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Fineberg v. Fineberg

March 06, 1998

SHEILA R. FINEBERG, PLAINTIFF/RESPONDENT,
v.
M. ALAN FINEBERG, DEFENDANT/APPELLANT.



Submitted November 12, 1997

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

Before Judges Pressler, Conley and Carchman.

The opinion of the court was delivered by: Carchman, J.s.c. (temporarily assigned).

This case again demonstrates the frustration encountered by the judges assigned to the Family Part, the matrimonial bar and the litigants themselves who are confronted with a litigant who manipulates the "system" in a manner designed to avoid bringing to an end a matrimonial dispute which has been pending for years and is finally ripe for Disposition. Here, we have a defendant who "does not believe" that he received notice of the final hearing in his dissolution matter, who vigorously and successfully opposed the appointment of a guardian ad litem to protect his interests because of his questionable competency and then, within days of issuance of the notice of trial of the dissolution case, voluntarily hospitalized himself claiming mental disorder. *fn1 Defendant here appeals from the denial of his motion to vacate the judgment of divorce which dissolved the bonds of matrimony and granted alimony, reduced the pendente lite support arrears to judgment, continued a Domestic Violence Final Restraining order, reduced a pendente lite arrearage for medical insurance to judgment, required maintenance of a life insurance policy, awarded counsel fees and permitted plaintiff to resume her maiden name. Defendant does not challenge that part of the judgment that dissolved the marriage or permitted plaintiff's resumption of her maiden name but limits his appeal to the financial issues resolved by the judgment. The judgment did not deal with equitable distribution since defendant had previously filed a petition for Chapter 11 protection, and the issue of equitable distribution was left to the Bankruptcy Court. *fn2

Defendant failed to appear at the final hearing, asserting that he never received notice of the trial date and that, in any event, he was hospitalized, albeit as a result of his voluntary admission. Thereafter, his application to set aside the judgment was denied as was his motion for reconsideration. We conclude that he failed to establish a basis for relief under R. 4:50-1(a) or (f) and, accordingly, we affirm.

To fully appreciate the nature of defendant's conduct regarding the final hearing, we must briefly review some of the background surrounding this matter. The parties were married on August 13, 1961. Four children, all of whom are emancipated, were born of the marriage. *fn3 Plaintiff, sixty-one, resides in the marital home in Colt's Neck and is unemployed; defendant, sixty-eight, last residing at the McIntosh Inn in East Brunswick, is in the commercial real estate business.

Plaintiff filed a complaint for divorce in 1993. The road leading from the filing of the complaint to the final hearing was long and arduous. From the filing of the complaint until the final judgment was entered, at least fourteen orders were entered against defendant including the issuance of three bench warrants and our denial of defendant's request for interim relief. Orders were necessary to protect against defendant's dissipation of assets as well as to compel defendant to provide discovery and pay support. In addition, plaintiff sought protection from defendant under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -33. During the pendency of the action, defendant filed a petition for Chapter 11 protection under the Bankruptcy Act, and the Bankruptcy Court granted a vacation of the automatic stay to allow the matrimonial proceeding to move forward on all issues except equitable distribution. Finally, by order of February 10, 1994 and in response to defendant's failure to comply with her prior orders, Judge Cuff, then sitting in the Family Part, struck defendant's pleadings and limited his participation at the final hearing to cross- examination of witnesses.

From the inception of the divorce proceeding, defendant, at various times, was represented by counsel and, at various other times, represented himself. In October 1994, he retained the law offices of Teich, Groh and Frost to represent his interests in the matrimonial case as they had been representing his interests in the bankruptcy matter. Plaintiff had previously moved for relief to reduce support arrears to judgment, to hold defendant in contempt, to incarcerate defendant and for counsel fees. In addition, plaintiff had moved for the appointment of a guardian ad litem since defendant, who has a history of depression pre-dating the divorce proceeding, had previously checked himself into a hospital claiming various emotional problems. Apparently, defendant appeared in November for the hearing on motions including the application for the appointment of the guardian ad litem. *fn4 On November 18, 1994, the Family Part Judge signed an order a) compelling defendant to continue to pay support and arrears to plaintiff; b) entering a judgment for arrears in favor of plaintiff and against defendant for $39,000; c) holding defendant in contempt of court for "failure to abide by the order of the court as to pendente lite support;" d) issuing a bench warrant for defendant's incarceration "on November 29, 1994, subject to a Federbush *fn5 hearing if he fails to pay the judgment amount in this order prior to that time;" and other relief not germane to the issues here. Defendant filed opposition to the application for a guardian ad litem and that application was denied. A separate order memorializing the denial of the guardian application also denied counsel fees "subject to the November 29, 1994 hearing." The November 29, 1994 hearing was continued at defendant's attorney's request to December 14, 1994. On that date, defendant's attorney appeared, defendant failed to appear and a bench warrant was issued for defendant's arrest, subject to his release upon payment of $76,250, the amount the Judge determined to be the full amount of the arrearage. In addition, defense counsel, with "all parties having been served," was granted leave to withdraw as counsel.

According to the affidavit filed by defense counsel in support of her motion to withdraw as counsel, defendant was personally notified of the December 14, 1994 hearing and appointments were scheduled to prepare for the hearing. Defendant failed to keep the appointments or advise counsel of his whereabouts. Subsequent to that hearing, counsel received a trial notice scheduling the matter for January 18, 1995. Counsel later certified that she forwarded a letter enclosing the trial notice and a copy of the order relieving counsel to defendant at the address that he had supplied to counsel. The letter was sent to defendant on December 15, 1995 by both regular and certified mail. The regular mail was never returned and the certified mail was returned as "refused."

Curiously, defendant's certification in support of his motion to vacate the default judgment does not unequivocally deny receipt of notice of the trial date. Defendant states: "I do not believe that I ever received notice of the trial date for January 19, 1995." (emphasis added) He states that he was hospitalized at various times from October 1994 through March 1995, specifically from November 3, 1994 to November 5, 1994 for an alleged suicide attempt by a drug overdose; from November 7, 1994 to November 21, 1994 for psychological problems; from December 28, 1994 to March 5, 1995 and again from March 14, 1995 to April 21, 1995 for depression and diabetes. All of these were voluntary admissions. Likewise he asserts that he has been "in a severe depression and was operating in an aberrant fashion from probably sometime on or about the onset of these divorce proceedings, sometime in 1993." This certification was filed on November 28, 1995 in support of his motion to vacate the judgment. It is inconsistent, however, with an important earlier filing.

One year earlier on November 17, 1994 in opposition to the appointment of a guardian at litem, defendant certified:

4. Additionally, I have been ill with a foot infection and been laid up in the hospital for approximately the last month and was only recently released. Due to my deteriorating health, I feel that the Court must re-examine my $1,250.00 per week alimony obligation. I simply cannot afford to pay alimony in this amount and wonder if I can afford to pay alimony at all.

5. Since being released from the Raritan Bay Medical Center, Old Bridge Division, I subsequently admitted myself into another hospital for depression. My understanding is that many hospital patients become depressed from being around ill people all the time and, additionally, many medications have been known to cause depression.

Additionally, in support of his opposition to the motion, defendant submitted the certification of Anthony G. Bariglio, a business associate of ...


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