RUTH ANN SMITH v. RONALD SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6838-03T56838-03T5

RUTH ANN SMITH,

Plaintiff-Respondent,

v.

RONALD SMITH,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 21, 2005 - Decided June 2, 2006

Before Judges Fall and Parker.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Hudson County, Docket No. FM-09-1792-03.

Shubert & Associate, attorneys for appellant

(Kimberly A. Shubert, on the brief).

Cheryl Scott Cashman, attorney for respondent.

PER CURIAM

Defendant Ronald Smith appeals from a final judgment of divorce entered on November 21, 2003; an order entered on May 10, 2004 denying his motion to vacate the final judgment and change venue; and an order entered on July 2, 2004 denying his motion for reconsideration.

The parties were married on April 27, 1973 and had two children, Keith, born on December 29, 1974, and David, born on October 11, 1976. Both are now emancipated. On February 22, 2002, plaintiff filed a complaint for divorce in Hudson County. Subsequently, defendant moved to change venue from Hudson to Ocean County based upon his claim of a disability that rendered him unable to drive any distance. The motion was supported by defendant's certification and a March 25, 2002 letter written by Samuel E. Epstein, D.O., which states in its entirety:

Mr. Smith is being treated by me for degenerative disk disease and arthritic changes of the lumbosacral spine status post an L4-5 and L5-S1 laminectomy.

Based on the condition of his back, I do not feel that he can drive continuously for more than one half hour at a time.

The unopposed motion was granted on May 24, 2002.

On September 9, 2002, plaintiff requested that a default be entered and on November 8, 2002, she moved to change venue back to Hudson County. Notwithstanding the pending motions, on November 19, 2002, the complaint was administratively dismissed for failure to prosecute.

On February 20, 2003, plaintiff filed a second complaint in Hudson County. Defendant failed to file an answer and on October 28, 2003, she filed a notice of application for equitable distribution. Defendant failed to oppose the application and on November 21, 2003, a final judgment of divorce was entered with provisions for the equitable distribution sought by plaintiff.

On or about March 16, 2004, defendant moved to vacate the judgment and transfer the matter to Ocean County. Plaintiff cross-moved for contempt on the grounds that defendant had been properly served and neither he nor his attorney took any action on the case. On May 10, 2004, defendant's motion to vacate the judgment and transfer venue to Ocean County was denied, and plaintiff's motion for contempt was granted. Defendant was ordered to pay plaintiff's counsel fees. On June 3, 2004, defendant moved for modification of the judgment and plaintiff cross-moved to compel defendant to pay the counsel fees and comply with the final judgment. On July 2, 2004, defendant's motion was denied and plaintiff's cross-motion was granted.

Defendant appealed and argues:

POINT ONE

DEFENDANT SHOULD BE PERMITTED TO PRESENT ISSUES ON THIS APPEAL THAT WERE NOT RAISED BELOW

POINT TWO

THE COURT SHOULD VACATE FINAL JUDGMENT BECAUSE DEFENDANT HAS BEEN DEPRIVED OF HIS DAY IN COURT BY THE STARK IMPRUDENCE OF HIS TRIAL COUNSEL (NOT RAISED BELOW)

A. The Trial Court abused Its Discretion by not Vacating the Default (Not Raised Below)

POINT THREE

PLAINTIFF WAS IMPROPERLY PERMITTED TO VENUE SHOP BY FILING A COMPLAINT IN HUDSON COUNTY AFTER VENUE WAS ALREADY TRANSFERRED TO OCEAN COUNTY AND THE CASE WAS DISMISSED FOR PLAINTIFF'S LACK OF PROSECUTION

POINT FOUR

DEFENDANT WAS NOT PROVIDED ADEQUATE NOTICE OF THE HEARING

POINT FIVE

DEFENDANT WAS NOT PROVIDED ADEQUATE NOTICE OF PLAINTIFF'S CLAIM OF ALIMONY

POINT SIX

DEFENDANT HAS MERITORIOUS DEFENSES TO PLAINTIFF'S CLAIMS FOR EQUITABLE DISTRIBUTION AND ALIMONY (NOT RAISED BELOW)

To the extent we understand defendant's arguments, he contends that after the initial complaint was transferred to Ocean County, plaintiff allowed it to be dismissed for failure to prosecute and then re-filed in Hudson County. In his argument, however, defendant overlooks the fact that the order dismissing the first complaint in Ocean County was entered while two motions filed by plaintiff were pending. There is nothing in the record to explain why the case was administratively dismissed while motions were pending, but defendant's argument is clearly without merit. R. 2:11-3(e)(1)(E).

Although defendant represents that he had retained counsel to represent him at the default hearing and counsel failed to appear, he does not provide us with any evidence of a retainer agreement, a cancelled check for a retainer fee or any other documentation indicating that counsel was actually retained. He maintains that his attorney failed to file papers but he did not submit any proofs regarding the attorney's involvement or failure to respond. It appears from the language in the final judgment that a hearing was held on November 19, 2003 regarding the entry of the judgment and equitable distribution. Defendant did not, however, provide a transcript of that proceeding. Indeed, the only transcript provided to us is from the November 21, 2003 argument on defendant's motion to vacate the default judgment, at which plaintiff's counsel appeared, but defendant's did not. Moreover, defendant's post-judgment motion in 2004 for change of venue, which is supported by counsel's certification, relies on the same letter dated March 25, 2002 from Dr. Epstein that was appended to the motion to change venue made in May 2002.

Finally, we are unable to determine from the record whether plaintiff complied with the requirements of R. 5:5-2(e) governing the entry of default judgments of divorce with provisions for equitable distribution.

Given the state of the record before us, we are unable to decide the issues raised in this appeal. We, therefore, dismiss the appeal without prejudice to allow defendant to perfect the record and re-state his arguments in the context of the full record within forty-five days from the date of this opinion. R. 2:8-2.

The appeal is dismissed without prejudice. If defendant fails to perfect the appeal within forty-five days, it will be deemed dismissed with prejudice. We do not retain jurisdiction.

 

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A-6838-03T5

June 2, 2006