ALBERT WITTIK v. DEBRA WITTIK

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0333-17T1

ALBERT WITTIK,

          Plaintiff,

v.

DEBRA WITTIK,

          Defendant/Third-Party
          Plaintiff-Respondent,

v.

ANGELA SUSKE, individually and
as Guardian of NICHOLAS SUSKE
and NINA SUSKE,

          Third-Party Defendant-
          Appellant,

and

NICHOLAS SUSKE, individually,
NINA SUSKE, individually,
and THERESA ANGELO,

     Third-Party Defendants.
_______________________________
            Submitted October 22, 2018 – Decided December 3, 2018

            Before Judges Gooden Brown and Rose.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Somerset County,
            Docket No. FM-18-0426-12.

            Deborah A. Rose, attorney for appellant.

            Jeney, Jeney & O'Connor, LLC, attorneys for
            respondent (Carol A. Jeney, of counsel and on the
            brief).

PER CURIAM

      In this matrimonial matter, third-party defendant Angela Suske appeals

from the portions of the June 26, August 28, and September 18, 2017 Family

Part orders, allowing for the distribution of property, in which she had a fifty

percent interest, as part of an equitable distribution award. Suske argues she

was dispossessed of her property interest without procedural due process. We

agree and reverse.

      By way of background, plaintiff Albert Wittik and defendant Debra Wittik

were married in 1982. No children were born of the marriage. However, Suske

is plaintiff's daughter from a prior marriage and the mother of Nicholas and Nina

Suske. In 2003, plaintiff and defendant separated, and plaintiff filed a complaint

for divorce in Pennsylvania, which he later dismissed in 2004. The following


                                                                          A-0333-17T1
                                        2
year, in June 2005, plaintiff purchased property located on Cheyenne Trail in

Branchburg, New Jersey, for $375,000, and, two months later, transferred a one-

half interest to Suske as a tenant-in-common.

      On October 7, 2011, plaintiff filed another complaint for divorce in New

Jersey. 1 On November 8, 2011, defendant filed an answer and counterclaim

seeking equitable distribution and alimony. By leave granted, on May 16, 2014,

defendant filed a third-party complaint naming Suske, her children, and

plaintiff's mother as third-party defendants, alleging that, among other things,

the transfer of title in the Cheyenne Trail property "was done in an attempt to

prevent . . . [defendant] from receiving her share of the marital property."

      On July 25, 2014, Suske filed a contesting answer. In her deposition

conducted on November 19, 2014, Suske testified she was unaware of her

interest in the Cheyenne Trail property until she was served with the third-party

complaint and admitted that she neither paid any money in consideration for the

property nor paid any expenses related to the property. She believed plaintiff

transferred the property into their joint names "for estate planning purposes or

in the event that he would pass, as [she was] his only child."



1
   Plaintiff later voluntarily dismissed the complaint, but the complaint was
reinstated by a May 3, 2013 consent order.
                                                                          A-0333-17T1
                                        3
      On May 12, 2016, defendant's motion to dismiss plaintiff's complaint with

prejudice "for failure to provide fully responsive discovery in compliance with

discovery requests . . . and [c]ourt orders" was granted. Default was entered on

defendant's counterclaim and a default judgment hearing was scheduled. Prior

to the default hearing, in accordance with Rule 5:5-10, defendant sent a Notice

of Proposed Final Judgment dated July 28, 2016, notifying plaintiff and Suske

that she was seeking equitable distribution of all joint marital assets, including

"[f]ifty percent . . . of the net proceeds of sale (or fair market value)," of the

Cheyenne Trail property. In addition, defendant was seeking an order "that the

property immediately be placed back into the sole name of . . . [p]laintiff, that

the house be sold if necessary, and that the proceeds be used to pay [defendant]

her share of equitable distribution."

      A February 21, 2017 default hearing was aborted when the trial judge

recused himself over a perceived conflict of interest, and transferred the case to

another county. Thereafter, the default hearing was conducted on May 1 and 2,

2017. Suske was never notified by the court of either the February 21 or May 1

scheduled default hearing dates. However, on March 13, and again on April 25,

2017, defendant served Suske with a Notice in Lieu of Subpoena to be "on call"

to testify at the May 1, 2017 default hearing. In the accompanying letters,


                                                                          A-0333-17T1
                                        4
defendant's attorney indicated that Suske did not have to appear in court unless

she received a call from counsel. Suske was never called to testify at the default

hearing and did not appear. Additionally, her deposition testimony was never

introduced into evidence at the hearing.

      Following the hearing, on May 18, 2017, the judge issued an oral decision,

granting the divorce on defendant's counterclaim and awarding defendant

$500,000 in equitable distribution. Considering "the protracted history and

obvious difficulties brought about by . . . plaintiff's unilateral actions in

transferring marital property over a substantial period of time," t he judge

appointed "a trustee to ensure that . . . defendant . . . receive[d] the sum[]

awarded." The trustee was authorized by the judge to identify, locate, and

liquidate plaintiff's assets to "pay . . . defendant her equitable share of $500,000"

in "six months."

      According to the judge, "[i]f at the end of the six-month period any or all

of the $500,000 awarded, plus counsel fees[,] is not paid, then the trustee shall

have the authority to deed over title of the [Cheyenne Trail property] to the

defendant," which the judge "valued at $325,000." The judge continued, "[t]he

defendant will then have a judgment against the plaintiff for whatever deficiency

exists." However, according to the judge, if defendant is "paid in full out of the


                                                                             A-0333-17T1
                                         5
plaintiff's liquid assets, then the trustee will release the [Cheyenne Trail]

property back to the plaintiff and his daughter."

      The judge included the Cheyenne Trail property in the equitable

distribution award "despite plaintiff having transferred his one-half interest . . .

to his daughter," in order "to remedy" plaintiff's "wrongful dissipation or

transfer of assets." According to the judge, "many of the assets . . . have been

purposely transferred and moved around . . . . to hide assets and prevent . . .

defendant from receiving her fair share of equitable distribution."

      In a June 12, 2017 letter to the judge, Suske's counsel sought clarification

as to whether the judge's decision "resolved the third[-]party action in addition

to the first[-]party complaint." Counsel explained that although the judge's

decision "may be interpreted to affect assets that belong to the third[-]party

defendants or are held jointly between the plaintiff and third[-]party

defendants," counsel's understanding "was that any default hearing would not

encompass the third[-]party complaint." Counsel's belief was predicated on the

fact that "the third[-]party defendants . . . were not in default," and "neither [her]

office nor [her] client directly received any notices from the court of the[] trial

dates," despite her client receiving a trial subpoena issued by defendant's

attorney. In a June 14, 2017 letter, the judge responded that based on defense


                                                                              A-0333-17T1
                                          6
counsel's representation "that the third[-]party defendants were subpoenaed . . .

and therefore had notice" of the trial date, the "case proceeded to trial and was

fully adjudicated."

      On June 26, 2017, the judge entered a final judgment of divorce (FJOD),

memorializing his May 18, 2017 oral decision. Thereafter, defendant moved for

reconsideration of certain provisions of the FJOD in order to specify that the

trustee shall have access to all assets solely in plaintiff's name or in his name

jointly with the third-party defendants, or, in the alternative, scheduling a trial

date to adjudicate the third-party complaint. In the supporting certification,

defendant's attorney stated that "[d]espite service of a Notice in Lieu of

Subpoena" on Suske "to testify on behalf of . . . [d]efendant . . . at the [d]efault

[h]earing," ultimately, "it was decided that the testimony . . . was not required."

Further, defense counsel conceded that, at the time of the trial, the third-party

defendants were neither in default nor was there any "adjudication of the

[t]hird[-p]arty [c]omplaint."

      Plaintiff opposed defendant's motion and cross-moved for reconsideration

of "certain provisions" and to stay enforcement of the FJOD. In a supporting

certification, plaintiff's attorney agreed that "[a]t no time during the litigation

was [d]efault entered against the [t]hird-[p]arty [d]efendants, and at no time


                                                                            A-0333-17T1
                                         7
[were] . . . the [t]hird-[p]arty [d]efendants put[] . . . on notice that any proceeding

was scheduled involving their interests." Thus, according to plaintiff's attorney,

"[t]he entry of Judgment adjudicating the property interests of the [t]hird -[p]arty

[d]efendants violated their rights to due process." In reply, defendant's attorney

certified that notwithstanding plaintiff's opposition, no opposition to defendant's

motion for reconsideration was filed by the third-party defendants, and the

motion was thus "unopposed." In addition, defendant's attorney attached as an

exhibit Suske's November 14, 2014 deposition transcript to support her request

for relief.

       Oral argument on the reconsideration cross-motions was conducted on

August 28, 2017. Although no written opposition was filed, over defendant's

objection, Suske's attorney was permitted to adopt plaintiff's position, and argue

that the judge erred in adjudicating the third-party complaint and taking assets

without affording her client "due process."          In rejecting the due process

argument, the judge explained that the third-party defendants had notice of the

proceedings. The judge noted they were served with a notice of a proposed

judgment in 2016 relating to the equitable distribution of assets owned jointly

by plaintiff and the third-party defendants, and Suske was issued an "on-call




                                                                               A-0333-17T1
                                          8
subpoena" for the May 2017 default hearing. However, according to the judge,

"[the third-party defendants] effectively sat on their rights" and "did nothing."

      The judge also considered Suske's deposition transcript provided by

defendant's attorney and concluded that "the deposition testimony more or less

reinforce[d]" his ultimate decision in the case. Thus, the judge found that

although the third-party defendants "were not involved and [did not] perpetrate

any kind of fraud themselves, . . . they . . . received property that was wrongfully

dissipated by the plaintiff in this matter."       Therefore, the judge granted

defendant's motion to correct the error in the FJOD by specifying that the trustee

had access to assets solely in plaintiff's name or in his name jointly with the

third-party defendants, and denied plaintiff's motion for reconsideration and a

stay. The judge entered a conforming amended FJOD on August 28, 2017, and

a memorializing order, denying plaintiff's motion, on September 18, 2017. This

appeal followed.

      Under the Fourteenth Amendment to the U.S. Constitution, no state shall

"deprive any person of life, liberty, or property, without due process of la w."

U.S. Const. amend. XIV, § 1.         "Fundamentally, due process requires an

opportunity to be heard at a meaningful time and in a meaningful manner." Doe

v. Poritz,  142 N.J. 1, 106 (1995) (citing Kahn v. U.S.,  753 F.2d 1208, 1218 (3d


                                                                            A-0333-17T1
                                          9 Cir. 1985)). Thus, the minimum requirements of due process are "notice and

the opportunity to be heard." Ibid. However, due process is "a flexible [concept]

that depends on the particular circumstances." Ibid.

      "An elementary and fundamental requirement of due process in any

proceeding which is to be accorded finality is notice reasonably calculated,

under all the circumstances, to apprise interested parties of the pendency of the

action and afford them an opportunity to present their objections." Mullane v.

Cent. Hanover Bank & Tr. Co.,  339 U.S. 306, 314 (1950). See also Memphis

Light, Gas & Water Div. v. Craft,  436 U.S. 1, 14 (1978) (holding that "[t]he

purpose of notice under the Due Process Clause is to apprise the affected

individual of, and permit adequate preparation for, an impending 'hearing'"

which may affect their legally protected interests).

      Our courts have held that "[t]here can be no adequate preparation where

the notice does not reasonably apprise the party of the charges, or where the

issues litigated at the hearing differ substantially from those outlined in the

notice." Dep't of Law & Pub. Safety, Div. of Motor Vehicles v. Miller,  115 N.J.

Super. 122, 126 (App. Div. 1971). "Further, there is no 'hearing' within the

contemplation of due process when the affected party has not the means of

knowing what evidence is offered or considered and is not afforded an


                                                                         A-0333-17T1
                                       10
opportunity to test, explain[,] or refute it." Davis v. Davis,  103 N.J. Super. 284,

288 (App. Div. 1968) (quoting Hyman v. Muller,  1 N.J. 124, 129 (1948)).

      Here, although Suske had notice of the pending divorce proceedings, all

parties agreed that she had no notice that the default hearing would also

encompass and adjudicate the third-party complaint. In our opinion, service of

the notice of proposed judgment in 2016, or the "on-call subpoena" for the 2017

default hearing, does not constitute adequate notice. Moreover, because the

judge determined that the Cheyenne Trail property would remain in plaintiff's

and Suske's name if plaintiff paid the $500,000 equitable distribution award

from his liquid assets, the judge could have held a separate hearing to adjudicate

Suske's ownership interest in the Cheyenne Trail property.

      Thus, we conclude the judge deprived Suske of her due process rights b y

adjudicating her interest in the Cheyenne Trail property at the default hearing

without providing her with adequate notice and affording her an opportunity to

be heard. Suske also argues that the judge erred in considering her deposition

testimony in adjudicating the reconsideration motion because it was not

introduced at the default hearing and it was not a de bene esse deposition.

However, in light of our decision, we need not address that issue.




                                                                           A-0333-17T1
                                       11
      Reversed and remanded for a hearing consistent with this opinion. We do

not retain jurisdiction.




                                                                     A-0333-17T1
                                    12