KAREN A. TEPE v. DAVID W. TEPE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0119-08T20119-08T2

KAREN A. TEPE,

Plaintiff-Respondent,

v.

DAVID W. TEPE,

Defendant-Appellant.

______________________________________________________________

 

Argued October 7, 2009 - Decided

Before Judges Graves and J.N. Harris.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Passaic

County, Docket No. FM-16-0026-05.

Theresa E. Mullen argued the cause for

appellant (Law Offices of Theresa E. Mullen,

LLC, attorneys; Ms. Mullen, on the brief).

G. Dolph Corradino argued the cause for

respondent (Law Offices G. Dolph Corradino,

attorneys; Michael J. Evans, on the brief).

PER CURIAM

The parties were married in September 1990, and they have two children. The older child, a daughter, is seventeen years old and the younger child, a son, is thirteen. Defendant David Tepe appeals from an order dated July 25, 2008, denying his motion to vacate an amended final judgment of divorce (JOD) dated October 21, 2004.

On appeal, defendant argues as follows:

POINT I

THERE IS NO QUESTION THAT THIS COURT SHOULD VACATE THE OCTOBER 21, 2004 [AMENDED] ORDER OF DIVORCE AND REMAND THE MATTER TO THE TRIAL COURT FOR AN EQUITABLE DIST[R]IBUTION HEARING BECAUSE PLAINTIFF COMMITTED A FRAUD ON THE COURT WHICH MUST BE UNDONE PURSUANT TO RULE 4:50-3.

POINT II

THERE IS NO QUESTION THAT THE TRIAL COURT WHO PRESIDED OVER THE E[Q]UITABLE DISTRIBUTION HEARING FAILED TO COMPLY WITH THE MANDATES OF N.J.S.A. [2A:34-23.1] AND REQU[I]SITE CASE[]LAW INASMUCH AS THERE WAS NO DOCUMENTARY PROOF SUBMITTED VERIFYING PLAINTIFF'S CLAIMS.

POINT III

[THE] AMENDED JUDGMENT OF DIVORCE MUST BE OPENED AS DEFENDANT WAS NOT PROPERLY SERVED.

POINT IV

THIS COURT SHOULD SET ASIDE THE DEFAULT JUDGMENT PURSUANT TO R. 4:50-1.

After reviewing these arguments in light of the record, the briefs, and the applicable law, we conclude they do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). Nevertheless, we add the following comments.

Defendant argues on appeal, as he did before the trial court, that the JOD should be vacated because he was not properly served. However, the record reveals that defendant's mother, who lives in Fair Lawn, accepted service of the divorce complaint and summons on July 9, 2004. In addition, plaintiff's notice of application for equitable distribution together with her case information statement were sent to the same address on September 17, 2004, by regular and certified mail. Although the certified mail was unclaimed, the documents sent by regular mail were not returned. Moreover, plaintiff certified that plaintiff began living with his mother after the entry of a domestic violence final restraining order on April 29, 2004, and defendant "periodically inquired as to the status of the case" after he was served.

Finally, it is clear that defendant asserted inconsistent reasons for failing to participate in the divorce proceedings. On the one hand, defendant claimed he had no knowledge of the divorce action and, on the other hand, he claimed he did not attend the default hearing on October 12, 2004, because plaintiff promised to share the proceeds from the sale of the former marital home with him if he did not "defend himself or contest the divorce."

In an oral decision on July 25, 2008, the trial court found that defendant had been properly served on July 9, 2004, while residing at his mother's home in Fair Lawn, and that defendant was "fully aware" of the divorce action, including the notice of application for equitable distribution and the terms of the JOD. The court also found defendant was not entitled to relief under Rule 4:50-1(a), (b), or (c) because defendant failed to file his motion within one year of the JOD as required by Rule 4:50-2, and he failed to establish "extraordinary circumstances" warranting relief under Rule 4:50-1(f). See Bauman v. Marinaro, 95 N.J. 380, 395 (1984) (noting that relief under Rule 4:50-1(f) "is available only when truly exceptional circumstances are present and only when the court is presented with a reason not included among any of the reasons subject to the one year limitation"). These findings by the court are binding on appeal because they are "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998).

Defendant also contends the JOD should be vacated pursuant to Rule 4:50-3 "because plaintiff committed a fraud on the court." When fraud is committed upon a court, relief may be obtained "without limitation as to time." Shammas v. Shammas, 9 N.J. 321, 327 (1952). Defendant claims plaintiff "misrepresented the circumstances surrounding the purchase of [the former marital residence]," and she "misrepresented the value of defendant's business" when she testified at the default hearing. In addition, defendant contends plaintiff misrepresented his ability to pay alimony and child support by failing to inform the court of his "downward spiral due to substance abuse, his inability to work due to his loss of driver's license and his homelessness due to his removal from the marital home." We do not find these arguments persuasive.

"A fraud on the court occurs 'where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.'" Triffin v. Automatic Data Processing, Inc., ___ N.J. Super. ___, (2010) (slip op. at 3) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)). "[U]nlike common law fraud on a party, fraud on a court does not require reliance." Ibid.

During the default hearing on October 12, 2004, plaintiff testified about each of the items in the notice of application for equitable distribution. She advised the court she was seeking equitable distribution of the marital residence in exchange for defendant retaining his business, known as East Coast Carpentry. Plaintiff testified defendant valued his business at $250,000 when the parties refinanced their home in March or April 2004, and the record confirms the net proceeds from the sale of the home in 2005 were roughly equal to the value of defendant's business in 2004.

Plaintiff also testified that defendant paid the bills during the marriage using income from his carpentry business, and plaintiff's testimony was consistent with defendant's twenty-page certification in support of his motion for post-judgment relief, wherein he asserted: "I paid all the household expenses and supported the Plaintiff and our two (2) children throughout the marriage." Defendant also acknowledged in his certification that he continues to operate East Coast Carpentry, and his business card indicates he is now licensed to operate his business in New Jersey and Florida. Defendant failed to present any evidence in his certification pertaining to the value of his business at the time of the divorce or its current value. Therefore, defendant has made no showing that the terms of the JOD are unfair or inequitable, and the record does not support defendant's claim that plaintiff obtained the JOD through deceit, willful misrepresentation, or some other fraud on the court. See, e.g., Von Pein v. Von Pein, 268 N.J. Super. 7, 16 (App. Div. 1993) (concluding that an equitable distribution judgment obtained by fraudulent conduct must be reopened to avoid "injustice and inequity").

In view of the foregoing, we are satisfied there was no deprivation of defendant's due process right to receive notice of the divorce action, and the record does not support defendant's claim that plaintiff committed a fraud on the court. Accordingly, the order denying defendant's motion to vacate the JOD pursuant to Rules 4:50-1 and 4:50-3 is affirmed.

 
Affirmed.

(continued)

(continued)

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A-0119-08T2

February 24, 2010