BRUCE DOBBINS v. VICTORIA DOBBINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BRUCE DOBBINS,

Plaintiff-Appellant/

Cross-Respondent,

v.

VICTORIA DOBBINS,

Defendant-Respondent/

Cross-Appellant.

______________________________________________________________

June 10, 2015

Argued January 21, 2015 Decided

Before Judges Messano, Ostrer and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1437-10.

Jacqueline M. Printz argued the cause for appellant/cross-respondent (Howard I. Masia and Greenbaum, Rowe, Smith & Davis LLP attorneys; Mr. Masia and Jacqueline M. Printz, of counsel, Dennis F. Feeney and Ms. Printz, on the brief).

Steven D. Janel argued the cause for respondent/cross-appellant.

PER CURIAM

By leave granted, plaintiff Bruce Dobbins appeals from a Family Part order granting defendant Victoria Dobbins' motion to strike the stipulation of dismissal and vacate the 2011 voluntary dismissal of plaintiff's divorce complaint. Shortly before the stipulation of dismissal was filed, Bruce1 filed for divorce in Saudi Arabia and swiftly obtained a default judgment. Victoria had two weeks notice of the hearing, but did not appear. Instead, Victoria filed for divorce in her home state, Maryland, but that court dismissed her complaint in 2012, holding that Maryland had no jurisdiction over the marriage. Victoria filed the present motion to vacate the dismissal and reinstate Bruce's complaint against her approximately twenty months after the Maryland dismissal. The trial court granted her motion, and Bruce appealed. Victoria cross-appealed, alleging the court abused its discretion in not awarding her counsel fees. For the following reasons, we reverse on the appeal and on affirm the cross-appeal.

Bruce and Victoria were married in 1984 and had three children, all of whom were emancipated by the time the complaint was filed. The couple lived in several states but never resided together in New Jersey. They last lived together in 2008 in Saudi Arabia, where defendant was working.

Bruce filed a complaint for divorce in New Jersey on March 29, 2010. Victoria was a resident of Maryland at the time. When Victoria did not answer the complaint, Bruce moved for default. On August 17, 2010, Victoria moved to vacate the default and filed a motion to dismiss based on lack of personal and subject matter jurisdiction and forum non conveniens. Victoria also disputed that Bruce was a New Jersey resident, contending that he only spent two weeks per year in the United States, because he worked for a Saudi oil company. Bruce opposed Victoria's motion to dismiss, claiming residency in New Jersey since 2007.

On September 21, 2010, the trial court granted Victoria's motion to vacate the default. However, the judge denied Victoria's motion to dismiss, finding that Bruce had his residence property in New Jersey. Victoria then filed an answer, again asserting lack of personal and subject matter jurisdiction.

After engaging in settlement discussions without reaching agreement, Bruce's counsel notified Victoria's attorney that Bruce no longer wished to proceed in New Jersey and that he would move to dismiss his complaint unless Victoria consented to a dismissal. Bruce's counsel signed the joint stipulation of dismissal on March 14, and Victoria's counsel signed it on March 16, 2011. The dismissal was filed with the court on March 23, 2011. A few days before the dismissal was filed, Bruce filed a complaint for divorce in Saudi Arabia.

Bruce first attempted on March 17, 2011 to serve Victoria with notice of the Saudi divorce proceedings and a hearing, which was scheduled for March 23, 2011. Victoria acknowledged in an email that she received the notice on March 21, 2011. Despite knowledge of the pending proceedings in Saudi Arabia, Victoria did not seek to withdraw her consent to the voluntary dismissal prior to March 23 when it was filed with the court.

When Bruce advised Victoria by email on March 20 that she needed to act quickly in order to attend the hearing or secure an adjournment, Victoria replied that she would not attend because she was not given sufficient notice. After further emails between the parties, Victoria emailed Bruce

Good luck to you and all your endeavors. Please proceed without me. It is not within my powers to drop everything & fly across the world on a 3 days notice to attend a divorce hearing in Saudi Arabia, not to mention finding the few thousand dollars to purchase a flight. I had over a month to react to the NJ divorce hearing & that's just a 3-4 hours drive by car to attend that. I hope it all works out to the best advantage of all involved.

Bruce proceeded with the Saudi proceedings and secured a divorce judgment entered on March 29, 2011, which he registered with Vermont, his current domicile. Bruce remarried in April 2011.

Subsequent to the entry of the Saudi judgment,2 Victoria filed a complaint for divorce in Maryland. The Maryland court granted Bruce's motion to dismiss the complaint on July 10, 2012. The Maryland court determined that "Maryland was not the proper marital domicile" and suggested that the "marital domicile" was "more likely" either in New Jersey or Saudi Arabia.

Twenty months later, on February 19, 2014, Victoria filed a motion in New Jersey to vacate the 2011 dismissal. She argued that the dismissal should be vacated because Bruce acted in bad faith in securing her consent to the stipulation by failing to disclose the Saudi proceedings. She also asserted that the Saudi proceedings were not entitled to comity due to the lack of adequate notice. She did not disclose any reason for the three year delay in filing the motion.

Bruce opposed Victoria's motion claiming that he filed for divorce in Saudi Arabia after entering the stipulation of dismissal, and that he provided Victoria with notice of the proceedings. He noted that Victoria made no effort to participate in the Saudi proceedings or to keep the New Jersey matrimonial action open. He also emphasized that he had not lived in New Jersey since 2011 so the State no longer had personal jurisdiction, that Victoria did not appeal the Maryland dismissal, and that the motion to vacate, filed after three years and a lengthy court proceeding in another state, was untimely.

On April 4, 2014, the trial judge granted Victoria's motion to vacate the stipulation of dismissal, reinstated Bruce's complaint, and declared the Saudi judgment of divorce (JOD) "void." The court found that, although neither party currently lived in New Jersey, it had jurisdiction based on the earlier filed complaint wherein Bruce acknowledged that he was a resident of New Jersey. The court further noted that, pursuant to Rule 4:37-1, the dismissal was without prejudice.

In vacating the stipulation of dismissal, the judge reasoned

As a matter of public policy, Bruce should not be permitted to obtain a Stipulation of Dismissal of this case by less than forthright means just to go to another country and obtain a judgment of divorce containing provisions that are largely incongruent with the equitable distribution laws of this State.

The court added that Bruce was "less than candid with the court and with Victoria in obtaining the Stipulation of Dismissal" based on the timeline in the case.

Bruce moved for reconsideration and requested a plenary hearing. On July 3, 2014, the trial court granted Bruce's motion for reconsideration in part because both parties wanted to remain divorced. The court amended its prior order to hold that the Saudi JOD was not void in its entirety, but only insofar as it decided equitable distribution and other financial issues. In denying the remainder of Bruce's motion, the court determined that the present application was, "in essence, a more thorough [o]pposition and [c]ross-[m]otion to Victoria's [original motion] disguised as a [m]otion for [r]econsideration." The court reiterated that "this matter should be reopened because the method by which Bruce obtained the Saudi JOD violates New Jersey public policy, specifically the procedural protections in place that ensure a litigant is provided proper notice and afforded a fair and full opportunity to be heard." Additionally, the court held that Victoria's motion was not barred as untimely, stating that while she was "less than expeditious in initiating this proceeding, the court is not satisfied that her application should be denied on procedural grounds under Rule 4:50." The trial judge also denied Bruce's request for a plenary hearing, finding no issues of fact that would require an adjudication.

Initially, the judge granted Victoria's motion for counsel fees, ordering her to file a certification of services by July 14. However, on August 8, 2014, the court reversed its earlier order and denied Victoria's application for fees without prejudice, finding that neither party acted in bad faith, and reserved ruling on counsel fees until it had evidence of the financial circumstances of the parties at the conclusion of the litigation.

On appeal, Bruce raises several contentions. He argues that (1) the stipulation of dismissal was equivalent to a final judgment that should not have been reopened under Rule 4:50 absent exceptional circumstances not present here; (2) New Jersey no longer had jurisdiction over the parties as neither live in the State; (3) principles of comity required that the Saudi JOD must be enforced; and (4) alternatively, the court should have held a plenary hearing on whether Saudi law provided sufficient due process protections. He also submits that Victoria's complaint was barred by laches, res judicata, and equitable estoppel.

On cross-appeal, Victoria argues that the court erred in denying counsel fees without prejudice to a later application. She contends that the court incorrectly found that Bruce did not act in bad faith and that she was forced to incur costs to defend a duplicative motion for reconsideration.

In appellate review, courts should defer to the trial court's findings of fact, so long as they are supported by substantial credible evidence in the record. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 362 (2011) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). In contrast, a trial judge's conclusions on issues of law are not entitled to any deference. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995)); Depolink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013). We employ an abuse of discretion standard in reviewing a trial court's order granting or denying a motion to vacate the dismissal of an action. ASHI-GTO Assocs. v. Irvington Pediatrics, P.A., 414 N.J. Super. 351, 359 (App. Div.), certif. denied, 205 N.J. 96 (2010). "'[J]udicial discretion means sound discretion, exercised not arbitrarily or willfully, but with just regard to what is right and equitable under the circumstances and the law.'" Santos v. Estate of Santos, 217 N.J. Super. 411, 415 (App. Div. 1986) (internal quotation marks and citations omitted).

A plaintiff's voluntary dismissal of an action is governed by Rule 4:37-1.3 Once a complaint has been filed in an action, the plaintiff may dismiss the action simply by filing a notice of dismissal before an adverse party answers the complaint or files for summary judgment. R. 4:37-1(a). To dismiss the action without court approval after the adverse party answered the complaint, all parties must consent and sign a stipulation of dismissal. Ibid. In order to prevent abuse by plaintiffs, if a plaintiff who dismissed an action later files an action including the same claim against the same defendant, the defendant may move for an order paying costs of the previously dismissed action. R. 4:37-4.

It is well established that, once a plaintiff obtains a voluntary dismissal without prejudice, "another action may be instituted and the same facts urged, either alone or in the company of others as a basis for relief." Arena v Borough of Jamesburg, 309 N.J. Super. 106, 110 (App. Div. 1998) (citations and internal quotations omitted). Entry of such a dismissal "'leaves the situation as if the action never had been filed.'" Ibid. (quoting 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, Civil 2d 2367 (1995)); see also Czepas v. Schenk, 362 N.J. Super. 216, 228 (App. Div.) ("A dismissal without prejudice means that there has been no adjudication on the merits and that a subsequent complaint alleging the same cause of action will not be barred by reason of its prior dismissal."), certif. denied, 178 N.J. 374 (2003). Such a dismissal of an action by a plaintiff without prejudice "adjudicates nothing." N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 263 (App. Div. 2009) (citations omitted), certif. denied, 201 N.J. 153 (2010). Thus, it does not constitute a bar to re-institution of the action. O'Loughlin v. Nat'l Cmty. Bank, 338 N.J. Super. 592, 603-04 (App. Div.), certif. denied, 169 N.J. 606 (2001); Malhame v. Borough of Demarest, 174 N.J. Super. 28, 30-31 (App. Div. 1980).

When a defendant does not consent to a dismissal after an answer has been filed, a dismissal is not authorized by Rule 4:37-1(a). Greeley v. Greeley, 194 N.J. 173, 174-76 (2008). In that event, a defendant may move to prevent the dismissal or to reinstate a complaint when the dismissal was not in conformance with the Rule. Id. at 175-76; see also Burns v. Hoboken Rent Leveling & Stabilization Bd., 429 N.J. Super. 435, 445 (App. Div. 2013) (holding that failure to obtain permission from defendant for voluntary dismissal ordinarily warrants reinstatement of complaint). Absent an unauthorized dismissal, we are unaware of any precedent allowing a defendant to move to reinstate a complaint against itself. Victoria has failed to provide any support for the proposition that a defendant can reinstate a plaintiff's voluntary dismissal of a complaint, made with the consent of the defendant. Victoria's reliance on Sec. Nat'l Partners v. Mahler, 336 N.J. Super. 101, 104-05 (App. Div. 2000), certif. denied, 169 N.J. 607 (2001), is misplaced as in that case, the Court ruled that a plaintiff who voluntarily dismissed its complaint could file a new complaint despite the fact that the plaintiff's attempt to secure a consent dismissal was procedurally flawed. Ibid.

Nor are we convinced that Rule 4:50 applies here. "A motion under Rule 4:50 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). "Courts should use Rule 4:50-1 sparingly, in exceptional circumstances; the Rule is designed to provide relief from judgments in situations in which, were it not applied, a grave injustice would occur." Id. at 289. We will not disturb a motion court's determination to grant or deny an application to open a judgment "unless it represents a clear abuse of discretion." Id. at 283.

Dismissals without prejudice do not adjudicate the merits of a dispute, and are not "final judgments." See O'Loughlin, supra, 338 N.J. Super. at 603; see also Malhame, supra, 174 N.J. Super. at 30-31. Rule 4:50 applies only to final judgments. See Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 262-63 (App. Div. 1987) (limiting R. 4:50-1 to final judgments); but see Miller v. Estate of Kahn, 140 N.J. Super. 177, 181-82 (App. Div. 1976) (holding that voluntary dismissals should be analyzed under Rule 4:50). Thus, in our view Rule 4:50 was not applicable to Victoria's motion.

Furthermore, even if Rule 4:50 applies to voluntary dismissals without prejudice, under the circumstances here the motion was untimely because Victoria filed the motion three years after the dismissal. Claims under Rule 4:50-1(a), (b) and (c) must be filed within a reasonable time up to one year. Orner v. Liu, 419 N.J. Super. 431, 437 (App. Div.), certif. denied, 208 N.J. 369 (2011). Because Victoria's motion was filed three years after the dismissal, it falls within the catch-all provision in Rule 4:50-1(f), and requires a showing of inequity and unfairness. See Rosen v. Rosen, 225 N.J. Super. 33, 36 (App. Div. 1988).

The trial court determined that the motion was not untimely under Rule 4:50-1 but did not specifically find extraordinary circumstances here. We cannot discern from the record the existence of truly extraordinary circumstances justifying reinstatement where Victoria opposed being subject to the jurisdiction of this State, knew about the pending Saudi divorce contemporaneously with the filing of the stipulation of dismissal and did not rescind the stipulation, chose to litigate the matter in her home state for over a year, and only moved for relief twenty months after she lost in the Maryland court. Moreover, the record contains no logical reason or explanation for the lengthy delay.

Consequently, we are satisfied that under Rule 4:37-1 or Rule 4:50-1 in the circumstances here, it was a mistaken use of discretion to grant Victoria's motion to vacate the dismissal and to reinstate Bruce's complaint.4 We do not address whether other remedies are available to Victoria, including whether she may file a new complaint in the appropriate jurisdiction challenging the Saudi divorce judgment concerning equitable distribution and other financial matters.

Additionally, we find Victoria's cross-appeal to be completely without merit and that it does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The decision to award counsel fees "in a matrimonial action rests in the discretion of the trial court," Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007), and will be disturbed "only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). Suffice it to say that, contrary to Victoria's argument, the court did not abuse its discretion in declining to decide the issue without sufficient financial information.

Reversed and remanded to the trial court for entry of a judgment consistent with this opinion.

1 Because the parties share the same last name, we refer to them by their first names. We mean no disrespect.

2 The parties dispute the date of filing, and no filed copy was provided in the record. The Maryland court granted a motion for alternate service on July 27, 2011.

3 We reject Bruce's argument that Victoria's motion was controlled by Rule 1:13-7, which requires a motion for reinstatement of a complaint to be made within ninety days, absent exceptional circumstances. This argument is without merit as Rule 1:13-7 only applies to actions a court dismissed for lack of prosecution.

4 Based upon this ruling, we do not reach Bruce's other arguments.