LISA AZOULAY v. JEAN PIERRE AZOULAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LISA AZOULAY,

Plaintiff-Respondent,

v.

JEAN PIERRE AZOULAY,

Defendant-Appellant.

__________________________________________

April 15, 2014

 

Submitted December 9, 2013 Decided

 

Before Judges St. John and Leone.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1297-08.

 

Damiano M. Fracasso, attorney for appellant.

 

Respondent has not filed a brief.

 

PER CURIAM

Defendant Jean Pierre Azoulay appeals from the Family Part's February 5, 2013 entry of a post-judgment Consent Order, which ostensibly settled certain issues raised by plaintiff during the proceedings to enforce the parties' Marital Settlement Agreement (MSA). Because we find that the entry of the order failed to comply with the procedural requirements of Rule 4:42-1, we reverse and remand for further proceedings.

We dispense with a detailed factual recitation, but broadly state the nature of the parties' dispute to provide the context for our determination. The subject of the February 5, 2013 order centered on compliance with the terms of the parties' MSA. Numerous disputes had arisen between the parties and the Consent Order purported to amicably resolve those issues.

In September 2012, plaintiff filed a motion to enforce litigant's rights. Twice adjourned, the motion hearing was ultimately held on December 7, 2012. During the hearing, the motion judge remarked that both parties were in violation of the MSA. The judge continued that, while he was willing to interpose his judgment if necessary, the parties should first exchange financial information, sit down together in a room and attempt to settle the disputed issues. Both parties agreed to do so.

In late December, plaintiff's attorney submitted to the court a proposed Consent Order pursuant to Rule 4:42-1(c). Shortly afterwards, defendant objected in writing to its entry. However, the parties informed the court that they would continue to work on a resolution, and a conference was scheduled for January 30, 2013, to settle the form of the order.

After entering their appearances, the parties went to a conference room in an attempt to resolve the matter. Defendant appeared without counsel, while plaintiff was represented. They returned, and while on the record, the judge reviewed the proposed-but-objected-to Consent Order with the parties in an effort to appropriately facilitate a final settlement of the issues. Though several disputes were resolved during the on-the-record colloquy, additional issues remained unsettled. The parties again left for the conference room outside the presence of the judge and continued to negotiate, but again off the record. Counsel for plaintiff was absent from that second out-of-court session, having departed due to a scheduling conflict. According to counsel's later correspondence to the court, the parties reached an agreement in the conference room on the outstanding issues.

On February 4, plaintiff's attorney submitted to the court an eight-page Consent Order purportedly resolving twenty-two issues in dispute. In an accompanying letter, counsel wrote that the enclosed document "reflects the agreement reached on Wednesday, January 30, 3012, both in the courtroom and the conference room, and incorporates changes and adjustments which the parties requested and agreed upon by 5 p.m. on Friday, February 1, 2013." Before it turned to the substantive issues, the Consent Order recited the following:

[Plaintiff], having filed an application for enforcement of litigant's rights pursuant to . . . the parties' Marital Settlement Agreement . . . , and [defendant], having filed a response thereto, hereby acknowledge and agree to resolve the issues pending before the Court pursuant to said application in the within Consent Order[.]

 

Neither plaintiff nor defendant signed the order. Further, defendant did not have the opportunity to review the order prior to its submission to the court. A copy of the letter and order was sent to defendant by regular mail at the time it was sent to the court. The motion judge signed and filed the order on February 5, 2013.

Plaintiff's counsel electronically transmitted a copy of the signed order to the defendant on February 7, 2013, with a copy sent by regular mail. Defendant retained counsel and, by letter to the court dated February 11, 2013, his counsel objected to the entry of the order because it did not "reflect any agreement reached by the parties," among other reasons.

It is from the February 5 entry of the Consent Order that defendant appeals. In essence, defendant contends that the Consent Order is a nullity because it was entered in contravention of the required procedures under Rule 4:42-1. We agree.

Before examining the merits, we briefly address whether the matter is properly before us. Ordinarily, an order entered with the consent of all parties is not directly appealable "for the purpose of challenging its substantive provisions." Pressler & Verniero, Current N.J. Court Rules, comment 2.2.3 to R. 2:2-3 (2014); N.J. Sch. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308-09 (App. Div. 2010) (orders entered by consent are not appealable "because [Rule 2:2-3] allowing an appeal as of right from a final judgment contemplates a judgment entered involuntarily against the losing party"); see also Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950); Infante v. Gottesman, 233 N.J. Super. 310, 318-19 (App. Div. 1989). Instead, the proper recourse is to move the trial court for relief from judgment under Rule 4:50-1. See Cmty. Realty Mgmt. v. Harris, 155 N.J. 212, 226-28 (1998); Jersey City v. Roosevelt Stadium Marina, 210 N.J. Super. 315, 326, 332 (App. Div. 1986), certif. denied, 110 N.J. 152 (1988).

Among the issues raised, defendant ascribes error to the procedures leading to entry of the order, which he contends thus rendered the order a nullity. We conclude that this specific issue is directly appealable under Rule 2:2-3 despite defendant's failure to first move for relief from judgment pursuant to Rule 4:50-1. Our conclusion is based on the particular, narrow facts presented by this case. We note that, to the extent defendant's arguments challenge the substantive provisions of the Consent Order or his assent thereto, we decline to address them as not properly before us. R. 2:2-3; Pressler & Verniero, supra, comment 2.2.3 to R. 2:2-3.

Rule 4:42-1 establishes three alternative means by which a proposed form of order may be entered. Paragraph (b) of the rule, which provides for both settlement by motion and settlement by consent, states, in pertinent part:

Except as otherwise provided by paragraphs (c) and (d) of this rule, by other rule or by law, . . . no judgment or order shall be signed by the court unless the form thereof has been settled on motion on notice to all parties affected thereby who are not in default for failure to appear, or unless the written approval of such attorneys or parties to the form thereof is endorsed thereon.

 

Rule 4:42-1(b) is inapplicable here because the parties did not endorse their written approval on the form of order, and the discussions that purportedly finalized the agreement took place, at least in part, outside of open court and off the record. See Pressler & Verniero, supra, comment 2 to R. 4:42-1 ("Clearly proceedings pursuant to paragraph (b) of this rule to settle the form of judgment must be held in open court and on the record" (citing Stout v. Stout, 155 N.J. Super. 196 (App. Div. 1977)).

Rule 4:42-1(c) is another method by which the order could have been properly entered. That paragraph, the so-called "five-day rule," provides:

In lieu of settlement by motion or consent, the party proposing the form of judgment or order may forward the original thereof to the judge who heard the matter and shall serve a copy thereof on every other party not in default together with a notice advising that unless the judge and the proponent of the judgment or order are notified in writing of specific objections thereto within 5 days after such service, the judgment or order may be signed in the judge's discretion. If no such objection is timely made, the judge may forthwith sign the judgment or order. If objection is made, the matter may be listed for hearing in the discretion of the court.

 

[Ibid.]

 

"It is, of course, clear that an order should never be either submitted or signed under this rule unless it accurately memorializes court dispositions, is submitted following default, or has all parties' consent endorsed thereon." Pressler & Verniero, supra, comment 3 on R. 4:42-1 (citing City of Jersey City v. Roosevelt Stadium Marina, Inc., 210 N.J. Super. 315 (App. Div. 1986), certif. denied, 110 N.J. 152 (1988)).

Here, the Consent Order was entered without complying with the five-day rule's procedural requirements. First, the form of order failed to provide the required notice, to the effect that unless defendant notified the judge and plaintiff in writing of specific objections within five days after service, the Consent Order may be signed in the judge's discretion. Second, the judge signed the proposed order the day after plaintiff had mailed it, rather than waiting until defendant's five-day window for objection had closed. Thus, defendant had no opportunity to notify plaintiff and the judge in writing of specific objections before the Consent Order was signed.1

Furthermore, the unendorsed Consent Order was not a mere memorialization of a prior court disposition because the judge never made a ruling and the parties never agreed to settlement terms on the record. Roosevelt Stadium Marina, supra, 210 N.J. Super. at 331.

For the same reason, we determine that Rule 4:42-1(d) which authorizes the court to enter a form of consent judgment or order without the signatures of all parties if (1) those parties or their counsel have made an appearance or filed a responsive pleading, and (2) the form "contains the recital that all parties have in fact consented to [its] entry . . . in the form submitted" is inapplicable under circumstances where there was no prior, on-the-record settlement in open court. Ibid. Further, the recital in the Consent Order did not represent that the defendant had consented to the form of the order. To the extent that entry of the Consent Order was premised upon paragraph (d), we find that provision unavailing.

Reversed and remanded with direction to vacate the order. We do not retain jurisdiction.

1 Because of these defects, we need not decide whether defense counsel's letter of February 11 constituted timely written objection under Rule 4:42-1(c).