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Haber v. Haber

Decided: January 31, 1992.

CORA LEE HABER, PLAINTIFF-RESPONDENT,
v.
DAVID HABER, DEFENDANT-APPELLANT. AND MAX HABER, DEFENDANT



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County.

Bilder, Stern and Keefe. The opinion of the court was delivered by Keefe, J.A.D.

Keefe

KEEFE, J.A.D.

The primary issue to be decided is whether defendant may file a direct appeal from a default judgment under these circumstances. We hold that he may not. Defendant David Haber appeals from the entry of a default judgment against

him that establishes his obligation for child support, alimony, equitable distribution and arrearages.*fn1 On appeal, defendant contends that the child support award is manifestly unreasonable and contrary to the evidence, that the support arrearages in the amount of $35,550 are unjust, that the $9,033.74 medical expense award was unreasonable, that it was unreasonable for defendant to be charged for 100% of all unreimbursed medical and related expenses, that the equitable distribution order is unreasonable in light of the evidence, and that the attorney fee award is also unreasonable. Defendant does not challenge the jurisdiction of the court over his person or over the subject matter, nor does he contend that the judgment was procured by fraud. Rather, he contends on direct appeal that the evidence was insufficient to support the judgment against him.

In November 1988 plaintiff, Cora Lee Haber, filed a complaint for divorce. Defendant filed an answer and counterclaim. Plaintiff filed an answer to the counterclaim. Subsequently, various pendente lite orders were entered addressing child support and related medical expense issues. Various proceedings were also brought to enforce plaintiff's rights under those orders and to establish arrearages. At some point in the proceedings, defendant moved to California where he currently resides. Ultimately, trial dates were established for December 18, 19, and 20, 1989. Defendant was given notice of the trial by the court and by plaintiff's attorney. He did not appear at the hearing on December 18th. In default of his appearance, the court took testimony consisting of approximately 130 pages of transcript. Thereafter, on January 16, 1991, the trial Judge issued an oral 23 page bench opinion resulting in the judgment from which defendant now appeals.

Defendant does not deny receiving notice of the trial dates. His reasons for non-appearance, expressed through his appellate

attorney, were that he "chose to allow the court to handle this matter" because his father was "very ill in Florida" and his financial condition was "terrible."

On appeal, plaintiff argues that the default judgment is not directly appealable, citing various out-of-state authorities for that proposition, although admitting that her argument represents the minority view on the subject. However, regardless of whether the view is the minority or majority view, we are bound to follow the opinions of the highest court in our jurisdiction.

The rule in New Jersey is that a direct appeal will not lie from a judgment by default. McDermott v. Patterson, 122 N.J.L. 81, 84, 4 A.2d 306 (E. & A. 1939); Walter v. Keuthe, 98 N.J.L. 823, 121 A. 624 (E. & A. 1923).

The reason underlying this rule is that the very theory and constitution of a court of appellate jurisdiction is only the correction of errors which a court below may have committed, and a court below cannot be said to have committed an error when its judgment was never called into exercise, and the point of law was never taken into consideration, but was abandoned by acquiescence or default of the party who raised it.

McDermott, supra, 122 N.J.L. at 84, 4 A.2d 306 (citing Walter, supra, 98 N.J.L. at 826, 121 A. 624). See also In re Estate of Siegel, 214 N.J. Super. 586, 591, 520 A.2d 798 (App.Div.1987). The Walter court acknowledged that the Constitution gives a party the right to appeal, but the right "is to be enjoyed and exercised, subject to the regulations of law, and to the rules and practices of the court." Walter, supra, 98 N.J.L. at 825, ...


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