PAULA EICHENBAUM v. LARRY EICHENBAUM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5928-11T1

PAULA EICHENBAUM,

Plaintiff-Respondent,

v.

LARRY EICHENBAUM,

Defendant-Appellant.

____________________________________________

April 9, 2015

Argued February 25, 2015 - Decided

Before Judges Ashrafi, Kennedy, and O'Connor.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-492-10.

Sarah J. Jacobs argued the cause for appellant(Argentino & Jacobs and Rose & Schultz, attorneys; Ms. Jacobs and Jodi A. Argentino, on the brief).

Paula Eichenbaum, respondent, argued the cause pro se.

PER CURIAM

Defendant appeals a final judgment of divorce entered after the Family Part struck his defenses and ordered a default against him. After three days of trial, the judge adjourned the proceedings because defendant at that time presented plaintiff's counsel with voluminous documents he wished to introduce into evidence, but had failed to provide in discovery. The Family Part judge ordered defendant to pay $50,000 in attorney fees to plaintiff's counsel to enable counsel to review the documents and thereafter adjourned trial for forty-six days. On the adjourned trial date, the Family Part judge entered default against defendant because he had failed to pay to plaintiff's counsel the fees earlier ordered. Defendant was permitted thereafter limited participation in the continued hearing.

We reverse the final divorce judgment as to all issues except that we affirm the declaration of divorce, itself, as it is not contested. We remand the matter to the Family Part for further proceedings in accordance with this opinion.

I.

We briefly set forth relevant facts gleaned from the record. Plaintiff Paula Eichenbaum1 and defendant Larry Eichenbaum were married in New Jersey in 1995 and two children were born of the marriage. In 2009, the parties filed cross-complaints for divorce. Throughout the pre-trial proceedings the parties' already strained relationship became increasingly hostile. During the two years prior to trial, defendant filed repetitive motions for reconsideration of various orders earlier entered by the court, and only intermittently complied with those orders, in any event. We shall not burden the record by reciting the litany of defendant's obstructive conduct; although we note that after oral argument on one of the multiple motions filed by defendant, the court ordered defendant to continue pendente lite support payments to plaintiff, and to pay plaintiff's attorney $20,000 for prospective legal services pursuant to N.J.S.A. 2A:34-23 and Rule 5:3-5(c).

In January 2011, defendant's counsel filed an unsuccessful motion for reconsideration of that order, and defendant subsequently filed a bankruptcy petition. He also fired his lawyer and elected to proceed pro se. In October 2011, defendant moved for indigency status, but the Family Part judge denied the motion, explaining that defendant's latest case information sheet listed defendant's base salary as $132,000.

After several postponements, trial was scheduled for December 19, 20, and 21, 2011. On the first day of trial, it became obvious that defendant had failed to provide various documents to plaintiff in discovery, although the extent of defendant's discovery violation was not immediately apparent. Nonetheless, at the court's request, plaintiff's counsel pressed ahead with trial.

The next day, following defendant's pro se cross-examination of plaintiff, counsel explained that defendant had failed to pay to plaintiff $10,000 in compliance with earlier support orders, and objected to defendant's reliance on any documents he had not provided in discovery. The Family Part judge asked counsel for a list of documents defendant sought to introduce into evidence, and to indicate which documents on the list had not been provided in discovery.

On December 21, 2011, the last scheduled day of trial, plaintiff's counsel advised she had not seen any of the documents on defendant's evidence list, and asked the judge to strike defendant's pleadings. The judge, displaying commendable patience, thereafter reviewed with the parties every document proffered by defendant, and found defendant's claim that he had sent copies to counsel, but could not locate the certified mail receipts, to be incredible.

Having determined that defendant violated his discovery obligations, the judge adjourned trial until February 6, 2012, and ordered defendant to pay $50,000 in prospective attorney fees to plaintiff's attorney to enable her to review the documents and prepare again for trial. The judge also provided that defendant's answer, counter-claim, and evidence would be stricken if he failed to comply with the order. Defendant replied that he had no resources "to pay $50,000, there there just is no -- it doesn't exist, Your Honor." The judge answered, "$50,000, you have 30 days to pay her that money or else, your case is dismissed."

On February 6, 2012, the parties returned to court, and, after learning that defendant had not made the court-ordered payment to plaintiff's counsel, the judge said,

Therefore, at this point in time, based upon what I had previously ordered in this case and which has not been followed, I am -- for the reasons which I placed on my statement of reasons in December, I'm entering default in this case. We can proceed to a default hearing.

Defendant answered,

Your Honor, I'm not fully cognizant and I don t fully understand what all that means, and . . . . I'd like the opportunity to retain counsel.

THE COURT: It's a little late in the day to retain counsel.

. . . .

THE COURT: We're in the middle of trial. You let your counsel go some time ago --

[DEFENDANT]: As I did not have the ability to pay.

THE COURT: No, we are going to proceed to a default hearing today. You have the right, in a default proceeding, to cross-examine.

The trial thereafter proceeded as a default hearing in which defendant was allowed limited participation and was prevented from offering evidence. On March 30, 2012, the Family Part entered a final judgment of divorce, which, among other things, awarded plaintiff sole custody of the children, alimony, child support and ordered defendant to pay $70,000 in counsel fees.2

In August 2012, defendant appealed the final judgment of divorce, and we granted defendant's motion to stay payment of counsel fees. Further, we remanded the matter to the Family Part for reconsideration of the counsel fee award and to determine whether defendant's bankruptcy petition impacted his financial obligations under the judgment.

On September 18, 2014, a different Family Part judge vacated the counsel fee award of $70,000 and reduced it to $30,037.50. The judge explained, in part, that plaintiff s attorney had not filed a certification of services as required by Rule 4:42-9(b). The judge also declared the fee award to be "necessaries" not dischargeable in bankruptcy.

The parties are now back before us on defendant's appeal from the entry of the divorce judgment by default. Defendant raises a host of substantive arguments which we need not address, because we have determined that the Family Part erred by proceeding to convert the trial into a default hearing under the circumstances here. We reach this result reluctantly, understanding that a retrial will undoubtedly entail an additional emotional and financial burden upon plaintiff, whose conduct cannot be faulted.

Initially, we observe that the entry of default by the Family Part was not a consequence of defendant's failure to provide discovery. The Family Part already had dealt with that issue when it adjourned the trial in order to permit plaintiff and her attorney to review the documents.3 Rather, the Family Part entered default against defendant because he failed to pay $50,000 to plaintiff's counsel for preparing for the adjourned trial by reviewing the documents he had provided late, as the court ordered in December.

We begin by re-stating a core principle fundamental to our justice system: every reasonable indulgence should be employed to avoid the onerous sanction of a default and to achieve "just and expeditious determinations between the parties on the ultimate merits." Ragusa v. Lau, 119 N.J. 276, 284 (1990) (quoting Tumarkin v. Friedman, 17 N.J. Super. 20, 27, (App.Div.1951), certif. denied, 9 N.J. 287 (1952)). This policy consideration requires a narrow application of Rule 4:43-1 (which permits a plaintiff to request entry of default against a defendant who has "failed to plead or otherwise defend as provided by these rules or court order . . ."). Midland Funding LLC v. Albern, 433 N.J. Super. 494, 499 (App. Div. 2013); see Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995) (cautioning that "'[s]ince dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party, or when the litigant rather than the attorney was at fault.'") (quoting Zaccardi v. Becker, 88 N.J. 245, 253 (1982)).

Further, a failure to comply with any court order will not be sufficient for entry of default; the court order must be "rooted in a 'failure to defend.'" DYFS v. M.G., 427 N.J. Super. 154, 168-69 (App. Div. 2010) (failing to fulfill order's condition of rectifying homelessness did not result in a failure to defend sufficient to provide a basis for entry of default). DYFS v. M.G. instructs, "[t]he basis for the entry of default under this rule is the litigant's failure to participate in the litigation - by failing to plead or otherwise defend." supra, 427 N.J. Super. at 168 (internal quotations omitted). Failing to appear or file responsive pleadings are "straightforward examples of when default is properly entered." Ibid.

The more difficult issue is whether the failure to comply with a court order may warrant the entry of default. A default entry based on failure to comply with an order requires a "nexus between the violation of rules and orders and an underlying failure to comply with the responsibilities of a litigant . . . Id. at 169. Thus, the rule authorizes default only when the rule or order in question concerns the party's obligation to defend. Ibid.

Our court rules grant a trial court a wide range of options to deal with a litigant's willful refusal to comply with a court order, Rules 1:1-1 to -2, and 1:10, and to impose sanctions. The remedies and sanctions available to a trial court must be appropriate under the facts of each case and must be "just and reasonable." Il Grande v. DiBenedetto, 366 N.J. Super. 597, 621 (App. Div. 2004). The assessment of a particular sanction requires the trial court to consider several factors, including whether a party's actions were willful, and the degree of prejudice suffered by the opposing party. Ibid.

In Robertet Flavors, Inc. v. Tri-Form Const., Inc., 203 N.J. 252, 274 (2010), the Supreme Court explained that the severe sanction of a default will be ordered "when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party." Ibid. In the case before us, defendant's failure to comply with the part of the order requiring him to pay $50,0004 to plaintiff's counsel, does not, on this record, warrant entry of default. The Family Part failed to consider the imposition of a range of lesser sanctions, and although it might have suspected that defendant's claim of inability to pay may have been disingenuous, it may not enter default on the basis of its suspicion.

We do not find on this record that entering default for failing to pay counsel for work presumably already undertaken was an appropriate sanction. The judge could have imposed other sanctions to offset defendant's debt or, as defendant's appellate counsel suggested, the judge in December could have simply not permitted defendant to present his documents at trial -- a lesser remedy available in this case. Further, the Family Part entered the default because defendant did not pay $50,000 in attorney's fees at a time defendant alleged he could not afford to hire his own attorney. The Family Part stated,

The Court suspended the trial to permit Plaintiff to review the discovery not previously provided by Defendant. Defendant was ordered to make a pendente lite payment to Plaintiff's counsel of $50,000 for attorney fees, within thirty days, as Defendant had not previously paid any counsel fees previously ordered and had necessitated Plaintiff having to now incur significant prospective fees to continue with the trial. Defendant was told that if he failed to do the same, the Court would consider an application to strike his pleadings and proceed to default.

On February 6, 2012, the trial resumed. As the parties reconvened, the Court was advised that [defendant] again had not complied with the Court's Order. The Court struck Defendant's Answer and Counterclaim and instructed the Plaintiff to proceed to default.

While defendant's argument at that time was that he did not have the resources to pay $50,000 may have been baseless, the judge never conducted an ability to pay hearing before the sanction. Hence, we cannot know now whether defendant was lying to the court or not.

In any event, on the record before us, the entry of default solely on defendant's failure to pay the opposing party's counsel fees, was unwarranted. Unfortunately, the error patently tainted the entirety of the proceeding, leaving us unable to determine in any principled way whether any aspect of the judgment should be affirmed, other than, as noted, the declaration of divorce itself. Thus, we must reverse the judgment except that we affirm the part of the judgment declaring the parties divorced, and we remand for further proceedings, including a new trial.

Reversed in part, affirmed in part, and remanded to the Family Part. We do not retain jurisdiction.

1 Since the filing of this appeal, plaintiff changed her name to Paula Lane.

2 This amount reflects the sum of the two counsel fee orders we referenced above.

3 We see little reason to dilate upon the host of options that would have been available to the Family Part judge when the egregious discovery violation was revealed during trial in December 2011. Moreover, we do not fault the judge for the option she did select: adjourning trial to give plaintiff an opportunity to review the voluminous documents defendant brought to court during the trial. However, as we explain infra, we part ways with the trial judge on the remedy she selected upon learning that defendant did not pay plaintiff's attorney.

4 The judge's reason for selecting the sum of $50,000 remains obscure to us. Apparently, plaintiff's counsel failed to file a formal motion for fees. See R. 5:3-5. We noted earlier that, as it turned out, another Family Part judge vacated the order for that sum and explained that it was unsupported by counsel's certification of services required by court rule. There would be no small irony if we were to uphold the Family Part's imposition of such a drastic sanction on the basis of an order that the Family Part itself found flawed.