Doris v. David

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01784-15T2

Doris M. Brown,

Plaintiff-Respondent,

v.

David E. Brown,

Defendant-Appellant.

____________________________________

November 9, 2016

 

Submitted October 5, 2016 Decided

Before Judges Koblitz and Sumners.

On appeal from an interlocutory order of Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-000260-15.

David Brown, appellant pro se.

Patricia Garity Smits, attorney for respondent.

PER CURIAM

Defendant David E. Brown, with leave granted, appeals from an October 15, 2015 interlocutory order granting plaintiff Doris Brown's motion for enforcement of litigant's rights. The enforcement order compels defendant's compliance with a May 22, 2015 pendente lite order requiring defendant to make mortgage payments on the parties' properties and reimburse plaintiff for living expenses and litigation fees.1

The parties were married for eleven years and had one son before the divorce complaint was filed in November 2014. Defendant's central argument is that he was not given notice of the motion that preceded the May 22, 2015 pendente lite order, nor did he receive the order timely, and thus he was unable to respond appropriately. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On March 18, 2015, plaintiff filed a motion for pendente lite relief, in part requesting that the court grant plaintiff power of attorney to list and sell the parties' properties. She also sought that defendant be ordered to: pay all mortgage arrears on both properties owned by the parties; reimburse plaintiff for money expended for the mortgages; cooperate in the sale of the properties; pay the utilities on the properties; provide proof of payment of insurance policies; maintain and continue to pay for automobile expenses; continue to pay plaintiff's salary at defendant's business of $250 a week; and pay plaintiff's attorney's fees.

Plaintiff attached her case information statement (CIS) to this motion. On May 22, 2015, the court granted plaintiff's unopposed motion.

The May 22, 2015 order, filed on May 26, 2015, granted the following relief to plaintiff

Defendant shall immediately resume paying the mortgage(s) on the [Kingwood and Toms River properties] . . . . [and] satisfy all arrears [on both properties] . . . . The mortgage obligation on both properties shall be brought current within thirty (30) days of the entry of this Order.

Defendant shall reimburse Plaintiff $19,500 within forty-five (45) days of entry of this Order, which represents the sum of $8,000.00 Plaintiff charged on her Discover card and the $11,500 cash advance Plaintiff obtained from her Citibank Visa account needed to make prior mortgage payments . . . .

Plaintiff shall be granted a Limited Power of Attorney as the Agent for Defendant . . . to enter into a real estate broker's agreement, execute a contract for sale, and convey title to [the parties' properties]. Plaintiff shall have the legal authority to act on behalf of the Defendant . . . to perform such acts and execute such documents reasonable and necessary to convey title to each property.

Defendant shall cooperate with the listing and sale of the respective properties. . . . Defendant is prohibited from taking an action or failing to act, wherein said action or inaction would impede the sale of the premises. The net proceeds for the sale of said properties shall be held in the Trust Account of Patricia Garity Smits, Esq. until further Order of the Court or written consent of the parties as to distribution.

Pending the sale of the above properties, Defendant shall resume paying the following utilities: oil, electric, and telephone for each property, and gas and water for the Toms River property.

Plaintiff and the parties' child, . . . shall have the sole and exclusive occupancy of the [Kingwood property]. Defendant shall have sole and exclusive occupancy of his repair shop . . . .

Defendant shall resume making timely life, health, and automobile insurance payments, pendente lite. Defendant shall resume paying the life insurance premiums on his individual life insurance policy and Plaintiff's life insurance policy, pendente lite. Accordingly, within fourteen (14) days of the Court's Order, Defendant shall provide Plaintiff with: 1) proof of life insurance, 2) proof of Plaintiff's automobile insurance policy payments, 3) access to the applicable health insurance coverage plan . . . 4) the appropriate medical cards for the health insurance policy . . .

Defendant shall continue to pay the parties' cell phone bills, pendente lite.

Defendant shall be responsible for ordinary maintenance and repairs, along with security system expenses for the above properties.

Defendant shall continue to pay Plaintiff her current weekly salary of $250.00 for the bookkeeping services she performs for Defendant's business.

Defendant shall return the printer he took from the residence within ten (10) days of entry of this Order, or in the alternative provide the cost of same to Plaintiff within ten (10) days of entry of this Order.

In addition, defendant was required to equally share the retainer fee to an accounting company, making him responsible for $3750 due within forty-five days of the order. Finally, defendant was ordered to pay $7000 toward plaintiff's litigation fees.

Two months later, in July, plaintiff filed an enforcement motion. On August 7, 2015, without yet filing a CIS,2 defendant filed what he styled a "motion to default vacate [sic] judgement R4:50" asking for relief from the May 22 order.

Plaintiff is a hairdresser who works part-time at two salons earning between $200 and $300 per week. She also worked as a bookkeeper for defendant's business. Defendant owns and operates Dave's Equipment Repair, L.L.C., a machine repair business. During the winters, defendant also runs a snow plowing business.

With her pendente lite motion, plaintiff provided a March 18, 2015 delivery slip from the New Jersey Lawyers Service (NJLS) process servers that lists the delivery address as Dave's Equipment, defendant's business. This delivery slip includes an "item description" stating "Motion, Certification, etc." and requiring a signature upon delivery. The signature itself is illegible, but the document has the name "[D]ave" printed above the signature.

Defendant maintains that he was "not made aware of this [May 22] court order until the month of June, 2015" when he "contacted the court to find out the status of [the] divorce complaint matter." Plaintiff, however, offered an NJLS delivery tracking sheet indicating that an item described as a "Letter with Order dated May 26, 2015" was delivered to "Dave's Equipment" on May 28, 2015. No signature was required.

The court noted that proof of service of the pendente lite motion "was deemed to be adequate at that time." The judge also made inquiries into when the defendant received a copy of the May 22 order and, when defendant acknowledged receiving the order sometime around the end of May, told him he should have taken action within the twenty days permitted for reconsideration. R. 4:45-2.

When asked what his 2014 taxable income was, defendant responded that it was between $82,000 and $85,000. The court expressed doubts about the accuracy of these numbers, pointing out that prior to the divorce action defendant had paid about $5900 a month in mortgage payments alone. The judge also explained that defendant was not "giving anybody an ability to even consider [his financial] circumstances" because he had not submitted the "threshold financial document," the CIS, that the court needed.

As part of the May 22 order, the court gave limited power of attorney to plaintiff over the parties' two properties to facilitate their sale. At the time of the September 25, 2015 oral argument that preceded the October order, the parties owed $40,000 in delinquent mortgage payments on one property, which was in foreclosure. The parties had also received a notice of foreclosure regarding the other property, which had a mortgage that was $20,000 in arrears. During 2014-2015, plaintiff had billed $20,000 in mortgage payments to her credit card. We also note that a financial adjustment to pendent lite support may be made at the end of a divorce case prior to the entry of final judgment. Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995).

In his brief, defendant asserts that the court should not have ordered the sale of the property where his business is located, although he told the motion court he was not sure what his position was on the sale of that property. We do not consider an issue not properly raised before the trial court. Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012).

Throughout the hearing, the motion court took time to explain the procedural posture of the hearing, recognizing that defendant was self-represented. The court advised defendant on several occasions to seek counsel in light of the complexity of the proceedings and the potential negative consequences of continuing to ignore court orders.

The court directed defendant to pay $5000 within one week or be subject to a bench warrant. The judge stated, "I find historically you've made tons of money, you've maintained two households at significant levels. You've got all kinds of equipment." The judge also stated that he would contemplate giving defendant another "45-day cycle" to comply with the other items of the May 22 order, but the judge wanted defendant to make a "good faith" showing that he was at least attempting to comply.

We give "substantial deference to the trial court's findings of fact provided that they are 'supported by adequate, substantial and credible evidence.'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382-83 (App. Div. 2015) (quoting Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998)). We afford particular deference to family court fact-finding, "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Defendant argues that the requirements for service of process have not been met. "The requirements of the rules with respect to service of process go to the jurisdiction of the court and must be strictly complied with. Any defects . . . are fatal and leave the court without jurisdiction and its judgment void." Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 204 (App. Div. 1990) (quoting Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 493 (1952), cert. denied, 344 U.S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952)). If, however, one party presents evidence that process has been served, and the other party challenges the receipt of process, a "return of service is part of the record and raises a presumption that the facts recited therein are true. While the presumption is rebuttable, it can be rebutted only by clear and convincing evidence that the return is false." Garley v. Waddington, 177 N.J. Super. 173, 180-81 (App. Div. 1981). Plaintiff presented the court with a delivery slip provided by NJLS. Defendant failed to show by clear and convincing evidence that he was not served with the notice of motion for pendente lite relief. He admitted receiving the subsequent order and waiting well beyond the twenty-day limit before petitioning the court for relief.

Defendant argues that full-time employment and child care make following the rules while representing himself "virtually impossible." The standard for following court rules does not change for those who represent themselves. See Trocki Plastic Surgery Cent. v. Bartkowski, 344 N.J. Super. 399, 405 (App. Div. 2001) (pro se litigants are regarded as lawyers for the purposes of Rule 1:4-8).

The remaining issues raised by defendant, such as his entitlement to a jury trial and his perception of the unfair nature of the proceedings, are without sufficient legal basis to merit further discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We denied defendant s motion for leave to appeal the May 22, 2015 pendente lite order.

2 A February 27, 2015 case management order required both parties to file their CIS by March 30, 2015.