ABBE BLOCK v. MICHAEL BLOCK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ABBE BLOCK,

Plaintiff-Respondent,

v.

MICHAEL BLOCK,

Respondent-Appellant.

_______________________________________________________

February 13, 2015

Argued February 3, 2015 Decided

Before Judges Fisher and Accurso.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-03-1110-13.

Christian M. Towers argued the cause for appellant.

Shira Katz Scanlon argued the cause for respondent (Martine & Katz Scanlon, P.A., attorneys; Ms. Scanlon, of counsel and on the brief).

PER CURIAM

In this appeal, defendant Michael Block argues that the trial judge erred both in entering a judgment of divorce by default and in later refusing to vacate the default judgment. We agree and reverse.

Because the trial judge did not conduct an evidentiary hearing regarding the reasons offered by defendant for failing to file a timely responsive pleading, we assume for present purposes the truth of defendant's assertions. Plaintiff Abbe Block filed a complaint for divorce on March 6, 2013, and, as defendant asserts, he and his wife thereafter "engaged in direct negotiations to resolve" the matter to avoid an unnecessary expenditure of counsel fees. Defendant also asserted and provided medical records to demonstrate he suffered a myocardial infarction on April 14, 2013, requiring hospitalization for a heart catheterization and subsequent daily chest pains. In May 2013, defendant requested his wife's consent to an extension of time to file an answer; according to defendant, his wife advised that she

would inform [defendant], through her attorney, if a responsive pleading was necessary. She knowingly made this arrangement because she did not want to incur attorney's fees unnecessarily and further believed we were capable of negotiating an amicable resolution. [Plaintiff] explained that she spoke with her attorneys about this arrangement and there was agreement between them, so long as she provided updates and information pertaining to a settlement.

Defendant prepared and emailed to his wife a stipulation extending the time to file a responsive pleading; a copy of his email was provided to the trial court. Defendant also recounted for the trial judge the additional steps the parties personally took in gathering information necessary to negotiate an informed settlement agreement. Defendant claimed that, notwithstanding their agreement to negotiate rather than proceed through counsel, plaintiff's attorney applied for default judgment without warning.

Defendant was served with a notice of equitable distribution "sometime between September 5th and 9th"; he correctly viewed it as faulty because it lacked plaintiff's case information statement. R. 5:5-10 (declaring that, among other things, the plaintiff "shall annex to the Notice a completed and filed Case Information Statement . . ."). Nevertheless, on the date scheduled for the default proceedings, defendant appeared on his own behalf he is an inactive attorney and argued the circumstances outlined above, as well as others, in seeking the opportunity to file an answer rather than suffer entry of a default judgment

MR. BLOCK: Your Honor, the realities of the situation need to be taken into account here. We were communicating [plaintiff] wasn't even communicating with her attorney based on her conversations with me. We were communicating together. To allow a litigant to take advantage of somebody who, number one, has a heart attack, number two, is negotiating in good faith, let me put her under oath and we can question her and she can advise the court as to what she was doing.

. . . .

Your Honor, this comes down to prejudice versus . . . no prejudice. I am prejudiced if his [o]rder [is entered] today. I will then be forced to file a motion under [R. 4:50] to have the default judgment [vacat]ed. We're wasting time if we do it that way. I am here. I have filed an [o]pposition. It's obvious I want to cooperate[] in the process, and my actions have proved nothing but cooperation with the plaintiff. Your Honor, I think under the circumstances, fairness dictates that when a litigant wants to participate in the proceedings, a default shouldn't be entered. [A default] will allow her to take advantage of me.

The judge thereafter expressed that she was not persuaded by defendant and concluded that because defendant "did not comply with the Court Rules," the default would remain in place. The judge then heard, in defendant's absence, testimony regarding plaintiff's claims for relief and entered a default judgment of divorce.

Defendant thereafter moved for relief pursuant to Rule 4:50. In his motion papers, he thoroughly outlined his sudden illness, the agreement between he and his wife to refrain from litigating while they attempted to negotiate a settlement, his transmittal of a stipulation extending the time to file an answer, his wife's receipt of the stipulation,1 and his attempts to file an answer once his wife's attorney moved for default without warning. The judge's ruling on this motion was much the same as her prior ruling when defendant opposed entry of a default judgment

They may very well have been trying to negotiate a settlement, but the bottom line is there are Rules. They apply to everyone. And, the defendant didn't comply with those Rules.

Defendant appeals, arguing, among other things, that the judge abused her discretion in entering a default judgment when defendant appeared, was desirous of filing a responsive pleading, and ready to proceed with the litigation. He also argues the judge did not view his motion to vacate with the liberality required by Rule 4:50. See, e.g., Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div. 1964). We agree and reverse.

We need not discuss the matter at any great length. Our Court Rules are designed to promote the efficient administration of justice and the disposition of cases on their merits, not on procedural niceties. R. 1:1-2. As the Supreme Court has said, the Rules "should not in themselves be the source of any extensive litigation; they should be subordinated to their true role, i.e., simply a means to the end of obtaining just and expeditious determinations between the parties on the ultimate merits." Handelman v. Handelman, 17 N.J. 1, 10 (1954); see also Ragusa v. Lau, 119 N.J. 276, 283-84 (1990); Stone v. Old Bridge Twp., 111 N.J. 110, 125 (1988) (Clifford, J., dissenting).

If the parties' submissions presented legitimate doubts about the ground upon which defendant sought relief, either before or after entry of the default judgment, the judge should have conducted an evidentiary hearing rather than simply find defendant's well-supported assertions lacking in weight or merit. As it appears to us, however, plaintiff has not disputed much of what defendant asserted. For example, plaintiff does not dispute the parties were negotiating a settlement, that defendant suffered an illness, that a stipulation extending the time to answer was transmitted to her, and that plaintiff sought default without warning. When defendant responded with a desire to file an answer and litigate if necessary, the judge should have permitted it. The judge's decision reveals none of the liberality required by the rules in these circumstances and exalted form over substance.

The order denying defendant's motion for relief from the default judgment is reversed. The matter is remanded for entry of an order vacating the default judgment and permitting defendant a reasonable opportunity to file a responsive pleading. We do not retain jurisdiction.

1Plaintiff conceded receipt of the stipulation.