Opinion
DOCKET NO. A-4184-12T2
11-24-2014
JULIA G. ZAKREWSKY, Plaintiff-Respondent, v. LEN ZAKREWSKY, Defendant-Appellant.
Frank E. Tournour, attorney for appellant (Paula A. Menar, on the brief). The DeTommaso Law Group, L.L.C., attorneys for respondent (Michael J. DeTommaso, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket NO. FM-18-0236-11. Frank E. Tournour, attorney for appellant (Paula A. Menar, on the brief). The DeTommaso Law Group, L.L.C., attorneys for respondent (Michael J. DeTommaso, on the brief). PER CURIAM
This is an appeal by defendant, Len Zakrewsky, from an order entered April 8, 2013, which denied his motion to vacate a default judgment of divorce obtained by plaintiff, Julia G. Zakrewsky on November 7, 2011. We reverse the denial of Len's motion to vacate.
In using the parties' first names, we sacrifice formality for easier reference by the reader.
The record discloses the following facts and procedural history.
Len and Julia were married on December 30, 2002. The couple lived together for approximately a year and a half, when Julia purchased a house and moved out of the marital home. For many years thereafter, Len worked as a construction manager on large construction projects, which required him to live and work in multiple states of the United States and abroad.
Prior to the judgment under review, Julia filed a non-dissolution application against Len to relocate to Florida with the parties' son, and this application was granted. Len was personally served at his farm in Princeton on June 14, 2010. On August 16, 2010, Julia filed a complaint for divorce against Len. Personal service on Len was attempted multiple times at the Princeton address on August 24, August 26, August 29, August 30, and September 2, 2010, but none were successful. According to Len, he resided in Puerto Rico from August until September, and then in Nicaragua from late November until December 2010. In December, he visited with the parties' son in New Jersey.
Several emails were sent back and forth between Julia and Len during the months of November and December. The first email was sent on November 8, 2010, in which Julia discussed their son's developments and also told Len not to send any emails intended for her to their son's email address. On November 19, Julia contacted Len via email to discuss their son's Christmas trip arrangements, and she made no mention of the divorce action. Several emails were sent back and forth between the parties in December in an attempt to coordinate the trip, and no mention of the divorce was made. Len and his son exchanged emails on Christmas and the next day. Julia sent Len a letter attached to an email on January 6, 2011, discussing seeing Len in New Jersey. Other emails indicated that Julia's father should accompany their son during his meeting with Len. According to the emails, Julia was in New Jersey from December 28, 2010 until January 4, 2011.
On January 7, 2011, after personal service failed, Julia moved to effect service by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, to Len's usual place of abode, pursuant to Rule 4:4-3. Accompanying Julia's motion for substituted service was her counsel's certification of diligent inquiry setting forth counsel's attempt to serve Len by personal service, certified and regular mail. The certification stated that the certified mail was returned, but the regular mail was not returned. The certification further reviewed the attempts to determine Len's usual place of abode, including inquiry of the Postmaster of Princeton, New Jersey Motor Vehicles Commission, and an inquiry to determine whether Len was an active member of the Armed Forces of the United States. The motion sought permission of the court to serve the complaint on Len by mail to his Princeton address. Counsel certified that the within representations demonstrated diligent inquiry as to the attempt to ascertain the true address of Len.
However, the record clearly discloses that Julia was aware that Len was regularly out of the country, knew Len's email address, regularly communicated with him, and that she actually met with him in New Jersey. The record also indicates that the New Jersey meeting was a planned meeting.
According to Julia, in January she asked Len via telephone if he had received the divorce complaint and Len said that he had. Julia claimed that she inquired by both telephone and email about whether Len had received the complaint, and as a result, he sent a "nasty email" to her the next day. However, Julia is no longer in possession of the email because she contends it was deleted by their son. On February 4, 2011, the motion judge granted Julia's request to effect service by mail and for counsel fees because Len was purposefully avoiding service.
Julia filed a motion for an equitable distribution hearing and the entry of a final judgment of divorce (FJOD). Len did not appear nor was he represented at the hearing. At the hearing, Julia acknowledged that Len was in China. On November 7, 2011, the court entered a FJOD.
Sometime thereafter, enforcement proceedings were initiated by Somerset County Probation Services against Len for child support arrears, and notice was sent to Len's Princeton address. Len represents that his tenant forwarded the notice to him in January 2012, and he then retained counsel.
On November 21, 2012, Len filed a motion and certification seeking relief from the FJOD. His certification stated that he was in Puerto Rico from August 2010 until early September, spent the rest of the month in New Jersey, and then, from November until late December, he was in Nicaragua. Len also claimed that his primary address was in Kendall Park, that he had all of his mail sent to a P.O. Box in Kendall Park, and that a tenant looked after the Princeton farm in lieu of paying rent.
On January 4, 2013, Julia filed opposition to the motion and a cross-motion seeking payment of arrears and other forms of relief. In a reply certification, Len acknowledged that his motion seeking relief from the FJOD was filed "a few days past the one year mark." According to his certification, in January 2012, he retained counsel because he had heard from his tenant that there was a court date about unpaid child support. Len claims it was then that he became aware of the divorce. Len asserts his motion to vacate the FJOD was not filed sooner because he was in China, and upon returning, his attorney's office was closed and he was stranded without power at his Princeton Farm for ten days, both because of Hurricane Sandy. Len stated that had been living at the Princeton farm since returning from China.
On February 1, 2013, a different Family Part judge heard oral argument, at which time the parties disputed Len's place of abode, the timeliness of his motion for relief, and whether he was avoiding service of process. The court filed an April 8, 2013 order accompanied by a lengthy written statement of reasons that, in pertinent part, denied Len's request to vacate the default judgment. It is from that order that Len appeals.
While "the opening of default judgments should be viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached[,]" Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.) aff'd, 43 N.J. 508 (1964), a "trial court's determination under [Rule 4:50-1] warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009)).
In our review, we do not second-guess the exercise of sound discretion by the court because we recognize "[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court." Higgins v. Polk, 14 N.J. 490, 493 (1954); DeVito v. Sheeran, 165 N.J. 167, 198 (2000). Such determinations should not be overturned on appeal unless it can be shown that the "court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (internal quotation omitted). However, a "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
[US Bank Nat'l Ass'n v. Williams, 415 N.J. Super. 358, 365 (App. Div. 2010).]
"'The requirements of the rules with respect to service of process go to the jurisdiction of the court and must be strictly complied with.'" Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 204 (App. Div. 1990) (quoting Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 493, cert. denied, 344 U.S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952)).
We further note a court lacks jurisdiction over, and thus the authority to enter judgment against, a defendant who has not been properly served with process. City of Passaic v. Shennett, 390 N.J. Super. 475, 483 (App. Div. 2007); see also Berger, supra, 244 N.J. Super. at 204-05 ("Personal service is a prerequisite to achieving in personam jurisdiction[.]"). "The primary method of obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served[.]" R. 4:4-4(a).
Alternatively, in personam jurisdiction may be obtained by substituted mail service. If the addressee refuses to claim or accept delivery of registered mail, or if the ordinary mailing is not returned, the simultaneous mailing shall constitute effective service. R. 4:4-3(a). However, such mail service is effective only if it appears by affidavit satisfying the requirements of Rule 4:4-5(b) that despite diligent effort and inquiry personal service cannot be made. R. 4:4-4(b)(1). Service made by mail without satisfying the affidavit requirement under Rule 4:4-4(b)(1) is ineffective and will not support the entry of default, unless the defendant "answers the complaint or otherwise appears in response thereto." R. 4:4-4(c).
Here, it is apparent from the record that Julia's counsel made diligent effort and inquiry to determine Len's usual place of abode. However, even if the Princeton farm was Len's home, because he was routinely out of the country for extended periods, the farm may not have been his usual place of abode. This determination requires a fact-sensitive analysis. A "usual place of abode" includes a person's permanent home, even if he or she is temporarily staying elsewhere. See Missell v. Hayes, 84 N.J.L. 196, 197 (Sup. Ct. 1913), aff'd, 86 N.J.L. 348 (E. & A. 1914) (finding "usual place of abode" includes family home where residential college student returned on vacation); Vredenburgh v. Weidmann, 14 N.J. Misc. 285, 286-87 (Sup. Ct. 1936) (New Jersey family home to which defendant, a Yale Law student, returned on vacation, was "usual place of abode"). By contrast, "usual place of abode" excludes a house from which defendant is absent for an extended and continuous period of time. See Fid. & Deposit Co. v. Abagnale, 97 N.J. Super. 132, 146 (Law Div. 1967) ("dwelling house or usual place of abode" did not include house of wife of defendant who was incarcerated); Warfield v. Fischer, 94 N.J. Super. 142, 146-47 (Law Div. 1967) (defendant who was studying in Germany and did not return regularly to parental home in New Jersey did not maintain "usual place of abode" there). However, we need not reach this issue.
Julia's service is fatally flawed because apparently she never told her attorney that she was continuously aware of Len's whereabouts, emailed him numerous times, and in fact met with him during the time that her attorney was making diligent effort and inquiry to determine Len's usual place of abode or another location in New Jersey for personal service of process.
Diligence has no fixed standard. See Modan v. Modan, 327 N.J. Super. 44, 48 (App. Div. 2000). The diligence exercised and the alternative service requested must meet the constitutional requirements of due process. Cf. O'Connor v. Altus, 67 N.J. 106, 126-27 (1975). Namely, the "elementary and fundamental requirement of due process" is that there be "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. at 126 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950)); see also Dusenbery v. United States, 534 U.S. 161, 168, 122 S. Ct. 694, 151 L. Ed. 2d 597 (2002) ("Since Mullane was decided, we have regularly turned to it when confronted with questions regarding the adequacy of the method used to give notice."). Accordingly, when considering diligence, the court conducts a fact-sensitive inquiry "measured by the qualitative efforts of a specific plaintiff seeking to locate and serve a specific defendant." Modan, supra, 327 N.J. Super. at 48 (internal citation and quotation marks omitted). Diligence requires that a plaintiff follow up on information she possesses or can reasonably obtain, but it does not necessarily mean a plaintiff take every conceivable action. Id. at 48-49. "A party's good faith effort to personally serve a defendant must be 'described with specificity in the proof of service.'" Shennett, supra, 390 N.J. Super. at 483 (quoting R. 4:4-3(a)).
Substituted service "by registered[,] certified . . . [or] ordinary mail" is permitted only after a plaintiff first made "a reasonable and good faith attempt" to serve defendant personally, R. 4:4-3(a), as particularly described in a proof of service filed with the court in the form set forth in Rule 4:4-7. Shennett, supra, 390 N.J. Super. at 483.
We disagree with Julia's assertion that she employed steps to fully comply with the rules governing service of process of her complaint. We conclude that Julia did not conduct a diligent inquiry in an effort to personally serve Len with the complaint. She failed to follow up on the critical pieces of information within her knowledge, rather, she proceeded to mail copies of the summons and complaint to an address she knew was not routinely occupied by Len as he was out of the country. In sum, the record does not demonstrate that she exhausted her efforts and followed up diligently on the information she possessed or could have reasonably obtained to satisfy Rule 4:4-4 and the constitutional requirements of due process. As such, we conclude that Julia failed to effect service of process on Len pursuant to Rule 4:4-3.
We note that when a default judgment is entered in the face of ineffective service of process, the judgment is generally held to be void. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div.), certif. denied, 179 N.J. 309 (2004); Rosa v. Araujo, 260 N.J. Super. 458, 462 (App. Div. 1992). As we have recognized:
A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice. Sobel v. Long Island Entm't Prod. Inc., 329 N.J. Super. 285, 293-94 (App. Div. 2000). Such a judgment will usually be set aside under [Rule] 4:50-1(d). If defective service renders the judgment void, a meritorious defense is not required to vacate the judgment under [Rule] 4:50-1(d).
[Jameson, supra, 363 N.J. Super. at 425.]
However, this conclusion does not end our inquiry. Julia asserts, and the motion judge concluded, that Len's motion to vacate was barred as untimely. Based on Len's failure to timely assert his rights, the court determined that the doctrine of laches applied to the timeframe proscribed in Rule 4:50-2, and, even if he did not get service by mail, he had knowledge of the FJOD by February 2012 and waited until November 2012 to file his motion. The court concluded that as a matter of law, defendant's filing under Rule 4:50-1(d) must be denied because it was not brought within a reasonable time under the circumstances. Specifically, the court concluded that Len's arguments about the Hurricane Sandy delays were without merit, as there were several months prior to the hurricane to file the motion.
Under Rule 4:50-1(d), a judgment may be vacated on the grounds that "the judgment or order is void." A Rule 4:50-1(d) motion, based on a claim that the judgment is void, does not require a showing of excusable neglect, but must be filed within a reasonable time after entry of the judgment. See R. 4:50-2; Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 98 (App. Div. 2012); M & D Assocs. v. Mandara, 366 N.J. Super. 341, 351-52 (App. Div.), certif. denied, 180 N.J. 151 (2004). See also Orner v. Liu, 419 N.J. Super. 431, 437 (App. Div.) (holding that motions made under Rule 4:50-1 "must be filed within a reasonable time"), certif. denied, 208 N.J. 369 (2011). As the motion court recognized, it does not require a showing of a meritorious defense. Peralta v. Heights Med. Ctr, Inc., 4 85 U.S. 80, 86-87, 108 S. Ct. 896, 900, 99 L. Ed. 2d 75, 82 (1988); M & D, supra, 366 N.J. Super. at 353; Jameson, supra, 363 N.J. Super. at 425.
Though relief pursuant to Rule 4:50-1 "is not to be granted lightly[,]" it is "more liberally granted . . . when the application is to vacate a default judgment." Cho Hung Bank v. Kim, 361 N.J. Super. 331, 336 (App. Div. 2003) (citing Marder, supra, 84 N.J. Super. at 318). In fact, a void judgment "is a particularly worthy candidate for relief (R. 4:50-1(d)) provided that the time lapse is not unreasonable and an innocent third party's rights have not intervened." Id. at 336 (citations omitted). Julia does not contend that any innocent third party's rights have intervened.
A motion under Rule 4:50-1(d) must be made within a "reasonable time," but is not subject to the absolute one-year time bar. R. 4:50-2. What constitutes a "reasonable time" under R. 4:50-2 is necessarily dependent on the totality of the circumstances in a given case. Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:50-2 (2014). All doubt should be resolved in favor of the party seeking relief. Mancini v. EDS, 132 N.J. 330, 334 (1993) (citing Arrow Mfg. Co. v. Levinson, 231 N.J. Super. 527, 534 (App. Div. 1989)). That is so because of the importance we attach to securing a decision on the merits. Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 100-01 (App. Div. 1998) (stating that doubts should be resolved in favor of the applicant in order to secure a trial upon the merits). At bottom, the decision whether to grant or deny a motion to vacate a default judgment must be guided by equitable considerations. Prof'l Stone, Stucco & Siding Applicators, Inc. v. Carter, 409 N.J. Super. 64, 68 (App. Div. 2009) (stating that "Rule 4:50 is instinct with equitable considerations").
The November 2011 FJOD was served upon Len by regular mail at the Princeton address. See R. 4:43-2(c). As acknowledged by Julia, Len's passport indicates that he departed for China on June 1, 2011 and returned on May 20, 2012. Len filed his motion to vacate on November 21, 2012, six months after his return to the United States.
In his comprehensive statement of reasons, the motion judge acknowledged "[a]n application to vacate a default judgment is generally viewed with great liberality and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Although the judge analyzed the facts and the law with clarity, we disagree with his application of liberality and indulgence to the delay in the filing of Len's motion. Given equitable principles and considering the totality of the circumstances in this case, we conclude Len's filing was effected within a reasonable time. Because of the importance we attach to securing a decision on the merits and because relief is to be more liberally granted when the application is to vacate a default judgment, we determine that the motion judge abused his discretion in denying Len's motion to vacate the default judgment.
Accordingly, the order entering default judgment in favor of Julia on November 7, 2011, and the May 25, 2012 order denying Len's motion to vacate are reversed, and the matter is remanded for further proceedings consistent with this opinion.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION