MALAMA GREKOS v. SOTIRIOS GREKOS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2453-04T32453-04T3

MALAMA GREKOS,

Plaintiff-Respondent,

v.

SOTIRIOS GREKOS,

Defendant-Appellant.

_______________________________

 

Submitted October 11, 2005 - Decided

Before Judges Holston, Jr. and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, FM-12-1277-04G.

Baer, Arbeiter, Ploshnick, Tanenbaum and Weiss, attorneys for appellant (Grisselle Camacho-Pagan, on the brief).

George G. Gussis, attorney for respondent.

PER CURIAM

Defendant, Sotirios Grekos (husband), appeals the December 9, 2004 final judgment of divorce granting plaintiff, Malama Grekos (wife), a divorce from husband on the ground of extreme cruelty. Because the final judgment appealed from was a default judgment, we dismiss the appeal without prejudice to husband seeking relief from the judgment pursuant to Rule 4:50-1.

The parties were married in Greece on January 27, 1969 and immigrated to the United States in 1977 with their son and daughter, now age thirty-five and thirty-three respectively. The parties separated in July 2003. At the time of separation, wife engaged the services of George A. Gussis, Esq., who had previously represented other members of wife's family, to represent her in the sale of the marital home. Because husband refused to obtain his own attorney for the real estate transaction, Gussis agreed to represent both parties, after they both agreed to equally divide the net proceeds of sale. The parties netted approximately $140,000. Gussis disbursed $70,000 directly to wife and in accordance with husband's instruction dispersed husband's $70,000 share to their son, for debts that husband claimed he owed his son. After the sale of their home, wife moved in with their daughter.

Wife filed her complaint for divorce on January 7, 2004. Husband was served on April 24, 2004 and never filed an answer. A request for entry of default was filed on June 21, 2004, and a notice of proposed equitable distribution with wife's case information statement (CIS) affixed was served on husband on July 31, 2004. The notice included advice of a default hearing date of August 20, 2004.

On August 20, 2004, husband appeared without an attorney. The court adjourned the hearing until October 29, 2004 to allow husband to obtain an attorney and ordered husband to pay wife's counsel a fee of $500 to cover the cost of wife's counsel's appearance.

Husband again appeared without an attorney on October 29, 2004. The court adjourned the matter to November 29, 2004 to give husband another opportunity to secure an attorney and ordered husband to pay plaintiff's counsel the previously ordered $500 plus an additional $500 to cover wife's counsel's cost of making another appearance. Husband advised the judge that he had been turned down by legal services but that he would try to go to Greece to sell two pieces of land to obtain funds to pay an attorney to represent him. The judge advised husband that he could not proceed in the matter by way of affirmative proofs, unless he first moved to vacate the default.

On November 29, 2004 husband again appeared without an attorney. The court adjourned the proof hearing until December 9, 2004 and, because husband claimed to be disabled from an automobile accident and unable to work, ordered husband to supply wife's counsel with his application for disability, a list of treating physicians, copies of his 2003 tax returns and his income to date.

On the adjourned date of December 9, 2004, husband still was without an attorney and had not filed a motion to vacate default. The court conducted a proof hearing and after taking testimony from wife entered a judgment of divorce.

The court awarded wife alimony in the amount of $300 per week, payable by wage execution through the probation department. The final judgment recites the court's basis for the alimony award: "The parties were married for thirty-four (34) years and the alimony is based on Plaintiff earning $8,226.31 in 2003 and now receiving Social Security Disability in the amount of $468.00 per month, and defendant earning approximately $48,000.00 per year during the marriage."

No equitable distribution was ordered as "[a]ll personalty has been divided to the parties' satisfaction including proceeds of the marital home." The court ordered that "Defendant shall contribute $2500.00 towards plaintiff's counsel fees for this proceeding . . . in addition to the $500 previously Ordered by the Court in its Order of August 20, 2004 and the $500 previously Ordered by the Court in its Order of October 29, 2004."

Husband filed a notice of appeal on January 21, 2005. On January 27, 2005, the trial judge orally amplified his findings on the record. The judge stated that he made no findings as to husband's ability to pay because husband never filed a CIS and he had no idea what assets or liabilities husband has. The judge advised that husband always retains the right to make the appropriate Rule 4:50-1 motion since he never filed an answer or appearance or moved to vacate default. The court restated its reasons for assessing $500 counsel fees each time the court granted husband an adjournment contending it was "inequitable to make [wife] continue to pay her attorney when its through no fault of hers." The judge also stated that he did not believe an ethical conflict existed when Gussis represented wife since no confidential information was obtained when he represented both parties in the sale of their marital house.

Husband presents the following arguments for our consideration.

POINT I

THE TRIAL COURT FAILED TO MAKE APPROPRIATE FINDINGS OF FACT AND CONCLUSIONS OF LAW SUPPORTING THE ALIMONY AWARD WITH A PROPER ANALYSIS OF THE CRITERIA REQUIRED UNDER N.J.S.A. 2A:34-23;

POINT II

THE TRIAL COURT ERRED IN AWARDING PLAINTIFF COUNSEL FEES WITHOUT MAKING APPROPRIATE FINDINGS OF FACT AND CONCLUSIONS OF LAW UNDER N.J.S.A. 2A:34-23 AND R. 5:3-5, AND, BECAUSE PLAINTIFF'S COUNSEL NEVER FILED AN APPROPRIATE AFFIDAVIT OF SERVICES AS REQUIRED BY COURT RULE; AND

POINT III

PLAINTIFF'S COUNSEL HAD A CONFLICT OF INTEREST IN REPRESENTING THE PLAINTIFF BECAUSE HE HAD REPRESENTED BOTH PARTIES IN THE SALE OF THE MARITAL HOME AND SHOULD BE RESTRAINED FROM FURTHER REPRESENTATION OF PLAINTIFF.

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 "[d]efendant'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, husband's appeal is dismissed without prejudice and with leave to file a motion to vacate the default final judgment of divorce under Rule 4:50-1 and Rule 4:43-3. We take no position as to whether such motion should be granted. We do not retain jurisdiction.

 
Dismissed.

(continued)

(continued)

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A-2453-04T3

October 26, 2005