Dodson v. Dodson, 012121 NJSUP, A-5366-18T4

Docket NºA-5366-18T4
Opinion JudgePER CURIAM.
Party NameJEFFREY E. DODSON, Plaintiff-Respondent, v. KASHAN L. DODSON, Defendant-Appellant.
AttorneyGrissele Camacho, attorney for appellant. Ehrlich, Petriello, Gudin, Plaza & Reed, PC, attorneys for respondent (Jeffrey W. Plaza, on the brief).
Judge PanelBefore Judges Alvarez and Sumners.
Case DateJanuary 21, 2021
CourtSuperior Court of New Jersey

JEFFREY E. DODSON, Plaintiff-Respondent,

v.

KASHAN L. DODSON, Defendant-Appellant.

No. A-5366-18T4

Superior Court of New Jersey, Appellate Division

January 21, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2020

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1071-18.

Grissele Camacho, attorney for appellant.

Ehrlich, Petriello, Gudin, Plaza & Reed, PC, attorneys for respondent (Jeffrey W. Plaza, on the brief).

Before Judges Alvarez and Sumners.

PER CURIAM.

In this post-judgment matrimonial matter, defendant Kashan L. Dodson appeals the trial court's order denying her motion to vacate default. She contends the court abused its discretion, and the default final judgment of divorce (FJOD) should be vacated due to plaintiff Jeffrey E. Dodson's fraud, misrepresentation, or other misconduct. We reverse because there was plain error in plaintiff's failure to comply with Rule 5:5-10 by notifying defendant of proposed final judgment before the default hearing.

After being personally served with plaintiff's pro-se divorce complaint, defendant failed to file a responsive pleading resulting in entry of default. In addition to seeking dissolution of the parties' twenty-four-year marriage alleging irreconcilable differences, the complaint demanded equitable distribution of debts and assets. Before the December 18, 2018 default hearing, plaintiff did not serve defendant a "Notice of Proposed Final Judgment" in accordance with Rule 5:5-10. The court entered a FJOD at the default hearing. Defendant did not appear.

About five months later, defendant through counsel moved under Rule 4:43-3 to vacate default to "be heard on the issues of alimony, equitable distribution, payment of college costs for their children, reimbursement of a PSE&G bill, life insurance, [her] maiden name, and counsel fees." The motion was not supported by any legal argument. Plaintiff retained counsel and opposed the motion.

Defendant's motion was decided on the papers and denied. In its oral decision, the court noted that because the FJOD was entered, defendant could only obtain relief under Rule 4:50-1, which governs vacation of a judgment, and not under Rule 4:43-3, which only allows for vacation of default. In analyzing the motion under the lens of Rule 4:50-1, the court found there was no basis to vacate the FJOD. Defendant appealed.

In a Rule 2:5-1(b) letter amplifying its decision, the court maintained that defendant's motion only sought to vacate default and did not address issues of equitable distribution or college education of the parties' children. The court noted that prior to the divorce litigation, defendant had represented herself in court proceedings pertaining to child support, custody, and college contribution prior to the divorce litigation, thereby demonstrating she "had no hesitation to assert her rights . . . without an attorney." The court further added defendant's contention that she waited to challenge plaintiff's complaint until she saved money to hire an attorney was "in no way" grounds to vacate a default judgment.

Pursuant to Rule 4:50-1(a)-(e), a court is authorized to relieve a party from a final judgment or order for reasons such as: mistake, inadvertence, or...

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