On appeal from the Superior Court, Chancery Division, Family Part, Morris County.
Pressler, Long and Landau. The opinion of the court was delivered by Long, J.A.D.
Defendant, Nancy Chambon, appeals from the alimony and equitable distribution provisions of the final judgment of divorce which dissolved her marriage to plaintiff, Jean Chambon. In addition to her challenge to the substantive fairness of those provisions, she also claims that the procedure in this case which led up to the entry of the final judgment denied her due process. Because we agree that the procedure involved here was fundamentally unfair to defendant, we reverse the judgment and remand the case for a trial on the merits.
According to the complaint and answer, plaintiff and defendant were married in 1961.*fn1 Two children were born to them in
1963 and 1966. Both are emancipated. Plaintiff filed the complaint for divorce against defendant based on sexual desertion on November 10, 1987. Defendant answered and counterclaimed for divorce on the grounds of extreme cruelty. The divorce action was apparently the culmination of a long history of acrimony between the parties which generated an earlier domestic violence action resulting in plaintiff's exclusion from the marital home and eventually in defendant's exclusion from plaintiff's business premises. As a part of those proceedings, plaintiff was ordered to pay approximately $700 per week in support to defendant which included over $100 a week in medical, psychiatric and dental bills and three monthly mortgage payments of approximately $1100.
In June 1988, pursuant to a consent order, an expert (Robert Chalfin) was appointed to evaluate plaintiff's business, Chambon Electric, Inc. All arrears which had accrued were to be held in abeyance pending further order of the court. In October 1988, defendant moved for the consent order to be vacated, for increased support, for funds to complete an addition to the marital home, for an advance against equitable distribution and other relief. The motion was denied.
As the end of 1988 approached, defendant's relationship with her attorney had deteriorated badly. Defendant was apparently suffering from a mental disturbance and was undergoing psychiatric care. She was not communicating with her attorney at all and exhibited some irrational tendencies evidenced by an ex parte visit to a judge's chambers. During this period, the expert, Chalfin was making his evaluation of plaintiff's business. He prepared a preliminary draft report and forwarded it to both counsel in February, 1989. Because there were no communications between the defendant and her attorney, there is no evidence that she ever read the report or, if she read it,
that she understood it, although counsel apparently forwarded it to her.
On March 1, 1989 counsel for both parties appeared at a settlement conference in the trial judge's chambers at which time defendant's counsel advised the court and his adversary of defendant's lack of cooperation and "increasing state of depression and extreme irrational behavior." The judge nevertheless scheduled the case for trial on April 5, 1989. Plaintiff then filed a notice of application for equitable distribution seeking a hearing for April 3. On March 10, defendant's attorney forwarded a letter to defendant enclosing plaintiff's equitable distribution proposal, notifying her of the April 3 hearing date and requesting that she contact him to discuss the settlement. On March 18, defendant's counsel sent defendant the trial notice for April 5 and again sought a meeting. On March 29, defendant's lawyer moved on short notice to be relieved as counsel because of defendant's continued refusal to communicate with him and also because he had not been paid for his prior fourteen months of representation. His adversary filed a letter objecting to the motion on the ground that a delay would prejudice his client. On March 30, defendant wrote to the trial judge for a 30 to 60 day adjournment citing her "severe physical illness" and her inability to function in relation to the divorce. The letter was received on March 31 but no response was made. On April 3, a hearing took place. Although the trial judge had received defendant's counsel's motion to be relieved, after an off-the-record conference in chambers with the attorneys the matter proceeded to hearing without a decision on the motion. Defendant's attorney was required to continue to represent her.
The only witnesses were plaintiff and defendant. There were a number of disputed issues. One question involved certificates of deposit. Plaintiff stated that they existed and were worth $15,000. Defendant testified that they were long gone, having been liquidated for living expenses as a result of ...