SALINA T. SEGOBIND v. HEMCHAND SEGOBIND

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SALINA T. SEGOBIND,

Plaintiff-Respondent,

v.

HEMCHAND SEGOBIND,

Defendant-Appellant.

______________________________________

April 23, 2015

 

Submitted August 27, 2014 Decided

Before Judges Simonelli and O'Connor.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1659-12.

Deborah A. Rose, attorney for appellant.

Christopher Olsen, attorney for respondent.

The opinion of the court was delivered by

O'CONNOR, J.A.D.

Defendant Hemchand Segobind appeals from an order denying his motion to vacate a default judgment of divorce, entered September 19, 2012. For the reasons that follow, we affirm in part and remand in part.

I

The parties were married on May 14, 2004, and separated on October 31, 2009. There were three children born of the marriage, who are presently five, seven, and nine years of age. During the marriage, plaintiff Salina Segobind was the primary caretaker and did not work outside of the home in order to care for the children. The only significant asset acquired during the marriage was a house defendant bought in 2005 for $104,000.

On February 18, 2011, plaintiff filed a complaint for divorce in Somerset County. Defendant did not file an answer. While the divorce complaint was pending, however, defendant appeared pro se in court to defend himself against a domestic violence complaint plaintiff filed pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. He also represented himself in a non-dissolution proceeding plaintiff filed seeking spousal and child support pursuant to Rule 5:6. The divorce complaint was eventually dismissed for lack of prosecution, see Rule 1:13-7, on January 10, 2012.

On April 9, 2012, plaintiff filed a new complaint for divorce in Monmouth County, which was served upon defendant on April 23, 2012. When defendant did not file an answer, plaintiff filed a notice of proposed final judgment (notice), see Rule 5:5-10, on July 24, 2012. The notice stated that the hearing on the notice was scheduled for August 20, 2012. Defendant was served with the notice on July 20, 2012, when he appeared in court on an order to show cause he had filed in Monmouth County seeking temporary custody of the parties' children.1 At that time, the court told defendant that if he did not file an answer or appearance before August 20, 2012, default would be entered against him.

Defendant did not file an answer or appearance to the complaint and the hearing on the notice was ultimately conducted on September 19, 2012.2 Defendant appeared without counsel at that hearing, at the conclusion of which the court signed a judgment of divorce (judgment), which incorporated the terms of plaintiff's notice of proposed final judgment. The notice not only included the specific relief plaintiff sought, but also the rationale behind some of the relief she sought. The highlights of the judgment are as follows.

The judgment specifically states that, because plaintiff was precluded from working full-time during the marriage and was able to earn only $100 per week, defendant must pay plaintiff $250 per week in "rehabilitative/limited duration" alimony for six years. The judgment notes that based upon the family's expenses during the marriage, which included a mortgage of $1500 per month, defendant was earning at least $3000 per month.

Under the judgment, defendant must pay child support of $195 per week, an amount calculated pursuant to the child support guidelines, see Rule 5:6A, and based upon plaintiff's actual income of $100 per week and an imputed annual income of $52,000 to defendant.

The parties' marital home was sold by defendant to one of his relatives.3 As required under Rule 5:5-10, plaintiff attached a case information statement to the notice, which stated the house was worth $200,000. The judgment indicates the house was sold for an unknown sum of money and, at the time of sale, the mortgages against the property were $113,000. The judgment compels defendant to pay plaintiff $50,000 for her interest in this marital asset.

The judgment provides that defendant is permitted to keep his car, but he is to pay the balance of the loan on the car. According to the case information statement attached to the notice, defendant's car was worth $20,000 when acquired in 2008. He is obligated to either provide plaintiff with a vehicle or co-sign a loan to enable her to acquire one; however, plaintiff shall be responsible to pay the loan against such vehicle.

The judgment compels defendant to pay the parties' credit card debt which, to plaintiff's knowledge, was debt incurred on a Sears and a Chase credit card. In the aggregate the debt on these two cards was $11,000 and was incurred before the parties' separation on October 31, 2009. As for other marital debt, at the time of the divorce the Marlboro Township Board of Education (Board) challenged whether the children were residents of Marlboro Township, where plaintiff moved after the parties separated. The Board sought $5,740.45 in damages against plaintiff.4 The judgment states that if the Board prevails, defendant must pay sixty percent of the amount plaintiff is obligated to pay.

On January 8, 2013, defendant filed a motion to vacate the judgment pursuant to Rule 4:50-1(a) and (f). In his certification he claimed that he filed an answer to the complaint plaintiff had filed in Somerset County, and assumed his answer was going to be transferred to Monmouth County when plaintiff filed a new complaint there. He admitted he was served with plaintiff's notice of proposed final judgment on July 20, 2012. He further certified that the notice

largely misstated the financial picture of my marriage to plaintiff, and imputed income to me, which was grossly in excess of that which I had historically earned. I was not given an adequate opportunity to speak [at the default hearing] and the court refused to allow me to present evidence concerning my present finances or anything else . . . . The judge also disregarded the fact I had filed a timely answer in Somerset County.

Defendant claimed he had earned only $15,000 in 2012, during which he worked as a self-employed financial consultant. However, he mentioned he worked only part time in 2012 because he was attending school full time. He did not indicate the amount of time it took to earn the $15,000, what he would have earned had he worked full time, or what he had earned during the marriage.

Defendant attached the HUD-1 statement from the sale of the marital home to his certification, which indicates he sold the house after the parties' separation for $112,000 and that there were two mortgages against the home totaling $113,413.18. Because there was no equity in the home, he argued he should not have to pay plaintiff anything for her marital interest in this property.

Defendant further complained he should not have to pay all of the parties' credit card debt of $11,000; pay for plaintiff's car loan;5 and pay sixty percent of any debt plaintiff might owe to the Board because, he contended, such debt arose from plaintiff fraudulently misrepresenting to the Board that the children resided in Marlboro Township.

In a certification filed in opposition to defendant's motion, plaintiff noted, among other things, that defendant would not have qualified for the two mortgages against the marital home if he had been earning less than approximately $52,000 per year. As for the credit card debt, plaintiff claimed she had to use the credit cards when defendant failed to provide support.

With respect to the Board's claim, plaintiff asserted the children were properly living in Marlboro Township when they attended school there and that she was contesting this claim. She contended defendant misrepresented to the Division of Child Protection and Permanency (DCPP) that the children were not living in Marlboro Township when in fact they were. Then, when the Board learned of what defendant had imparted to the DCPP about the children's residency, the Board asserted a claim against her. Plaintiff argued defendant should share in any damages she may have to pay, in the event she is unable to convince the Board the children were in fact residents of Marlboro Township when they attended school there.

The trial court denied defendant's motion to vacate the default judgment, finding as follows. First, defendant never filed an answer to the divorce complaint that had been filed in Somerset County, because an order entered by a court in that county found he had not done so. The trial court concluded defendant had not only falsely represented that he had filed an answer, but also "deliberately did not answer," and was "playing games with his ex-wife by coming in and saying, this is all unfair, when he had notice of the situation for two months of what she was seeking."

Second, although pro se, the trial court found defendant had some familiarity with the court system, having previously appeared in the non-dissolution and domestic violence actions, as well as on the order to show cause he filed in Monmouth County. The trial court further observed that, even if defendant had no such familiarity, being pro se did not warrant that he be given any leniency. Third, the summons attached to the divorce complaint alerted defendant that he had to take action. Fourth, defendant failed to provide sufficient information about his finances to warrant setting aside the judgment of divorce.

Ultimately, the trial court concluded defendant had not shown excusable neglect to justify setting aside the judgment under Rule 4:50-1(a), and denied defendant's motion.

II

On appeal, defendant does not contest he failed to show excusable neglect and, thus, is not entitled to relief under Rule 4:50-1(a). Rather, he argues the judgment should have been set aside under Rule 4:50-1(f), which states that a "court may relieve a party . . . from a final judgment or order for . . . (f) any other reason justifying relief from the operation of the judgment or order."

Trial courts have broad discretion to vacate a judgment or order under Rule 4:50-1(f), and should do so when "such relief is necessary to achieve a fair and just result." Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 122 (1977). However, relief under subsection (f) is to be applied "'sparingly, in exceptional situations' to prevent grave injustice." Nowosleska v. Steele, 400 N.J. Super. 297, 304 (App. Div. 2008) (quoting Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 237 (1998)). "Further, the policy in favor of the finality of judgments plays a larger role in applications brought under subsection (f) than the other subsections." Ibid. (citing First Morris Bank & Trust v. Roland Offset Serv., Inc., 357 N.J. Super. 68, 71 (App. Div.), certif. denied, 176 N.J. 429 (2003)). Having reviewed the record, we are convinced no exceptional circumstances exist and that defendant will not suffer a grave injustice if he is not afforded relief under Rule 4:50-1(f).

Defendant argues he is entitled to relief because

[t]aken as a whole, the material presented [by] defendant in his motion [to set aside the judgment] showed that the Judgment was unjustly skewed in plaintiff's favor to the extent that she was awarded not merely all of the marital assets but more than the parties had acquired and none of the debt while defendant was allocated all of the debt and an obligation to pay plaintiff money that neither party every [sic] had. Moreover, the terms of the support provision were impossible for defendant [to] meet.

As for paying plaintiff $50,000 for her share in the marital home, defendant argues there is no evidence this asset was worth as much as $200,000, pointing out that the HUD-1 statement reveals the house sold for $112,000 and, after all closing costs and mortgages were paid, he had to pay a deficiency of $5,758.76. As a procedural matter, he complains the notice does not set forth the sale price or attach an appraisal of the property.

First, the notice states that plaintiff did not know the sale price but did indicate defendant sold the house to a relative. Second, Rule 5:5-10 does not require that an appraisal of the marital assets be attached to a notice of proposed judgment and, as the house was sold one year before the default hearing, it is questionable whether plaintiff could have obtained an appraisal. Third, plaintiff did indicate in the case information statement attached to the notice that the house was worth $200,000. Defendant was well aware two months before the default hearing that plaintiff was asserting the house had a value of $200,000, yet chose to remain in default. Fourth, defendant fails to address the very significant issue that the house was sold to a relative, raising the obvious spectre the sale was not an arms-length transaction in which the property was sold at fair market value. See generally Mays Ctr. Assocs. Corp. v. Twp. of Rockaway, 15 N.J. Tax 168, 170 (App. Div. 1994).

Defendant also contends that the pay stubs plaintiff attached to the notice of proposed final judgment revealed she earned $100 per hour and, thus, she did not require alimony of $250 per week to maintain a lifestyle reasonably comparable to that enjoyed during the marriage. See Steneken v. Steneken, 183 N.J. 290, 298-99 (2005) (citing Crews v. Crews, 164 N.J. 11, 16 (2000)). However, defendant misreads plaintiff's paystubs, which do not indicate she earned $100 per hour. They indicate she earned $300 over a thirteen-day period and $200 over two other thirteen-day periods.

Plaintiff does concede she has the potential to earn a greater income when the children are older, but during the marriage she was hampered from working outside of the home because she was caring for three young children a fact defendant does not dispute and, at the time of the divorce, was still impaired from working full time. Further, as the trial court pointed out, the judgment does not preclude defendant from making an application to modify his support obligations based upon a showing of changed circumstances. See Lepis v. Lepis, 83 N.J. 139, 146 (1980).

As for defendant's ability to pay support, he did not proffer any evidence of what he had earned during the marriage, merely setting forth what he earned part time as a financial consultant after enrolling in school full time once the parties separated. He did not disclose what he was capable of earning at the time of his motion to vacate the judgment. Further, while he claimed his parents helped defray expenses during the marriage, he failed to explain how he qualified for the two mortgages against the marital home.

Defendant argues the notice did not specify the cut-off date for "the accrual of joint credit card debt or even list the specific credit cards that plaintiff believes are jointly held. The Judgment of Divorce includes the $11,000 without even specifying on which cards the amount accrued or when it was accrued." Defendant misreads the notice which, together with the case information statement attached to the notice, sets forth the very information he claims was omitted.

Defendant complains he has to pay sixty percent of what the Board may find is owed by plaintiff for enrolling the children in a district in which the children did not reside. First, the amount the Board is claiming is $5,740.42, making defendant's potential share of the debt $3,444.25. Second, in our view, the application of Rule 4:50-1(f), which is to be exercised sparingly and is limited to exceptional circumstances to prevent a grave injustice, does not warrant setting aside this provision. Moreover, the policy favoring the finality of judgments in applications brought under subsection (f), and defendant's deliberate failure to file an answer, provide additional bases for leaving this provision intact.

However, the judgment contains an error that is clearly inadvertent and inconsistent with what was intended to be ordered. Paragraph 14 of the judgment states defendant's obligation to pay "alimony, child support and the $65,740.45 due to the plaintiff" is to be paid through the Probation Department. The sum of $65,740.45 is an obvious reference to the $50,000 defendant is to pay plaintiff for her share of the marital home and the $15,740.45 the parties indicated the Board is demanding from plaintiff.

At the time the judgment was entered, it was not disputed the Board's claim had not been resolved. Paragraph 14 assumes that the matter had concluded, that the Board was entitled to $15,740.45 and that defendant had to pay the full amount instead of only sixty percent of such claim. Further, paragraph 14 compels defendant to pay plaintiff's share of equitable distribution through the Probation Department. While the obligation to pay alimony and child support may be payable through a Probation Department, see N.J.S.A. 2A:17-56.13, equitable distribution payments may not be.

On remand, the trial court shall amend the judgment to set forth that defendant is obligated to pay only sixty percent of the amount which the Board determines plaintiff owes, and shall remove defendant's obligation to pay any equitable distribution through the Probation Department.

To the extent that any arguments raised by defendant have not been explicitly addressed in this opinion, it is because we are satisfied that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part and remanded for further proceedings. We do not retain jurisdiction.

1 Defendant's order to show cause was denied.

2 Defendant did not provide a copy of the transcript of this hearing.

3 Although the home was acquired during the marriage, the house remained solely titled in defendant's name.

4 Although the parties' briefs state the amount sought by the Board is $15,740.45, the evidence clearly indicates it is $5,740.45.

5 As previously addressed, the judgment of divorce does not compel defendant to pay for plaintiff s car loan.