February 8, 2007
MARCEL CEUS, PLAINTIFF-RESPONDENT,
VIERGE CEUS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 some valid defense to the underlying cause of action. The Defendant does not even challenge the cause of action, which gave rise to the Judgment of Divorce.
Service of a summons and complaint must be accomplished in accordance with the court rules "in such a way as to afford 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003) (quoting Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 97 (App. Div. 1998) (quoting Mullane v. Cent. Hanover & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950)), certif. denied sub. nom., Davis v. Surrey Downs/Fidoreo, Inc., 158 N.J. 686 (1999)). In the absence of personal service, a judgment is generally considered void. Ibid. "A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice." Ibid. Under Rule 4:50-1(d), "a meritorious defense is not required to vacate [a void] judgment." Ibid.
For a "sheriff's return to be established as false, clear and convincing evidence must be submitted." Id. at 426. When a return of service "facially indicates compliance with the pertinent service rule[s], it is prima facie evidence that service was proper." Ibid. Nevertheless, when "some evidence is presented tending to disprove the return, but is not sufficient to establish that the return is false, the presumption is nevertheless eliminated from the case." Id. at 426-27. A presumption is no substitute for affirmative proofs. Id. at 427.
Here, defendant has submitted sufficient evidence to eliminate the presumption that she had been served with the summons and complaint prior to the divorce trial. The affidavit of service fails to meet the requirements of Rule 4:4-7, which states, in pertinent part, that "[t]he proof of service . . . shall state the name of the person served and the place, mode and date of service." First, the affidavit in this case failed to provide the place where it was served. Further, while it indicates that a copy of the summons and complaint was personally delivered to defendant, it lists her as a fifty-eight-year-old male. It may be true, as the motion judge asserted, that an adult member of defendant's household was served, which would be in compliance with Rule 4:4-4 (service may be made at a party's dwelling "by leaving a copy [of the summons and complaint] . . . with a competent member of the household of the age of 14 or over then residing therein"). Such a conclusion may not, however, be drawn from the record. The affidavit of service does not say that another member of the household was served - it says defendant was served - but it also says defendant is a male. Defendant has certified that she was not served and had no knowledge of the summons and complaint before receiving the final judgment of divorce in the mail. The record was simply not sufficient to permit the judge to determine whether defendant had received the summons and complaint before the final judgment of divorce was entered.
Plaintiff asserts that his position is supported by our decision in Garley v. Waddington, 177 N.J. Super. 173 (App. Div. 1981). On the contrary, that case supports defendant's position. In Garley, the plaintiff moved to set aside a judgment against him, claiming service was defective. Id. at 176-77. The trial court agreed and granted partial summary judgment in the plaintiff's favor. Id. at 178. We reversed, finding "that different minds may come to different conclusions" as to whether the plaintiff resided at a certain address and whether a member of the plaintiff's family was properly served. Id. at 181. In other words, because the proofs "did no more than create genuine issues of material fact," summary judgment was inappropriate. Ibid.
Here, like in Garley, supra, genuine issues of material fact are in dispute. The affidavit of service is defective and defendant has certified that she was never served. The Family Part judge's conclusions were thus based on disputed facts and are consequently not sustainable.
We are mindful that the proof of service may simply have contained, as the motion judge indicated, a "process server's error in failing to record the correct name of the individual being served." Such a conclusion is contrary, however, to defendant's proofs. That issue can only be flushed out through testimony. We are also cognizant that plaintiff has remarried. Nevertheless, while plaintiff having remarried "is an important and frequently a determining factor" in deciding whether the divorce decree is void or voidable, that is an issue to be addressed in the first instance by the Family Part. See Shammas v. Shammas, 9 N.J. 321, 333-34 (1952) ("[t]hat one or both of the divorced parties have remarried is an important and frequently a determining factor, particularly where the decree, as here, is not wholly void, but merely voidable.").
Equally unpersuasive is plaintiff's argument that the FJD should not be vacated because it simply terminated the marriage between the parties without addressing issues of child custody, support and equitable distribution. The FJD may have had consequences regarding health insurance plaintiff had been providing to defendant and the parties' child, or the FJD may have otherwise affected defendant and the child in ways that have not yet come to light. At any rate, the failure of service cannot be ignored simply because the outcome of the lawsuit may not have changed.
We reverse the order denying defendant's motion to vacate the final judgment of divorce and remand for further proceedings in the Family Part consistent with this opinion. We do not retain jurisdiction.
Reversed and remanded.