DENISE CASOLA v. MICHAEL HORMAZA

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3731-07T23731-07T2

DENISE CASOLA,

Plaintiff-Respondent,

v.

MICHAEL HORMAZA,

Defendant-Appellant.

_______________________________

 

Submitted April 22, 2009 - Decided

Before Judges Lihotz and Messano.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-0365-08.

Michael Hormaza, appellant pro se.

Denise Casola, respondent pro se.

PER CURIAM

Defendant Michael Hormaza appeals from the denial of his motion to reschedule a hearing to review Denise Casola's request for the entry by default of a final restraining order (FRO), pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to 35. The trial judge reviewed defendant's certification filed in support of the motion to set aside the final order and denied relief because the reasons alleged by defendant that he misplaced his paperwork as to the scheduled hearing date "did not rise to the level of excusable neglect such as to warrant the relief[.]" Defendant now argues he missed the final hearing on February 21, 2008, because he rushed his girlfriend to the hospital, which he did not articulate before the trial judge. We affirm Judge McGovern's order substantially for the reasons stated, Rule 2:11-3(e)(1)(E). However, we note defendant is not precluded from filing a motion, pursuant to Rule 4:50-1, accompanied by the requisite proofs to support his request.

Plaintiff and defendant engaged in an intimate dating relationship for almost two years. Defendant asserts he broke off the relationship on January 29, 2008. On February 14, 2008, plaintiff filed a complaint seeking a temporary restraining order (TRO) following an alleged assault by defendant that occurred on January 27, 2008, in Atlantic City. Defendant was personally served with the TRO on the date it was issued. The order scheduled the final hearing for February 21, 2008 at 8:30 a.m.

On February 14, 2008, defendant was arrested in connection with the alleged assault. He was detained temporarily by the Atlantic City police and then transferred to the Atlantic County jail. Defendant posted bail and was released on February 18, 2008. He asserts the jail "lost" the copies of the restraining order he was given prior to his arrest.

During the final hearing, held on February 21, 2008, the trial judge considered the uncontroverted testimony and other evidence offered by plaintiff and found, "by a preponderance of the credible evidence that the defendant did commit an act of domestic violence in the form of an assault[.]"

Defendant stated that at 7:15 a.m., on February 21, 2008, his fiancée had a serious medical emergency related to her pregnancy. By the time defendant contacted the clerk's office, the FRO had been entered. Defendant filed a motion to vacate the FRO. He acknowledged he was told to provide proof of his fiancée's emergency medical situation. He alleges the clerk told him he could simply "explain how [he] was unaware of a mandatory court appearance due to the fact Atlantic County lost [his] paperwork." Defendant does not provide a copy of his motion in the record. Nevertheless, Judge McGovern's statement supplementing the record, filed pursuant to Rule 2:5-6(c), recited the factual basis alleged in defendant's application, that is, he "misplaced his paperwork as to the scheduled hearing date." The court denied defendant's motion by order entered on February 29, 2008.

On appeal, defendant asserts he returned to the courthouse on March 1 with proof of the hospital admission. Defendant attaches to his reply brief a copy of what he represents is an emergency room assessment from Atlantic Health and a certified statement from Juveria Hussain, verifying she is defendant's fiancée and it was necessary he rush her to the hospital on the morning of February 21, 2008. He asked this court to reverse the denial of his motion to set aside the FRO.

Relief from a judgment or order is governed by Rule 4:50-1(a), which provides,

On motion, with briefs, and upon such terms as are just, the court may relieve a party . . . from a final judgment or order for the following reasons: (a) mistake, inad-vertence, surprise, or excusable neglect; . . . (f) any other reason justifying relief from the operation of the judgment or order.

Our Supreme Court has stated Rule 4:50-1(a) "'is designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Baumann v. Marinaro, 95 N.J. 380, 392 (1984) (quoting Manning Eng'g, Inc. v. Hudson County Park Comm'n, 74 N.J. 113, 120 (1977)). When reviewing motions under Rule 4:50-1, the trial court is guided by equitable principles to decide whether the requested relief should be granted or denied. Housing Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994); Hodgson v. Applegate, 31 N.J. 29, 37 (1959).

A trial court's decision to grant or deny an application to vacate a judgment will not be disturbed unless there is a clear abuse of its discretion. DEG, LLC v. Tp. of Fairfield, 198 N.J. 242, 262 (2009); Housing Auth., supra, 135 N.J. at 283; Mancini v. EDS, 132 N.J. 330, 334 (1993). "Relief is granted sparingly." F.B. v. A.L.G., 176 N.J. 201, 207 (2003) (citing Pressler, Current N.J. Court Rules, comment 1.1 on Rule 4:50-1 (2009)). Generally, due to the importance ascribed to the finality of judgments, exceptional circumstances must be present in order to justify relief. Id. at 208. "Whether exceptional circumstances exist is determined on a case by case basis according to the specific facts presented. . . . Among the factors to be taken into account on a Rule 4:50 motion are the extent of the delay in making the application for relief, the underlying reason or cause, fault or blamelessness of the litigant, and any prejudice that would accrue to the other party." IMO Guardianship of J.N.H., 172 N.J. 440, 474 (2002) (internal quotations and citations omitted).

Although we agree with the general proposition that a party's failure to appear at a hearing due to a medical emergency may constitute grounds to support a timely request to set aside an order entered on that date, the specific factual basis for the application must be properly pled and proven. A defendant seeking to reopen a default judgment due to excusable neglect must show (1) the failure to answer was excusable under the circumstances, and (2) there is an available meritorious defense. Housing Auth., supra, 135 N.J. at 284; Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318, aff'd, 43 N.J. 508 (1964).

Our review of the record satisfies us that the judge's conclusion was evidentially supported, and we accept it. Defendant did not advise the court of his need to accompany his fiancée to the hospital. Instead, his motion asserted he misplaced his paperwork and was unaware of the court date. Judge McGovern properly denied his motion on that basis because a careless mistake, which is incompatible with due diligence or reasonable prudence, is not excusable. Mancini, supra, 132 N.J. at 335. We, therefore, affirm the entry of the order denying defendant's motion to set aside the FRO.

Our determination would not preclude defendant from refiling a motion under Rule 4:50-1. That motion must comply with the requirements of the Rule, including the provision of evidence supporting the factual basis of the application, and addressing a meritorious defense to the allegations of domestic violence.

Affirmed.

 

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A-3731-07T2

RECORD IMPOUNDED

June 23, 2009