For reversal and remandment -- Chief Justice Hughes, Justices Sullivan, Pashman and Judge Conford. For affirmance -- Justices Mountain, Clifford and Schreiber. Schreiber, J., dissenting. Justices Mountain and Clifford join in this opinion.
We reverse the judgment of the Appellate Division and remand the matter for hearing to the trial court substantially for the reasons given by Judge Seidman in his dissenting opinion. 150 N.J. Super. 255 (1976). We add the following comments.
While the affidavits supporting plaintiff's motion to reopen the judgment use the terms "deception," "fraud" and "concealment," the substance of her application may well have been cognizable on broader grounds. A motion to reopen a judgment based on mistake, newly discovered evidence, fraud and the like, R. 4:50-1 (a), (b) and (c), must be made within one year after the judgment was entered. R. 4:50-2.*fn1 However, a motion asserting "any other reason justifying relief from the operation of the judgment or order," R. 4:50-1 (f), has no such time limitation
except that it must be made "within a reasonable time." R. 4:50-2.
In Court Invest. Co. v. Perillo, 48 N.J. 334 (1966), we noted the following:
"* * * [A] motion under (f) is addressed to the discretion of the trial court. That discretion is a broad one to be exercised according to equitable principles, and the decision reached by the trial court will be accepted by an appellate tribunal in the absence of an abuse of its discretion. No categorization can be made of the situations which would warrant redress under subsection (f). As Justice Proctor noted in Hodgson v. Applegate, 31 N.J. 29, 41 (1959), the very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." 48 N.J. at 341.
A significant element in the timeliness of plaintiff's motion, noting the strictures of the rule, would consist of the date when plaintiff first discovered the facts underlying her application, a matter left unclear by the moving papers. Therefore, we do not hold that plaintiff's motion to reopen was made within a reasonable time or that it satisfied the requirements of R. 4:50-1 (f). However, we conclude that the motion papers were adequate to entitle plaintiff to a hearing on these issues. In essence, this is what plaintiff sought during argument of her motion. Also, since Daniel Palko, the named defendant herein, died on June 18, 1973, his estate through the executor of his last will and testament should be substituted as party defendant in these proceedings.
We therefore remand for the trial court to determine, after hearing, (1) whether plaintiff's motion was made within a reasonable time under the circumstances, and if so, (2) whether plaintiff can establish a ground for relief under R. 4:50-1 (f).
SCHREIBER, J., dissenting. Verna Palko and Daniel Palko were divorced on May 16, 1972. The final judgment incorporated a property settlement entered into on February 14, 1972. Under one of the terms of the settlement the
defendant husband agreed never to change his will, which provided that the two children born of the marriage ...