Krafte, J.J.D.R.C. (temporarily assigned).
The question presented is whether this court abused its discretion in permitting defendant to offer unrestricted testimony at the time of trial despite orders striking his answer and defenses and dismissing all his pleadings for failure to provide discovery and file a preliminary disclosure statement.
This matter came on for trial on January 18, 1983. At that time the court permitted the unexpurgated testimony of both parties on the issues of alimony, child support and equitable distribution. Based upon the testimony adduced at trial, including
all evidence proffered by defendant as to the exclusion of certain property from equitable distribution and valuation in general, this court rendered an oral decision.
On March 9, 1983 the court on its own motion issued an order to show cause, pursuant to R. 4:49-1(c), why an order should not be entered granting a new trial of the issues of alimony, child support and equitable distribution on the ground that the court abused its discretion in permitting the full participation by defendant notwithstanding the aforementioned orders. At the time of oral argument defendant asserted that the court's motion was not timely made pursuant to R. 4:49-1(c) and that such time could not be enlarged per R. 1:3-4(c). Defendant attempted to find further support in the comments to R. 4:49-1(b) wherein it is stated: "The second (change in the source rule) was to make clear that in non-jury actions, the ten day period begins to run from the date the court's conclusion is announced. . . ." The final judgment has not been entered in this matter; however the court's decision was announced on January 18, 1983. No other argument was advanced by defendant to meet the court's motion for a new trial.
R. 4:49-1(c), under which this court moves, in part reads: "Not later than 10 days after entry of judgment the court on its own motion may order a new trial for any reason for which it may have granted a new trial on motion of a party." (Emphasis added.) R. 1:3-4(c) provides that "Neither the parties nor the court may, however, enlarge the time specified by . . . R. 4:49-1(b) and (c). . . ." Consistent therewith the order about to issue does not enlarge the time specified and there is no need to do so.
The language of the rule is clear. It reads "10 days after entry of judgment." No differentiation is made between bench and jury trial. In stark contrast is the language of Subsection (b) which requires the motion to be made within "10 days after the court's conclusions are announced in non-jury actions or after the return of the verdict of the jury." The entry of
judgment is a procedural step of some significance and its meaning must not be contorted to suggest a different phase in the litigation in order to accomplish defendant's aims.
Furthermore, research of the source of R. 4:49-1(c), Fed.R.Civ.P. 59(d), reveals that the same interpretation was made by the Ninth Circuit Court of Appeals in Mitchell v. Dist. Ct. of U.S., 270 F.2d 70, 71 (9th Cir.1959). In that case the jury returned a verdict on May 14, 1958, upon which judgment was entered on November 26, 1958. On the date judgment was entered the court, on its own motion pursuant to Fed.R.Civ.P. 59(d), ordered a new trial. The plaintiff sought leave to file a petition for an extraordinary writ to prohibit the District Court from proceeding with a new trial. Leave to file was denied, and it was determined that "the court was authorized to order a new trial on its own initiative within 10 days after entry of judgment." Id. at 71. Thus it is clear that the language, "10 days after entry of judgment," is meant to mean just that and not 10 days from the decision as urged by defendant.
This court holds that the motion for a new trial is timely filed.
Turning to the substantive issues involved, it is necessary to briefly review the procedural history of this matter. Plaintiff filed her complaint on May 29, 1981. By July 10, 1981 defendant had yet to answer and a default was entered. That default was subsequently set aside by consent order dated September 1, 1981. However, defendant's attitude toward the proceedings remained unchanged. On March 11, 1982 his answer and defenses were stricken and suppressed for failure to provide discovery. On April 1, 1982 another order was entered dismissing "any and all pleadings filed by the defendant" for failure to file a preliminary disclosure statement. By the time this matter came on for trial, neither of these two orders were vacated and no discovery, by way of interrogatories or ...