DEBORAH SPEER v. STEPHEN H. SPEER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3400-04T53400-04T5

DEBORAH SPEER,

Plaintiff-Respondent,

vs.

STEPHEN H. SPEER,

Defendant-Appellant.

__________________________________

 

Submitted: November 28, 2005 - Decided January 18, 2006

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Sussex County, Docket No. FM-19-285-01.

McGovern & Roseman, attorneys for appellant (James P. McGovern, of counsel and on the brief).

Frieri, Conroy & Lombardo, attorneys for respondent (Bart W. Lombardo, on the brief).

PER CURIAM

In this matrimonial matter, we review a Judgment of Divorce entered following entry of default against defendant and denial of defendant's motion for reconsideration. Due to defendant's incompetency at the time of entry of default and judgment, we reverse and remand for further proceedings to address equitable distribution of marital assets and the appointment of a new guardian ad litem for defendant.

The relevant facts in this appeal are as follows. Plaintiff Deborah Speer and defendant Stephen Speer were married on January 19, 1973 and lived together until December 1997, at which time they separated. The parties have lived apart since that time. In 1998, plaintiff filed a complaint for divorce, which was dismissed without prejudice for lack of prosecution. Thereafter, plaintiff filed a second complaint for divorce on December 19, 2000. Defendant filed an answer and counterclaim for divorce on May 23, 2001, alleging extreme cruelty and seeking, among other things, dissolution of the marriage and alimony. Plaintiff filed an answer to defendant's counterclaim on June 15, 2001.

Defendant suffers from severe mental illness, including bipolar disorder. In 1994, he was declared completely disabled by the Social Security Administration. On July 26, 2004, a Florida attorney was appointed to act as defendant's guardian ad litem (GAL). Thereafter, this matter was scheduled for trial on December 14, 2004.

On that date, both defendant and his GAL failed to appear for trial. At the request of defendant's attorney, the matter was rescheduled for trial on December 21, 2004, at which time defendant and his GAL again failed to appear. At the December 21, 2004 trial date, defendant's attorney informed the court that defendant was mentally incapacitated and had been admitted to the Mental Health Center at Newton Memorial Hospital (Newton Memorial) the previous day. In addition, defendant's counsel advised the court that the GAL could not be located. The court entered default against defendant, scheduled January 26, 2005, as the date for a proof hearing, and instructed plaintiff's counsel to serve a notice of equitable distribution on defendant; defendant's counsel was instructed to accept service on behalf of defendant.

On January 5, 2005, defendant was involuntarily committed to Newton Memorial. He was subsequently transferred to Greystone Park Psychiatric Hospital (Greystone), where a commitment hearing was held on January 18, 2005. Following the commitment hearing, a Superior Court judge ordered that defendant's involuntary commitment be continued pending a further hearing on February 15, 2005.

Prior to the scheduled hearing in the matrimonial matter, defendant's attorney filed a motion on short notice to vacate the default. On January 26, 2005, defendant did not appear for the scheduled matrimonial hearing due to his involuntary commitment at Greystone. Defendant's counsel advised the court of defendant's involuntary commitment and requested that the trial court vacate the default previously entered and appoint a substitute GAL. In addition, defendant's counsel requested that the matter be adjourned until appointment of a new GAL. The trial court denied counsel's motion and requests, and proceeded with the hearing to consider the issue of equitable distribution. While the court allowed defendant's counsel to cross-examine plaintiff, he was barred from presenting affirmative evidence in support of defendant's claim for alimony and valuation of marital assets. Subsequently, on January 27, 2005, the trial court entered a judgment of divorce and equitable distribution.

On appeal, defendant contends the trial court's entry of default and refusal to vacate default was an unreasonable exercise of discretion. Defendant further contends that the trial court's refusal to appoint a new GAL was an unreasonable exercise of discretion and, therefore, the trial court's default judgment should be vacated and the matter remanded with instructions to appoint a new GAL. We agree and reverse and remand for further proceedings.

Rule 4:43-3 provides that "[f]or good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with R. 4:50." See O'Connor v. Altus, 67 N.J. 106, 128-29 (1975) (finding the absence of "flagrant and contumacious" conduct sufficient "good cause" to warrant vacating default). Under Rule 4:50-1, a court may relieve a party from a default judgment for "(a) mistake, inadvertence, surprise, or excusable neglect; . . . or (f) any other reason justifying relief from the operation of the judgment or order." Rule 4:50 should be used sparingly, as it was designed to provide relief from judgments in situations where, were it not applied, "a grave injustice would occur." Housing Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994).

The requirements for setting aside a default judgment under Rule 4:50-1 are more stringent than the "good cause" standard for setting aside an entry of default under Rule 4:43-3. O'Connor supra, 67 N.J. at 129. Under the "good cause" standard, a trial court should vacate an entry of default in the absence of any "contumacious" conduct by the defaulting party. Ibid. A default judgment, however, will not be set aside unless the defendant seeking such relief can demonstrate that his failure to answer or otherwise appear and defend was somehow excusable, and that he has a meritorious defense to either the cause of action or the quantum of damages assessed. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964). Therefore, a defendant entitled to vacation of a default judgment is necessarily entitled to vacation of the entry of default. Bernhardt v. Alden Caf , 374 N.J. Super. 271, 276-77 (App. Div. 2005).

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." Marder, supra, 84 N.J. Super. at 319. The decision to grant such a motion is left to the sound discretion of the trial court, and will not be disturbed absent an abuse of discretion. Little, supra, 135 N.J. at 283-84. All doubts, however, should be resolved in favor of the parties seeking relief. Arrow Mfg. Co. v. Levinson, 231 N.J. Super. 527, 534 (App. Div. 1989) (citing Foster v. New Albany Mach. & Tool Co., 63 N.J. Super. 262, 269-70 (App. Div. 1960)).

Here, in entering default, the trial court relied on Scott v. Scott, 190 N.J. Super. 189 (1983). However, Scott is clearly distinguishable from the instant case. In Scott, the plaintiff wife filed a complaint against the defendant husband for alimony, child support, and equitable distribution. Id. at 191. The defendant's answers and defenses were struck for failure to provide discovery and file a preliminary disclosure statement. Ibid. Essentially, the defendant "'stonewalled' plaintiff completely." Id. at 194. Therefore, the court held that once default is entered, the defaulting party is precluded from offering affirmative proofs, although the defendant is entitled to cross-examine the plaintiff. Id. at 196.

Here, the trial court did not enter default for any contumacious acts of defendant. Rather, the record establishes that defendant failed to appear at trial due to his deteriorating mental condition and involuntary commitment. Defendant had been admitted to Newton Memorial on December 20, 2004, the day prior to trial. From there, pursuant to a court order, defendant was involuntarily committed on January 5, 2005. Defendant's commitment was continued on January 18, 2005, subject to a further hearing on February 15, 2005. Defendant's counsel notified the trial judge of each of these episodes in a timely manner.

The clinical certificates completed by defendant's treating physicians at Newton Memorial substantiate defendant's contention that he had good cause for not attending trial. As stated in one of the certificates:

P[atient]t has a 22 year [plus] [history] of depression (after he became sober) and has been in t[herapy] in Florida or here. Mult[iple] treat[ments] of t[herapy] - all without relief. Adm[itted] 12/20/04 - cont[inues] to decompensate, stays in bed in fetal position, A[ctivities] of D[aily] L[iving] [down], does not participate in t[herapy].

Under these circumstances, we conclude that defendant's conduct was neither "flagrant" nor "contumacious" and the trial court's refusal to vacate default was a mistaken exercise of discretion.

We appreciate the frustration of plaintiff and the court. This case was one of the oldest cases in the Sussex matrimonial inventory. Nevertheless, "courts will generally be solicitous in protecting the interests of the respective parties" in divorce proceedings. Curry v. Curry, 108 N.J. Super. 527, 529 (App. Div. 1970). A judgment by default is not favored in divorce actions, and "'courts are especially inclined to interpose by opening or setting aside such a judgment and giving defendant a day in court so that the merits of his defence may be passed upon, under such terms and conditions as to the payment of costs and alimony as to the court may seem proper.'" Id. at 530 (quoting Grant v. Grant, 84 N.J. Eq. 81, 83-84 (Ch. Div. 1914). Here, neither a default nor a default judgment should have been entered against a party who had been involuntarily committed, was unable to care for himself, and his GAL was inattentive, unresponsive, and absent.

We now turn to defendant's contention that the trial court's refusal to appoint a new GAL was an unreasonable exercise of discretion. Actions for the appointment of a guardian for a mentally incapacitated person are governed by the provisions of Rule 4:86. Rule 4:86-4(d) provides that "where special circumstances come to the attention of the court by formal motion or otherwise, a guardian ad litem may, in addition to counsel, be appointed to evaluate the best interests of the alleged mentally incapacitated person and to present that evaluation to the court." The GAL acts as the "eyes of the court" to further the "best interests" of the alleged incompetent. See Julius v. Julius, 320 N.J. Super. 297, 310-11 (App. Div. 1999) (holding appointment of GAL was proper to protect the interests of an incompetent husband during divorce proceedings); Kronberg v. Kronberg, 263 N.J. Super. 632, 640 (Ch. Div. 1993) (holding a GAL has the authority to obtain a divorce on behalf of an incompetent). See also In re Mason, 305 N.J. Super. 120, 127 (Ch. Div. 1997) (holding the GAL objectively evaluates and furthers the bests interests of an incompetent). Removal of a GAL must be for good cause and based on clear and convincing evidence of misconduct, an inability to serve the best interests of the ward, or incapacity of the GAL. Zukerman v. Piper Pools, Inc., 232 N.J. Super. 74, 95 (App. Div. 1989).

As noted above, defendant suffers from mental illness. In July 2004, the trial court appointed Thomas Morrison, a Florida attorney, to act as his GAL in the instant matter. Subsequently, in the months leading up to the December 2004 trial dates, defendant's mental health deteriorated substantially. With the help of his son, defendant returned to New Jersey to undergo treatment by a former treating doctor. On December 20, 2004, the day before trial was scheduled to commence, defendant was admitted to Newton Memorial. Throughout these events, defendant's GAL had not been in touch with defendant's attorney and, more importantly, was not in New Jersey where his assistance was needed.

In light of defendant's incapacity and the absence of his GAL, defendant's counsel requested that the court relieve Morrison as GAL and appoint Raymond Romano, a friend of defendant, in his place. In making this request, counsel informed the trial court of defendant's acute mental state and of the GAL's unresponsiveness. Nevertheless, the trial court denied counsel's application and stated that "this case has gone on far too long" and "the interests of justice are not served by continuing this matter further and allowing yet another person to step in the place of the guardian ad litem."

Based on the record, it is quite clear that defendant's GAL neither furthered defendant's "best interests" nor acted as "the eyes of the court." In re Mason, supra, 305 N.J. Super. at 127. Rather, he had abandoned his responsibilities when defendant was in a particularly vulnerable state and when trial was imminent. Thus, good cause clearly existed for removal of the GAL based on his inability to "serve the best interests of the ward." Zukerman, supra, 232 N.J. Super. at 95. Thus, on remand, a new GAL shall be appointed in New Jersey. If defendant has returned to Florida, Morrison should be removed and another capable GAL appointed in his place.

Given defendant's extensive psychiatric problems and his involuntary commitment at the time default judgment was entered against him, the trial court mistakenly exercised its discretion in entering such judgment. Furthermore, the trial court mistakenly exercised its discretion in denying defendant's application to appoint a new GAL. The judgment of divorce to the extent it distributes marital assets and addresses the support of either party is reversed and remanded for further proceedings consistent with this opinion. The judgment of divorce to the extent that it dissolves the marital union remains undisturbed.

 
Reversed and remanded for further proceedings. We do not retain jurisdiction.

For a majority of the time that the action was pending, defendant resided in Florida.

(continued)

(continued)

12

A-3400-04T5

 

January 18, 2006