lack of proficiency with the English language, and her status as a pro se litigant. Defendant also maintains she offered meritorious challenges to the equitable distribution provisions in the JOD and the denial of an award of alimony. Consequently, defendant asserts the judgment should have been set aside under Rule 4:50-1 and a new trial ordered. Plaintiff maintains defendant's failure to first apply to the trial court for relief from the amended divorce judgment precludes consideration of her appeal.
"Our Rules prescribe a two-step default process, and there is a significant difference between the burdens imposed at each stage." US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 466-67 (2012). First, entry of default is requested pursuant to Rule 4:43-1. "[R]elief from that default may be granted on a showing of good cause." Ibid. (citations omitted). Second, a request for entry of default judgment, pursuant to Rule 4:43-2, must be made. Once judgment is entered, a movant seeking to vacate that judgment must meet the standards set forth in Rule 4:50-1. "The required good-cause showing for setting aside an entry of default . . . is clearly a less stringent standard than that imposed by Rule 4:50-1 for setting aside a default judgment." Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:43-3 (2014).
While, "the opening of default judgments should 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. 1964), a "trial court's determination under [Rule 4:50-1] warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." Guillaume, supra, 209 N.J. at 467 (citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009)).
In our review, we do not second-guess the exercise of sound discretion by the court because we recognize "[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court." Higgins v. Polk, 14 N.J. 490, 493 (1954); DeVito v. Sheeran, 165 N.J. 167, 198 (2000). Such determinations should not be overturned on appeal unless it can be shown that the "court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (internal quotation omitted). However, a "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
[U .S. Bank Nat. Ass'n v. Williams, 415 N.J. Super. 358, 365 (App. Div. 2010).]
Rule 4:50-1 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 excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and for which by due diligence could not have been discovered in time to move for a new trial"Rule 4:50-1 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." Baumann v. Marinaro, 95 N.J. 380, 392 (1984) (internal brackets omitted) (citing Hodgson v. Applegate, 31 N.J. 29, 35 (1959)).
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.
In this matter, defendant argues the default judgment should be vacated as her failure to comply with the prior discovery orders was excusable because of her mental health problems. We reject this unfounded assertion.
To obtain relief pursuant to Rule 4:50-1(a), a party must prove "a showing of excusable neglect and a meritorious defense" to successfully vacate a default judgment. Guillaume, supra, 209 N.J. at 468. "Excusable neglect has been defined as excusable carelessness attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Pressler & Verniero, supra, comment 5.1.2 on R. 4:50-1 (internal quotations and citation omitted).
Without question, defendant's initial hospitalization raised concerns regarding her competence and ability to proceed. The judge ordered an investigation and conducted a hearing to determine whether defendant was able to represent herself. Plaintiff provided her position to the GAL, whose report included defendant's medical records. Defendant, however, declined to appear at the hearing. Based on the documents, the judge concluded defendant's condition had greatly improved since her hospitalization. Defendant's self-report, as relayed by the GAL, reflected she wanted to represent herself and felt emotionally and physically able to do so. Thereafter, defendant fully assumed her own representation.
A psychiatric evaluation prepared by Timothy W. Welles, Ed.D., in April 2012, reinforced defendant's competence as it concluded her "thought processes were coherent and goal-directed"; her "[i]nsight and [j]udgment were good; was compliant with prescribed medication and attended therapy; and her "symptoms of anxiety and depression" were reduced. Ultimately, Dr. Welles concluded defendant "ha[d] the ability to act as the parent of primary residence on a long-term basis and should immediately be allowed to return to the marital residence to care for her children." Defendant moved for custody of the minor child, asserting she was physically and mentally able to perform as the parent of primary residence. Since her initial hospitalization for depression brought on by the plaintiff's filing for divorce, there is no evidence defendant relapsed or continued to suffer from any debilitating condition.
The judge's statement of reasons accompanied her October 24, 2012 order denying the motion to vacate the default judgment. The judge detailed defendant's demonstrated recalcitrance starting with her refusal to comply with the February 21, 2012 order directing she provide an accounting of the marital assets in her name, including any assets that she dissipated in the prior two years. Defendant was given additional opportunities to comply in both the April 10 and May 7 orders where her pleadings were dismissed without prejudice. After the August 14 and 15, 2012 hearing, when defendant, appearing with counsel, testified in support of her request for residential custody, the judge modified the discovery production and accounting requirements. Essentially, the only requirement imposed on defendant was payment of the restoration fee. See R. 4:23-5(a)(1). The order was personally served upon defendant at the hearing. Even this reasonable and fair accommodation was disregarded.
The August 15, 2012 order provided at paragraph 5:
Defendant's request that her pleadings be restored is denied, without prejudice. Defendant shall pay the restoration fee of $300 by August 24, 2012 and provide proof of same to the [c]ourt. Only in the event defendant pays the restoration fee by August 14, 2012, the [c]ourt will enter an [o]rder reinstating [d]efendant's pleadings.
Defendant subsequently moved to set aside default, however, the court had already entered a default judgment after her pleadings were dismissed with prejudice. The judge concluded defendant's application did not satisfy the requirements of Rule 4:50-1, justifying its denial.
We have limited ability to assess this determination, because defendant failed to include her motion papers. See R. 2:6-1(a)(1)(I) (stating appellant's appendix shall contain "such other parts of the record . . . as are essential to the proper consideration of the issues"). See also R. 2:6-3. Such deficiency renders full review futile and warrants a great deal of deference to the trial judge's factual findings supporting her conclusion. Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002). Therefore, because defendant presented the matter "in a manner which rendered review on the merits impossible, we have no alternative but to affirm[.]" Id. at 177-178.
In addition, although defendant could not affirmatively present evidence, she maintained the right to cross-examine plaintiff and challenge the credibility of his proofs at the October 27, 2012 proof hearing. Nevertheless, defendant decided not to attend. Instead, in November 2012, defendant filed an emergent application to vacate the default judgment. At this hearing, defendant made her second request for an interpreter, which was denied because she "was an English speaking person." These pleadings are also omitted from the record. For the reasons stated above, we have no basis to alter the result. Ibid.
We remain equally unpersuaded by defendant's argument urging the default judgment be vacated because of mistake. See DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 263 (2009) (holding a default judgment may be vacated on grounds of mistake where litigation errors are unable to be protected against). Rather, the record reflects defendant presented claims of mental health infirmities or the need for a translator when it suited her, depending on the context of her appearance. For instance, on issues regarding custody, she easily moved for relief and complied with requests on August 15, 2012, she testified that her emotional health had greatly improved and was "better and better, definitely." Neither an absence of comprehension caused by mental illness nor deficits in English proficiency impeded these pursuits. In fact, defendant, while self-represented, affirmatively moved for relief on several occasions. However, when the inquiries focused on the parties' assets, defendant reverted to claims where she was hampered by her "sickness" or unable to comprehend without the benefit of a translator. Accordingly, we easily reject these assertions as meritless. See R. 2:11-3(e)(1)(E).
We also find no factual support demonstrating carelessness, rising to excusable neglect "attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 335 (1993). Recognizing the record omits crucial pleadings necessarily precluding our undertaking any fact sensitive inquiry, we rely on the statement of reasons accompanying the trial judge's orders, which thoroughly sets forth the basis for her conclusions. There, the judge found defendant "at no time prior to the dismissal of her pleadings attempted to provide the [c]ourt with evidence suggesting that she was disabled." As for defendant's linguistic shortcomings, the judge specifically found defendant was intelligent, having obtained a master's degree in the United States, worked for years at large national corporations, and was "an English speaking person" who did not need an interpreter. Quite simply, defendant chose when and if to participate or obey the court orders. Accordingly, we reject the suggestion defendant's lapses were "excusable under the circumstances because of her mental incompetence . . . and lack of a translator."
Defendant lists her lack of representation as additional grounds for excusable neglect. New Jersey civil practice anticipates the participation of self-represented litigants, see Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989) ("[T]he rules governing civil practice in our courts recognize that in certain forms of litigation there is a larger percentage of pro se participation . . . ."), and that fact in and of itself in no way supports a request to vacate a final judgment entered by default.
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For completeness, we also address what appears to be defendant's argument that the JOD should be set aside. "The rule in New Jersey is that a direct appeal will not lie from a judgment by default." Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992). See also Pressler & Verniero, supra, comment 4.4 on R. 4:50-1 ("This rule [Rule 4:50-1] ordinarily provides the sole recourse for relief from default judgment; direct appeal does not lie."). To the extent defendant seeks to vacate the comprehensive JOD, which ordered the equitable distribution of the parties' property, payment of child support, the denial of spousal support, and attorney's fees and costs, she is procedurally barred. "Defendant's voluntary conduct in absenting [her]self from the proceedings should not give h[er] a better advantage on direct appeal[.]" Haber, supra, 253 N.J. Super. at 417. Thereafter, she did not properly file to vacate the final judgment. Thus, relief from that judgment is not available from this court.
Finally, defendant's claims of unfairness in the allocation of marital assets in the JOD are unavailing. The record includes plaintiff's unrefuted testimony, supported by his case information statement. Defendant's claims of deficiency were not considered because she would not comply with discovery and failed to attend the final hearing at which she could have challenged plaintiff's credibility. The trial judge carefully and critically weighed the statutory factors underlying distribution of property, pursuant to N.J.S.A. 2A:34-23. The judge credited this evidence and we defer to these findings. Cesare v. Cesare, 154 N.J. 394, 412 (1998) ("Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility.") (citation and internal quotation marks omitted)). Accordingly, we find defendant's final argument lacks merit. Defendant seeks to vacate the JOD because of alleged factual mistakes contained in the GAL's report. Not only are the claimed erroneous statements immaterial, they were never raised before the trial court precluding our review. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (stating "our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest") (citations and internal quotation marks omitted)).
The orders denying plaintiff's motions to vacate the default judgment are affirmed. Her appeal of the JOD is dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION