Opinion
DOCKET NO. A-2655-12T2
12-12-2014
JEREMY DELLO RUSSO, Plaintiff-Respondent, v. JAMIE ARVAY, Defendant-Appellant.
Jamie Arvay, appellant, argued the cause pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Accurso. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-257-11. Jamie Arvay, appellant, argued the cause pro se. Respondent has not filed a brief. PER CURIAM
This is the second time this matrimonial action has come before us. The first time, defendant Jamie Arvay argued that the judgment of divorce entered by default should have been vacated because, among other things, the court lacked subject matter jurisdiction. At that time, we reversed the judgment "as to all issues except the granting of the divorce" while "affirm[ing] the dissolution of the marriage without prejudice to defendant's right to proceed on her claim that the Superior Court had no jurisdiction over defendant to enter such an order." Dello Russo v. Arvay, No. A-3152-10 (App. Div. July 11, 2012) (slip op. at 14). We, thus, remanded for further proceedings.
The parties appeared in the trial court on September 14, 2012. Because of confusion over the service and receipt of pleadings and motion papers, nothing of consequence then occurred. They returned to court on October 4, 2012, at which time the judge denied a defense motion for his disqualification and held defendant's jurisdictional contentions could not be resolved without an evidentiary hearing, a conclusion preordained by our earlier mandate. Ibid. The October 4, 2012 order, however, mistakenly states that the judge had denied defendant's motion to vacate the judgment of divorce.
On January 17, 2013, the attorneys who had represented plaintiff Jeremy Dello Russo in these proceedings wrote to the trial judge to advise of plaintiff's death the day before. Notwithstanding plaintiff's death terminated his right to be heard, the attorney further advised the judge that he would "present a legal brief on what we believe [plaintiff's] death means to the current proceedings" and requested the court's decision on the pending motion "to seal the records and dismiss the plenary hearing."
We do not mean to suggest that an attorney should not inform a court of a client's death. To the contrary, as an officer of the court, an attorney should promptly advise the court of such an unfortunate event. But an attorney is otherwise precluded from advocating on his late client's behalf or indirectly on behalf of the late client's estate. Nothing should have occurred here until the estate was substituted for plaintiff pursuant to Rule 4:34-1. We also note that the attorney who appeared on plaintiff's behalf during his lifetime also filed a civil case information statement in this court — identifying his client as Jeremy Dello Russo — and that the same attorney unsuccessfully cross-moved for dismissal of defendant's appeal. There remains nothing in the record to suggest that the estate has been substituted for the deceased as a party to this action or that the attorney who filed these pleadings had been retained by the estate or its personal representative.
The next day, January 18, 2013, the judge entered an order dismissing the action "due to the death of" plaintiff "on January 16, 2013." Obviously, in light of the timing of plaintiff's death, the attorney's letter, and the entry of the order, the judge did not provide defendant with an opportunity to be heard about the impact of plaintiff's death on the proceedings. The record on appeal also contains an amended dismissal order, which was entered by the trial judge on February 5, 2013; according to its preamble, the order was based on a "letter application" of the attorney who had represented plaintiff. The February 5, 2013 order states that "the prior Judgment of Divorce still stands, as ruled by the Appellate Division" and "the issue of jurisdiction is MOOT as the [c]ourt no longer has subject matter jurisdiction due to the death of [plaintiff] on January 16, 2013."
The "letter application" is not included in the record on appeal.
Defendant appeals, seeking our review of the trial court orders entered on October 4, 2012, January 18, 2013, and February 5, 2013. With the exception of the trial judge's disposition of the disqualification motion, we reverse all three orders and remand for further proceedings.
Our Supreme Court has previously considered the unfortunate intervention of the death of a party to a matrimonial action and has referred to a wife's plight, when the deceased husband legally holds what are arguably marital assets, as a legal "black hole." Carr v. Carr, 120 N.J. 336, 340 (1990). Although, as a general matter, divorce actions abate upon the death of one of the parties, matrimonial courts may nevertheless proceed if presented with preponderating equitable considerations. See Kay v. Kay, 200 N.J. 551, 552 (2010). Overlaying the countervailing equitable concepts recognized in Carr and Kay is our mandate in the first appeal that upheld the dissolution of the marriage, but without prejudice to defendant's jurisdictional arguments, which could not be determined absent an evidentiary hearing that has yet to occur. The issues are further troubled by the judge's failure to explain why he believed plaintiff's death required the dismissal of the action, or why the judgment of divorce should have been reinvigorated by plaintiff's death, despite our prior criticism of the earlier proceedings and without a consideration of defendant's contentions.
A judge's compliance with Rule 1:7-4(a) is "fundamental to the fairness of the proceedings and serves as a necessary predicate to meaningful review." R.M. v. Supreme Ct. of N.J., 109 N.J. 1, 12 (2007). Failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adjustment, 141 N.J. Super. 1, 4 (App. Div. 1976); see also Curtis v. Finneran, 83 N.J. 563, 569-70 (1980). That failure "inhibit[s]" "[m]eaningful appellate review," Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990), and has the potential to replace careful appellate examination of a trial court decision with conjecture and speculation. This circumstance alone propels our remand.
We offer the following brief comments as a guide for the future proceedings. Had the issues triggered by plaintiff's death been fully considered when the orders in question were entered, the judge would have recognized that plaintiff's death did not necessarily require an end of the proceedings. Indeed, the judge's decision to terminate defendant's attack on the judgment of divorce is somewhat incongruous because — by upholding the dissolution of the marriage — the judge preserved defendant's right to an equitable distribution of marital property and his own authority to revisit, amend, or vacate the prior default judgment. That is, in normal circumstances, "[d]ivorce proceedings abate with the death of one of the parties," eliminating the right to equitable distribution because that right is dependent upon the dissolution of the marriage. Carr, supra, 120 N.J. at 342. But here, because the marriage had been dissolved by court order, albeit without prejudice, rather than a spouse's death, the predicate for equitable distribution was in place at the time of plaintiff's death, and remains so. The judge erred in ostensibly concluding otherwise.
For this reason, defendant is at risk that, in her continued pursuit of a finding that our courts lack subject matter jurisdiction over her marriage to plaintiff, she will slip into Carr's black hole. That is, should her position be vindicated, a dismissal of the action and a vacation of the earlier judgment of divorce would likely follow, leaving her married to plaintiff at the time of his death. In that instance, the right to thereafter seek a divorce would no doubt have abated, see, e.g., Carr, supra, 120 N.J. at 342; Castonguay v. Castonguay, 166 N.J. Super. 546, 550 (App. Div. 1979) — even if, as defendant argues, that relief were to be pursued, or is being pursued, in New York, see Cornell v. Cornell, 164 N.E.2d 395, 398 (N.Y. 1959) - and defendant could suffer the loss of an elective share to plaintiff's estate resulting from her apparent separation from him at the time of death, see N.J.S.A. 3B:8-1 (recognizing that a "surviving spouse . . . has a right of election to take an elective share . . . provided that at the time of death the decedent and the surviving spouse . . . had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife").
Moreover, we reject what would appear to be the intent underlying the orders of January 18, and February 5, 2013. The judge seemed to have labored under the belief that the parties' rights became fixed at the moment of death. Despite the many possible consequences that may emanate from the death of a matrimonial litigant, our Supreme Court has made one thing very clear — equitable principles must guide the court's determination as to whether or to what extent matrimonial issues remain soluble after death. See Kay, supra, 200 N.J. at 552-53 (holding that "depriving the estate of the opportunity to pursue its claim for relief would not serve the policy of promoting equity and fair dealing as between spouses" as the equitable distribution statutes "are designed to advance"); Carr, supra, 120 N.J. at 350 (recognizing that, notwithstanding a spouse's intervening death, a family court should "seek to effectuate sound public policy and mold the law to embody the societal values that are exemplified by such public policy"). The orders under review run counter to those principles.
With the exception of the judge's disposition of the disqualification motion, which has been rendered moot by our direction that all future proceedings be conducted by another judge, we reverse the orders of October 4, 2012, January 18, 2013, and February 5, 2013, and we remand for further proceedings. Following today's decision, the trial court should first determine the extent to which Carr/Kay principles require a continuation of some or all aspects of the divorce litigation. If the court determines that aspects of the matrimonial litigation may proceed despite plaintiff's death, the court should then consider: whether the court obtained or possessed subject matter jurisdiction over the marriage; whether principles of comity require our courts' deference to New York proceedings that were or may still be pending; and, even if our courts have jurisdiction and need not defer to other pending litigation, whether equitable distribution and other matrimonial issues that remain justiciable were properly or fairly resolved when the judgment of divorce was entered in light of defendant's claim that she was previously deprived of notice and an opportunity to be heard as to the divorce judgment that was entered. We further direct that the proceedings required by our mandate be handled by a different judge.
We noted in our earlier opinion that "defendant [had] submitted documentation indicating on [its] face . . . that the parties' relationship has been the subject of a New York divorce or support proceeding." Dello Russo, supra, slip op. at 13.
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Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION