NDEYE SENE EP NDIAYE v. MOUHAMADOU A. NDIAYE

NOT FOR PUBLICATION WITHOUT THE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-0630-19T2

NDEYE SENE EP NDIAYE

         Plaintiff-Respondent,

v.

MOUHAMADOU A. NDIAYE,

     Defendant-Appellant.
__________________________

                   Argued August 25, 2020 – Decided December 2, 2020

                   Before Judges Geiger and Mitterhoff.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Hudson County,
                   Docket No. FM-09-0303-19.

                   Mouhamadou A. Ndiaye, appellant, argued the cause
                   pro se.

                   Ndeye Sene Ep Ndiaye, respondent, argued the cause
                   pro se.

PER CURIAM
      In this dissolution matter, defendant Mouhamadou Ndiaye appeals from a

Family Part judge's August 30, 2019 order denying his motions for

reconsideration and her September 16, 2019 entry of a final judgment of divorce

(FJOD) by default. Defendant alleges an outstanding complaint for divorce in

Senegal predated the instant action, depriving the New Jersey courts of

jurisdiction, and necessitating reversal. In addition, he alleges that the entry of

the FJOD was procedurally deficient because he did not receive the required

notice under Rule 5:5-10. Having reviewed the record and applicable law, we

affirm.

      We discern the following facts from the record. The parties were married

on July 30, 2010, in Senegal. In October 2011, the couple moved to New Jersey.

One child was born during the marriage on September 28, 2012. 1 The parties

lived together until defendant relocated to Massachusetts in 2016. 2 Defendant

filed a complaint for divorce in Senegal in 2016, which was dismissed on or




1
  The child resides in Senegal with plaintiff's sister. She is not in the custody
of either party and is outside the jurisdiction of this court. No issues of custody
are involved in the underlying action.
2
   Plaintiff initially filed an application for spousal support in 2016, but withdrew
it prior to disposition of the dissolution action.
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about June 14, 2017, for lack of jurisdiction. Plaintiff filed the instant complaint

seeking dissolution of the marriage on July 26, 2018.

        On October 29, 2018, plaintiff filed a motion for substituted service via

certified mail pursuant to R. 5.5-4(b). On January 11, 2019, the judge denied

the motion finding plaintiff had not made adequate diligent inquiry into

defendant's address as required by R. 5:4-4(c)(1)-(2). On May 2, 2019, the judge

granted plaintiff's motion to effect substituted service by publication. On May

17, 2019, plaintiff filed a request for entry of default supported by an affidavit

of service by publication, and the judge set a default hearing for June 28, 2019.

        On June 27, 2019, a day before the scheduled default hearing, defendant

filed a motion to dismiss plaintiff's complaint claiming the court lacked

jurisdiction due to the pending Senegalese action.        Attached to defendant's

motion was a summons from a Senegalese court that provided notice of a court

date on June 3, 2019. It did not include a certification as to when the complaint

for divorce was filed, it did not include a copy of the alleged complain t, and it

did not include a certification authenticating the summons' translation. On June

28, 2019, the judge directed plaintiff to file a cross-motion or opposition to the

motion to dismiss by July 8, 2019, and ordered defendant to reply by July 10,

2019.


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        On July 5, 2019, plaintiff attempted to file her opposition at the Hudson

County courthouse but was unable to do so due to a court closure. 3 Plaintiff

mailed her opposition to defendant and the court. Defendant received plaintiff's

opposition at 3:04 p.m. on July 11, 2019, while the court received it at 11:27

a.m. on July 10, 2019.  4 On July 12, 2019, the court received a letter from

plaintiff explaining she had attempted to file her opposition on July 5, 2019, but

could not because the courthouse was closed, so she mailed her opposing papers.

Attached to plaintiff's opposition was an order issued by a Senegalese court

dismissing the Senegalese complaint for lack of jurisdiction.5

        Defendant replied on July 12, 2019, arguing the judge should consider his

motion unopposed because plaintiff failed to timely file her opposition and

because the opposition contained formatting deficiencies. On July 18, 2019, the

trial judge denied defendant's motion to dismiss the complaint, vacated default

against defendant, and directed defendant to file an answer by August 2, 2019. 6


3
    Plaintiff had mislabeled her opposition as a cross-motion.
4
 Defendant and the court's receipt of plaintiff's opposition papers are confirmed
by USPS and UPS tracking numbers.
5
    The Senegalese order was not accompanied by a certification of translation.
6
  The judge later extended the deadline to answer the complaint to August 9,
2019, at defendant's request.
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     By August 12, 2019, because defendant had not filed an answer, plaintiff

renewed her request to enter default judgment. On August 30, 2019, the judge

denied both of defendant's motions to reconsider, and on September 16, 2019,

she issued a FJOD by default.

     On appeal, defendant presents the following points for our review:

           POINT I

           THE TRIAL COURT ERRED BOTH BY
           ACCEPTING BOTH OF THE PLAINTIFF'S LATE
           FILINGS OVER OUR OBJECTIONS AND BY NOT
           NOTIFYING THE DEFENDANT (OR COUNSEL)
           AFTER NUMEROUS WRITTEN OBJECTIONS
           SENT TO THE COURT

           POINT II

           THE TRIAL COURT ERRED BY DENYING THE
           DEFENDANT HIS DUE PROCESS AND THE RIGHT
           TO OPPOSE THE PLAINTIFF'S FILINGS

           POINT III

           THE TRIAL COURT ERRED BY FORCING
           DEFENDANT TO FILE AN ANSWER AND SUBMIT
           TO THE TRIAL COURT'S JURISDICTION ABSENT
           AN OPPORTUNITY TO BE HEARD ON THE
           MERITS OF HIS MOTION

           POINT IV

           THE TRIAL COURT ERRED BY DENYING
           DEFENDANT['S] MOTIONS TO DISMISS


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            POINT V

            THE TRIAL COURT ERRED BY ENTERING A
            FINAL JUDGMENT OF DIVORCE WITHOUT
            NOTICE TO THE DEFENDANT (OR COUNSEL)

      We find defendant's arguments to be without merit and affirm,

substantially for the reasons set forth by the trial court on the record on August

30, 2019, adding only the following brief remarks.

      On review of Family Part cases, we accord deference to the judge's fact-

finding because of "the family courts' special jurisdiction and expertise in family

matters[.]" Cesare v. Cesare,  154 N.J. 394, 413 (1998). Such findings "are

binding on appeal when supported by adequate, substantial, credible evidence."

Id. at 411-12.    We will reverse only if those findings "are so manifestly

unsupported by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova

Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,  65 N.J. 474, 484 (1974)). However,

we afford no deference to the judge's interpretation of the law. D.W. v. R.W.,

 212 N.J. 232, 245 (2012).

      Contrary to defendant's argument, there is simply no question that the

Family Part had jurisdiction over this dissolution matter concerning two

individuals who resided in New Jersey for the better part of the marriage, and


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where plaintiff continues to reside.  N.J.S.A. 2A:34-8. We reject, as did the trial

judge, defendant's assertion that the Senegalese action, which was dismissed for

lack of jurisdiction, defeated jurisdiction in this State. See Sensient Colors, Inc.

v. Allstate Ins. Co.,  193 N.J. 373, 386-87 (2008). In that regard, defendant

presented no evidence sufficient to establish the jurisdiction of Senegalese

courts over the dissolution of the parties' marriage. The Senegalese summons

defendant relies upon was translated but was not authenticated by a certification

of translation; it did not include information necessary to prove the Senegalese

complaint preceded this one; nor did it establish substantial similarity with the

present litigation.

      We also reject defendant's argument that he was not afforded due process

because it was error to accept plaintiff's late filed opposition.       Rule 1:1-2

provides in relevant part: "Unless otherwise stated, any rule may be relaxed or

dispensed with by the court in which the action is pending if adherence to it

would result in an injustice. In the absence of rule, the court may proceed in

any manner compatible with these purposes . . . ". Rule 1:6-3 prescribes a time

frame for filing and serving motion papers. All periods prescribed by the rule,

however, are subject to relaxation on court order when failure to doing so would

deprive a litigant of procedural due process. See Rubin v. Rubin, 188 N.J. Super.


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155, 158-59 (App. Div. 1982). See also Tyler v. New Jersey Auto. Full Ins.

Underwriting Ass'n,  228 N.J. Super. 463, 468 (App. Div. 1988) ("It is a mistaken

exercise of judgment to close the courtroom doors to a litigant whose opposition

papers are late but are in the court's hands before the return day for a motion

. . ."). In light of plaintiff's good-faith efforts to comply with filing deadlines

throughout this case's protracted motion practice, and for the reasons set forth

during the August 30, 2019 hearing, we are satisfied the trial judge's decision to

accept plaintiff's late filed opposition was not an abuse of discretion. See Tyler,

 228 N.J. Super. at 468.

        Finally, we reject defendant's argument that notice was required before

the final judgment of divorce was entered. Rule 5:5-10 provides, in relevant

part:

              In those cases where equitable distribution, alimony,
              child support and other relief are sought and a default
              has been entered, the plaintiff shall file and serve on the
              defaulting party, in accordance with R. 1:5-2, a Notice
              of Proposed Final Judgment ("Notice"), not less than 20
              days prior to the hearing date.

        The purpose of the notice provisions embodied in Rule 5:5-10 is to avoid

problems "proving the identity and value of distributable assets or in the court's

power to enter a judgment of distribution" because "the complaint . . . typically

allege[s] only that assets were acquired during the marriage and should be

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equitably distributed without any specification of the assets or their value."

Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 5:5-10 (2021).

"[W]here no equitable distribution is sought, there is clearly no problem either

in proving the identity and value of distributable assets or in the court's power

to enter a judgment of distribution." Id.

      Here, the only relief plaintiff requested of the court was a final judgment

of divorce. She did not seek equitable distribution of marital assets, alimony,

child support, or a parenting time arrangement. Therefore, defendant was not

entitled to notice under Rule 5:5-10.

      To the extent we have not specifically addressed any of defendant's

remaining arguments, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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