On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-1793-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2007
Before Judges Winkelstein and Fuentes.
Defendant Vierge Ceus appeals from a November 18, 2005 order denying her motion to vacate a final judgment of divorce entered by default on July 21, 2005. We reverse.
Plaintiff and defendant were married on September 9, 1991, in a civil ceremony in Irvington. One child was born of the marriage; Nancy Ceus, born on May 29, 1992.
On February 25, 2005, plaintiff filed for divorce. He alleged that the parties separated on October 15, 2002, that they had lived separate and apart for more than eighteen months, and that there was no reasonable prospect of reconciliation. The divorce complaint further noted that plaintiff was paying $400 per month in child support to defendant for the support of their daughter, who was then twelve years old, and that no real property had been acquired during the course of the marriage.
On July 21, 2005, the case was listed for trial before the Family Part. Plaintiff appeared, but defendant did not. After taking testimony, the court entered a final judgment of divorce (FJD) dissolving the marriage between the parties.*fn1
According to defendant, she was never served with the divorce complaint and had no knowledge of the court proceeding. Defendant asserts that it was not until August 3, 2005, when she received a letter from plaintiff's attorney enclosing the FJD, that she knew that plaintiff had sued her for divorce.
Upon receiving the letter, she sought counsel, who contacted plaintiff's attorney and requested a copy of the proof of service. After reviewing the proof of service, on August 30, 2005, defendant's counsel wrote a letter to plaintiff's counsel, indicating that defendant was never served with the summons and complaint. Defendant's counsel included a consent order vacating the FJD. Plaintiff refused to consent. Accordingly, on October 3, 2005, defendant moved to vacate the FJD. Prior to that date, on September 6, 2005, plaintiff remarried.
The motion to vacate the FJD was filed pursuant to Rule 4:50. In her certification accompanying the motion, defendant stated, in three separate paragraphs, that she had had no knowledge of the action pending against her. However, while she certified that the summons and complaint were not served on her, she did not indicate in her certification whether they had been served on an adult member of her household. See R. 4:4-4.
The affidavit of service states that the process server delivered a copy of the summons and complaint personally to defendant. Her name was handwritten in the space under "name of person served." The address at which the summons and complaint had been served was not included on the return of service. The affidavit of service described the person accepting service as a fifty-eight-year-old male, weighing 168 pounds with black hair and brown skin. That obviously did not describe defendant, who is female.
Defendant did not request oral argument on her motion to vacate the default judgment. Consequently, the court decided the matter on the papers; at the time the judge entered the order, he made no findings. On January 13, 2006, the court prepared written findings of fact and conclusions of law after receiving a request from defendant's attorney for same on December 22, 2005. In these findings, the court said: process was validly served on an adult over the age of 14, at the defendant's residence. Defendant's contention that the individual who received the service could not possibly be her does not make the service invalid nor does the process server's error in failing to record the correct name of the individual being served. . . . [T]here is no reason to believe that process was not served at Defendant's place of residence/domicile. A description of an individual over the age of 14 was provided, and the process server's recordation of an incorrect name is not fatal and does not make service invalid.
The final Judgment of Divorce entered on July 21, 2005 granted the parties a judgment of divorce based upon the cause of action filed by the plaintiff. The Court did not make any findings of fact or conclusions of law relating to custody of the party's child and further made no determination as to equitable distribution of the parties' assets if any. . . . The Defendant and her attorney in their respective certifications cite no reasons why the Judgment should be vacated, nor do they indicate that had the defendant been personally touched with service the Judgment of Divorce have not been entered due to ...