Krithiga Sadeeshkumar v. Sadeeshkumar Venugopal

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0434-23

KRITHIGA SADEESHKUMAR,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. February 9, 2024

APPELLATE DIVISION
SADEESHKUMAR VENUGOPAL,

Defendant-Appellant.
________________________________

Argued January 29, 2024 — Decided February 9, 2024

Before Judges Sabatino, Mawla, and Vinci.

On appeal from an interlocutory of the Superior Court
of New Jersey, Chancery Division, Family Part,
Middlesex County, Docket No. FM-12-2082-22.

Derek Matthew Freed argued the cause for appellant
(Ulrichsen Rosen & Freed, LLC, attorneys; Derek
Matthew Freed, of counsel and on the briefs; Neethi
Vasudevan, on the briefs).

Roy Joseph Thibodaux, III argued the cause for
respondent (Berkowitz Lichtstein Kuritsky Giasullo &
Gross, LLC, attorneys; Roy Joseph Thibodaux, III, of
counsel and on the brief).

The opinion of the court was delivered by

MAWLA, J.A.D.
 Defendant Sadeeshkumar Venugopal appeals from a July 6, 2023 order

denying a motion to amend his answer to a complaint for divorce filed by

plaintiff Krithiga Sadeeshkumar. He also challenges an August 29, 2023 order

denying his motion for reconsideration. We reverse both orders.

The parties were married for over thirty years when plaintiff filed her

complaint for divorce in May 2022. The complaint alleged irreconcilable

differences and, in addition to dissolution of the marriage, sought an award of

equitable distribution, open durational alimony, and counsel fees. In October

2022, defendant filed an answer to the complaint, along with affirmative

defenses. The answer denied "the existence of a cause of action in favor of

[p]laintiff." It also noted there was a separate litigation in the Law Division,

commenced by defendant, regarding a business founded during the marriage.

Plaintiff is a third-party intervenor in the business case and the defendant is

Selvakumar Murugan.

In May 2023, defendant moved to amend his answer to the divorce

complaint to include a counterclaim for divorce on grounds of extreme cruelty

and irreconcilable differences. Defendant certified he and plaintiff met

Murugan in 2000. Murugan claimed to possess mythical and astrological

powers given to him by a Hindu goddess. According to defendant, plaintiff

declared Murugan as the family's Swamiji, a spiritual guru or teacher, and

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unilaterally devoted herself to him. Defendant claimed because of Murugan's

manipulation, plaintiff and Murugan took actions in the business and divorce

litigation that adversely affected his personal and financial wellbeing and caused

him stress, anxiety, and emotional distress. He also learned plaintiff and

Murugan had what he characterized as "an inappropriately intimate

relationship," which "devastated" him and "violated all acceptable social norms

and . . . further violated [the parties'] cultural values." Defendant urged the court

to permit him to amend his answer in the interest of justice.

Pursuant to the Rules of Court, defendant's answer appended a proposed

answer and counterclaim for divorce. The counterclaim alleged the extreme

cruelty began in 2013 and attached an eleven-paragraph schedule detailing the

acts of extreme cruelty.

According to the schedule, in 2017, plaintiff told defendant she wanted to

"involve . . . Murugan in their business" and compensate him with "a

disproportionately large renumeration," which "placed a financial strain on

[d]efendant." Defendant claimed plaintiff "supported . . . Murugan's improper

conduct as it relates to the parties' business," and her "actions . . . adversely

affected [d]efendant['s] . . . reputation and finances." Moreover, "[p]laintiff

improperly hindered [d]efendant['s] attempt to conduct a thorough inquiry" into

the issues with the business.

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 The schedule further alleged that in November 2018, defendant suffered

from chest pain and called plaintiff, who was in India at the time. Plaintiff

refused to speak with defendant and "forced" him to speak with Murugan.

Shortly thereafter, defendant underwent a cardiac procedure and plaintiff did not

return to the United States to support him. Plaintiff allegedly then pressured

defendant into flying to India against medical advice.

Defendant asserted that during the COVID-19 pandemic from February

2020 to October 2020, plaintiff and Murugan were living together in India, in a

"villa . . . improperly purchased with the funds from the parties' business."

Because plaintiff would not communicate with defendant or family who were in

India, he requested local police perform a welfare check on plaintiff and

"retrieve her from the villa." When police found plaintiff, she allegedly told

defendant that Murugan gave her "'divine water' to cure all her illnesses, but that

the same had made her feel extremely drowsy." She told defendant she wanted

to "maintain her distance" from Murugan.

Defendant alleged Murugan manipulated plaintiff into leaving the United

States and traveling to India sometime after September 2022. He reiterated that

he learned plaintiff and Murugan "had been engaging in an inappropriately

intimate relationship" causing him to "suffer[] . . . anxiety and severe emotional

distress," which "endangered [his] health and safety."

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 Plaintiff's counsel filed a letter brief in opposition to the motion to amend,

arguing Rule 5:4-2(e) controlled and "only permits the filing of an amended

pleading when 'a cause of action [] has arisen or become known since the filing

of the original complaint.'" (emphasis added) (alteration in original). Therefore,

defendant forfeited the opportunity to amend his pleadings because he knew

about plaintiff's alleged conduct as early as 2013 but did not file a counterclaim.

Counsel argued the court should not credit defendant's certification because it

was based "upon information and belief" and he "fail[ed] to identify the source

of such 'information and belief.'"

In reply, defendant's counsel argued his client learned about the details of

plaintiff's conduct during the divorce. Counsel also pointed out defendant's

frequent travels to India "reinforced" the "need for [d]efendant to have a separate

and independent cause of action for divorce to ensure that the divorce move[d]

forward." If plaintiff remained in India and withdrew her complaint for divorce,

defendant would be unable to obtain a divorce and would be compelled to begin

the process again, which would be a waste of money and judicial resources.

Counsel reminded the court of the liberal standard to amend pleadings "without

consideration of the ultimate merits of the amendment."

The motion judge denied the motion. Although his written findings noted

plaintiff had filed a "diametrically opposing certification," as we noted, there

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was only a letter brief submitted in opposition to defendant's motion. The judge

found

[d]efendant's request fails to add any substantive
context to his counterclaim . . . and serves only to
further exacerbate the contentious rapport between the
parties during this litigation. The case is well over 427
days old and both parties plead irreconcilable
differences. Therefore, based on the discretion offered
to the [c]ourt by R[ule] 4:9-1[,] . . . [d]efendant's
request is denied without prejudice.

Defendant moved for reconsideration. He certified the judge was

mistaken because he never pled irreconcilable differences, as his initial pleading

was just an answer with affirmative defenses. Defendant explained he filed the

motion to amend because when he filed his answer he was opposed to a divorce.

He did not believe plaintiff "independently and free of duress, actually sought a

divorce. . . . However, as discovery progressed, and based upon information

learned in the context of [this litigation], it . . . became clear . . . that

irreconcilable differences did exist between the parties." Defendant argued that

at the pleadings stage, he did not have to provide the "substantive context" the

court claimed was lacking because the court does not consider the ultimate

merits on a motion to amend. Further, the court failed to consider defendant

pled independent grounds for divorce and that it was important to obtain a

divorce in the event plaintiff failed to prosecute her complaint.

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 Plaintiff's counsel filed a letter brief in opposition to the reconsideration

motion. Counsel argued plaintiff "vehemently denied" the reasons defendant

asserted for amending his answer and defendant had not given a reason why he

waited to amend. The brief reiterated an amendment was barred by operation of

Rule 5:4-2(e). Therefore, the motion should be denied because defendant had

not met the criteria for reconsideration and was merely dissatisfied with the

judge's first order.

The motion judge denied the reconsideration motion. His written opinion

recounted each party's argument, recited the law, and concluded that he

"agree[d] with . . . [p]laintiff's position." We granted defendant leave to appeal

from the July and August 2023 orders.

I.

On appeal, defendant repeats the standard for amending pleadings is

liberal and he should have been permitted to amend to include a counterclaim

because he discovered the salient facts underlying his causes of action during

discovery. Further, the judge applied the wrong legal standard when he denied

the motion to amend on grounds defendant failed to add any substantive context.

Defendant asserts the judge should have granted his motion in the interest of

justice to enable defendant to be divorced. The judge also erred when he found

defendant had pled a cause of action for irreconcilable differences and denied

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the motion to amend and reconsideration. Moreover, the judge applied Rule

4:49-2 when he denied reconsideration and instead should have used Rule 4:42-

2 because his initial ruling was interlocutory.

II.

Rule 4:9-1 describes when a party in a civil case may amend a pleading,

including "at any time before a responsive pleading is served or, if the pleading

is one to which no responsive pleading is to be served, and the action has not

been placed upon the trial calendar, at any time within [ninety] days after it is

served." Thereafter, a party may also amend "by written consent of the adverse

party or by leave of court which shall be freely given in the interest of justice."

Ibid.

In exercising its discretion whether to grant leave to amend, the court is

guided by the fact that leave is "liberally granted and without consideration of

the ultimate merits of the amendment." Pressler & Verniero, Current N.J. Court

Rules, cmt. 2.1 on R. 4:9-1 (2024); see also Kernan v. One Washington Park,

154 N.J. 437, 456-57 (1998). "The broad power of amendment should be

liberally exercised at any stage of the proceedings, including on remand after

appeal, unless undue prejudice would result . . . ." Ibid. (citing Bustamante v.

Borough of Paramus, 413 N.J. Super. 276, 298 (App. Div. 2010)).

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 Despite the liberal standard of Rule 4:9-1, judges may deny leave to

amend when the granting of relief would be "futile," as when the new claim

lacks merit and would ultimately be dismissed for failure to state a claim upon

which relief may be granted. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501

(2006). Even if the new claim possesses marginal merit, leave to amend may be

denied if the claim would unduly protract the litigation or cause undue prejudice.

Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 484 (App.

Div. 2012); Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994).

A.

Guided by these principles, we conclude the judge erred when he denied

defendant's motion to amend his pleadings. At the outset, we note the judge

made a mistaken finding of fact when he found defendant had pled a cause of

action for irreconcilable differences. Defendant never filed a counterclaim for

divorce.

Moreover, the judge misapplied the law when he considered the merits of

the allegations contained in the proposed answer and counterclaims, and then

denied defendant's motion because the allegations lacked "substantive context."

The Legislature has described the causes of action for extreme cruelty and

irreconcilable differences as follows:

c. Extreme cruelty, which is defined as including any
physical or mental cruelty which endangers the safety

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 or health of the plaintiff or makes it improper or
unreasonable to expect the plaintiff to continue to
cohabit with the defendant; provided that no complaint
for divorce shall be filed until after [three] months from
the date of the last act of cruelty complained of in the
complaint, but this provision shall not be held to apply
to any counterclaim;

....

i. Irreconcilable differences which have caused the
breakdown of the marriage for a period of six months
and which make it appear that the marriage should be
dissolved and that there is no reasonable prospect of
reconciliation.

[N.J.S.A. 2A:34-2(c) and (i).]

Defendant's proposed counterclaim clearly pled sufficient grounds for

divorce on both extreme cruelty and irreconcilable differences. The schedule

attached to the counterclaim outlined alleged conduct by plaintiff that

endangered defendant's health and caused the breakdown of the marriage. That

conduct, if proven, would not make it reasonable for the parties to remain

married.

We do not share the motion judge's view that defendant's ability to amend

a pleading should be denied because it would "exacerbate the contentious

rapport between the parties during this litigation." There is no doubt Family

Part judges handle contentious cases in every docket type. Their job,

particularly in dissolution cases, is to cool the temperature and decide cases

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based on objective evidence to enable the parties to move on with their lives.

However, subject to leave of court, in interest of justice, the court should permit

the parties to timely allege why the marriage should be dissolved—unless a party

seeks to file a futile, frivolous, or harassing pleading. To do otherwise would

frustrate the statutory right to a divorce.

Indeed, "the Legislature has adopted liberal grounds for citizens to end

their marriages . . . ." Steiner v. Steiner, 470 N.J. Super. 112, 120 (App. Div.

2021). In Steiner, the plaintiff sought a divorce on irreconcilable differences

grounds. Id. at 116. At trial, she testified the parties had personal differences,

the defendant physically mistreated her, and his control of the parties' finances

during the marriage led her to seek a divorce. Id. at 120-21.

On appeal, the defendant argued the trial judge's finding the plaintiff

established irreconcilable differences was against the weight of the evidence.

Id. at 124. We upheld the trial judge's decision to grant the plaintiff a divorce

on those grounds; the point being "that divorce isn't available on mere request

or demand. . . . Even a 'no fault' divorce requires more than the desire to divorce

by imposing on the [party seeking the divorce] an obligation to show" they have

met the statutory elements. Id. at 119.

We are also unpersuaded the age of the case was a reason to prevent

defendant from filing his counterclaim. The parties did not have a trial date,

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discovery was still outstanding, and this was not a run-of-the-mill divorce. Not

only were the parties engaged in a business litigation, plaintiff sought alimony,

equitable distribution, and counsel fees. Defendant's proposed counterclaim

sought equitable distribution and counsel fees. These issues were all

interrelated, and if the matter proceeded to a trial, it could not be adjudicated

with just half of the picture.

On its surface, defendant's counterclaim suggests the case is complex

because it involved Murugan, who defendant claimed influenced the business,

and a potential dissipation claim impacting alimony, equitable distribution, and

counsel fees. The dissipation of assets is a consideration in equitable

distribution. N.J.S.A. 2A:34-23.1(i); see also Kothari v. Kothari, 255 N.J.

Super. 500, 506 (App. Div. 1992). Further, we have held alimony may be denied

for an otherwise deserving spouse where that spouse engages in egregious

conduct by secreting assets or income from the marriage affecting the parties'

economic life. Clark v. Clark, 429 N.J. Super. 61, 76-77 (App. Div. 2012). And

an award of counsel fees requires the court to consider the parties' good faith or

lack thereof. R. 5:3-5(c). This consideration applies when parties seek fees for

litigating dissipation claims. See Orlowski v. Orlowski, 459 N.J. Super. 95,

100-01, 108 (App. Div. 2019) (affirming an award of counsel fees related to the

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prosecution and defense of dissipation claims from the dissipating party's

retirement funds.).

B.

Although the judge did not rely upon Rule 5:4-2(e) to deny the motion,

we take this opportunity to address plaintiff's interpretation of it. Plaintiff

argued defendant was barred by Rule 5:4-2(e) from amending his answer to

include a counterclaim because he alleged acts of extreme cruelty and

irreconcilable differences beginning in 2013, yet failed to include a counterclaim

when he filed his first responsive pleading. Further, at oral argument before us,

plaintiff's counsel asserted the standard articulated under Rule 5:4-2(e) is not

the liberal interest of justice standard of Rule 4:9-1.

Rule 5:4-2(d) reads as follows:

Counterclaim. A counterclaim may state any family
cause of action, and any other cause or causes of action
which exist at the time of service of the counterclaim.
A counterclaim not stated in an answer may be filed by
leave of the court at any time prior to final judgment.
Failure to file a counterclaim for divorce, dissolution of
civil union, termination of domestic partnership, or
nullity shall not bar such cause of action. . . .

Rule 5:4-2(e) states:

Amended or Supplemental Complaint or Counterclaim
in Dissolution Matters. In any action for divorce,
dissolution of civil union, termination of domestic
partnership, nullity, or separate maintenance, a
supplemental complaint or counterclaim may be

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 allowed to set forth a cause of action which has arisen
or become known since the filing of the original
complaint, and an amended complaint or counterclaim
may be allowed to change the action from the originally
pleaded cause to any other cognizable family or family
type action.

Rule 5:4-2(e)'s origins can be traced to the adoption of the 1947 State

Constitution. The proposed source Rule was Rule 3:83-5, which read as follows:

(a) In any action for divorce, nullity, annulment or
separate maintenance, an amendment to the complaint
or counterclaim may be allowed to set forth a cause of
action which has arisen since the filing of the original
complaint, or to change the action from separate
maintenance, absolute divorce or divorce from bed and
board to any other one of the said actions.

(b) This [Rule] shall not permit an amendment to
recite a cause of action for desertion which had not
accrued at the time of the filing of the complaint.

[N.J. Ct. R. 3:83-5 (Tentative Draft 1948).]

The annotation to the draft Rule explained its purpose:

From a technical standpoint, this proposed [Rule]
refers to what would be called now a supplemental
petition. However, under the present law a new cause
of action cannot be stated by supplemental pleading,
(Szelewa v. Windeler, 110 N.J. Eq. 299, 159 [(Ch.
1932)]). But there is no real reason why a petitioner in
a divorce action should be required to file an
independent suit for a cause which arose since the
commencement of the original action. One action
should be enough to encompass grounds for divorce
which existed when the suit was started or which have
come into being since that time.

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 For example, if a divorce is sought for desertion
and, subsequently, the defendant commits adultery, the
[plaintiff] ought to be permitted to charge that offense,
also, by way of amendment. The same should be true
in the case of an original suit for extreme cruelty with
a later adultery, or in the case of an original suit for
adultery and another act arising at a later time.

[N.J. Ct. R., 3:83-5 cmt. (Tentative Draft 1948).]

The final rule was adopted as Rule 3:84-4 with minimal alteration and

read as follows:

(a) In any action for divorce, nullity of marriage, or
separate maintenance, an amendment to the complaint
or counterclaim may be allowed to set forth a cause of
action which has arisen or became known since the
filing of the original complaint, or to change the action
from separate maintenance, absolute divorce or divorce
from bed and board to any other one of the said actions.

(b) This [Rule] shall not permit an amendment to
state a cause of action for desertion which had not
accrued at the time of the filing of the complaint or
counterclaim.

[N.J. Ct. R. 3:84-4 (1948).]

The source rule eventually became Rule 5:4-2(e).1 The annotation to the

Rule recounts "[t]he significant change which the source rule had made in

1
Rule 3:84-4 became Rule 4:95-4 in 1958. R. 4:95-4 (1958). It changed again
to Rule 4:77-4 in 1969. R. 4:77-4 (1969). Rule 5:4-2(e) replaced Rule 4:77-4
and "follow[ed] its source rule . . . almost verbatim. The only change is the
substitution of the phrase 'family actions' for the former phrase 'matrimonial
actions.'" Pressler, Current N.J. Court Rules, cmt. 4, R. 5:4-2 (1986).
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previous practice was the elimination of the prohibition against the filing of an

amended or supplemental pleading to allege a cause of action for desertion

which had not accrued at the time of the filing of the complaint or counterclaim."

Pressler & Verniero, Current N.J. Court Rules, History and Analysis of Rule

Amendments to R. 5:4-2, note 5, www.gannlaw.com (2024). The Rule was later

amended in September 2011 to include domestic partnerships and civil unions

and its caption was amended in September 2015 to denote its application only

to dissolution matters. Ibid. See also 2015 Sup. Ct. Fam. Prac. Comm. Rep. 13.

There is no precedent applying Rule 5:4-2(e) in the manner suggested by

plaintiff. Existing precedent has interpreted the predecessor, Rule 4:77-4, and

N.J.S.A. 2A:34-2 to permit the amendment of a complaint or counterclaim where

a cause of action arose after the filing of the original pleading. See Semely v.

Semely, 113 N.J. Super. 411, 414-15 (App. Div. 1971); Indiero v. Indiero, 116

N.J. Super. 193 (Ch. Div. 1971).

Aside from the Rule 5:4-2(e)'s history, a reading of its plain language

explains why plaintiff's argument is misplaced. The Rule governs the process

of amending a counterclaim, not amending an answer to include a counterclaim

as defendant sought to do here. Defendant never filed a counterclaim, which he

later sought to amend. Rule 5:4-2(e) is inapplicable here.

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 Further, unlike Rule 4:9-2, which permits an amendment of the pleadings

where issues not raised in the pleadings are revealed at trial; or Rule 4:9-3, which

permits an amendment to relate back to the date of the original pleading if "the

amended pleading arose out of the conduct, transaction or occurrence set forth

or attempted to be set forth in the original pleading"; Rule 5:4-2(e) is unique to

dissolution cases. The Rule envisions the following example: a spouse uncovers

facts about the party or the marriage itself previously unknown to that spouse

during the divorce proceedings, including the existence of other relationships or

the presence or absence of assets or liabilities affecting the parties' rights in a

divorce. The Rule permits that party to amend the counterclaim accordingly.

"Civil family actions [are] governed by the rules in Part IV insofar as

applicable and except as otherwise provided by the rules in Part V." R. 5:1-1.

Therefore, Rule 5:4-2(e), being one that is applied in a court of equity such as

the Family Part, supplements Rule 4:9. Rule 5:4-2(e) does not alter the interest

of justice standard set forth in Rule 4:9-1, which governs all amended pleadings.

In Family Part matters, an amendment to a responsive pleading to include a

counterclaim is governed by Rule 5:4-2(d), which like Rule 4:9-1 requires leave

of court, but in recognition of the Family Part's inherent equitable authority

stipulates leave can be granted "at any time prior to final judgment." The logic

undergirding the ability to seek leave at any time emanates from the salutary

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procedure often employed in divorce matters, whereby parties who had initially

filed pleadings alleging grounds other than irreconcilable differences can later

amend their pleadings to assert irreconcilable differences as a peaceable means

of ending the divorce.

Plaintiff's interpretation of Rule 5:4-2(e) would impede divorce litigants'

access to justice because they would be barred from pursuing causes of action

revealed to them during the case. This would create, rather than remove, barriers

to the resolution of cases, turn up the temperature of a divorce case, and work

the opposite result of what the motion judge professed was his goal.

For these reasons, we conclude there was an ample basis, both as a matter

of fact and law, to grant defendant's motion to amend his pleadings in the interest

of justice. In reaching this conclusion, we recognize that our decision is the first

published opinion that harmonizes Rule 5:4-2(d) and (e) with Rule 4:9-1, and

that the motion judge and counsel did not yet have the benefit of that guidance.

The July 6, 2023 order is reversed.

III.

Because we have reversed the July 2023 order, the August 29, 2023 order

requires little discussion. However, we add the following as guidance.

"[A] trial court's reconsideration decision will be left undisturbed unless

it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. v. ABC

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Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "[R]eversal is

required when the [trial judge's decision] . . . 'is clearly unfair or unjustly

distorted by a misconception of law or findings of fact that are contrary to the

evidence.'" M.G. v. S.M., 457 N.J. Super. 286, 294 (2018) (quoting Wadlow v.

Wadlow, 200 N.J. Super. 372, 382 (App. Div. 1985)). We owe no deference to

a trial court on questions of law. Reese v. Weis, 430 N.J. Super. 552, 568 (App.

Div. 2019).

An order "which adjudicates fewer than all of the claims as to all the

parties" is interlocutory and shall be subject to revision at any time before the

entry of final judgment in the sound discretion of the court in the interest of

justice. R. 4:42-2(b). "Reconsideration under this rule offers a 'far more liberal

approach' than Rule 4:49-2, governing reconsideration of a final order." JPC

Merger Sub LLC v. Tricon Enters., Inc., 474 N.J. Super. 145, 160 (App. Div.

2022) (quoting Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021)).

The motion judge applied the incorrect legal standard when he decided

the reconsideration motion, because he relied on the non-interlocutory Rule

4:49-2 standard. Pursuant to our de novo review and applying the "far more

liberal approach" under Rule 4:42-2, we conclude the motion for reconsideration

should have been granted. For these reasons, the August 29, 2023 order denying

reconsideration is reversed.

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Reversed and remanded. We do not retain jurisdiction.

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