SANDRA A. MILNER v. EDWARD S. MILNER

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0897-07T10897-07T1

SANDRA A. MILNER,

Plaintiff-Appellant,

V.

EDWARD S. MILNER,

Defendant-Respondent.

__________________________

 

Argued November 17, 2008 - Decided

Before Judges Lisa, Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County FM-06-13906-81.

Richard C. Klein argued the cause for appellant (Spector Gadon & Rosen, P.C., attorneys; Drew A. Molotsky, on the brief).

Carl Cavagnaro argued the cause for respondent (Carl W. Cavagnaro, L.L.C., attorneys; Mr. Cavagnaro, of counsel and on the brief).

PER CURIAM

Plaintiff Sandra A. Milner appeals from an October 5, 2007 order of the Family Part denying her motion for reconsideration of an earlier order in which the court had reduced defendant Edward Milner's alimony obligation from $2850 per month to $400 per month, and granted defendant certain additional relief, based only on submissions from defendant. Because we conclude that the trial court mistakenly exercised its discretion in denying the reconsideration motion, we reverse and remand to the trial court for further proceedings consistent with this opinion.

I

This appeal is the latest installment in a long-running dispute between plaintiff and defendant over Edward's alimony obligations. The history of the dispute was recounted in detail in our prior opinions, Milner v. Milner, 288 N.J. Super. 209 (App. Div. 1996), Milner v. Milner, Docket No. A-2378-02 (App. Div. Apr. 19, 2004), and Milner v. Milner, Docket No. A-0579-04 (App. Div. June 14, 2005). A brief summary will suffice for purposes of this appeal. Defendant is a doctor who, for some time, has been seeking to reduce his alimony obligations based on contentions that his health is failing and his medical practice is dwindling. In all of defendant's several prior applications, plaintiff had vigorously contested defendant's efforts to reduce his alimony payments, on which plaintiff contended she depended entirely for her support.

At the time of defendant's most recent application, both parties were sixty-five years old. On August 21, 2006, defendant filed a motion to reduce his alimony obligation. Plaintiff filed opposition, and on November 3, 2006, the trial court denied the motion without prejudice pending discovery. Defendant re-filed the motion returnable August 10, 2007. Plaintiff's counsel sent a series of letters to the court contending that discovery was incomplete and requesting a conference, a request the court denied by letter dated July 25, 2007.

According to a certification later filed by plaintiff's counsel, by letter dated July 30, 2007, plaintiff's counsel wrote to the court, with a copy to his adversary, requesting that the motion be adjourned to August 24, 2007 due to plaintiff's counsel's serious health condition. Plaintiff's counsel's office staff, believing that the request had been granted, took the motion off counsel's calendar for August 10 and placed it on his calendar for August 24. Therefore, no opposition was filed in time for the August 10 motion.

On August 10, 2007, the trial court granted relief by reducing defendant's alimony obligation to $100 per week. In placing his reasons on the record, the trial judge noted that on the day of the motion hearing, one of plaintiff's counsel's partners was in court on another matter, but was not permitted to address this motion because no opposition papers had been filed. Rather than have his staff make a courtesy phone call to the offices of plaintiff's counsel to find out why, for the first time in the long history of this case, counsel had not filed opposition to the drastic relief defendant was seeking, the court granted that relief as "unopposed."

On or about August 29, 2007, plaintiff's counsel filed a motion for reconsideration, supported by a certification explaining the circumstances that led to his failure to file opposition to the motion or appear for the oral argument. The reconsideration motion was also supported by a certification from plaintiff attesting to the severe economic hardship that would be caused by such a significant reduction in her alimony. Nonetheless, the trial judge denied the motion:

The Court finds that Plaintiff has not properly requested relief under R. 1:7-4B, which governs a request for reconsideration. Plaintiff's response was not filed prior to the motion hearing on August 10, 2007, and therefore, cannot be reconsidered by the Court. Furthermore, the Court finds that Plaintiff's request for relief under R. 4:50-1 is improper. The circumstances under which Plaintiff's attorney acted do not constitute excusable neglect under R. 4:50-1 pursuant to Quagliato v. Bodner, 115 N.J. Super 133 (App. Div. 1971), in which the Court held that excusable neglect does not constitute the attorney's tardiness on the day a motion he was opposing was listed.

II

It is axiomatic that our Rules of Court are to be applied so as to accomplish substantial justice, and that ordinarily an attorney's mistakes should not be visited upon his or her blameless client. See Parker v. Marcus, 281 N.J. Super. 589, 592-93 (App. Div. 1995), certif. denied, 143 N.J. 324 (1996); Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 193-95 (App. Div. 1985). In this case, we conclude that the trial judge acted in derogation of these fundamental principles. As a result, a sixty-five year old woman who has depended for years on alimony as her sole support, had her alimony reduced from $2,850 a month to $400 a month without having had a chance to tell her side of the story.

In this case, the certification filed with the reconsideration motion clearly documented that plaintiff's counsel made a written request for an adjournment well in advance of the August 10 hearing date. Moreover, the reason for the request appeared legitimate, based on counsel's significant health problem. Apparently, counsel's office mistakenly concluded that the adjournment was granted.

We can appreciate that the trial judge may have been frustrated with plaintiff's counsel, but in this context it was a mistaken exercise of the court's discretion to punish plaintiff for her counsel's error. We conclude that under Rule 4:50-1(f)("any other reason justifying relief from the operation of the judgment or order"), the interests of justice required that the trial court grant reconsideration and re-hear the original motion after giving plaintiff an opportunity to file her opposition. See Nowosleska v. Steele, 400 N.J. Super. 297, 303-06 (App. Div. 2008). Accordingly, we reverse the order of October 5, 2007, and we remand this matter to the trial court with direction to reconsider the merits of the August 10, 2007 order after giving plaintiff an opportunity to file her opposition to the alimony reduction motion on which the August 10 order was based.

 
In light of this disposition, we do not address plaintiff's additional appellate arguments concerning the merits of the trial court's August 10 decision. Nothing in our opinion precludes plaintiff from applying to the trial court for a stay of the August 10 order or for other interim relief.

Reversed and remanded.

The court might have sanctioned plaintiff's counsel, a measure the court may consider on remand. However, we express no view as to whether sanctions are warranted.

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A-0897-07T1

December 9, 2008