DEBBIE WINDER v. EDWARD WINDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DEBBIE WINDER,

Plaintiff-Respondent,

v.

EDWARD WINDER,

Defendant-Appellant.

___________________________

Argued telephonically February 7, 2014 Decided February 27, 2014

Before Judges Simonelli, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-0526-11.

Corinne L. McCann argued the cause for appellant (Wilentz, Goldman & Spitzer, P.A., attorneys; Ms. McCann, David M. Wildstein, Christine D. Petruzzell, of counsel and on the brief).

Kevin M. Mazza argued the cause for respondent (James P. Yudes, P.C., attorneys; Mr. Mazza, on the brief).

PER CURIAM

Defendant appeals from a September 9, 2011 order entering default against him; an October 27, 2011 order denying defendant's purported motion to vacate default; an April 5, 2012 judgment of divorce (JOD); a May 2, 2012 supplemental JOD; and a June 22, 2012 order denying defendant's motions for reconsideration and to vacate both JODs. Judge Patricia B. Roe issued a comprehensive seventy-five page written decision in support of the JODs, and a July 27, 2012 amplification of reasons. We affirm.

In October 2010, plaintiff filed her complaint for divorce. In January 2011, the court conducted a case management conference, issued an order, and provided discovery-deadline dates. In April 2011, plaintiff filed a motion seeking to compel discovery and to hold defendant in violation of litigant's rights for his failure to comply with the discovery deadlines. On May 10, 2011, the judge conducted a conference, scheduled a hearing to address the outstanding discovery issues, and ordered the parties and plaintiff's financial expert to be present at the hearing.

On May 26, 2011, the judge conducted the hearing and ordered defendant to produce documents requested by the expert within thirty days, and to produce answers to interrogatories and responses to notices to produce within forty-five days from the date of the order. The order warned that "failure to strictly comply with these deadlines for discovery may result in the court considering a motion to strike defendant's pleadings." Plaintiff then withdrew her prior discovery motion.

After the court-ordered deadlines expired, defendant submitted incomplete answers to interrogatories consisting of handwritten one-word responses, failed to produce documents in response to plaintiff's notice to produce, and did not produce certain bank statements and credit card statements to the expert. In August 2011, plaintiff filed another motion seeking to compel discovery, hold defendant in violation of litigant's rights, and strike defendant's pleadings. Defendant failed to respond to the motion. In September 2011, the judge granted plaintiff's motion and ordered that the matter proceed to a proof hearing. The court permitted defendant to file a motion to vacate the default by September 26, 2011, but only if he produced the outstanding discovery by that date. The judge then scheduled the default hearing for October 27, 2011.

On the day before the default hearing was to begin, defendant's attorney asked for an adjournment because defendant would be out of town on a business trip. Defendant did not appear the next day for the scheduled hearing, but his counsel appeared and explained that "it was not possible for us to respond in time to the various matters that we had to respond to." The judge denied the request, but treated it as a motion to vacate default and stated that

I find that the defendant has continued, based on the procedural history that I've placed upon the record, to continually willfully fail to comply with discovery obligations, two motions to compel the discovery, a discovery hearing before this court, case management orders, scheduling orders and the like. . . .

He had basically almost two months to comply, satisfy the deficiencies, and that still hasn't been done. He hasn't even appeared today knowing that this hearing was set down.

I'm not going to grant that motion to vacate the default. It's not happening. There was plenty of notice for this.

In her amplification of reasons, the judge reiterated that defendant had not met the good cause standard "because he willfully failed to comply with discovery obligations" and said that to vacate the default so late in the proceedings would prejudice plaintiff.

The default hearing continued and concluded in January 2012, and the judge gave defendant, who attended some of the hearing dates, the right to cross-examine witnesses. The judge then entered the JODs and issued her lengthy written decision. In May 2012, defendant filed a motion for reconsideration, or, in the alternative, to vacate the judgment under Rule 4:50-1, which the judge denied.

On appeal, defendant argues that the judge entered the JOD and supplemental JOD erroneously. Defendant contends that the judge erred by failing to vacate default, or alternatively, grant his motion for reconsideration. After careful consideration of the record, we are satisfied that defendant's arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Roe in her well-reasoned and comprehensive written opinion and amplification of reasons.