Opinion
DOCKET NO. A-4554-10T3
04-19-2012
SUSAN FRANCISCO, Plaintiff-Respondent, v. GERALD FRANCISCO, Defendant-Appellant.
Needleman and Pisano, attorneys for appellant (Frank Pisano, III, on the brief). O'Toole Fernandez Weiner Van Lieu, attorneys for respondent (Robert J. Gallop, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1426-04.
Needleman and Pisano, attorneys for appellant (Frank Pisano, III, on the brief).
O'Toole Fernandez Weiner Van Lieu, attorneys for respondent (Robert J. Gallop, on the brief). PER CURIAM
On March 15, 2010, defendant Gerald Francisco was ordered to reimburse plaintiff Susan Francisco $500 towards a child's uninsured medical expense. On December 20, 2010, defendant was again ordered to pay the $500 plus an additional $2456.72 in uninsured medical expenses for all three of the parties' children. He was then also ordered to pay $18,758, representing the total medical insurance premium payments plaintiff had advanced on behalf of the children since 2008. Defendant subsequently sought relief from both the March 15, 2010 and December 20, 2010 orders, which was denied. He now appeals, and we reverse, as defendant has established a basis for relief pursuant to Rule 4:50-1(f). The parties are therefore entitled to limited discovery on the subject and a plenary hearing on the issue of whether the consent judgment they entered into on August 6, 2008 shifted the obligation for the payment of the children's medical insurance to plaintiff.
When they divorced, defendant agreed to pay for the children's medical and dental insurance, and the parties further agreed to equally share payment of uninsured medical and dental expenses. Eventually, one of the children was diagnosed as requiring surgery for a chronic condition. In order to obtain coverage for the surgery to be performed by the child's long-time physician, the children were transferred from the policies paid for by defendant to policies available through plaintiff's employer.
Accordingly, the parties signed a consent order on August 6, 2008, stating "the Amended Dual Judgment of Divorce is hereby amended to remove responsibility for providing health insurance benefits for the three children from defendant, Gerald Francisco, and place responsibility for providing health insurance benefits for the three children upon plaintiff, Susan Francisco . . . ." Plaintiff's attorney wrote on March 27, 2008, to defendant's attorney:
I am in receipt of your letter dated March 25, 2008. I appreciate your client's willingness to agree to the Consent Order that will enable Nicholas to have the surgery he needs, performed by his current doctor. Ms. Francisco has maintained health insurance coverage for the children since June of 2007 and was informed that your client had removed the children from his policy. If he has not already done so, he can remove the children and will be under no obligation to maintain health insurance for the children thereafter, unless my client loses her employment and health insurance coverage.Since then plaintiff has filed several applications for enforcement of litigant's rights, modification of child support, and the like.
Regarding your inquiry as to there being "no additional cost" to Mr. Francisco, I do not understand this statement. By removing the children from his policy, his insurance rates should be reduced. However, my client, by undertaking the insurance coverage of the children, in no way is waiving her rights to request a modification in the current child support award at a later time. Any request for such modification would obviously reflect the change in insurance coverage, any changes in overnight visitation and change in income of both parties. At this time, such a request is not being contemplated.
Tracking the orders entered after the filing of the consent order, on August 7, 2009, on plaintiff's application for enforcement of litigant's rights, a Family Part judge directed: "defendant shall provide this [health care] coverage for children (by consent) . . . ." [(Emphasis added).] No reference was made to the August 6, 2008 consent order. We cannot determine from the record if defendant even participated in this proceeding. He now asserts that the use of the word "defendant" was a mistake, and that it should have been to "plaintiff," because the only consent order the parties entered into is the one making plaintiff responsible for coverage. Defendant took no steps to correct this alleged error.
Another order issued on March 15, 2010, also as a result of plaintiff's application for enforcement of litigant's rights. As we have said, that order required defendant in relevant part to reimburse plaintiff $500 in uninsured medical expenses. In the introductory paragraph, the order states that because defendant failed to file written opposition, he was not heard on the return date of the motion, adding: "[d]efendant requested oral argument, [which] would not have provided an expeditious resolution of the issues." The motion was decided solely on plaintiff's papers without input from defendant and the resultant order provides: "Defendant to reimburse [p]laintiff in the amount of paid health insurance, as it was [d]efendant's obligation to pay health insurance under the JOD." The precise amount of reimbursement was not calculated. The order does not mention the consent order, give any reason for the court's decision, or any explanation why defendant, who had requested oral argument, was not afforded the opportunity to be heard.
It was not until plaintiff's December 20, 2010 motion for enforcement of litigant's rights that defendant advanced the position that the consent order had made plaintiff responsible for the cost of the children's medical insurance coverage. Opining that defendant had forfeited his right to dispute the obligation because he did not appeal the March 15, 2010 decision imposing the obligation, or seek reconsideration within the proper time frame, the judge calculated defendant's arrears on premiums to total $18,758.
Finally, on April 5, 2011, the court denied defendant's motion, made pursuant to R. 4:50-1(f) and 4:49-2, seeking relief from the December 20, 2010 and March 15, 2010 orders. As to the December 20, 2010 order, the court reasoned that the parties changed policies solely to enable the child's surgery to be performed by his regular treating physician and for no other reason. The judge did not agree with defendant's interpretation of the language of the consent order, did not think it obliged plaintiff to pay for the premiums, and found no basis for reconsideration, which in any event was untimely. See R. 4:49-2.
The judge also said that defendant's asserted basis for relief under Rule 4:50-1(f), that he was self-represented and did not know how to file for reconsideration or appeal, was not adequate. The judge therefore decided that defendant was not entitled to relief from the initial March 15 order.
Under Rule 4:50-1, the court may, "upon such terms as are just," relieve a party from an order for a number of reasons including "mistake, inadvertence, surprise, or excusable neglect . . ." as well as "any other reason justifying relief . . . ."
Motions for relief from judgments are to be decided at the discretion of the trial court. In deciding such applications, the trial court should be guided by equitable principles. Morristown Housing Auth. v. Little, 135 N.J. 274, 283 (1994). We do not disturb the result unless it was a clear abuse of discretion. Ibid.
Motions for relief from an order based on Rule 4:50-1(a), due to mistake, are to be made within one year after the order was entered. R. 4:50-2. Relief due to "any other reason," under Rule 4:50-1(f), "shall be made within a reasonable time . . . ." R. 4:50-2.
Defendant contends that the 2008 consent order, viewed through the lens of the letter from plaintiff's attorney, made plaintiff responsible for the cost of the children's medical insurance. It is clear from the letter that defendant has at least a colorable claim.
Defendant does not explain his failure to take action until December 2010, after the purported misreading of the consent order first occurred in 2009. Yet, merely stating that he did not have an attorney is not the equivalent of excusable neglect.
The failure to establish excusable neglect does not, however, automatically act as an impenetrable barrier to vacating a default judgment pursuant to Rule 4:50-1(f) where the equities indicate otherwise. See Morales v. Santiago, 217 N.J. Super. 496, 504-05 (App. Div. 1987) (vacating judgment under Rule 4:50-1(f) after a proof hearing due to "misgivings" about the merits of plaintiff's claim even though defendant's attorney had not adequately presented defendant's case on the motion to vacate); Siwiec v. Fin. Res., Inc., 375 N.J. Super. 212, 218-20 (App. Div. 2005) (vacating judgment because even though defendant did not establish excusable neglect under subsection (f), plaintiff's right to judgment presented a novel question of law and defendant was not extended either notice of proof hearing or right to participate); T&S Painting & Mgmt. v. Baker Residential, 333 N.J. Super. 189, 193 (App. Div. 2000) (setting default judgment aside where service was inadequate, a potentially meritorious defense set forth, and inadequate proof of the claim provided); Monmouth County Soc. Servs. v. P.A.Q., 317 N.J. Super. 187, 196-97 (App. Div. 1998) (affording relief where judgment of paternity entered on a defective complaint, and no competent proofs provided, where defendant can demonstrate he is not the father of the child), certif. denied, 160 N.J. 90 (1999).
Hence, we conclude that defendant's failure to act, when he does appear to have at least a colorable defense to the $18,578 obligation, should not bar him from having his position heard, especially since he was denied that opportunity at the time of entry of the March 15, 2010 order that expressly imposed the obligation here in issue on defendant. In fact, every order in this matter requiring defendant to pay the premiums, including that of August 17, 2009, which on its face appears mistaken, were entered without defendant's participation. Although defendant's failure to contest this obligation sooner does not rise to excusable neglect, nevertheless the equities of the matter dictate that defendant be afforded limited discovery and a plenary hearing "to the end that a just result is reached." Marder, supra, 84 N.J. Super. at 319.
Reversed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
CLERK OF THE APPELLATE DIVISION