RAJIV VAISH v. SANMATI VAISH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RAJIV VAISH,

Plaintiff-Appellant,

v.

SANMATI VAISH, n/k/a SANMATI JAIN,

Defendant-Respondent.

___________________________________________

December 1, 2014

Submitted September 29, 2014 Decided

Before Judges Guadagno and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-358-11.

Jeremy Esakoff, attorney for appellant.

The Weir Law Firm, LLC, attorneys for respondent (Bonnie M. Weir, on the brief).

PER CURIAM

Rajiv Vaish appeals from an order entered December 10, 2012, denying his motion to vacate portions of a final judgment of divorce entered on October 25, 2011. Rajiv1 also appeals from the denial of his motion for a plenary hearing to determine issues of support and equitable distribution. For the reasons that follow, we affirm.

I.

Rajiv and Sanmati Vaish were married in India in 1986. Two children were born of the marriage, one in 1990 and one in 1994. In 2010, Sanmati filed a complaint for divorce. For reasons that do not appear in the record, the court initially dismissed her complaint and later reinstated it. Prior to the reinstatement, Rajiv filed a complaint for divorce under a different docket number. After the reinstatement, Sanmati agreed to dismiss her complaint and proceed under the complaint filed by Rajiv. Sanmati filed an answer and counterclaim alleging irreconcilable differences; Rajiv then filed an answer and counterclaim.

Both parties were represented and their attorneys exchanged discovery demands. The parties were ordered to appear before a matrimonial early settlement panel (ESP). On July 1, 2011, Sanmati provided responses to Rajiv's discovery demands, but by July 12, 2011, Rajiv had not responded to Sanmati's discovery demands, and she moved to compel discovery to prepare for the upcoming ESP. In a certification accompanying her motion, Sanmati's counsel stated that Rajiv's counsel told her earlier that day he will no longer be representing Rajiv and was awaiting a substitution of counsel. Sanmati also sought to adjourn the ESP to allow for an opportunity to receive and review the discovery responses.

On July 19, 2011, counsel for Rajiv filed notice to withdraw as counsel, returnable September 2, 2011. In a certification accompanying his motion, counsel explained that Rajiv "has failed to abide by several requirements under the retainer agreement . . . for many months . . . [and as] a result . . . [counsel] is unable to effectively represent [Rajiv] going forward in this case." Counsel also certified that he notified Rajiv by telephone and electronic mail of his intention to move to withdraw as his counsel and was "highly confident" that Rajiv was aware of his intent.

The ESP was scheduled for August 8, 2011. Although Rajiv did not appear, his counsel of record was present as was Sanmati and her counsel. When the court questioned Rajiv's counsel why his client was not present, the attorney replied that he had spoken with Rajiv and informed him that he had to be present for the ESP. Counsel then called Rajiv who explained that he was in the process of retaining new counsel, and new counsel told him not to attend the ESP. Rajiv also told his counsel of record that new counsel had left a message for the court. The court denied that it received any such message.

Based on Rajiv's failure to appear at the ESP, the court dismissed his complaint. On August 10, 2011, Sanmati filed a request to enter default followed by a notice of application for equitable distribution filed on August 16, 2011. Copies of both were provided to Rajiv's counsel of record.

On August 19, 2011, the Family Part granted Rajiv's counsel's request to be relieved. In a separate order entered the same day, the court ordered Rajiv to provide responses to Sanmati's discovery requests within fourteen days.

On August 24, 2011, Rajiv filed a pro se motion to reinstate his complaint. In a certification accompanying his motion, Rajiv stated

I missed my court date because my attorney had a schedule conflict. My attorney left a voice mail with the judge's [secretary] advising of the conflict.

On October 7, 2011, the court denied Rajiv's motion. In a statement of reasons accompanying the order, the judge first found that Rajiv had provided no independent evidence or documentation to support his contentions. The court also noted that Rajiv had not complied with the August 19, 2011 order to provide discovery. The judge then concluded that Rajiv's conduct had been willful.

On October 25, 2011, the court held a hearing on Sanmati's application for equitable distribution. Rajiv failed to appear. After hearing testimony from Sanmati and considering a report by her expert, the court entered a final judgment of divorce and adopted Sanmati's uncontested submission as to equitable distribution, alimony, and child support.

On October 24, 2012, 364 days after entry of this judgment, Rajiv filed a motion to vacate portions of the final judgment of divorce pertaining to child support and alimony. At oral argument on the motion on November 30, 2012, Rajiv was represented by his original counsel. Rajiv's counsel conceded that Rajiv had failed to appear for the ESP on August 8, 2011. He further conceded Rajiv received notice of the October 25, 2011 hearing and failed to appear for that as well. Rajiv argued that the judge who entered the final judgment of divorce failed to perform the proper analyses in setting alimony and child support.

In a written statement of reasons, the judge denied Rajiv's motion concluding

[Rajiv] has not demonstrated good cause to vacate portions of the Judgment of Divorce because he has not sufficiently proven his assertion that there have been changed circumstances after the judgment was entered or that continued enforcement of the judgment would "result in 'extreme' and 'unexpected' hardship["] in the presence of said changed circumstances. [Rajiv] has not presented any reason as to why his failure to appear was excusable under the circumstances. He claims that his attorney did not inform him properly, however, [Sanmati] certifies that she informed him of [the] scheduled date and [Rajiv] chose to ignore them.

[Rajiv] has not submitted enough proof to conclusively determine that an excessive amount of income was imputed to him, that his business was overvalued or that the equitable distribution awarded was inappropriate. Therefore he has not shown with certainty that enforcement of the Order or Judgment is unjust, oppressive or inequitable or that his situation is an exceptional circumstance.

On appeal, Rajiv argues that the judgment of divorce should be vacated under Rule 4:50-1(a), as the motion court erred by ruling that Rajiv had not demonstrated excusable neglect and a meritorious defense. He also argues that the judgment is "tainted" by the trial judge's reliance on impermissible hearsay. Finally, he claims that the judge failed to make findings of fact and did not apply the factors as mandated by N.J.S.A. 2A:34-23.1, rendering the judgment unjust.

II.

The scope of our review of a trial court's factual findings is limited and those findings are binding on appeal when supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We should "not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (internal quotations omitted). We must also give due regard to the "special expertise" of our matrimonial courts and accord particular deference to their fact-finding and to the conclusions that logically flow from those findings. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

Rule 4:50-1 provides relief from judgment may be obtained

[o]n motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

The portion of the Rule relevant to our inquiry is subsection (a), which permits relief from a judgment due to "mistake, inadvertence, surprise, or excusable neglect." These four categories encompass those instances where "a party, through no fault of its own, has [made] . . . a mistaken judgment on a material point at issue in the litigation." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 262 (2009).

Rajiv's claim for relief based on excusable neglect is premised on his contention that he did not know that the default hearing was scheduled for October 25, 2011. He challenges the motion judge's conclusion that "[Sanmati] . . . informed [Rajiv] of [the] scheduled date and [Rajiv] chose to ignore them."

We acknowledge that Sanmati's certification did not specifically state that she personally informed Rajiv of the hearing. Rather, Sanmati stated that Rajiv's counsel was provided with a copy of the notice of the hearing and, from that, concluded that Rajiv was aware of her request for alimony and child support. However, this was not the most compelling evidence of Rajiv's notice of the hearing. That proof is found in the concession made by Rajiv's attorney before the motion judge on November 30, 2012, that Rajiv had notice of the October 25, 2011 hearing. Indeed, the attorney who withdrew on August 19, 2011 was the same attorney who returned to represent Rajiv on his Rule 4:50 motion. He was in a unique position to represent to the court that his client was aware of the proceedings

THE COURT: And then there was a - - there was a notice of equitable distribution filed. It seems to me, though, that . . . your client appeared at the hearing. No?

COUNSEL: No.

THE COURT: Did not appear at all?

COUNSEL: Did not appear.

THE COURT: Okay.

COUNSEL: Did not appear. By the time [Sanmati's counsel] appeared with her client at the hearing - -

THE COURT: But he did receive notice of it?

COUNSEL: Oh, yeah.

THE COURT: Okay.

In addition, Rajiv admitted in a certification that he received a copy of the report prepared by Sanmati's expert from his counsel on August 8, 2011, which placed him on notice of Sanmati's contentions that were ultimately considered at the October 25, 2011 hearing. The motion judge's conclusion that Rajiv failed to present "any reason as to why his failure to appear was excusable" finds adequate support in the record.

We find equally unpersuasive Rajiv's argument that the motion judge applied the wrong standard in deciding his motion. He relies on our opinion in Marder v. Realty Construction Co., 84 N.J. Super. 313 (App. Div.), aff d, 43 N.J. 508 (1964), where we held that "a reopening of the judgment for purposes of assessing damages is proper where the defendant provides a reasonable assertion to the effect that it is not liable for the amount of damages claimed by the plaintiff." Id. at 319. Rajiv argues that he satisfied his burden under Marder. We disagree.

One of the critical factors in deciding the two awards challenged by Rajiv, child support and alimony, was Rajiv's income. Rajiv not only failed to present an expert to challenge the findings of Sanmati's expert, but more tellingly, he refused to provide any discovery as to his income and ignored a court order to do so. The motion judge considered the extensive testimony of Sanmati and the report prepared by her expert. Although that report was somewhat limited, the expert was hampered by Rajiv's failure to provide financial discovery. In the context of a default hearing, the judge was entitled to rely on Sanmati's unopposed testimony and expert report. Rajiv has failed to provide a "reasonable assertion" that the amounts in the judgment were improper.

After flaunting court orders for discovery, failing to attend an ESP and not appearing at the default hearing, Rajiv has not demonstrated that he is entitled to relief under Rule 4:50. Indeed, Rajiv's flagrant disregard of the judicial process amounts to inexcusable neglect, and his defenses cannot be considered remotely "meritorious."

We find the remainder of Rajiv's arguments lack sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Because both parties filed complaints, we refer to them by their first names and not as "plaintiff" or "defendant" to avoid confusion.