AMBER TENBROOK v. JAMES J. TENBROOK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6377-03T56377-03T5

AMBER TENBROOK,

Plaintiff-Appellant,

v.

JAMES J. TENBROOK,

Defendant-Respondent.

_________________________________________________

 

Submitted July 19, 2005 - Decided January 13, 2006

Before Judges Fuentes and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Cumberland County, FM-06-58-03.

April, Maudsley & Goloff, attorneys for appellant (Carol N. Goloff, on the brief).

Waltman and Reilly, attorneys for respondent (William F. Reilly, Jr., on the brief).

PER CURIAM

Plaintiff Amber Tenbrook appeals from an order of disposition dated June 24, 2004 denying her motion for reconsideration of a May 7, 2004 post-divorce order that denied spousal support, equitable distribution and counsel fees. We reverse and remand this matter for a hearing on plaintiff's application for such equitable relief.

The parties were married on September 22, 2001 after they had lived together for six and one-half years. Defendant James Tenbrook is an orthodontist with a successful practice in Millville. The couple met when plaintiff took a position as a dental assistant in defendant's office. In May 1995, after the dissolution of defendant's first marriage, he and plaintiff began their cohabitation. Defendant had been awarded custody of the two children of his first marriage and they resided with plaintiff and defendant. There were no children born of the relationship between plaintiff and defendant.

Plaintiff filed her complaint for divorce on July 31, 2002, approximately ten months after the marriage. By defendant's count, the marriage lasted two-hundred ninety days. Soon after she filed her complaint, plaintiff moved to California. She claims she separated from defendant and moved away because his extreme mental and physical harassment made it impossible for her to return to New Jersey. Defendant claims plaintiff was unfaithful in the marriage and she moved to California for her own personal reasons.

Upon completion of discovery and an unsuccessful referral to the matrimonial early settlement panel, the matter was scheduled for trial on August 4, 2003. Prior to the trial date, plaintiff moved to amend her complaint to withdraw her claim for divorce and to assert in its place a claim for separate maintenance. Defendant cross-moved for leave to file a counterclaim for divorce, nunc pro tunc. The motion and cross-motion were both denied by the court's order of disposition dated July 25, 2003, in which the court also reserved decision on plaintiff's application for counsel fees and defendant's motion for reimbursement for credit card charges and counsel fees.

Less than one week later, on July 31, 2003, plaintiff's counsel faxed and mailed to the court a letter to advise that plaintiff could not appear in court on August 4, 2003, the scheduled trial date, due to transportation and work problems, but that counsel would appear in the hope that serious settlement negotiations could be conducted with opposing counsel. By letter posted that same day, the judge responded to counsel for plaintiff as follows:

Please be advised that the above matter is scheduled for trial before me on August 4, 2003 at 8:30 A.M. Please make arrangements for your respective parties to be in court on that date.

If Mrs. Tenbrook is unable to appear on Monday, August 4, 2003, the Court will proceed with a dismissal of her pleadings only.

On August 4, 2003, counsel for plaintiff appeared in court, as did defendant and his counsel. Plaintiff did not appear. Though the court had a week earlier denied defendant's cross-motion to assert a counterclaim for divorce, upon renewal of that motion on August 4, 2003, the court granted such relief. A final judgment of divorce was entered in favor of defendant dissolving the marriage between the parties. The judgment provided "as to collateral relief, court decides none for either party." On September 15, 2003, an order to amend the judgment was entered to permit plaintiff Amber Tenbrook to resume using her maiden name of Amber Turner.

Thereafter, plaintiff filed a post-judgment motion for (1) spousal support, (2) attorneys fees and costs, and (3) equitable distribution. That motion was denied on May 7, 2004. The court ruled that plaintiff had "exhibited no reason why this court can, under our case law or rules of court, based upon the procedural history and the factual history of this case, that the court could entertain any relief from this (inaudible) [presumably, judgment or order]." Elaborating further, the court stated:

[counsel for defendant] is correct, in that, if there are any reliefs out there that are available to [plaintiff], they have not been exercised. And, unfortunately, her application the court finds is not proper, has no merit under the rules of court and our case law and under the facts of this case. And Ms. Tenbrook needs to realize that this marriage is over . . . . As I indicated, this is not a [R.] 4:50 motion, but I think the court order and the record should reflect that I believe, based upon facts as of today [May 7], the procedural history as of today, that even R. 4:50 would not be the proper vehicle either under Section 1 or Section 2 and that counsel should seriously consider advising their client that this matter is over. No appeal was taken; and therefore the matter should be closed.

Thus, the trial court accepted the position of defendant that "any relief that could be suggested on behalf of the plaintiff would be by way of an appeal to the Appellate Division or by way of R. 4:50, and neither of those applications have ever been made." Accepting those arguments, the motion judge summarily rejected plaintiff's post-judgment request for alimony, equitable distribution and counsel fees.

On plaintiff's motion for reconsideration of the May 7, 2004 order, heard on June 25, 2004, the court noted that counsel for plaintiff had failed to produce the transcript of the August 4, 2003 proceedings, when the final judgment of divorce was entered. He noted that the transcript had been promised on numerous occasions and was not forthcoming. Consequently, he ruled:

I don't believe that the court can even address the issue because I don't believe procedurally its been done correctly; if procedurally it hasn't been done correctly, I'm never going to put form over substance, but in this case I have to, because how many bites at the apple am I going to give Ms. Tenbrook?

In conclusion, the court observed in order for me to make a determination on the ability to change the judgment, in order to reconsider anything, vacate or to reconsider under the rules of court and all of our case law, we need to go back to the original ruling that I made at the divorce hearing and I don't have it. And procedurally, it's deficient procedurally - it's denied.

Although it obviously was not the judge's intention to put form over substance, we believe that was the impact of his refusal on May 7, 2004 to consider the propriety of plaintiff's claim for equitable relief and the refusal thereafter to reconsider that ruling. He held plaintiff had not filed a timely appeal from the judgment of divorce nor sought relief under R. 4:50, and hence was barred. We note, however, that an order or judgment will be deemed interlocutory, not final, and therefore not eligible for appeal even if all that remains to be adjudicated are counsel fee issues. General Motors v. City of Linden, 279 N.J. Super. 449, 455-56 (App. Div. 1995); rev'd on other grounds, 143 N.J. 336 (1996). Where a judgment reserves determination as to alimony or counsel fees, even though it addresses equitable distribution and imputed income, it is an incomplete, interlocutory judgment. Fromowitz v. Fromowitz, 317 N.J. Super. 63 (App. Div. 1998).

Plaintiff was not aggrieved by the August 4, 2003 judgment of divorce. She argues on this appeal that the trial court erred by permitting defendant to enter a counterclaim on the day of trial, when - based on the July 31, 2003 letter from the court - she had anticipated that the only ramification of her failure to appear would be "a dismissal of her pleadings, only." She now decries the procedure employed on the date scheduled for trial, because the court "permitted the Respondent to proceed on an unfiled counterclaim without prior notice to the Appellant." She had initially waived any procedural defect by relying on the entry of judgment when, about a month later, she moved for an amendment of the judgment of divorce to permit her to resume her maiden name and, several months later, when she requested the disputed equitable relief. It was not until the subsequent ruling by the court on May 7, 2004, when it refused to consider plaintiff's requests for equitable relief, that plaintiff had reason to believe she was aggrieved by the judgment of divorce.

As a consequence, plaintiff contends she was denied due process by the lack of notice of defendant's counterclaim and the absence of service. It is unquestionable that the court had personal jurisdiction over plaintiff and, so long as the only relief granted on defendant's counterclaim was the dissolution of the marriage, we perceive no offense to plaintiff's due process rights. That is because the dissolution of the marriage was the same relief sought by plaintiff on her complaint, at least in part. The court's relaxation of the rules to take cognizance of a counterclaim to dissolve the marriage was not inconsistent with the objectives of R. 1:1-2, which directs that "[t]he rules . . . shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." Indeed, in her brief in this appeal, plaintiff acknowledges that she was not harmed by the entry of the divorce, per se, and that she accepted that determination. The brief acknowledges:

Despite the court reversal of its own decision without notice to the Appellant, no appeal was taken since no collateral issues had been decided. Except for the entry of divorce which the Appellant accepted, no other harm was perceived.

On the other hand, we agree with plaintiff that she is entitled to have an adjudication of the "collateral issues" that were not resolved when the judgment of divorce was entered. The denial of any opportunity to be heard on those issues constituted a wrongful exercise of discretion.

We recognize that defendant contends the marriage was so brief that the parties obtained no joint assets and that for the same reason no alimony should be awarded. By contrast, plaintiff contends that they had lived together for over six years and that they acquired real and tangible property that she seeks to distribute equitably. She argues they established a marital standard of living during the marriage that should be considered in evaluating her claim for alimony. See Weishaus v. Weishaus, 180 N.J. 131 (2004) (directing that even in uncontested cases, the marital standard should be placed on the record before the court accepts the divorce agreement). See also Weiss v. Weiss, 226 N.J. Super. 281, 287 (App. Div.) certif. denied, 114 N.J. 287 (1988) and Berrie v. Berrie, 252 N.J. Super. 635, 646 (App. Div. 1991) (recognizing that "a date prior to the marriage ceremony can, in appropriate circumstances, qualify as the date of commencement of the marriage for purposes of deciding whether property is a marital asset subject to equitable distribution"). Plaintiff also contends that she contributed significantly to the economic base during the marriage, and because of their personal, intimate relationship and subsequent marriage, her salary as a dental assistant did not reflect her contribution to the enterprise. These and other issues mentioned in plaintiff's brief were never addressed on the merits.

In our view, the application of R. 4:50 or R. 4:49 to deny a hearing on those issues would result in an injustice. The judgment of divorce was incomplete and not appealable. The language of the judgment of divorce was ambiguous. The words "as to collateral relief, court decides none for either party" could mean (a) that the court considered and denied relief to both parties or (b) that the court was making no decision on the collateral issues but was reserving them for later resolution. Plaintiff reasonably understood the latter to be the import of that clause in the judgment, as do we. That understanding was bolstered by the court's earlier statement that if plaintiff did not appear "the court will proceed with a dismissal of her pleadings only." That the court went beyond a mere dismissal was an acceptable matter of expediency to avoid unjustifiable expense and delay. If we were to construe it as an adverse disposition on the merits of the collateral issues or as a sanction against plaintiff for her failure to appear, the judgment and the procedure employed to enter that judgment would be flawed and untenable.

Reversed and remanded for further proceedings.

 

A domestic violence complaint was filed by plaintiff on July 7, 2002 and a temporary restraining order was entered on that date. An order, dated July 18, 2002, continued the restraints until the restraints could be incorporated into the divorce action.

(continued)

(continued)

11

A-6377-03T5

January 13, 2006