DOUGLAS J. KLEIN VS. REBECCA FEIT-KLEIN (FM-07-0297-17, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2786-18T3

DOUGLAS J. KLEIN,

Plaintiff-Respondent,

v.

REBECCA FEIT-KLEIN,

Defendant-Appellant.
_______________________________

Submitted December 9, 2019 – Decided May 15, 2020

Before Judges Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FM-07-0297-17.

Lentz & Gengaro, LLP, attorneys for appellant
(Christopher P. Gengaro, of counsel and on the briefs).

Douglas J. Klein, respondent pro se.

PER CURIAM

Defendant Rebecca Feit-Klein appeals from the Family Part's June 11,

2018 default final judgment of divorce (JOD) granted to plaintiff, Douglas J.
Klein, and its February 15, 2019 order denying defendant's Rule 4:50-1 motion

to vacate the JOD. The JOD was entered after the Family Part suppressed

defendant's pleadings and entered a default against her in 2017 based upon her

failure to file a Case Information Statement (CIS), as required by Rule 5:5-2,

and after being directed to do so on numerous occasions.

On appeal, defendant argues her motion was improperly denied under

Rule 4:50-1(a) because she established excusable neglect, and under Rule 4:50-

1(f), because the JOD was oppressive and inequitable. We affirm the denial of

relief under Rule 4:50-1(a), but remand for a more complete statement of reasons

from the motion judge about the denial of relief under Rule 4:50-1(f).

Plaintiff and defendant were married on August 29, 1993. The parties

have two children: a son, who is emancipated, and a daughter who continues to

be supported by her parents as a college student with physical and

developmental issues. Plaintiff works as a public school teacher, and defendant

as a program administrator at a county college.

The parties separated in 2015 when plaintiff left the marital residence.

Plaintiff filed a complaint for divorce on July 18, 2016. Defendant filed a timely

answer and counterclaim, which she amended in April 2017. During the

litigation, the motion judge entered case management orders on October 4, 2016,

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and March 28, 2017, that required, among other things, that the parties file and

exchange CISs. The latter order contemplated the CISs would be served in time

for a mediation scheduled for May 8, 2017. Defendant never complied with

either order and for that reason the mediation could not go forward.

When defendant failed to comply, plaintiff moved to strike defendant's

pleadings. Defendant did not file any opposition to the motion. On September

30, 2017, the motion judge granted plaintiff's motion and issued a written

statement of reasons. Based on the judge's order, on October 25, 2017, a default

was entered against defendant.

The matter was then scheduled for a proof hearing to be held on February

26, 2018. A month before, plaintiff served defendant with a "Notice of

Plaintiff's Proposal for Final Judgment," as required by Rule 5:5-10. Prior to

the hearing, defendant's attorneys moved to be relieved as counsel. When the

parties appeared for the proof hearing, the judge converted the proceeding into

a case management conference and rescheduled the final hearing for April 10,

2018. At that time, the judge gave defendant another opportunity to comply

with his earlier orders and directed that defendant serve and file her CIS by

March 23, 2018. According to the judge, at the hearing, he "reviewed and . . .

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affirmed with [d]efendant that she understood that . . . a [CIS] had to be . . .

provided by her." Defendant still did not file a CIS.

Prior to the final hearing, on April 6, 2018, the judge granted defendant's

counsel's motion to be relieved that was based upon her failure to comply with

her attorneys' attempts to secure her compliance with the court's orders. At that

time, that motion was the only one pending. Inexplicably, the hearing scheduled

for April 10 did not take place. On May 15, 2018, plaintiff sent defendant a

copy of a letter that plaintiff received from the Family Division Manager stating

"[t]he court has scheduled your motion for 7/20/18." The document did not state

to what motion it was referring, other than it was "plaintiff's motion." At that

time, there were no motions pending filed by either party.

Without any notice to defendant, on June 11, 2018, plaintiff appeared and

testified at a final hearing. At its conclusion, the judge entered the JOD,

substantially in the form submitted with plaintiff's Rule 5:5-10 notice.

According to plaintiff's testimony at the hearing, the parties' primary

marital asset was their home, as they had no financial or investment accounts.

Plaintiff stated he had a pension with the public school system and another small

pension through a previous employer. According to plaintiff, defendant had an

employer sponsored retirement plan.

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 Plaintiff also testified that defendant had access to an inheritance from her

father, but the estate's assets had not yet been distributed. Also, there was an

educational fund established by defendant's father for the children, consisting of

"hundreds of thousands of dollars," which he estimated to be "$160,000 in [their

son's] account and . . . $130,000 in [their daughter's] account." Plaintiff stated

he wanted to be reimbursed from those funds for the money he advanced for the

parties' son's education.

Plaintiff also testified that defendant earned approximately $2500, which

"wasn't that much money" and they lived a modest lifestyle, relying on debt to

pay for their children's private school education and other expenses. In addition,

plaintiff stated the parties accumulated various debts throughout their marriage.

According to plaintiff, he wanted to prepare the marital residence for sale,

which would allow him to pay off the mortgages that he could no longer afford.

Plaintiff's plan was to sell the marital residence, satisfy the marital debt, take

some of those proceeds for himself as reimbursements for the payments he alone

made toward the house, and then equally share the remaining proceeds with

defendant.

At the conclusion of the hearing, the judge made credibility findings and

placed his decision on the record. The judge found plaintiff credible given the

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manner in which he answered questions, his body language, his demeanor, and

his even tone of voice. The judge noted how defendant was in default and that

her pleadings had been stricken for her failure to file a CIS.

The judge also made numerous findings, under the fifteen factors set out

in N.J.S.A. 2A:34-23.1, regarding plaintiff's burden to establish that his plan to

equitably distribute the marital assets should be ordered. 1 Addressing the sixth

factor, the economic circumstances of each party at the time of the division of

the property, the judge noted how defendant had "flat out refused to file" a CIS

with her basic financial information, which would have allowed him to make a

determination as to her economic circumstances. After weighing the factors, the

judge found that plaintiff's plan of equitable distribution should be entered.

As part of his decision, the judge denied alimony to either party because

defendant's pleadings were stricken, and plaintiff was not seeking alimony.

Addressing the needs of the children, the judge ordered defendant to maintain

her employer-provided health coverage for the children, with plaintiff providing

supplemental coverage, and that each party would be responsible for fifty

percent of the unreimbursed medical expenses for the children. The judge also

1
There's no reference to the fourth factor, the standard of living during the
marriage, in the judge's decision.
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required each party to maintain their life insurance as long as a child remained

unemancipated.

Addressing the children's college expenses, the judge considered the

twelve factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), and

concluded that the parties should pay for their children's college expenses to the

extent not covered by financial assistance. However, because defendant did not

"provide her financial information" and there were funds earmarked for the

children's education in an account established by their maternal grandfather, the

judge determined that defendant should be solely responsible for the costs. The

judge stated it "seems more a matter of going through the process of tapping the

moneys to use for the stated purpose of the children's education." To the extent

plaintiff had already made payments toward their education, which plaintiff

testified totaled $93,684.44, the judge ordered defendant to reimburse plaintiff

out of her equity in the marital residence.

Addressing the marital home, the judge ordered defendant to vacate within

thirty-five days because defendant failed to participate in the process by

submitting a CIS. The judge explained that "given the defendant’s history of

not participating and complying with the requirements to submit [CISs] . . . the

[c]ourt finds that that is appropriate. There is a risk that the defendant [will]

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seek to impede the plaintiff’s ability to put into effect the equitable distribution

plan that’s approved by the [c]ourt." He granted plaintiff exclusive possession

and required him to sell the house with the parties equally sharing in the equity,

less any credits owed to plaintiff. In addition to the credit for education costs,

the judge found plaintiff was owed $36,719.68 as a credit against defendant's

share of the equity as a result of plaintiff continuing to make payments toward

a home equity line of credit after the parties had separated.

The judge also addressed the distribution of the parties' retirement

accounts, debts, automobiles and personal property based solely on plaintiff's

testimony and submissions. In addition, the judge awarded plaintiff $14,711.12

in counsel fees and costs.

The following month, defendant sought the entry of an order to show

cause seeking an immediate stay of the JOD relating to her vacating the marital

residence, and an order vacating the JOD in its entirety.2 In her supporting

certification, defendant explained the reasons for her default and attached her

completed CIS, with numerous supporting documents.

2
Defendant's prior counsel resumed his representation of plaintiff and filed the
application on her behalf.
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 In her certification, defendant maintained that there were many reasons

for her default, most if not all of them having occurred or existed before plaintiff

filed his complaint in this action. Defendant specifically cited to her being

diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), her treatment

by a psychiatrist and therapist to alleviate her anxiety, her father's death,

plaintiff moving out of their marital home while she was caring for her dying

father, her being appointed executor of her father's estate during the time the

divorce was proceeding, and her need to care for the parties' daughter, who

required special education. She also explained that she was told her job at the

county college was in jeopardy due to funding. Defendant also stated she failed

to appear at the June 11, 2018 final hearing, because she believed the matter was

being heard on July 20, 2018, according to the letter she received from plaintiff's

counsel about the scheduling of plaintiff's motion.

Moreover, defendant explained that the JOD would cause her irreparable

harm. Defendant argued that having her vacate the martial residence would be

unjust as she had nowhere else to live. Further, defendant was concerned about

the JOD's requirement that she remove all her personal effects from the marital

residence and the JOD's provision requiring her to maintain health insurance for

the children, alone. Defendant contended that she should be reimbursed for

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medical expenses she paid on behalf of her children. Defendant also challenged

the JOD's provision requiring her to pay for the children's education expenses

and to reimburse plaintiff for any payments he made toward those expenses.

Additionally, defendant argued that she should receive alimony since her

income was intended only to supplement plaintiff's during the marriage.

Defendant also contended that allowing plaintiff to handle the disposition of the

marital residence was inequitable. Further, she argued that the parties had

marital debt that was only in defendant's name that needed to be addressed.

Finally, defendant objected to the JOD's treatment of her pension, remaining

bank accounts, marital residence expenses, and legal fees.

On July 11, 2018, the judge entered an order to show cause with temporary

restraints, staying temporarily the portions of the JOD that required defendant

to vacate the marital residence. Additionally, the order provided that defendant

was to allow plaintiff reasonable access to the property in order to stage the

property for sale.

Prior to the return date, defendant filed a reply certification, evidently in

response to a submission that plaintiff made after being served with the order to

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show cause.3 In her certification, defendant responded to certain facts asserted

by plaintiff. She then summarized the relief she was seeking as denying

possession of the house to plaintiff; appointing a realtor being to facilitate its

sale; that any recommended repairs to the home be made after estimates and

court approval were obtained; and that plaintiff be responsible for one-half of

their daughter's current college bill.

After considering the parties submissions and August 1, 2018 oral

arguments,4 on August 28, 2018, the judge granted defendant sole possession of

the marital residence, required her to pay her daughter's college expenses and

the first mortgage payment without prejudice, plaintiff to pay the home equity

line, converted the order to show cause as to why the JOD should not be vacated

into a motion, established a briefing schedule relative to the application, and

scheduled oral argument for October 19, 2018. Plaintiff then filed a notice of

cross-motion to enforce the JOD, seeking an order denying defendant's motion

to vacate, and awarding attorneys' fees.

3
We have not been provided with a copy of plaintiff's certification, if any.
4
We have not been supplied with a copy of the transcript of those proceedings.

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 On February 15, 2019, the motion judge placed his decision on the record

before granting in part and denying in part defendant's motion to vacate the

JOD.5 In determining whether to vacate that judgment under Rule 4:50-1, the

judge found that there was no excusable neglect. Specifically, the judge stated

that defendant's actions in failing to file her CIS were more than neglectful, they

"were more in the nature of non-compliance with [c]ourt orders."

Despite denying defendant's motion to vacate, the judge addressed the

issue of college expenses as raised by defendant in her reply certification, and

modified the JOD under Rule 4:50-1(f), after finding his earlier ruling may have

been "unjust, oppressive or inequitable." The judge noted that "defendant's

counsel . . . did make an argument that . . . those circumstances do exist . . . with

respect to that one specific provision of the judgment." He also observed that

the earlier ruling "was a matter more having to do with the failure to provide the

discovery items rather than an analytical analysis of the Newburgh factors." The

judge stated that "the question of the allocation of the expenses as between the

parties would [not] automatically flow from [defendant's] failure to produce

those [financial] documents." The judge ordered that the JOD be amended to

5
According to the motion judge, oral argument did not occur on October 18,
2018, as scheduled, but was considered on November 9, 2018. We have not
been provided with a copy of the transcript from that proceeding.
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provide that the parties would be responsible for their children's education as

their income and financial resources may allow, after application of other

available funds, including first financial aid, and loans, and then those available

in the grandfather's educational fund.

On February 15, 2019, the judge entered an order memorializing his

decision to deny the motion to vacate and to amend the JOD to provide that the

parties would be responsible for college tuition in proportion to their respective

incomes. The order also reset the dates for the repair and sale of the marital

residence and denied plaintiff's application for an award of attorneys' fees. This

appeal followed.

At the outset, we observe that "a judgment by default is not favored in

divorce suits." Curry v. Curry, 108 N.J. Super. 527, 530 (App. Div. 1970).

Nevertheless, we review a decision on a motion to vacate a default judgment

under Rule 4:50-1 for abuse of discretion. U.S. Bank Nat'l Ass'n v. Guillaume,

209 N.J. 449, 467 (2012). "The trial court's determination under the rule

warrants substantial deference, and should not be reversed unless it results in a

clear abuse of discretion." Ibid. To warrant reversal, the movant must

demonstrate that the motion judge's "decision [was] 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

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impermissible basis.'" Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J.

88, 123 (2007) (Rivera-Soto, J., dissenting)).

In determining whether a party should be relieved from a judgment, courts

must balance "the strong interests in finality of judgments and judicial efficiency

with the equitable notion that courts should have authority to avoid an unjust

result in any given case." Ibid. (quoting Mancini v. EDS, 132 N.J. 330, 334

(1993)). 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." Mancini, 132

N.J. at 334 (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App.

Div. ), aff'd, 43 N.J. 508 (1964)).

Where a procedural violation is involved, additional considerations are

implicated, namely, "[t]he defendant's right to have the plaintiff comply with

procedural rules[, which] conflicts with the plaintiff's right to an adjudication of

the controversy on the merits." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139

N.J. 499, 513 (1995) (quoting Zaccardi v. Becker, 88 N.J. 245, 252 (1982)). In

all cases, however, "justice is the polestar and our procedures must ever be

moulded and applied with that in mind." Jansson v. Fairleigh Dickinson Univ.,

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198 N.J. Super. 190, 195 (App. Div. 1985) (quoting N.J. Highway Auth. v.

Renner, 18 N.J. 485, 495 (1955)).

Rule 4:50-1 permits a court "to relieve a party . . . from a final judgment"

under certain circumstances. Implicated here are those circumstances described

in subsections (a) and (f).

Under subsection (a), relief may be afforded upon a showing of " mistake,

inadvertence, surprise, or excusable neglect." Excusable neglect constitutes

default that was "attributable to an honest mistake that is compatible with due

diligence or reasonable prudence." Guillaume, 209 N.J. at 468 (quoting

Mancini, 132 N.J. at 335).

Under Rule 4:50-1(f), relief may be granted for "any other reason

justifying relief from the operation of the judgment." Relief under subsection

(f) is available only when "truly exceptional circumstances are present." Hous.

Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994) (quoting Baumann v.

Marinaro, 95 N.J. 380, 395 (1984)). "The movant must demonstrate the

circumstances are exceptional and enforcement of the judgment or order would

be unjust, oppressive or inequitable." Johnson v. Johnson, 320 N.J. Super. 371,

378 (App. Div. 1999); see also Badalamenti v. Simpkiss, 422 N.J. Super. 86,

103 (App. Div. 2011).

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 Considering subsection (f) contemplates exceptional circumstances, "each

case must be resolved on its own particular facts." Baumann, 95 N.J. at 395.

"Among the factors to be taken into account . . . are the 'extent of the delay in

making the application for relief, the underlying reason or cause, faul t or

blamelessness of the litigant, and any prejudice that would accrue to the other

party.'" In re Guardianship of J.N.H., 172 N.J. 440, 474 (2002) (quoting C.R. v.

J.G., 306 N.J. Super. 214, 241 (1997)).

With these guiding principles in mind, we turn to defendant's contention

that her motion under subsection (a) was improperly denied because she

established excusable neglect since she suffered from the "overwhelming life

circumstances exacerbated by her medical condition" and "confusion sowed" by

a notice sent to her in May 2018 by plaintiff's counsel, that allegedly scheduled

a hearing for a motion on July 20, 2018. We disagree.

First, to the extent that defendant focuses on her failure to appear at the

final hearing, that focus is misplaced. The issue throughout this matter was

defendant's failure to serve and file a CIS as required by the court rules and the

judge's repeated orders. It was not her failure to appear at the proof hearing.6

6
Had she appeared at the proof hearing without filing a CIS, she would not
have been able to adduce any affirmative evidence in support of her own

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 Second, and focusing on defendant's reasons for not filing a CIS, we

conclude as did the motion judge, that her reasons for her noncompliance do not

rise to the "excusable neglect" contemplated by subsection (a). While it is true

that a finding of excusable neglect is warranted when a litigant is unable to

understand or appreciate the impact of their non-action, see Bergen-Eastern

Corp. v. Koss, 178 N.J. Super. 42, 45 (App. Div. 1981) (upholding a finding of

excusable neglect where an elderly woman who had been hospitalized could not

mentally appreciate the service of a complaint against her due to "continuing,

serious psychiatric problems"), a party's repeated failure to respond to the court

will not constitute excusable neglect. See Fineberg v. Fineberg, 309 N.J. Super.

205, 217-18 (App. Div. 1998) ("[T]he right to present one's case carries with it

the commensurate obligation to cooperate with the court, counsel and other

litigants.").

Here, there was no evidence that defendant made any attempt to comply

with her obligations or notify the court of any serious impediment. Instead,

defendant repeatedly ignored the judge's orders and did so again when she was

contentions, and at best would have only had an opportunity to cross examine.
See Innes v. Carrascosa, 391 N.J. Super. 453, 496 (App. Div. 2007). Nowhere
in her supporting certification does she establish what such cross examination
would have yielded.
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given another chance, after the judge confirmed her understanding of the need

to file the CIS. Nothing in her explanation indicated that she had anything like

"a history of continuing, serious psychiatric problems with several

hospitalizations for mental illness" that prevented her from "understand[ing the]

import" of complying with the judge's orders and filing her CIS. Koss, 178 N.J.

Super. at 45-46.

It is beyond cavil that a litigant must meet his or her obligation under the

court's rules and its orders. In a family action, the importance of filing a CIS

also cannot be disputed. Rule 5:5-2 requires that a party file a CIS early in the

litigation, within 20 days of the filing of an answer, because it is essential to the

prompt resolution of the dispute, either by settlement or trial. See Pressler and

Verniero, Current N.J. Court Rules, cmt. 1 on R. 5:5-2 (2020). The filing of a

CIS has been described as "the fundamental and most important financial

discovery device." Alan M. Grosman & Cary B. Chiefetz, New Jersey Family

Law § 7-2 (2d ed. 2016). A failure to file a CIS may lead to the dismissal of a

party's pleadings. R. 5:5-2(b).

Where, as here, a litigant repeatedly fails to file and serve a CIS through

the final hearing, dismissal is appropriate absent proof establishing a complete

inability to understand the significance of the failure to comply. Defendant

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failed to establish that level of incapacity in her attempt to prove excusable

neglect, especially in light of the numerous opportunities to comply she was

given by the motion judge.

We turn our attention next to defendant's arguments under Rule 4:50-1(f)

and reach a different conclusion. Addressing individual provisions of the JOD,

defendant contends many of them are "inequitable," which warrants vacating the

judgment. Specifically, she contends that the JOD was "extraordinarily

inequitable, unfair and unjust and should be vacated." She argues that the

judge's refusal to grant alimony, his allocation of costs associated with the

children's health insurance coverage and college expenses, the judge's equitable

distribution of the home, retirement accounts, bank accounts and debts, and its

award of legal fees should be vacated under subsection (f).

We conclude that because the motion judge's oral decision never

addressed any issue other than education expenses, we cannot address

defendant's contentions on appeal. For example, we note that in originally

determining that alimony was not warranted in the JOD, the judge cited to the

same reason for originally requiring defendant to pay all of the educational

expenses – defendant's failure to file her CIS. Although upon reconsideration,

the judge found it was "unjust, oppressive or inequitable" just to rely on her

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default for education expense purposes, he never conducted the same analysis

when considering alimony or any of the other issues addressed in the JOD.

Without a more complete explanation of the judge's decision as required by Rule

1:7-4, we cannot perform our appellate function. For that reason, we are

constrained to remand this issue to the motion judge for a more expansive

statement of reasons supporting his decision to deny defendant further relief

under Rule 4:50-1(f).

We are also compelled to remand for clarification of the motion judge's

reasons for still requiring defendant to reimburse plaintiff $93,684.44 for college

expenses after reopening the JOD to amend it to provide for a reallocation of

educational expense. The judge's order amending the college expense does not

mention the original credit and why it was not subject to the reallocation or, for

that matter, why it had to have been paid from defendant's equity in the home,

rather than the education funds, if warranted, especially since the judge and

plaintiff stated that education expenses were to be paid from financial aid, then

the funds, before either party would be liable for education expenses.

By remanding this matter for a more complete explanation of motion

judge's reasons, we do not mean to limit the judge's ability to reconsider his

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earlier decisions if appropriate. We do not infer, one way or the other, whether

a reconsideration is required.

Affirmed in part; remanded in part for further proceedings consistent with

our opinion. We do not retain jurisdiction.

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