JAIME MORA VS. DEBORA MORA(FM-02-000252-15, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1330-15T2

JAIME MORA,

Plaintiff-Respondent,

v.

DEBORA MORA,

Defendant-Appellant.

______________________________

Submitted February 27, 2017 – Decided March 16, 2017

Before Judges Nugent and Currier.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-000252-15.

Gilberto M. Garcia, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant Debora Mora appeals from an October 21, 2015 trial

court order denying her motion to set aside a June 10, 2015 final

judgment of divorce ("FJOD"). The court entered the FJOD after

defendant defaulted. For the reasons that follow, we affirm.
 We derive the following facts from the sparse appellate

record. Plaintiff and defendant were married twice. The parties

divorced in 1979, remarried in 1988, and separated in 2010. In

2014, plaintiff filed a divorce complaint. Defendant failed to

answer the complaint.

Plaintiff filed a Notice of Proposed Final Judgment on May

13, 2015. Plaintiff directed the notice to defendant. The notice

included an itemization of the parties' assets, which included

real property in Englewood and Union City, a business, three

vehicles, a bank account, and personal property. The notice also

specified June 10, 2015, as the proposed trial date.

On June 10, 2015, the trial court conducted a hearing and

entered a FJOD at its conclusion. Defendant was present at the

hearing. The FJOD ordered the parties to list the Englewood and

Union City properties for sale by specified dates and divide the

net proceeds equally. The FJOD addressed who would remain at the

residential property pending its sale, who would collect the rents

from the rental properties, and how the properties' carrying costs

would be allocated. The FJOD provided terms on which the parties'

jointly owned business was to be sold and the salaries to be paid

pending the sale. The FJOD granted possession and title of the

2003 Cadillac Escalade to defendant, and possession and title of

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the 2007 Chevrolet Avalanche to plaintiff. It ordered the parties

to transfer title to the 2005 Acura 3.2 TL to their son.

Plaintiff was to retain possession of his personal Wells

Fargo bank account, containing approximately $2500. The Wells

Fargo safe deposit box was to be relinquished to the bank and its

contents divided as appropriate. Lastly, the FJOD provided for

the equitable distribution of the parties' personal property and

bank account.

On September 4, 2015, nearly three months after the trial and

entry of the FJOD, defendant moved to vacate the FJOD. On October

21, 2015, the trial court held a hearing on defendant's motion.

Defendant has not included in the appellate record the

certification she presumably filed in support of her motion to

vacate the default judgment. We glean from the parties' and

court's comments during oral argument that defendant claimed

plaintiff's attorney had a conflict of interest and should have

told her to seek other counsel; she had not been served with the

divorce complaint; and was unaware of the pending divorce.1

When oral argument commenced, the court asked defense counsel

whether he had obtained transcripts of "the two proceedings which

occurred on June 10th of this year." Counsel had not. The court

1
The appellate record does not include a copy of the June 10,
2015 proceedings.

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explained that plaintiff's attorney had filed a responding

certification which demonstrated no conflict of interest existed.

In addition, though defendant certified she had not been served

with a divorce complaint, the affidavit of service established the

complaint had been served on her twenty-three-year-old son, a fact

plaintiff verified.

The judge also recounted that during the June proceedings he

noted defendant received notices in January, March, and May 2015,

and "[w]hen [he] went through that, [he] made sure that the notices

were sent to [defendant] in both English and Spanish." Further,

defendant asked plaintiff for an attorney in July 2014, "which

leads one to the conclusion . . . she knew about the divorce

proceedings from the inception[.]" The court noted on the record

during the June 10 proceedings "there were ample proofs [defendant]

was properly served with the request for divorce and she was

properly served with a notice of proposed final judgment in

accordance with our [c]ourt rules."

In response to defendant's arguments that the proceedings

were difficult to understand and she was not given an opportunity

to speak, the judge noted the court utilized an interpreter,

defendant answered the judge several times when addressed

directly, and defendant did not ask any questions despite the

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clarification of her right to do so. Instead, defendant complained

about her "pittance salary" and lack of alimony.

Turning to defendant's arguments in support of her motion to

vacate the default judgment, the court noted it had "addressed the

issues of alimony and equitable distribution extensively on the

record during [the June 10] hearings." The court explained

plaintiff did not provide for alimony in his proposed final

judgment because the parties "would continue to take the same

amount out of [their business]" and defendant would collect the

rental income from their rental properties. That arrangement

provided defendant with "a more comfortable lifestyle than . . .

plaintiff, who is only receiving a salary and has no rental

income."

Defendant alleged a potential Sheridan2 issue, as she believed

plaintiff signed defendant's name on their joint tax returns. The

judge evaluated and dismissed this contention as a non-issue.

The judge analyzed defendant's motion to vacate the default

judgment under Rule 4:50-1. He noted:

[while] mindful that our [a]ppellate courts
have told us . . . we must exercise great
liberality and should tolerate every
reasonable ground for . . . indulgence . . .
with a view to opening default judgments in
order that a just result is reached[,]

2
Sheridan v. Sheridan, 247 N.J. Super. 552 (App. Div. 1990).

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 . . . .

[g]enerally, a defendant seeking to reopen a
default judgment because of excusable neglect
must show that the failure to answer was
excusable under the circumstances and that a
meritorious defense is available.

The court ultimately determined "there was no showing of

excusable neglect in failing to answer the complaint or otherwise"

failing to participate in the litigation, and affirmed the FJOD

in an October 21, 2015 order.

Defendant appeals. In arguments devoid of any significant

discussion of the standard of review for vacating a default

judgment, defendant contends the equitable distribution was

unfair, she should have the opportunity to be heard as to alimony,

and the trial court's consideration of her Sheridan argument was

inadequate. As to the business, the FJOD ordered it be sold four

years after entry of the FJOD, the net proceeds to be divided

equally. Defendant asserts she should not be "precluded from

obtaining her 50% in the business and her commercial property for

a four-year period[.]"

The trial court decided defendant's motion under Rule 4:50-

1, which provides:

On motion, with briefs, and upon such terms
as are just, the court may relieve a party or
the party's legal representative from a final
judgment or order for the following reasons:
(a) mistake, inadvertence, surprise, or

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 excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move
for a new trial under R. 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the
judgment or order is void; (e) the judgment
or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.

When a trial court considers a motion to vacate a default

judgment, the motion must 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.) (citation omitted), aff'd, 43

N.J. 508 (1964). This is especially so in family actions, because

"a judgment by default is not favored in divorce suits." Curry

v. Curry, 108 N.J. Super. 527, 530 (App. Div. 1970) (citation

omitted).

Nonetheless, a trial court's decision under Rule 4:50-1 is

entitled to "substantial deference, and should not be reversed

unless it results in a clear abuse of discretion." US Bank N.A.

v. Guillaume, 209 N.J. 449, 467 (2012) (citation omitted). As to

the first section of Rule 4:50-1, a motion to vacate a judgment

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under Rule 4:50-1(a) "should be granted sparingly, and is addressed

to the sound discretion of the trial court, whose determination

will be left undisturbed unless it results from a clear abuse of

discretion." Fineberg v. Fineberg, 309 N.J. Super. 205, 215 (App.

Div. 1998) (citing Hous. Auth. of Morristown v. Little, 135 N.J.

274, 283-84 (1994)). An abuse of discretion occurs "when a

decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible

basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)

(citation omitted).

Here, the trial court's denial of defendant's motion to set

aside the default judgment did not constitute an abuse of

discretion. Although difficult to discern on this sparse record,

it appears defendant moved for relief under Rule 4:50-1(a). The

grounds defendant asserted to support her motion were unsupported

by, and in some instances contrary to, the facts. Additionally,

the court gave defendant the opportunity to participate in the

proof hearing by questioning plaintiff, but defendant declined the

opportunity to do so. Lastly, assuming defendant sought relief

under Rule 4:50-1(f), defendant has not demonstrated the trial

court's decision was inherently unfair or contrary to applicable

legal principles, nor has defendant established "any other reason

justifying relief from the operation of the judgment." Ibid.

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Affirmed.

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