A.T.M., v. S.M

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE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-1370-18T4

A.T.M., 1

Plaintiff-Appellant,

S.M.,

Defendant-Respondent.
________________________

Argued October 15, 2020 – Decided November 10, 2020

Before Judges Alvarez and Geiger.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0540-16.

Peter Ventrice argued the cause for appellant (Brause,
Brause & Ventrice LLC, attorneys; Peter Ventrice and
Pamela L. Brause, on the briefs).

Patricia Garity Smits argued the cause for respondent.

1
We use initials to identify the parties and their children in accordance with
Rule 1:38-3(d)(10).
PER CURIAM

Plaintiff A.T.M. appeals from an October 19, 2018 final judgment of

divorce (FJOD) granted to defendant-counterclaimant S.M. following a default

hearing. We vacate the judgment and remand for further proceedings.

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

married in Pakistan on September 14, 1991. Defendant worked as a physician

in Pakistan until he emigrated to the United States in July 1992. Meanwhile,

plaintiff remained in Pakistan but soon moved to live with her parents in

England.

In September 1993, the parties had their first child, U.S., who was born

in England. In January 1994, plaintiff and U.S. moved to the United States to

live with defendant. 2 Two other children were also born of the marriage.

In July 1993, defendant began his medical career in the United States

with an internship and residency in internal medicine at Jersey City Medical

Center, which he completed in June 1996. From July 1996 until August 1998,

defendant worked for another physician's practice. Following this, he started

his own practice in Jersey City and worked as a primary care provider. At that

time, plaintiff worked with defendant as a full-time office manager.

2
Both plaintiff and defendant currently have dual citizenship in Pakistan and
the United States while plaintiff also possesses citizenship in the United
Kingdom.

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Defendant described his marriage as "very difficult . . . right from [the]

first month." For instance, he testified about several incidents of domestic

violence beginning in November 1999. Defendant filed five domestic violence

complaints against plaintiff from June 2003 to September 2012. Plaintiff filed

a domestic violence complaint against defendant in 2003. A final restraining

order under the Prevention of Domestic Violence Act (the Act), N.J.S.A.

2C:25-17 to -35, was entered in defendant's favor in March 2012. It was

dismissed about six weeks later.

In April 2004, defendant filed for divorce but later voluntarily dismissed

the complaint. The parties remained married and entered into an August 12,

2004 consent order, which provided that plaintiff would no longer be involved

in defendant's medical practice, defendant would pay plaintiff $5000 per

month for personal expenses, and defendant would also pay the mortgage on

one of their homes along with certain utility bills. At that point, defendant

blocked plaintiff's access to his personal checking accounts and credit cards

while also forbidding her from handling any financial transactions at his

medical office.

Defendant testified that from 2009 to 2015, plaintiff spent much of her

time in Pakistan, putting constant pressure on him because he alone cared for

the children. At the same time, the parties were purchasing numerous

A-1370-18T4
3
investment properties in the United States and Pakistan. Defendant explained

he was "under constant financial demand from [plaintiff] to send more money"

for a home construction project she undertook in Pakistan.

On November 12, 2015, plaintiff filed the complaint in this matter. The

complaint sought a divorce based on alleged irreconcilable differences ,

extreme mental and physical cruelty, and adultery. It also alleged a cause of

action for intentional infliction of emotion distress that sought compensatory

damages, punitive damages, and injunctive relief.

In January 2016, defendant filed an answer and counterclaim for divorce

based on irreconcilable differences and extreme cruelty. The counterclaim

also included alleged causes for assault and battery and intentional infliction of

emotional distress.

A February 19, 2016 consent order resolved certain pendente lite issues,

including defendant's agreement to continue paying: (1) plaintiff non -taxable

support of $5000 per month; (2) monthly stipends to their three children; (3)

the automobile insurance on the three family vehicles; (4) the health insurance

premiums for plaintiff and the three children; (5) the automobile loan

installments on the three family vehicles; and (6) the mortgage, utilities,

association dues, taxes, repairs, and maintenance on the marital home and the

other real estate owned by the parties in the United States and Pakistan.

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Defendant also agreed to be responsible for advancing the retainers for all

jointly appointed or court-appointed neutral experts, including real estate

appraisers and forensic experts. The order further provided that the marital

tort claims pleaded by plaintiff and defendant were dismissed with prejudice.

The parties reserved the right to seek counsel fees and deemed the $15,000

advanced by defendant to plaintiff's counsel to be payment of counsel fees

without prejudice to subsequent reallocation. All other rights not expressly

addressed in the consent order were also reserved.

Ten months later, the parties entered into an October 24, 2016 consent

order that resolved all issues of the equitable distribution of all jointly owned

real estate except the properties located in Pakistan. Meanwhile, the court

entered several case management orders setting discovery deadlines, including

dates for the completion of appraisals and expert reports.

In October 2017, the trial court appointed a retired judge as a special

master to oversee discovery. The special master found extensive deficiencies

in plaintiff's discovery responses.

In early 2018, plaintiff moved back to Pakistan and did not provide her

family with an address or contact information. U.S. testified that she was only

able to communicate with plaintiff through WhatsApp Messenger service.

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A May 7, 2018 pre-trial order set a trial date of September 17 to

September 28, 2018 and stated there would be "No Adjournments." The order

noted the following issues remained outstanding: spousal support; marital

torts; child support and education expenses; equitable distribution of

defendant's medical practice and the property in Pakistan; and "[d]issipation of

assets (which may include embezzlement, and forgery but not . . . punitive

damages)."

On May 31, 2018, plaintiff signed a substitution of attorney allowing

counsel to withdraw with plaintiff proceeding pro se. Although plaintiff now

claims she did not do so voluntarily because of the medication she was taking,

plaintiff did not move to set aside the substitution of attorney.

On June 26, 2018, plaintiff wrote to the court from Pakistan requesting

an adjournment of her upcoming trial until November. Plaintiff stated she was

representing herself, had fallen ill, was on bed rest, and "may have to undergo

surgery and certain post-operative treatment as well." She also stated that her

physician "advised [her] against travelling for at least [thirty] days" but noted

she had been released from the hospital. Plaintiff indicated she did not want to

disclose the nature of her illness. She promised to "keep the court updated of

[her] medical condition" but did not do so.

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The letter further indicated that plaintiff was forced to intervene in

litigation filed by defendant's brother against defendant in Pakistan, which she

claimed was frivolous and based on false allegations. Plaintiff alleged that

"[d]efendant and his brother [were] conspiring to deprive [her] of [her] share

of [their] marital [p]roperty in Pakistan." She claimed defendant did not

oppose "his brother's false claims in Pakistan because his intent [was] to avoid

paying [her her] share of the Pakistan [p]roperty." Plaintiff also claimed

defendant filed a fraudulent deed in Pakistan. Plaintiff later informed the court

that she would be arrested if she left Pakistan.

In response to plaintiff's letter, the court conducted a case management

conference in the presence of defense counsel and defendant but without

plaintiff being present. Defendant objected to plaintiff's counsel withdrawing

from the case without obtaining the court's permission and questioned whether

plaintiff's decision to allow her counsel to withdraw was voluntary considering

her illness and the fact that she was in Pakistan. The court was unable to reach

plaintiff by telephone. The court nevertheless issued a July 6, 2018 case

management order requiring plaintiff to provide documentation verifying her

medical condition to the court by July 20, 2018. Plaintiff was directed to

provide a physician's report concerning her present condition, including her

present diagnosis, prognosis, dates of treatment, dates of hospitalization , any

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restrictions on travel, and any restrictions on participating in the legal process

including trial. The order further directed plaintiff to immediately call the

judge's chambers. The court emailed the order to plaintiff. Plaintiff did not

make further direct contact with the court until over two months later.

On September 19, 2018, the first day of trial, the court commented that

this was a "contentious," and "very problematic case" involving frequent

motion practice, the appointment of a discovery master, and properties and

lawsuits in Pakistan, including a divorce action.

At the start of the trial, the court noted that plaintiff was absent from the

courtroom and had not complied with its July 6, 2018 order. Accordingly, it

entered default against plaintiff for failure to prosecute her action. The

following day, plaintiff contacted the court by phone and explained the reason

for her absence. She stated that "the judge in Pakistan told [her she] can't

leave the country until [the litigation is] resolved." As to her medical

condition and failure to contact the court, plaintiff stated: "I was in the

hospital. I couldn't talk. I had a mask on my face. I [had] shortness of breath.

I was fainted and couldn't remember where I was. So, you know, I was in a

hospital and I was bleeding to death." Plaintiff also claimed she had a fever

and could not move.

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8
Although the court did not adjourn the trial or suspend its previous entry

of default, it did permit plaintiff, who was still pro se, to participate in the

default hearing by telephone. Plaintiff protested, stating she did not "know

about the law," needed to have a lawyer but did not have one, and was "not in

America to find one." The court did not find her testimony to be credible.

During the default hearing, the court heard testimony from defendant,

U.S., and Anthony Franchini, the Vice-President for TD Bank in Warren. A

central issue in the case was the value of defendant's medical practice. The

parties jointly retained Withum Smith & Brown, P.C. (Withum) as a forensic

accounting expert to value the medical practice and to trace certain funds from

2012 to 2015.

Thomas J. Reck, CPA/ABV, CFF, a partner at Withum, issued the final

valuation report in April 2018. It valued the medical practice at $506,000.

Reck's report also confirmed plaintiff deposited—and had U.S.3 or another

3
U.S. testified that, between the ages of fourteen to twenty-one, she
"personally witnessed [plaintiff take] checks from [defendant's] business,
hid[e] them from him and, thereafter, deposit[] the checks into her personal TD
banking account." At plaintiff's behest, she would "intercept these checks,"
hide them in her room, and deposit them into plaintiff's bank account when
necessary. U.S. stated that she stopped this practice around December 2014.
During cross-examination, plaintiff insinuated that she had defendant's
permission to deposit the checks in this fashion and that U.S. was depositing
the checks into her own account, separate from plaintiff's. Plaintiff maintained
that she did not dissipate marital funds.

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unknown person deposit—insurance checks and fees totaling $375,856 from

defendant's medical practice into her personal account at TD bank between

2012 and 2015. Plaintiff denied that she stole from her husband's medical

practice. Without conducting voir dire, the court qualified Reck as an expert

in forensic accounting and admitted his report into evidence without requiring

him to testify.

On October 19, 2018, the trial judge issued an oral decision and entered

a default judgment of divorce. The judgment provided that the October 24,

2016 consent order "remains in place and the division of properties set forth in

that [o]rder remain[s] unchanged." Among other things, the court: (1) found

that plaintiff would not receive a share of defendant's medical practice because

the marital funds she dissipated exceeded her interest in that asset; (2)

permitted defendant to bring separate claims against plaintiff for other funds

she allegedly dissipated; (3) required defendant to pay plaintiff alimony of

$5000 per month for eighteen months pending further financial documents

from plaintiff; (4) equally divided the parties' respective pension funds; (5)

awarded defendant credits totaling $598,237 to be deducted from plaintiff's

share of the net proceeds of the sale of the Islamabad house; (6) declared

defendant solely responsible for the support of the children; (7) declared

defendant solely responsible for the parties' 2016 and 2017 federal and state

A-1370-18T4
10
income taxes and any interest and penalties owed on the parties' 2015, 2016,

and 2017 federal and state income taxes; and (8) determined the property

purchased by defendant in Attuk, Pakistan prior to the marriage was not

subject to equitable distribution. The judgment permitted defendant to pursue

a Law Division action to "recover from the plaintiff any funds she diverted

from his medical practice before January 1, 2012." It also permitted defendant

to pursue an action against plaintiff "in New Jersey or Pakistan to recover . . .

funds that were provided to her to purchase the Islamabad property in 2002[,]

which she diverted for her own use." This appeal followed.

Plaintiff presents the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING
PLAINTIFF'S ADJOURNMENT REQUEST AND BY
PROCEEDING BY WAY OF A DEFAULT
HEARING.

POINT II

THE TRIAL COURT'S DETERMINATION THAT
PLAINTIFF FORFEITED ANY INTEREST IN
DEFENDANT'S MEDICAL PRACTICE,
COMBINED WITH THE TRIAL COURT'S
GRANTING DEFENDANT PERMISSION TO
PURSUE ADDITIONAL CAUSES OF ACTION
AGAINST PLAINTIFF IN THE LAW DIVISION IN
NEW JERSEY AND IN PAKISTAN, RESULTED IN
AN UNFAIR AND INEQUITABLE DISTRIBUTION
OF MARITAL ASSETS AND WAS UNDULY
PUNITIVE TO PLAINTIFF.
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POINT III

THE TRIAL COURT ABUSED ITS DISCRETION
BY AWARDING PLAINTIFF ALIMONY OF ONLY
$5,000.00 PER MONTH FOR A TERM OF 18
MONTHS AND BY REQUIRING PLAINTIFF TO
FILE A POST-JUDGMENT MOTION TO SEEK
ADDITIONAL ALIMONY DURING THOSE 18
MONTHS BUT ONLY IF PLAINTIFF COMPLIED
WITH CERTAIN CONDITIONS.

Appellate review of Family Part orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Appellate courts "accord particular deference to the

Family Part because of its 'special jurisdiction and expertise in family

matters.'" Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting

Cesare, 154 N.J. at 413). Generally, "findings by the trial court are binding on

appeal when supported by adequate, substantial, credible evidence." Cesare,

154 N.J. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,

65 N.J. 474, 484 (1974)). Appellate courts will not disturb the trial court's

factual findings and legal conclusions unless convinced they are "so manifestly

unsupported by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice." Ricci v. Ricci, 448 N.J.

Super. 546, 564 (App. Div. 2017) (quoting Elrom v. Elrom, 439 N.J. Super.
424, 433 (App. Div. 2015)).

A-1370-18T4
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"Discretionary determinations, supported by the record, are examined to

discern whether an abuse of reasoned discretion has occurred." Ibid. (citing

Gac v. Gac, 186 N.J. 535, 547 (2006)). An abuse of discretion occurs when a

trial court's decision "rested on an impermissible basis, considered irrelevant

or inappropriate factors, failed to consider controlling legal principles or made

findings inconsistent with or unsupported by competent evidence." Elrom, 439 N.J. Super. at 434 (citations and internal quotation marks omitted).

Plaintiff argues the trial court erred by admitting the forensic

accountant's valuation report that valued defendant's medical practice into

evidence at the default hearing without the accountant testifying and being

subject to cross-examination. We agree.

"Hearsay is 'a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.'" State v. Branch, 182 N.J. 338, 357 (2005) (quoting N.J.R.E.

801(c)). "Hearsay is inadmissible unless it falls within one or more of the

exceptions enumerated in our evidence rules." State ex rel. J.A., 195 N.J. 324,

336 (2008) (citing Branch, 182 N.J. at 357).

Expert reports "are hearsay and generally are not admissible." Corcoran

v. Sears Roebuck & Co., 312 N.J. Super. 117, 126 (App. Div. 1998) (citing

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13
Hill v. Cochran, 175 N.J. Super. 542, 546-47 (App. Div. 1980)). A non-

testifying expert's opinion constitutes inadmissible hearsay. 4 Brun v. Cardoso,

390 N.J. Super. 409, 422 (App. Div. 2006). Admission of a non-testifying

expert's report deprives the opposing party "of the ability to cross-examine the

author of the report on [a] central issue of the case." Ibid.

The valuation report was hearsay offered to prove the truth of its

contents. The report does not fall within any hearsay exception enumerated in

N.J.R.E. 803. Admission of the report provided the basis for the court's

determination of the value of defendant's medical practice and its conclusion

that "plaintiff has forfeited any interest in that asset as there is credible

evidence that she diverted funds from the medical practice during the years

2012 through 2015" because the marital funds she dissipated exceeded her

interest in that asset.

The forensic accountant valued the medical practice at $506,000. The

practice started and prospered during the marriage. As such, it was an asset

subject to equitable distribution. Plaintiff had worked at the practice as its

4
Conversely, if Reck had testified and substantiated his findings, his report
may have been admissible to assist the trial court. See Elrabie v. Borough of
Franklin Lakes, 24 N.J. Tax 158, 163 n.1 (Tax 2008) (noting that "if an expert
[appraiser] may testify then his or her report may be admitted into evidence to
assist the court in evaluating the expert's testimony" (citing Little Egg Harbor
Twp. v. Bonsangue, 316 N.J. Super. 271, 280 (App. Div. 1998))).

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14
full-time office manager. Without determining its value, the court could not

have concluded that the marital funds dissipated by plaintiff exceeded her

share of its value. Thus, the value of defendant's lucrative medical practice

was critical evidence.

Reck, who authored the valuation report, did not appear for trial or

testify at the default hearing. Without explicitly qualifying Reck as an expert

under N.J.R.E. 702, the court stated, "I do [not] see any reason without

anybody here to cross-examine Mr. Reck, what Mr. Reck would be called to

do would be to . . . go through his report and come up with the conclusion that

the practice is worth $506,000." The judge explained, "[t]he reason I state that

is because I have looked at [the report] and there is nothing that jumps out at

me" and "there is nobody here to challenge his findings

On October 15, 2018, while defendant was on direct examination, the

court asked defense counsel whether she would be calling Reck. Defense

counsel responded, "No, if your Honor will recall we asked that [the report] be

admitted." The court then stated to plaintiff: "You have seen Mr. Reck's

report. Do you have any objection to that being entered [into evidence]?"

Plaintiff responded, "Yes, I do" and informed the court that she was "going to

call Mr. Reck [to] the stand." However, plaintiff never called Reck to testify.

This is hardly surprising since plaintiff was not permitted to present witnesses

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15
at the default hearing. Moreover, plaintiff had no way of knowing in advance

that defendant would not produce Reck to testify. As a result, his findings and

conclusions were not subject to the rigors of cross-examination.

"Our legal system has long recognized that cross-examination is the

'greatest legal engine ever invented for the discovery of truth.'" State v. Basil,

202 N.J. 570, 591 (2010) (quoting California v. Green, 399 U.S. 149, 158

(1970)). Cross-examination of an expert is often a crucial element in

determining the accuracy, reliability, and probative value of the expert's

findings and opinions. See State v. Martini, 131 N.J. 176, 264 (1993) ("To

determine the credibility, weight and probative value of an expert's opinion,

one must question the facts and reasoning on which it is based." (citing

Johnson v. Salem Corp., 97 N.J. 78, 91 (1984))). By admitting his report, the

court accepted Reck's untested opinion of the value of this significant marital

asset and the dissipation of assets. The court relied heavily on the contents of

the report and determined the value of the medical practice was $506,000,

mirroring Reck's valuation.

We recognize that the parties jointly selected Withum as their forensic

accountant. They did not, however, agree to be bound by the Withum

valuation. Accordingly, they each retained the right to attack the accuracy of

the valuation at trial. By admitting Reck's report in evidence without requiring

A-1370-18T4
16
him to testify and be subjected to cross-examination, the trial court effectively

prevented plaintiff from questioning Reck regarding the facts relied upon by

Reck, his method of valuation, and the accuracy of his conclusions. It also

precluded plaintiff from cross-examining Reck on whether she dissipated

funds from the medical practice.

Ordinarily, a defaulting party may cross-examine the witnesses called by

their adversary during a proof hearing. See Chakravarti v. Pegasus Consulting

Grp., Inc., 393 N.J. Super. 203, 210 (App. Div. 2007) ("Even though a

defendant who has defaulted has relinquished the right to present affirmative

proofs in the matter, the right to challenge a plaintiff's showings in a proof

hearing by way of cross-examination and argument should not ordinarily be

precluded."). This is designed to assist the trial judge in determining whether

the proofs are "insufficient in law or fact to support the judgment which

[defendant] seeks." Fox v. Fox, 76 N.J. Super. 600, 604 (Ch. Div. 1962).

Generally, "[e]videntiary decisions are reviewed under the abuse of

discretion standard because . . . the decision to admit or exclude evidence is

one firmly entrusted to the trial court's discretion. Est. of Hanges v. Metro.

Prop. & Cas, Ins. Co., 202 N.J. 369, 383-384 (2010) (citing Green v. N.J.

Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). If hearsay evidence is admitted

without objection, however, we review for plain error; "that is, whether its

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17
admission 'is of such a nature as to have been clearly capable of producing an

unjust result.'" State v. Frisby, 174 N.J. 583, 591 (2002) (quoting R. 2:10-2).

Reck's valuation report was inadmissible hearsay. Plaintiff objected to

its admission in evidence. The trial court misplaced its discretion by admitting

the report over plaintiff's objection. Indeed, we deem the admission of the

report in evidence to be plain error. By relying on the findings and opinions

expressed in the report, the court decided major issues in the case based solely

on inadmissible hearsay. This error was "clearly capable of producing an

unjust result." R. 2:10-2.

II.

We next address the default entered against plaintiff and the disposition

of this highly contested matrimonial action by way of default hearing without

plaintiff being present or represented by counsel. Plaintiff argues the trial

court erred in denying her adjournment request and by immediately proceeding

with the default hearing when she did not physically appear in court on the

first day of trial. She also contends it was error to proceed with the default

hearing in the absence of service of a notice of proposed final judgment in the

form and manner required by Rule 5:5-10 at least twenty days prior to the

hearing. We agree.

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A.

We first address the failure to serve a notice of proposed final judgment

pursuant to Rule 5:5-10, which provides in 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 Notice
shall include the proposed trial date, a statement of the
value of each asset and the amount of each debt
sought to be distributed and a proposal for
distribution, a statement as to whether plaintiff is
seeking alimony and/or child support and, if so, in
what amount, and a statement as to all other relief
sought . . . .

The rule mandates that "the plaintiff must, at least 20 days prior to hearing, file

and serve on the defaulting defendant a notice of application for relief with

CIS annexed, specifying with particularity the claims made for alimony, child

support, equitable distribution and other affirmative relief." Pressler &

Verniero, Current N.J. Court Rules, cmt. 2 on R. 5:5-10 (2021). The only

exception is when "a written property settlement agreement has been

executed." R. 5:5-10. That was not the case here.

In his counterclaims, defendant sought the following relief: (1) joint

legal custody with defendant as parent of primary residence; (2) child support,

including contribution to their children's college costs and extraordinary

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19
expenses; (3) equitable distribution of their marital assets and debts; (4) an

accounting of money spent to improve their real estate in Pakistan; (5)

compensatory and punitive damages; and (6) and counsel fees and costs. The

contents of the counterclaim did not satisfy the specific notice requirements of

Rule 5:5-10.

During the default hearing defendant's counsel stated that her "trial

memo would be almost the same as a proposed final judgment" and would

satisfy Rule 5:5-10. The court agreed, finding defendant's trial memo

thoroughly stated exactly what he sought and included "more information . . .

than a proposed final judgment."

Defendant's pre-trial memorandum set forth the relief he sought.

(Da388-430). Under other circumstances, this may have satisfied Rule 5:5-10

in spirit. However, the memorandum was emailed and mailed to plaintiff on

September 10, 2018, and was not received by the court until September 14,

2018, only five days before the first day of trial. This hardly complied with

the twenty-day notice required by Rule 5:5-10, and it was never confirmed that

plaintiff received it. 5 Rule 5:5-10 requires that the defaulting party be served

"in accordance with R. 1:5-2." That rule provides:

5
Defense counsel stated that she sent the documents to plaintiff via email and
by mailing physical copies to her last known address in Basking Ridge, but

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20
If no address is known [for a defaulting party], despite
diligent effort, the filing of papers with the clerk shall
be deemed to satisfy that service requirement and
there need be no separate service upon the clerk . . . .
The specific facts underlying the diligent effort
required by this rule shall be recited in the proof of
service required by R. 1:5-3.

Defendant possessed the specific facts necessary to fulfill his proof of service

requirements outlined in Rule 1:5-3 but declined to do so.

Plaintiff asserts her due process rights were violated because defendant

failed to serve her with a notice of proposed final judgment twenty days or

more before the default hearing. She avers that the default judgment of

divorce should "be vacated, and the matter should be remanded for a full trial

on the merits on all issues." We agree that a notice of proposed final judgment

was required.

The court entered default against plaintiff when she did not appear for

the first day of trial. Defendant was then required to serve a notice of

proposed judgment on plaintiff at least twenty days before the default hearing

date. The default hearing should have been scheduled for a date to allow

proper service of the notice of proposed final judgment. It was error to

(continued)
their receipt was not acknowledged. It seems clear, however, that defendant
knew plaintiff was residing in Pakistan. Notably, on August 2, 2018, the court
found that defendant did not serve his application for an order to show cause
on plaintiff.

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21
proceed with the default hearing the next day. For this reason, we vacate the

default judgment.

We next address the entry of default against plaintiff on the first day of

trial. We take into consideration that she was proceeding pro se and resided in

Pakistan. We also note this was a first trial listing.

Plaintiff contends she was unable to appear for trial because she was too

ill, bedridden, and was not permitted to leave Pakistan until the litigation filed

by defendant's brother was completed. She further contends that she did not

voluntarily agree to the withdrawal of her attorney and was thwarted from

hiring new counsel due to her illness and residing in Pakistan.

We recognize that plaintiff did not move for leave to appear and testify

by contemporaneous video transmission or telephonically. Nor did she fully

provide the court-ordered written verification of her medical condition or

inability to leave Pakistan due to the litigation filed there. However, on

September 4, 2018, her attorney in Pakistan wrote to the court advising that

plaintiff was still ill and unavailable and provided documentation information

and pleadings regarding the litigation filed in Pakistan.

In a recent opinion, we recognized that "[o]ur court rules do not provide

for testimony by way of contemporaneous video transmission, but they don't

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22
prevent it either. In fact, trial testimony may be presented in a number of ways

that do not require the witness' physical presence." Pathri v. Kakarlamath, 462 N.J. Super. 208, 212 (App. Div. 2020). In State v. Santos, 210 N.J. 129

(2012), the Court considered the propriety of telephonic testimony at a post-

conviction relief hearing. It acknowledged the rules "do not expressly require"

in-person testimony and do not "directly prohibit remote testimony by

telephone." Id. at 139.

In Pathri, we distinguished telephonic testimony from testimony by

contemporaneous video transmission. We noted that in Aqua Marine Prods.,

Inc. v. Pathe Comput. Control Sys. Corp., 229 N.J. Super. 264, 274 (App. Div.

1988), we found that when a witness testifies telephonically, there was no way

to ascertain the identity of the witness. We also determined "there was no

basis at all on which the indefinable and elusive indicia of credibility,

denominated 'demeanor,' could be evaluated by the fact-finder." Ibid. "Out of

these concerns, we constructed a two-part test that would allow telephonic

testimony only in 'special situations in which there is either exigency or

consent and in which the witness' identity and credentials are known

quantities.'" Pathri, 462 N.J. Super. at 213-14 (quoting Aqua Marine, 229 N.J.

Super. at 274-75).

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In determining whether to permit testimony by contemporaneous video

transmission, we concluded that judges should consider the following factors:

(1) "the severity of the factual dispute to which the witness will testify;" (2)

"whether the factfinder is a judge or a jury;" (3) "the cost of requiring the

witness' physical appearance in court versus the cost of transmitting the

witness' testimony in some other form;" (4) "the delay caused by insisting on

the witness' physical appearance in court versus the speed and convenience of

allowing the transmission in some other manner;" (5) "whether the witness'

inability to be present in court at the time of trial was foreseeable or

preventable;" and (6) "the witness' difficulty in appearing in person." Id. at

216.

Several Pathri factors appear to militate against permitting plaintiff to

appear by contemporaneous video transmission, much less telephonically.

Plaintiff sought to testify about "sharply disputed question[s] of fact" that went

"to the heart of the matter." Id. at 217. Plaintiff's expected testimony

appeared aimed at presenting "a starkly different version of the relevant facts"

concerning the alleged marital torts, including the dissipation of assets, and

"the amount required to maintain a lifestyle." Ibid. Because that "testimony

may be far more influential on the factfinder," and involved "an actual

disagreement about the facts," live testimony was preferable because plaintiff's

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24
credibility and demeanor was at issue. Ibid. Accordingly, the judge would be

"better served in [his] truth-finding function by having testimony in person

rather than by contemporaneous video transmission." Id. at 217-18.

Plaintiff requested an adjournment of the trial until November. The

requested "delay in the case's disposition is also a factor." Id. at 219.

Although this was a first trial listing, the court noted this was one of the oldest

cases on its matrimonial docket.

The court found that plaintiff did not credibly demonstrate her difficulty

in appearing in court. It did so, however, based on plaintiff's written

submissions and appearance by telephone.

Plaintiff's argument that the court did not advise her that default would

be entered if she did not appear for trial is unpersuasive. The pre -trial order

stated that there would be "No Adjournments." It was clearly a peremptory

trial date. Additional notice that failure to appear may result in a default being

entered was not required. We note, however, that the court did not respond to

counsel's September 5, 2018 letter that stated plaintiff was still ill and

unavailable. Nor did it respond to counsel's September 18, 2018 email.

Rule 1:2-4(a) sets forth a wide range of sanctions that a trial court may

impose for a party's failure to appear on the day of trial without "just excuse."

The trial court may impose one or more of the following sanctions: (a) the

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25
payment of costs by the delinquent party to the court or the adverse party; (b)

the payment of reasonable expenses, including attorney's fees, by the

delinquent party to the adverse party; (c) the dismissal of the delinquent party's

complaint; or (d) such other action that it deems appropriate. R. 1:2-4(a).

Accordingly, a failure to appear for a peremptory trial date without just excuse

may, in certain circumstances, justify the dismissal of the party's pleadings and

proceeding by way of default hearing.

That being said, trial courts "must remain mindful of Rule 1:1-2, which

declares that the court rules are to be 'construed to secure a just determination,

simplicity in procedure, fairness in administration and the elimination of

unjustifiable expense and delay.'" Pathri, 462 N.J. Super. at 220. To that end,

the Pathri factors "aid in determining whether the principles stated in Rule 1:1-

2 . . . favor or disfavor allowing plaintiff to testify by contemporaneous video

transmission." Ibid. As we recognized in Pathri:

[I]n most cases, it would be hard to imagine that the
fair application of these principles would lead to a
trial that lacks a party's testimony rather than contains
that testimony in a less than desirable form. If a party
is not permitted to testify by way of contemporaneous
video transmission, and is unable to attend in person
notwithstanding, the ruling could have the undesirable
effect of turning the trial into a proof hearing in favor
of the one party able to attend. Judges, in the final
analysis, should be wary of the impact such a ruling
would have on the overall presentation of the proofs.

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26
[Ibid.]

Procedural dismissals are not favored. Connors v. Sexton Studios, Inc.,

270 N.J. Super. 390, 395 (App. Div. 1994). The ultimate sanction of dismissal

with prejudice must be sparingly applied and only if lesser sanctions are

unavailing. Rabboh v. Lamattina, 312 N.J. Super. 487, 492 (App. Div. 1998).

When the plaintiff is unable to appear in a case in which her testimony is

critical to the cause of action, sanctions other than dismissal should be

considered. See Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 405-06

(2009) ("There are reasoned, intermediate steps between the outright dismissal

of the complaint and allowing plaintiff's claims to go forward in his absence

that should have been explored."). "Ordinarily, one or more of the lesser

sanctions of [Rule 1:2-4(a)] would apply, namely, the payment of defendant's

costs, attorney's fees and/or out-of-pocket costs for the first appearance."

Connors, 270 N.J. Super. at 393.

Applying these principles, we conclude the trial court abused its

discretion by entering default and proceeding by way of proof hearing in this

matter.6 Plaintiff resided half-way around the world in Pakistan. She was

without counsel in this case and had no legal training. She asserted that she

6
We fully recognize that the trial court did not have the benefit of our
decision in Pathri, which was decided on January 23, 2020.

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27
suffered from medical conditions that prevented her from appearing for trial in

September.

Moreover, the controlling facts in this complicated case were vigorously

disputed. Both spousal support and equitable distribution of valuable assets

were at stake. This was a long-term marriage. The parties had widely

disparate incomes. Testimony was needed to determine the appropriate

amount of equitable distribution and spousal support necessary to maintain the

marital lifestyle. In that regard, temporarily continuing the level of pendente

lite spousal support for an additional eighteen months did not satisfy the

court's obligation to hear the evidence, assess the pertinent factors, make

findings of fact, and state its conclusions of law. R. 1:7-4(a).

We recognize that postponing the trial would have resulted in further

aging of an already old case. The prompt disposal of cases is desirable.

Audobon Vol. Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 406

(App. Div. 1986). "But swift justice demands more than just swiftness."

Connors, 270 N.J. Super. at 395 (quoting Henderson v. Bannan, 256 F.2d 363,

390 (6th Cir. 1958) (Stewart, J., dissenting)).

We vacate the default entered against plaintiff and remand for trial.

Plaintiff may move to appear and testify by contemporaneous video

transmission if she is still unable to appear in court in person due to her

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28
medical conditions. Any such application should be based on a fulsome

presentation of the facts surrounding any claimed inability to appear for trial.

Plaintiff's application should address all the Pathri factors, as should the

court's ruling. We express no opinion on the merits of that future application.

Either way, the case shall proceed to trial.

On remand, defendant may apply to the trial court for an award of

reasonable expense, including attorney's fees, related to the default hearing,

pursuant to Rule 1:2-4(a). We again express no opinion on the merits of any

such application and leave that issue to the sound discretion of the trial court.

III.

We next address plaintiff's challenge of the temporary alimony award.

The court determined that the limited record did not provide the necessary

information to fashion a final decision on alimony and awarded temporary

alimony subject to revision without the necessity of showing changed

circumstances.

Plaintiff argues the trial abused its discretion by awarding her temporary

alimony of $5000 per month for eighteen months, while directing her to file a

post-judgment motion within that term if she sought additional alimony going

forward. The amount and duration of any additional alimony would then be

determined by the motion judge. However, if plaintiff did not move for

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29
additional alimony before the expiration of eighteen months, defendant would

have no further obligation to pay alimony.

Alimony awards are governed by N.J.S.A. 2A:34-23(b), which sets forth

a list of non-exhaustive factors for a court to consider. "In all divorce

proceedings, trial courts must 'consider and make specific findings' under

N.J.S.A. 2A:34-23(b) when awarding alimony pursuant to a divorce decree."

Crews v. Crews, 164 N.J. 11, 25 (2000) (quoting Carter v. Carter, 318 N.J.

Super. 34, 42-43 (App. Div. 1999)).

The trial court prefaced its decision regarding alimony by stating that it

did not know plaintiff's "exact economic circumstances" because she had

"been out of the country for a significant period of time." The court explained

that it had "no idea" and "could not state with any degree of reasonableness,"

"certainty," or "competence what it costs her to live every month in Pakistan,

or if she's coming back to the United States." Seemingly exasperated, the

judge stated that plaintiff's "needs are simply unknown."

The court found defendant's earning capacity as a physician was at least

$500,000 or $600,000 a year, which "will continue for a substantial period of

time." In stark contrast, the court did not find that plaintiff had any marketable

skills, noting her only income since 2004 was from the medical practice. It

noted there was no evidence "to suggest that she would be employable outside

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30
of a family-run business." The court was unaware if there were any limitations

on her ability to work in Pakistan.

Plaintiff was forty-four years old at the time of the default hearing. The

court did not "see any great employment opportunities for her." It found

plaintiff "contribute[d] to [defendant's] education, training or earning power

because she stayed at home with the children and raised them." It further

found she contributed "greatly as a homemaker."

On the other hand, the court found defendant proved that plaintiff

diverted funds from the medical practice by taking checks made payable to the

practice, including checks from insurance companies. But the court did not

find "any credible proof as to the exact amount of money that was sent

overseas [or] the amount used for marital purposes." The court also noted the

Reck report did not analyze what the money was used for.

Alimony and equitable distribution are interrelated. See N.J.S.A. 2A:34-

23(b)(10) (requiring the court to consider the equitable distribution awarded

and any direct or indirect payouts on equitable distribution, when determining

the type and amount of alimony); Conforti v. Guliadis, 128 N.J. 318, 324

(1992) (noting the intimate relationship of equitable distribution and support);

Claffey v. Claffey, 360 N.J. Super. 240, 263 (App. Div. 2003) (noting the

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31
"unquestionable interrelationship between alimony and equitable

distribution").

The trial court also erred by concluding that going forward, the alimony

awarded to plaintiff would not be taxable income for plaintiff and deductible

by defendant. The default judgment was entered on October 19, 2018.

Alimony is not deductible for the payor, nor included in gross income for the

payee, on federal income taxes for final judgments of divorce executed after

December 31, 2018, or "executed on or before such date and modified after

such date if the modification expressly provides that the amendments made by

this section apply to such modification." Tax Cuts and Jobs Act of 2017, Pub.

L. No. 115-97, § 11051(b)-(c), 131 Stat. 2054, 2089-90 (2017). Moreover, the

statute only applies to federal income taxes; it does not affect the taxation and

deductibility of alimony as to state income taxes.

Because we are vacating the default judgment, the temporary alimony

award is likewise vacated. Defendant shall remain obligated to remit spousal

support of $5000 per month pending further court order or judgment.

IV.

We provide the following additional guidance to the trial court. Plaintiff

argues the court erred when it: (1) "permitted defendant to pursue a separate

action against plaintiff in the Law Division for other funds that plaintiff

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32
allegedly diverted from the practice before 2012"; and (2) "permitted

defendant to pursue yet additional causes of action in New Jersey or in

Pakistan to recover other funds that plaintiff allegedly diverted for her own use

dating back as far as 2002." She asserts that both rulings are barred by the

Entire Controversy Doctrine.

"[T]he entire controversy doctrine requires the mandatory joinder of all

claims to a single transaction." Oliver v. Ambrose, 152 N.J. 383, 392 (1998).

The doctrine requires that claims stemming from the same "core set of facts"

be "determined in one proceeding." DiTrolio v. Antiles, 142 N.J. 253, 267-68

(1995). "Consistent with these goals, Rule 4:30A provides a mechanism to

prevent fragmentation of litigation." Oliver, 152 N.J. at 393. "Non-joinder of

claims required to be joined by the entire controversy doctrine shall result in

the preclusion of the omitted claims . . . ." R. 4:30A.

"The entire controversy doctrine encompasses 'virtually all causes,

claims, and defenses relating to a controversy.'" Oliver, 152 N.J. at 394

(quoting Cogdellv. Hosp. Ctr. at Orange, 116 N.J. 7, 16 (1989)). "[T]he

doctrine also includes counterclaims and cross-claims." Ibid. (citing Cogdell,

116 N.J. at 15).

"The entire controversy doctrine applies to family actions." Ibid.

"[M]arital tort claims should be joined with dissolution proceedings because

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33
the potential for money damages [is] relevant." Id. at 395 (citing Tevis v.

Tevis, 79 N.J. 422, 434 (1979)). "Consequently, a marital tort is required to be

joined with a pending family action involving the same parties." Pressler &

Verniero, cmt. 4 on R. 5:1-2(a).

The trial court concluded it did not have the necessary competent proofs

to decide whether plaintiff diverted monies earmarked for the purchase of

property in Pakistan. It permitted defendant to bring suit in Pakistan or the

United States on that claim. The court also permitted defendant to pursue his

claim that plaintiff diverted monies from his medical practice prior to 2012 in

a separate civil action in New Jersey.

The record does not reflect whether defendant pursued civil litigation

against plaintiff over any disputed funds following their divorce. Defendant's

medical practice sued plaintiff. The parties reached a settlement in that matter

while on appeal. See [S.M.], M.D., P.C. v. [A.T.M.], No. A-5682-16 (App.

Div. Mar. 25, 2019).

The remand court shall determine if defendant is personally pursuing

any civil actions against plaintiff to recover dissipated or converted funds , and

if so, whether defendant is precluded from pursuing those claims in separate

civil actions.

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34
V.

Plaintiff also argues that an adjournment should have been granted

because her attorney withdrew after the trial date had been scheduled without

complying with Rule 1:11-2(a)(2). Plaintiff contends that to properly

withdraw, her former attorney was required to obtain a "written waiver by all

parties of notice" and file certifications stating that the withdrawal would not

cause or result in delay. We disagree.

Rule 5:3-5(e) governs the withdrawal of an attorney from representation

in Family Part cases. It states in part that "[a]n attorney may withdraw from

representation ninety (90) days or more prior to the scheduled trial date on the

client's consent in accordance with [Rule] 1:11-2(a)(1)." R. 5:3-5(e)(1).

On May 31, 2018, plaintiff and her counsel signed a substitution of

attorney, allowing counsel to withdraw with plaintiff proceeding pro se. The

substitution was filed on June 5, 2018, more than ninety days before the

scheduled trial date. Accordingly, counsel was not required to meet the

additional requirements imposed by Rule 5:3-5(e)(2).

Plaintiff further argues she did not sign the substitution voluntarily,

claiming she was under the effect of numerous medications. The record does

not reflect the medications plaintiff was prescribed or include an expert

opinion that those medications affected her ability to consent to the withdrawal

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35
knowingly and voluntarily. Moreover, plaintiff did not move to set aside the

withdrawal of counsel. We also note that counsel continued to represent

plaintiff in the civil action filed against her by defendant's medical practice.

Plaintiff has not demonstrated that the withdrawal of counsel was improper.

In sum, we vacate the default and default judgment entered against

plaintiff and remand for trial.

Vacated and remanded. We do not retain jurisdiction.

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