JONA ALMASRI v. NAGY MICHEL KHAIRALLAH, a/k/a DAN MITCHELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2344-04T12344-04T1

JONA ALMASRI,

Plaintiff-Respondent,

v.

NAGY MICHEL KHAIRALLAH,

a/k/a DAN MITCHELL,

Defendant-Appellant.

_____________________________________________________________

 

Submitted September 26, 2005 - Decided

Before Judges Holston, Jr. and Gilroy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-2359-04.

Dan Mitchell, appellant pro se.

Jona Almasri, respondent, pro se, has not filed a brief.

PER CURIAM

Defendant, Dan Mitchell, appeals the January 11, 2005 final judgment of divorce granting plaintiff, Jona Almasri, a divorce from a fourteen year marriage to defendant on the ground of extreme cruelty. Defendant also appeals the January 7, 2005 order awarding attorney fees to plaintiff's counsel in the amount of $3,375. Because the final judgment appealed from was a default judgment, we dismiss the appeal without prejudice to defendant seeking relief from the judgment pursuant to R. 4:50-1.

The relevant procedural history has been garnered by a review of the exhibits and transcripts contained in the notice of appeal and in the appendix to defendant's brief. On October 18, 1999, plaintiff filed her first complaint for divorce against defendant and later withdrew the complaint. On October 29, 2003, plaintiff filed a second complaint for divorce against defendant in which she named defendant in the complaint caption as "Dan Mitchell f/k/a Nagy Khairallah." Plaintiff asserted that defendant had constructively deserted her by willfully refusing to engage in sexual relations with her commencing on or around August 15, 2002.

By order dated February 13, 2004, defendant's motion to dismiss the complaint for failure to state a claim was granted as unopposed. The order for dismissal read: "Pl atty advises no opposition. Therefore no case law or facts presented." The order does not state whether the dismissal was with prejudice.

Plaintiff filed her third complaint for divorce claiming extreme cruelty on May 21, 2004. The complaint names the defendant as "Nagy Mitchell Khairallah a/k/a Dan Mitchell." Plaintiff was granted leave to serve defendant by publication. Defendant became aware of the complaint by seeing the notice of summons published in the newspaper.

The notice of publication published in The Record on September 15, 2004, was captioned "Jona Almasri, plaintiff vs. Nagy Michael Khairallah a/k/a Dan Mitchell, defendant." It listed as the address of the defendant to be served: 370 W. Pleasant View Ave., #260, Hackensack, N.J. 07601.

Instead of filing an answer, defendant filed several motions. On September 21, 2004, he moved to dismiss asserting that (1) the complaint did not state his name as Dan Mitchell, (2) that both plaintiff and plaintiff's counsel knew of an address where he could be served, and (3) that plaintiff failed to serve defendant with a copy of the summons and complaint within seven days of publication. After receiving a copy of the affidavit of publication and opposition to the motion, defendant withdrew the motion on October 14, 2004.

Defendant filed a second motion on October 18, 2004, requesting that the court "impound" the complaint on the basis that the complaint was barred under the principle of res judicata because plaintiff's complaint had been dismissed by prior order of February 13, 2004, which dismissed plaintiff's second complaint. Defendant filed a third motion on November 17, 2004, seeking to disqualify plaintiff's counsel.

On December 21, 2004, plaintiff filed a cross-motion for attorney fees claiming defendant had caused plaintiff to incur unnecessary attorney fees in responding to frivolous motions. By letter dated January 3, 2005, defendant withdrew both pending motions. On the same date, plaintiff's counsel filed a request and certification to enter default for failure of defendant to file an answer. The ACMS printout shows a proof of mailing also being filed on January 3, 2005, but a copy is not included in the record.

On January 7, 2005, the motion judge awarded plaintiff $3,375 in fees. A notation on the order read:

[T]he fees [were] incurred by Ms. Almasri in defense of the numerous motions filed by Mr. Mitchell (f/k/a Mr. Khairallah) which are subsequently withdrawn. Mr. Mitchell has shown bad faith in his continuous motions brought which he withdraws a week before they are to be argued. A review of the certification of services shows 21.50 hours spent by counsel to review and respond to these motions.

A proof hearing was conducted on the default judgment application on January 11, 2005. The judge made the following findings:

Complaint for divorce [under docket number FM-09-2359-04] in this matter had been filed May 21, 2004. Because of the difficulty in serving Mr. Mitchell, not because he doesn't make his presence known, but because it's difficult to know where he resides, counsel requested an order for publication. That order was granted as of August 13 of 2004. Publication was completed on September 16 of 2004 and a default properly entered on December 3. Mr. Mitchell, also known as Mr. Khairallah, has brought numerous motions before the court to have this complaint dismissed, all of which have either been withdrawn by him prior to the argument date or denied by the court because there were no findings of fact that were presented and no issues of material fact that would have caused the matter to have been dismissed. As a matter of fact, there's an outstanding order of attorney's fees that I signed on January 7 noting that Mr. Mitchell has shown his bad faith in the continuous motions brought which he withdraws the week before they are to be argued. Mr. Mitchell has made his presence known, as I said, to the court as well as to counsel and to Ms. Almasri, but refuses to come before the court and submit to its jurisdiction. I believe that the matter has been properly served upon him and we're ready with the process to move forward.

The final judgment of divorce on the ground of extreme cruelty was entered the same date. Defendant learned of the default judgment on January 11, 2005, and filed his notice of appeal on January 18, 2005. Subsequent to filing his appeal, defendant sought a stay of the judgment and award of attorney fees. The judge on March 11, 2005, denied defendant's application to stay the judgment of divorce but granted stay of attorney fees. Defendant filed a motion with this court seeking a stay of the judgment of divorce, which was denied on May 5, 2005.

On appeal, defendant makes the following three arguments. First, defendant argues that the trial judge erred by not dismissing the complaint under the principles of res judicata and the Entire Controversy Doctrine and because service was defective as a result of plaintiff's failure to support the motion for service by publication with a statement that defendant could not be served within the State.

Defendant argues that the Entire Controversy Doctrine barred the granting of the complaint for divorce because at the time the second complaint alleging constructive desertion was filed, the facts constituting the alleged cause of action for extreme cruelty, on which the divorce was granted, would have been known to plaintiff. Defendant contends that an action based on two distinct legal theories is required to be brought in one proceeding.

Defendant argues that the service by publication is invalid because at all times his address was known to plaintiff and her counsel by virtue of the various motions that he brought, including the motion to dismiss the plaintiff's second complaint. Defendant also asserts that his address appeared on the several motions that he filed in connection with the third complaint filed by plaintiff. Defendant contends plaintiff was aware of his address from a June 11, 2004 complaint seeking money damages against plaintiff's parents, which lists his address as 370 West Pleasantview Avenue, # 260 Hackensack, New Jersey, 07601. Defendant claims the affidavit in support of the order for publication was based on insufficient inquiry. Defendant contends that plaintiff failed to comply with R. 4:4-5(c) by failing to mail within seven days after publication a copy of the notice of publication and the complaint to his residence. Defendant asserts that the divorce complaint and notice of publication were also invalid because defendant's actual name was not used in the notice of publication contained in the newspaper.

Second, defendant argues that the motion judge erred in granting plaintiff attorney fees contrary to the general "American Rule" and because the motion did not contain a "notice to litigant" pursuant to R. 5:5-4(d). Defendant contends that the court's award of counsel fees was granted on a faulty premise, i.e., that defendant had filed numerous motions with the court and withdrew them before they were heard. Defendant claims the court erred in granting fees because they were imposed as a sanction for frivolous litigation in violation of N.J.S.A. 2A:15-59, which does not apply to motions. Defendant asserts that he had an absolute right to challenge plaintiff's actions by seeking judicial redress of wrongs asserted by plaintiff against him. Defendant contends he made special appearances by filing three motions, two of them collaterally attacking the complaint and one seeking disqualification of opposing counsel, all of which were served on opposing counsel, thereby evidencing a clear intention to defend.

Third, defendant argues that he never received notice of the request to enter default or the date of the proof hearing pursuant to R. 4:43-2. In short, defendant asserts that the service by publication, the default of defendant based on that service, and the default judgment for divorce after a proof hearing were all entered in error.

Although we have detailed defendant's arguments, we are convinced that our decision in Haber v. Haber, 253 N.J. Super. 413 (App. Div. 1992) governs our disposition of this appeal. In Haber, the defendant appealed from the entry of a default judgment against him that established his obligation for child support, medical expenses, alimony, equitable distribution, arrearages and attorney fees. Haber claimed the judgment was entered on insufficient evidence. Id. at 415. We held that the rule in New Jersey is that a direct appeal will not lie from a judgment by default. Id. at 416. See also McDermott v. Patterson, 122 N.J.L. 81, 84 (E. & A. 1939) and Walter v. Keuthe, 98 N.J.L. 823, 826 (E. & A. 1923).

Our decision in Haber was reiterated in New Jersey Division of Youth and Family Services v. T.R., 331 N.J. Super. 360, 364 (App. Div. 2000). There, we rejected a similar attempt by T.R. on appeal to overturn on its merits the default judgment terminating his parental rights to his child.

As we observed in Haber, the trial judge is in the best position to decide the merits of a defaulted defendant's arguments, and the "defendant's voluntary conduct in absenting himself from the proceedings should not give him a better advantage on direct appeal than he would have as a movant under R. 4:50-1 where he is obligated to prove both excusable neglect and a meritorious defense."

[Ibid. (quoting Haber, supra, 253 N.J. Super. at 417).]

Accordingly, defendant's appeal is dismissed without prejudice and with leave to file a motion to vacate the default final judgment of divorce under R. 4:50-1 and R. 4:43-3 and for relief from the order awarding attorney fees pursuant to R. 4:50-1. We take no position as to whether such motion should be granted. We do not retain jurisdiction.

 
Dismissed.

The parties were married June 30, 1991.

While a copy of the attorney certification of services is included in the record, copies of the notice of motion and supporting certification of facts are not.

The attorney certification sought an award of attorney fees in the amount of $22,500.

The correct date is January 3, 2005.

An order suppressing brief of plaintiff for failure to file a timely answering brief was entered by the acting clerk of the Appellate Division on July 14, 2005.

The affidavit in support of service by publication is not in defendant's appendix.

(continued)

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10

A-2344-04T1

October 7, 2005