Opinion
DOCKET NO. A-2580-11T4
05-29-2013
MARY FLEURY, n/k/a MARY ZECCARDI, Plaintiff-Respondent, v. ANDREW FLEURY, Defendant-Appellant.
Andrew Fleury, appellant pro se. Mary Fleury, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-320-11.
Andrew Fleury, appellant pro se.
Mary Fleury, respondent pro se. PER CURIAM
Defendant appeals from the November 18, 2011 trial court order denying his motion seeking reconsideration of the court's July 1, 2011 order granting plaintiff's request, as part of her final judgment of divorce (FJOD) by default, to change the surname of the minor child born of the marriage to her maiden surname. The trial judge, although fully aware that plaintiff's divorce complaint had not sought this relief and that defendant was entitled to notice and an opportunity to be heard, nonetheless granted the relief to plaintiff. Defendant also appeals that portion of the September 26, 2011 order denying his request to stay enforcement of the child support order.
We are satisfied defendant's application to stay enforcement of the child support order is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we reverse the order changing the surname of the minor child to plaintiff's maiden name and remand to the trial court for further proceedings.
The parties were married on January 31, 2008. Their son was born in 2009. The parties separated in June, 2010. Pursuant to a custody order signed on February 7, 2011, the parties were granted joint legal custody of their son, and plaintiff was designated as the parent of primary residence. The court also ordered defendant to attend drug counseling, comply with drug treatment recommendations, submit to random drug testing, and visit his son at plaintiff's residence. Plaintiff filed a complaint for divorce on May 20, 2011. Defendant was properly served but did not file an answer to the complaint. Plaintiff thereafter sought an order entering default judgment.
Plaintiff's complaint for divorce states the parties were married on January 31, 2008. During the default hearing, plaintiff again stated the parties were married on January 31, 2008. However, in their briefs, both parties indicate they were married on January 31, 2009. This discrepancy in the stated date of marriage does not affect the issues now on appeal.
During the hearing on her application, plaintiff made an oral request to resume her maiden name and to change her son's surname to her maiden surname name. She stated the change was necessary as a safety precaution because defendant was a drug addict who owed money to many people and she wanted to shield their son from his father's creditors. She advised the court that defendant had been arrested in March 2011 and recently lost his leg in a motorcycle accident. She indicated she rarely heard from defendant, although he had called two weeks earlier to inquire about the divorce proceedings, and he had only seen their son four times since the separation. When the judge asked if the child's paternal grandparents took interest in him, plaintiff testified defendant's family lived in Pennsylvania and aside from visiting their grandson for his second birthday in April 2011, they did not routinely visit or call him.
The court granted plaintiff's request, stating:
With regard to your son, ma'am, it's a little bit more difficult. There is no request in the pleading that I do that, number one. Number two, Mr. Fleury does have standing to object . . . .An order entering an FJOD by default and approving the name change for both plaintiff and the minor child was entered on July 1, 2011.
. . . .
And given the circumstances of this case, the lack of pleading notwithstanding, I am going to go ahead and grant your application to change the child's name as well with the understanding, ma'am, that procedurally it's a reach and should your now ex-husband decide that he wants to be heard on that, then we may have to give him that opportunity. It doesn't sound like he cares, number one, and number two, if he does care, I doubt seriously whether he's in a position to put together the necessary effort to actually put it into play.
On August 2, 2011, defendant filed a notice of motion seeking to have his son's name changed back to his birth surname and to temporarily halt his child support obligation from the date of his accident on May 31, 2011, until he obtained social security disability benefits or another form of steady income. He argued that his son's surname was improperly changed because plaintiff failed to file a verified complaint, as required under Rule 4:72-1, which would have provided him with notice of the request and afforded him an opportunity to file opposition. He claimed he did not receive the FJOD or any order reflecting the child's name change in sufficient time to allow him to file a timely motion. He asserted that he filed a motion as soon as he discovered the name change.
The court, in its September 26, 2011 written decision, denied defendant's motion, finding that "[t]he time to appeal this aspect of the court's order has long since passed." The court also declined to suspend defendant's child support obligations and enforcement of his child support arrears, concluding that defendant's inability to work was temporary and therefore did not constitute changed circumstances requiring modification of the child support order.
Defendant subsequently moved for reconsideration. He once again argued that the process by which the child's name was changed did not comport with the requirements of Rule 4:72-1. He also explained that his untimely motion was due to lack of timely notice of the name change. He alleged plaintiff failed to provide him with a copy of the FJOD and that he only received the order after contacting the court on or about July 26, 2011, twenty-five days after it was entered. Additionally, defendant argued his child support obligations should have been halted because he anticipated that he would not be able to work for at least one year, and when he resumed employment, he would likely earn considerably less.
In his brief to this court, defendant indicated that he first realized his son's surname had been changed when he received a letter regarding child support on or about July 25, 2011.
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In his written decision denying defendant's motion, the judge acknowledged the court rules regarding the proper procedure by which a child's name may be changed, but determined that "[w]hile . . . [d]efendant has identified law in regards to his issues, this does not mean it is the appropriate law for the circumstances. The [c]ourt was within [its] legal rights regarding the previous motion, and despite . . . [d]efendant's attachments, there is nothing to suggest the [c]ourt should reconsider the decision."
On appeal, defendant contends the trial court's order granting plaintiff's verbal application to change the surname of his son is contrary to Rule 4:72-1, which requires that an "action for change of name shall be commenced by filing a verified complaint setting forth the grounds of the application[,]" and Rule 4:72-3, which requires publication of the notice of application in a newspaper in advance of the hearing and "in the case of a minor plaintiff, that notice be served by registered or certified mail, return receipt requested, upon a non-party parent at that parent's last known address." We agree.
We first address defendant's initial motion to vacate the order changing the minor child's surname to plaintiff's maiden surname, which the court treated as a motion for reconsideration. Pursuant to Rule 4:49-2, a motion for reconsideration must be "served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it[.]" Under this rule, the twenty-day time period in which to seek relief commences when the judgment or order for which reconsideration is being sought has been served "upon all parties by the party obtaining it." Ibid. 4:49-2. Defendant claimed that although the FJOD was entered on July 1, 2011, he did not immediately receive a copy of it. Rather he received a child support letter on which his son's name appeared, bearing his former spouse's surname. Two days later, he received a copy of the FJOD and promptly filed his motion.
The trial judge simply denied the motion without making any findings as to when defendant received a copy of the FJOD. Defendant's motion was not expressly delineated as a motion for reconsideration. Therefore, even if the court rejected defendant's explanation for the delay in filing his motion for reconsideration, it could have treated the motion as a timely-filed motion for relief from judgment or order pursuant to Rule 4:50-1 and -2. See, e.g., Parker v. Marcus, 281 N.J. Super. 589, 592 (App. Div. 1995) (stating that plaintiff's motion was brought under R. 4:50-1 "although not so expressed"), certif. denied, 143 N.J. 324 (1996).
Relief from judgment under R. 4:50 "is designed to reconcile the strong interest in finality of judgments and judicial efficiency with the equitable notion that courts should have the authority to avoid an unjust result in any given case." Deutsche Bank Trust Co. Am. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012)(quoting Mancini v. EDS, 132 N.J. 330, 334 (1993)); see also A.B. v. S.E.W., 175 N.J. 588, 594 (2003); First Morris Bk. & Trust v. Roland Offset Srv., Inc., 357 N.J. Super. 68, 71 (App. Div. 2003). Relief under this rule thus provides for extraordinary relief upon a showing of exceptional circumstances. Ross v. Rupert, 384 N.J. Super. 1, 8 (App. Div. 2006). In other words, relief under this rule will be granted where prospective application of an order or judgment is no longer equitable. Hous. Auth. of Town of Morristown, 135 N.J. 274, 285 (1994).
During the court's colloquy with plaintiff at the default hearing, the court acknowledged that plaintiff's name change application for the parties' son was procedurally defective, that defendant had legal standing to oppose the application and that defendant would be allowed to re-open the issue before the court upon request. Notwithstanding these acknowledgements, the court granted the requested relief to plaintiff, which we do not view as in any way tempered by the court's reminder to plaintiff that defendant had the right to challenge the name change at a later time. Moreover, the court's expressed opinion that defendant, if made aware of his right to challenge the ruling, probably would not do so, was not justification for granting plaintiff's application. Further, as the record demonstrated, the court was wrong in its prediction about what defendant would do once made aware of the name change. Thereafter, rather than recognize its error in granting the relief as it did, the court compounded its error by denying reconsideration or relief from judgment.
A determination may ultimately be reached that permitting the minor child to assume plaintiff's maiden surname is in the child's best interest. See Ronan v. Adely, 182 N.J. 103, 108 (2004); see also Gubernat v. Deremei, 140 N.J. 120, 139, 141 (1995). However, such a decision may only be reached after the court has ensured there has been compliance with the requisite procedural requirements for seeking such relief and affording the opposing party a full opportunity to challenge the allegations supporting the application. That was not done here and we therefore reverse.
In summary, that part of the September 26, 2011 order denying defendant's motion to suspend enforcement of his child support obligation is affirmed. That part of the July 1, 2011 order permitting the name change for the minor child born of the marriage is vacated. The matter is remanded to the trial court. Upon remand, the court shall enter an order directing plaintiff to serve upon defendant, and file with the court, a certification and other documents in support of her name change application no later than June 14, 2013. The order shall further direct defendant to serve and file any responding certification and documents no later than July 1, 2013. Thereafter, the court shall conduct oral argument on the matter or, at its discretion, a plenary hearing, no later than July 31, 2013.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. 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