DHARMESH KESHUBHAI DESAI v. HINA DHARMESH DESAI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DHARMESH KESHUBHAI DESAI,

Plaintiff-Respondent,

v.

HINA DHARMESH DESAI,

Defendant-Appellant.

____________________________________________________

April 22, 2015

Submitted September 16, 2014 Decided

Before Judges Fisher, Nugent and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1260-12.

Tanya L. Hughes Freeman, attorney for appellant.

Dubal Law Offices, LLC, attorneys for respondent (Siddharth G. Dubal, on the brief).

PER CURIAM

Defendant Hina Dharmesh Desai appeals the trial judge's denial of her motion to vacate a default judgment that was obtained in this divorce action by her husband, plaintiff Dharmesh Keshubhai Desai, after he attempted service of process by publication in an Indian newspaper. Because the trial judge failed to liberally indulge defendant's moving papers and did not explore the factual disputes surrounding defendant's purported waiver of her interest in all marital property, we reverse and remand.

The papers submitted in support of and in opposition to defendant's Rule 4:50 motion reveal that the parties were married in India in 2009. Plaintiff was employed in the United States, and defendant joined him here in February 2010. Plaintiff asserted that the couple began having marital troubles soon after defendant's arrival, but they nevertheless purchased a home in Parsippany in December 2010. On March 15, 2012, defendant returned to India, and on March 28, 2012, plaintiff commenced this divorce action.

In moving for relief from the default judgment, defendant asserts and plaintiff does not dispute that she was not personally served with the summons and complaint. Instead, plaintiff, while representing himself, first attempted to serve the summons and complaint by registered mail in India; he also sent the papers to the home of defendant's parents in India. In addition, he attempted to forward the summons and complaint to defendant by email. Although defendant's parents acknowledged to plaintiff they had received the papers, there is nothing in the record to suggest defendant actually received the summons and complaint through any of those means.

Plaintiff thereafter obtained an order on July 10, 2012, authorizing him to publish a notice of the summons for three consecutive weeks in The Times of India or The Indian Express. Notices were published in the latter on July 13, 20 and 27, 2012.

The record also contains what is labeled a "divorce deed," which appears to have been executed by the parties in March 2012. This document purports to memorialize that: there are no children born out of wedlock; defendant was not then pregnant; the parties had encountered irreconcilable differences; "there is no necessity to initiate any proceedings" for divorce or, if such need arises, they "shall cooperate [with] each other"; and the parties mutually agreed "they are no longer married to each other." At that time, defendant also received a check from plaintiff in the amount of $9999, which plaintiff claims was negotiated. In addition, the record reveals that defendant signed an affidavit in India in September 2012 in which she purported to have waived all her rights to any marital property in favor of plaintiff.

In moving for relief from the default judgment entered on September 25, 2012, defendant asserted that at the time she signed the September 2012 affidavit, she was unaware that the divorce complaint had been filed and that she "was taking numerous medications for [] depression and was not of sound mind."

Without the benefit of an evidentiary hearing, the judge concluded, by way of a written opinion, that defendant's assertions presented insufficient grounds for setting aside the written waiver of any rights she possessed in any marital property. The judge also assumed, despite the questionable manner of service of process utilized here, that defendant had notice of the suit. He, thus, denied defendant's motion.

In appealing, defendant argues that the judge erred because: the attempt to effect service of process did not comport with due process; the notice of proposed final judgment was deficient; the written waiver of defendant's property rights should not have been upheld because she was incapacitated when it was executed; and the waiver was not validly notarized.

In considering defendant's argument concerning service of process, we start by acknowledging that service by publication is generally disfavored because it is unlikely to give actual notice of the suit; in fact, it is the method of service "least likely to give notice." M & D Assocs. v. Mandara, 366 N.J. Super. 341, 353 (App. Div. 2004). As the Supreme Court has recognized, "[c]hance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if [defendant resides] outside the area of the newspaper's normal circulation the odds that the information will never reach [defendant] are large indeed." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 652, 658, 94 L. Ed. 865, 874 (1950). There was nothing submitted by plaintiff at the time the July 10, 2012 order of substituted service was obtained to suggest a notice in either The Times of India or The Indian Express had any chance of conveying to defendant the pendency of this divorce action, particularly when considering the immense geographic size of India, of which we may take judicial notice, and the lack of proof on that publication's area of circulation. We, thus, conclude that the default judgment cannot stand for this reason alone.

We are also satisfied the judge not only failed to liberally indulge defendant's allegations, Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div. 1964), in denying relief,1 but that he also unduly burdened defendant with the obligation to prove by "clear and convincing evidence" that what he referred to as the "property settlement agreement" was the product of fraud or undue influence. Although it has been held that a party seeking to upset a property settlement agreement based on fraud or coercion must do so by clear and convincing evidence, see Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); DeCaro v. DeCaro, 13 N.J. 36, 42 (1953), the September 2012 document that was enforced by way of the default judgment does not appear to qualify. That is, Nolan and the cases relied upon by the trial judge dealt with a contract an exchange of promises not a waiver by one party for which no ostensible consideration was received.2 In enforcing the latter, the law imposes a less rigorous approach.

"Waiver is the voluntary and intentional relinquishment of a known right." Knorr v. Smeal, 178 N.J. 169, 177 (2003); see also W. Jersey Title & Guar. Co. v. Indus. Trust Co., 27 N.J. 144, 152 (1958). An enforceable waiver requires the waiving party possess full knowledge of the legal rights in question and a free and voluntary intent to surrender those rights. Knorr, supra, 178 N.J. at 177. Determining whether a right has been effectively waived involves "a fact-sensitive analysis," Cole v. Jersey City Med. Ctr., 215 N.J. 265, 277 (2013), and "[t]he party waiving a known right must do so clearly, unequivocally, and decisively," Knorr, supra, 178 N.J. at 177. Here, the judge simply rejected out of hand defendant's assertion that she was not of sufficient mind to freely and voluntarily participate in these proceedings or in appreciating the significance of what she was signing when she executed the waiver. We, thus, conclude that the judge erred when, on the papers, he rejected defendant's claim that she did not freely and voluntarily execute the waiver. That dispute cannot be resolved on its merits without an evidentiary hearing.

We need not reach any of the other issues presented. We reverse and remand for further proceedings in conformity with this opinion and do not retain jurisdiction.

1This liberal approach is particularly appropriate in family court mattes where emotions may intervene and distract a party from taking the legal steps needed to protect his or her interests.

2We are mindful that the March 2012 document appears to have included a payment to defendant. But that document did not contain defendant's waiver of her property rights, and the September 2012 document, which expresses a waiver of her property rights, did not provide her with any compensation or consideration for that waiver.