On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-687-02.
The opinion of the court was delivered by: Chambers, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Grall and Chambers.
In this matrimonial action, defendant, Anthony Pomponio, appeals from the equitable distribution provisions and award of counsel fees and costs set forth in the default judgment of divorce entered in favor of plaintiff, Bonnie A. Clark, his former wife. He also seeks to pursue his claim for alimony.
During the divorce proceedings, defendant filed a Chapter 13 petition, thereby triggering the automatic stay under 11 U.S.C.A. § 362(a). While the stay was in effect, the trial court suppressed defendant's answer without prejudice under Rule 4:23-5(a)(1), for failure to provide discovery. When the stay was lifted, the trial court dismissed the answer with prejudice, and after entering a default and conducting a proof hearing, entered a default judgment of divorce. The default judgment of divorce dissolved the marriage, divided the marital assets between the parties, provided for the custody, parenting time and support of the parties' minor child, and awarded plaintiff counsel fees and costs.
Since the filing of defendant's bankruptcy petition stayed the equitable distribution issues in the case, the suppression of defendant's answer on those issues violated the stay, and, hence, was void ab initio. See Constitution Bank v. Tubbs, 68 F.3d 685, 692 n.6 (3d Cir. 1995). As a result, the provisions in the default judgment of divorce providing for equitable distribution are void.
Although bankruptcy law did not stay adjudication of defendant's alimony, that claim should not have been dismissed due to the interrelationship of the financial issues in the case. As a result, defendant's claim for alimony survives and remains to be adjudicated by the court below. In addition, the award of attorney fees and costs must be reconsidered once all the financial issues are resolved.
Accordingly, the portions of the default judgment equitably distributing the marital assets and awarding attorney fees and costs are reversed. The case is remanded for resolution of the claims for equitable distribution, attorney fees and costs, and defendant's alimony claim.
The provisions in the default judgment of divorce dissolving the marriage and providing for child custody and parenting time have not been appealed, and those provisions of the default judgment of divorce remain in full force and effect. Defendant's obligation to pay child support, while raised in the notice of appeal, was not addressed in the briefs, and hence is not considered by this court. However, due to the interplay of the financial issues, on remand, the trial court may make any necessary adjustments in the child support obligation.
Plaintiff and defendant were married on September 18, 1982, and subsequently had one child. Plaintiff commenced this divorce action on September 7, 2001, and defendant, represented by counsel, filed an answer and counterclaim in March 2002.
Discovery in the case did not go smoothly. Orders were entered on May 3, July 30, and September 10, 2002, providing for discovery. On September 27, 2002, defendant was ordered to account for the funds in a Schwab account. A further order was entered on January 24, 2003, directing defendant to provide documents and a full accounting of the Schwab account and to provide documents regarding payment of his counsel fees in connection with a federal criminal case. By order of April 25, 2003, defendant was directed to provide fully responsive answers to plaintiff's supplemental interrogatories. A companion order entered that same date set forth a further discovery schedule, including provisions for depositions and expert reports.
On September 16, 2003, defendant filed a Chapter 13 petition for bankruptcy in the United States Bankruptcy Court, District of New Jersey.*fn1 After the bankruptcy petition was filed and while the automatic bankruptcy stay under 11 U.S.C.A. § 362(a) was in effect, plaintiff moved for sanctions against defendant for his failure to provide discovery. An order was entered on October 27, 2003, while the stay was still in effect, granting the motion, holding defendant in violation of litigant's rights, and suppressing his answer without prejudice in accordance with Rule 4:23-5(a)(1). In addition, on October 27, 2003, defense counsel's motion to be relieved as counsel was granted because he was named as a creditor in defendant's bankruptcy petition.
Plaintiff did not file a motion in the bankruptcy court to lift the stay imposed by 11 U.S.C.A. § 362(a) until June 2004. That motion was granted, and the stay was lifted on August 6, 2004. No retroactive relief from the stay was granted pursuant to 11 U.S.C.A. § 362(d). Thus, the stay had been in effect from September 16, 2003, until August 6, 2004. During that time, on October 27, 2003, defendant's answers and defenses had been suppressed without prejudice, and his attorney had been relieved as counsel.
After the stay was lifted, defendant, having retained new counsel, provided answers to plaintiff's supplemental interrogatories on August 18, 2004. Nonetheless, on August 31, 2004, plaintiff moved for entry of default and the scheduling of a default judgment hearing. Defendant cross-moved to reinstate his answer pursuant to Rule 4:23-5(a)(1). Finding that defendant still had not complied with all court-ordered ...