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Olevich v. Olevich

Decided: June 1, 1992.

WILLIAM J. OLEVICH, PLAINTIFF,
v.
COLEEN P. OLEVICH, DEFENDANT



Sweeney, J.s.c.

Sweeney

SWEENEY, J.S.C.

Is a divorced woman entitled to resume her maiden name at any time following the entry of the judgment of divorce? That is the issue raised by defendant's unopposed, pro se motion. I conclude that the answer is in the affirmative.

Defendant, Coleen Olevich, by motion originally returnable on April 3, 1992, seeks to resume her maiden name, which is "Boyd." A judgment of divorce was entered almost 14 years earlier. In the divorce action, she did not file an answer, counterclaim or other responsive pleading, nor did she appear in court for the hearing.

In support of her motion she initially certified that she had no intent to avoid creditors or criminal prosecution and that she was not seeking to use her maiden name "for other fraudulent purpose." I determined that her certification was insufficient to allow the requested relief. She was directed to supplement her certification and did so on April 29, 1992. She now additionally certifies that she has not been adJudged a bankrupt in the past ten (10) years, nor is she presently a party in such a proceeding.

Defendant advances two reasons for her failure to plead or otherwise appear in the divorce action. One is that she had no desire to contest the divorce. The other is that she had been hospitalized with a spinal cord injury which left her paralyzed, and she had neither the emotional composure nor the physical ability to file an answering pleading.

However, defendant now seeks to resume her maiden name because she will soon receive a Master's Degree in Social Services from Bryn Mawr College School of Social Work and she desires to commence her professional career using her maiden name.

The initial concern of the court is whether the present application is to be determined under R. 4:50-1 (motions for relief from a judgment or order) or N.J.S.A. 2A:52-1 et seq. (the statutory provisions relating to a change of name) or neither

one of them. There are no reported court decisions in this State determining this point.

Two recent cases have considered the issue of resumption of a maiden name. In Plank v. Plank, 241 N.J. Super. 543, 575 A.2d 537 (Chanc.Div.1990), a trial court decision subsequently disapproved by our Appellate Division in Cimiluca v. Cimiluca, 245 N.J. Super. 149, 584 A.2d 823 (App.Div.1990), defendant wife filed an appearance in order to be heard on various issues, not including her desire to resume her maiden name. She appeared for trial with counsel and sought to rely upon that portion of plaintiff's complaint in which he demanded judgment "(f)or such other relief as the Court deems just and equitable." Defendant's application to resume her maiden name was denied. The court determined, however, that defendant was entitled to relief under R. 4:50.

In Cimiluca, supra, defendant wife did not retain counsel nor did she appear at the hearing. Instead, her request for permission to resume her maiden name was advanced by plaintiff husband's attorney. The trial court denied the request and defendant appealed. The Appellate Division held that the failure of a spouse to file a pleading seeking to resume her maiden ...


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