MARIAA. CONTRERAS v. JHONY CONTRERAS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0911-16T3
MARIA A. CONTRERAS,
Plaintiff-Appellant,
v.
JHONY CONTRERAS,
Defendant-Respondent.
______________________________
Argued January 30, 2018 – Decided February 23, 2018
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FM-09-1906-13.
Nirmalan Nagulendran argued the cause for
appellant (Miller, Meyerson & Corbo,
attorneys; Nirmalan Nagulendran, of counsel
and on the briefs).
Meghan K. Gulczynski argued the cause for
respondent (Bonilla Sindoni, LLC, attorneys;
Meghan K. Gulczynski, of counsel and on the
brief).
PER CURIAM
Defendant appeals from the September 20, 2016 Family Part
order denying his motion to vacate the parties' judgment of divorce
(JOD), and granting plaintiff's motion to enforce litigant's
rights. We affirm.
I
The parties married in 1994. They have three children.
Plaintiff filed for divorce in March 2013. Defendant failed to
file an answer, resulting in the entry of default; nevertheless,
the parties engaged in "extensive" settlement negotiations.
On June 24, 2014, the Family Part held a default hearing.
Shortly before the hearing, defense counsel requested an
adjournment, which the court denied, reasoning the hearing had
been adjourned "a couple times" already. Defense counsel agreed
that if the parties could not reach a settlement before the
scheduled hearing, defendant would "accept whatever default
judgment is entered except for his post-judgment motion to
recalculate alimony, if awarded, and child support."
At the scheduled hearing, only plaintiff and her counsel
appeared. Plaintiff's counsel represented that defense counsel
informed her defendant consented to the default judgment and the
relief requested in the notice of proposed judgment, but reserved
the right to seek modification of alimony. Defendant did not file
a case information statement or produce any financial information.
The court granted the default JOD awarding plaintiff child support
and alimony, and also ordered defendant to pay an additional amount
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per week toward his arrears of alimony and child support. The
court also addressed equitable distribution.
Defendant alleges his attorney at that time agreed to file a
motion for reconsideration after the court entered the default
judgment; however, he failed to do so. Defendant also alleges he
attempted to hire a new attorney to file the motion and he failed
to do so as well. Defendant finally hired another attorney, who
filed the motion to vacate default judgment under review and the
current appeal.
Defendant failed to comply with the JOD, and was jailed
multiple times for non-payment of support. On February 5, 2015,
the Family Part granted plaintiff's unopposed motion for
enforcement of litigant's rights, ordering defendant to make
several payments in accordance with the JOD. On April 28, 2015,
the Hudson County Probation Division held an enforcement hearing
where both parties appeared; following the hearing, a judge ordered
defendant to pay a portion of his arrears by the following day,
or be subject to arrest. Defendant failed to make that payment
and was arrested. On May 13, 2015, the Family Part held an ability
to comply hearing and found no basis to reduce defendant's required
support payments. The court also ordered defendant to make several
scheduled arrears payments, including one immediate payment.
After defendant made the immediate payment, the judge released him
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from custody, restored his driver's license and vacated the arrest
warrant against him; however, the judge also warned defendant that
he was subject to re-arrest if he failed to make future payments.
On August 6, 2015, the Family Part granted plaintiff's
unopposed motion, ordering defendant to pay plaintiff's attorney
fees including the cost of transferring the marital home to
plaintiff, and scheduled another enforcement hearing. On May 23,
2016, following another enforcement hearing, a judge ordered
defendant to make several lump sum payments as well as weekly
payments for child support, alimony and arrears; defendant was
again subject to arrest if he failed to make the required payments.
On July 21, 2016, more than two years after the court entered
the default JOD, defendant filed a motion to vacate. On September
20, 2016, the Family Part issued a written order denying
defendant's motion and granting plaintiff's motion to enforce
litigant's rights. That order also emancipated the parties'
children with the consent of both parties, thereby terminating
future child support. This appeal followed.
On appeal defendant argues we should vacate the JOD because
his situation warrants exceptional relief. Alternatively,
defendant argues we should vacate the JOD because he has a
meritorious defense and any neglect on his part was excusable.
II
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The decision whether to grant a motion to vacate a default
judgment under Rule 4:50-1 is "left to the sound discretion of the
trial court, and will not be disturbed absent an abuse of
discretion." Mancini v. EDS ex rel. N.J. Auto. Full Ins.
Underwriting Ass'n,
132 N.J. 330, 334 (1993). An abuse of
discretion occurs "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis.'" U.S. Bank Nat'l. Ass'n v.
Guillaume,
209 N.J. 449, 467 (2012) (quoting Iliadis v. Wal-Mart
Stores, Inc.,
191 N.J. 88, 123 (2007)).
Defendant first argues we should vacate the JOD because his
situation warrants exceptional relief under Rule 4:50-1(f).
Courts have the authority to grant relief under Rule 4:50-1(f)
where it is "necessary to achieve a fair and just result." Manning
Eng'g, Inc. v. Hudson Cty. Park Comm'n,
74 N.J. 113, 122 (1977).
However, "because of the importance in the finality of judgments,
relief under subsection (f) is available only when 'truly
exceptional circumstances are present.'" In re Guardianship of
J.N.H.,
172 N.J. 440, 473 (2002) (quoting Hous. Auth. of Morristown
v. Little,
135 N.J. 274, 286 (1994)).
Where a party seeks to vacate a default judgment under Rule
4:50-1(f), the court should "treat its application indulgently."
Mancini,
132 N.J. at 336 (citing Marder v. Realty Constr. Co., 84
5 A-0911-16T
3 N.J. Super. 313, 319 (App. Div. 1964)). In Mancini, the court
entered a default judgment against the defendant after it failed
to respond to multiple notices allegedly due to a mix-up in the
mailroom. Id. at 335. The court held the defendant's neglect was
not excusable under Rule 4:50-1(a); however, the circumstances
were "sufficiently exceptional" to grant the defendant relief
under Rule 4:50-1(f). Id. at 335-36. The court reasoned the
defendant's conduct "was neither willful nor calculated" and
defendant paid plaintiffs' counsel fees and deposited the amount
of the judgment in an escrow account. Id. at 336. Furthermore,
the defendant filed a motion to vacate less than two months after
the Law Division entered the default judgment. Id. at 333.
"Motions made under any Rule 4:50-1 subsection 'must be filed
within a reasonable time.'" Deutsche Bank Tr. Co. Ams. v. Angeles,
428 N.J. Super. 315, 319 (App. Div. 2012) (quoting Orner v. Liu,
419 N.J. Super. 431, 437 (App. Div. 2011)). Whether a party has
moved timely rests in the court's sound discretion, guided by
equity and the need to terminate litigation within a reasonable
time to further the proper administration of justice. Garza v.
Paone,
44 N.J. Super. 553, 558 (App. Div. 1957) (citations
omitted).
Here, the trial court found defendant waited an unreasonable
amount of time to file the motion to vacate. We find no abuse of
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discretion in the trial court's decision. Defendant had ample
opportunity to file the motion. Defendant and/or his counsel
appeared at several hearings during the more than two years between
the JOD and the filing of the motion to vacate, so he was well
aware of the entry of the JOD.
Furthermore, even if defendant filed in a reasonable time,
this case does not present an exceptional situation warranting
vacation under Rule 4:50-1(f). Defendant alleges his various
attorneys promised to file a motion, then failed to do so; however,
if that is the case, it does not amount to exceptional
circumstances. Unlike Mancini, here, defendant waited to file the
motion to vacate for more than two years, and he refused to pay
the judgment against him to the point of being arrested and
imprisoned. Defendant claims he is unable to pay the judgment;
however, nearly a year after the JOD was entered, the court held
an ability to comply hearing and found no basis to alter the
original support payments. The only evidence defendant offers of
his current income is his 2015 tax return and he has refused to
turn over any financial documents regarding his business.
Defendant failed to meet his burden of proof that he is unable to
pay the required support. Therefore, defendant failed to establish
exceptional circumstances to warrant vacating the JOD.
III
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Alternatively, defendant argues he has a meritorious defense
and any neglect on his part was excusable. Although defendant
does not specifically cite Rule 4:50-1(a), a motion to set aside
a default judgment pursuant to Rule 4:50-1(a) requires "a showing
of excusable neglect and a meritorious defense." Guillaume,
209 N.J. at 468. "'Excusable neglect' may be found when the default
was 'attributable to an honest mistake that is compatible with due
diligence or reasonable prudence.'" Ibid. (quoting Mancini,
132 N.J. at 335). "Mere carelessness or lack of proper diligence on
the part of an attorney is ordinarily not sufficient to entitle
his [or her] clients to relief from an adverse judgment in a civil
action." Baumann v. Marinaro,
95 N.J. 380, 394 (1984) (quoting
In re T.,
95 N.J. Super. 228, 235 (App. Div. 1967)).
In addition, motions filed under Rule 4:50-1 sections (a),
(b), and (c) must be filed within one year of the judgment. R.
4:50-2. As a result, defendant's motion to vacate under Rule
4:50-1(a) is time barred under Rule 4:50-2. Defendant failed to
file the motion to vacate the JOD for more than two years.
Furthermore, even if defendant's motion were timely, we discern
no excusable neglect. Defendant alleges his various attorneys
promised to file a motion, then failed to do so. Counsel's lack
of diligence is not excusable neglect. See Baumann,
95 N.J. at
394.
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Nothing in our decision precludes defendant from filing a
future motion for reduction in alimony, where he can present
competent evidence of changed circumstances. To date, defendant
has inexplicably failed to make such an application.
Affirmed.
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