LOLA G. TATE-PERKINS v. WILLIAM O. PERKINS, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3986-04T53986-04T5

LOLA G. TATE-PERKINS,

Plaintiff-Respondent,

v.

WILLIAM O. PERKINS, JR.,

Defendant-Appellant.

___________________________

 

Argued January 10, 2006 - Decided January 23, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court, Chancery Division, Family Part, Bergen County,

FM-02-2012-04.

Robert L. Utsey, Jr. argued the cause for appellant.

Matthew McGoey argued the cause for respondent (Charles A. Gruen, attorney; Mr. Gruen on the brief).

PER CURIAM

Defendant, William O. Perkins, appeals from a trial court order dated March 4, 2005, denying his application to vacate a January 20, 2005 judgment of divorce that was entered by default. Because we conclude that the trial court erred in suppressing defendant's answer with prejudice and in entering a final judgment by default, we reverse and remand this case to the trial court for further proceedings.

I

The relevant procedural history is as follows. Plaintiff, Lola Tate-Perkins, filed for divorce on March 15, 2004. Her complaint included a demand for equitable distribution. Defendant filed his answer in May 2004. Defendant, a disbarred attorney, represented himself. At a case management conference on June 2, 2004, the trial judge set a July 10, 2004 deadline for the parties to answer interrogatories and notices to produce. A second case management conference was held on August 30, 2004, and the judge issued another case management order, directing the parties to answer paper discovery by September 14, 2004. Defendant answered plaintiff's interrogatories, but did not provide financial documents in response to plaintiff's notice to produce. On this record it is undisputed that defendant advised plaintiff's attorney in a telephone call that he did not have those documents because plaintiff, who handled the couple's finances during the marriage, took all of the financial records when the couple separated. But defendant did not provide a formal response to the notice to produce certifying that he did not have the documents.

Plaintiff filed a motion to suppress defendant's answer for failure to respond to the notice to produce. The notice of motion advised defendant that the motion was made "pursuant to R. 4:23-5" and that plaintiff waived oral argument. Rule 4:23-5(a) provides that the remedy for a first motion to strike a pleading for failure to provide discovery shall be dismissal of the pleading without prejudice. Defendant did not respond to the motion. On November 19, 2004, without prior notice to either party, the court sua sponte suppressed defendant's answer with prejudice, entered default against defendant, and scheduled a proof hearing for December 22, 2004. The order also directed plaintiff to serve and file a notice of equitable distribution pursuant to Rule 5:5-2(e), and directed that a copy of the order be served on defendant "within 3 days." Plaintiff's counsel served the order and equitable distribution application on defendant by letter dated December 1, 2004. The order and the notice both indicated that a default hearing was scheduled for December 22, 2004. However, on November 15, 2004, the court had also sent the parties a trial notice indicating that the case was scheduled for trial on January 5, 2005.

Defendant failed to appear for the December 22, 2004 hearing. At the default hearing the judge took brief testimony from plaintiff and awarded her $65,619.88 in equitable distribution.

Defendant appeared on the scheduled trial date of January 5, 2005. The judge advised him that a default hearing had been held on November 22. The judge also advised that "I have not yet signed the judgment. In all probability I will sign the judgment and then you can make [your] motion to vacate." On January 18, 2005, before the judgment was signed, defendant filed a motion to restore his answer. On January 20, 2005, the court entered the default judgment, giving plaintiff $65,619.88 in equitable distribution and $4,000 in counsel fees and costs.

Defendant's motion was not heard until March 4, 2005. In February 2005 defendant, now represented by counsel, filed an "amendment to motion for relief from default judgment on short notice." This amended motion sought relief from the judgment under Rule 4:50-1 and also sought to restore defendant's answer under Rule 4:23-5. The amended motion was accompanied by a certification from defendant setting forth facts that, if true, would constitute a meritorious defense to plaintiff's claim for equitable distribution. He also certified that he had now provided a response to the notice to produce, and attached a copy of a formal response, dated February 24, 2005, which his attorney had sent to plaintiff's counsel. The certification also explained, as his attorney had stated in the formal response, that he could not provide the documents requested in plaintiff's notice to produce, because plaintiff had taken all of those documents when the parties separated. In his certification, plaintiff also explained that he "did not appear at the default hearing on December 22, 2004 because I received a trial notice for January 5, 2005 and I thought the January court date superceded the late December court date."

The trial judge denied the motion, reasoning that:

had the defendant really cared about the litigation and really wanted to participate in the litigation he would have been here on the 22nd whether or not he got a notice of being here on January 5th or so. So there is clearly in my opinion not good cause to set aside the default.

II

We can understand the trial judge's frustration at defendant's failure to timely provide discovery and his failure to appear for the default hearing, but we are constrained to reverse the judgment for several reasons. First, the trial court order suppressing defendant's answer with prejudice and scheduling a default hearing was inconsistent with Rule 4:23-5, the rule under which plaintiff filed her motion. This rule provides that the drastic sanction of suppressing a complaint or answer with prejudice is not to be imposed until the defaulting party has had a further opportunity to provide discovery. R. 4:23-5(a)(1). As we stated in Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 374 (App. Div. 1992), Rule 4:23-5 "is designed to elicit answers rather than to punish the offender by the loss of his cause of action or defense." See Colonial Specialty Foods, Inc. v. Cape May, 317 N.J. Super. 207, 211 (App. Div. 1999). Accordingly, on a first motion to suppress an answer for failure to provide discovery, the suppression is to be without prejudice. R. 4:23-5(a); Zimmerman, supra, 260 N.J. Super. at 374. If defendant still fails to provide the discovery after ninety days, plaintiff may move to suppress the answer with prejudice. R. 4:23-5(b). Oral argument may not be waived on such a motion. Zimmerman, supra, 260 N.J. Super. at 376.

In addition to being inconsistent with Rule 4:23-5, the court's sua sponte order was inconsistent with due process. Even assuming that the court had authority to exercise the draconian remedy of suppressing the answer with prejudice under its general authority to enforce the previous case management orders, see Rule 4:37-2, it was fundamentally unfair to enter such an order without notice to defendant. Plaintiff's motion only gave defendant notice that plaintiff was seeking relief under Rule 4:23-5, which calls for dismissal without prejudice on a first discovery motion. Hence, defendant was only placed on notice that he was in jeopardy of having his answer suppressed without prejudice. While we do not condone his failure to respond to the motion, he had no reason to believe that the consequence of his failure to respond would be the permanent loss of his right to defend himself in the case. See Zimmerman, supra, 260 N.J. Super. at 376 ("Nor should the dismissal with prejudice have been entered on the papers and without notification to plaintiff himself.") And the order of dismissal with prejudice was not supported by any statement of reasons for this drastic measure. Klajman v. Fair Lawn Estates, 292 N.J. Super. 54, 61 (App. Div. 1996) ("[A] motion for dismissal with prejudice requires the trial court to make an informed decision based upon a full record, and express its reasons for that decision before the case is dismissed.")

Moreover, even if defendant had appeared for the December 22 hearing we would still be compelled to reverse, because that hearing was not the equivalent of a trial on the merits. At a default hearing, defendant would not have had an opportunity to present affirmative proofs to support his claims. Hence he still would have suffered the drastic impact of the erroneously- entered order suppressing his answer with prejudice.

Finally, defendant's certification, if believed, sets forth a meritorious defense to plaintiff's claim for equitable distribution. See Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div. 1964). In his certification, he attested that plaintiff managed all of their finances, that she misapplied the profits from the sale of his real estate, and that she misrepresented her own credit card debt as being the couple's joint debt. Further, defendant's certification creates a material issue as to whether plaintiff took all of the couple's financial documents, and hence as to whether one or the other of the parties is unfairly withholding evidence. This issue cannot be decided without a testimonial hearing, which may be held prior to trial or may be explored at the trial. This dispute also makes it desirable that the parties be deposed prior to trial.

For all of these reasons, we reverse the March 4, 2005 order, vacate the judgment entered on January 20, 2005 including the award of counsel fees, and remand this matter for entry of an order reinstating the answer and for further proceedings consistent with this opinion. On remand, defendant shall be required to pay the $300 fee mandated by R. 4:23-5 for reinstating an answer dismissed without prejudice.

 
Reversed and remanded.

Neither party appears to be affluent, and the amount of money in dispute appears relatively modest. Now that the parties are both represented by counsel, perhaps as reasonable litigants they might be able to settle their differences in order to avoid further litigation expense.

(continued)

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A-3986-04T5

January 23, 2006