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Bigica v. Rusuloj

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 4, 2008

MARY ANN BIGICA, PLAINTIFF-RESPONDENT,
v.
VIOREL RUSULOJ, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-372-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 23, 2008

Before Judges Grall and Chambers.

Defendant Viorel Rusuloj appeals from an order of the Family Part denying his motion to vacate a default judgment and subsequent orders enforcing that judgment, which were entered in favor of plaintiff Mary Ann Bigica. The parties lived together for more than a decade as partners in a committed, "family-like" relationship. They separated in February 2003.

On September 14, 2004, plaintiff commenced this action for palimony and division of property. Defendant, represented by an attorney, filed an answer on June 24, 2005. The trial judge granted his attorney's motion to be relieved as counsel on October 24, 2005. Defendant proceeded pro se. As a consequence of defendant's failure to attend an early settlement panel and meet his discovery obligations, default was entered against him on December 6, 2005. A hearing on the terms of the default judgment was held on January 26, 2006, and February 9, 2006. Defendant did not appear on either date. For reasons stated in a letter decision, judgment was entered on May 23, 2006.

On June 20, 2006, the judge entered an order to show cause requiring defendant to appear on June 29, 2006, to be heard on plaintiff's request to compel him to make payments on the mortgages on properties subject to the judgment. Defendant did not respond or appear, and the relief was granted on June 30, 2006.

On July 28, 2006, the court granted plaintiff's motion to amend the amount of the palimony award stated in the judgment in order to correct an error based on plaintiff's life expectancy. Defendant did not oppose the motion.

On February 1, 2007, plaintiff filed an order to show cause to enforce the judgment and subsequent orders. The order to show cause plaintiff filed did not specify a return date. The judge determined that plaintiff's order to show cause should be addressed as a motion. On March 5, 2007, the judge entered an order enforcing the amended judgment as plaintiff requested. That order included a provision appointing plaintiff as defendant's attorney-in-fact to proceed with sale of property in accordance with prior orders and compelling defendant to vacate a residence. In part pertinent here, the statement of reasons the judge appended to that order states:

Plaintiff provided proof that, on January 31, 2007, she served defendant via UPS Overnight mail to three separate addresses. Defendant sat on his rights to oppose plaintiff's order to show cause and resulting motion despite being provided a month to do so. Since no opposition has been filed and plaintiff is entitled to the relief that she seeks, the [c]court has granted plaintiff's motion.

On March 23, 2007, defendant filed a motion. This was defendant's first effort to participate in the litigation since October 2005. He sought reconsideration of the order of March 5, 2007, an order vacating the default judgment, the amended judgment and the subsequent enforcement orders.

In support of his motion to vacate the judgment and the orders entered prior to March 5, 2007, defendant asserted excusable neglect. He detailed his efforts to do legal research and unsuccessful attempts to retain an attorney in the fall of 2005. According to defendant, several of the lawyers he contacted declined to represent him because he previously had been represented by another attorney. For that reason, he decided it would be best not to open any correspondence he received that was related to the litigation and was not aware of the contents.

In support of his motion for reconsideration of the order of March 5, 2007, defendant admitted that he received a copy of an unexecuted order to show cause plaintiff filed but never received any notice that the order to show cause had been converted to a motion. Neither plaintiff nor her attorney addressed that assertion in the certifications they filed in opposition to the motion for reconsideration.

The judge denied the motion. He concluded that defendant did not establish excusable neglect warranting relief from judgment pursuant to Rule 4:50-1. The judge did not address defendant's undisputed assertion that he had no notice of the return date of the motion that led to entry of the order of March 5, 2007.

On appeal, defendant argues that he established "excusable neglect" adequate to warrant a grant of his motion to vacate the judgment and orders entered prior to March 5, 2007. Excusable neglect warranting relief from judgment pursuant to Rule 4:50-1 is conduct explained by an "honest mistake" compatible with "due diligence" and "reasonable prudence." Mancini v. EDS, 132 N.J. 330, 335 (1993). Because defendant's explanation does not satisfy any of those standards, the judge did not abuse his discretion in denying relief. See id. at 334. Accordingly, we affirm the denial of defendant's motion to vacate orders entered prior to March 5, 2007.

Defendant asserts a different ground for vacating the order of March 5, 2007. He contends that he did not have notice of a date upon which the court would consider plaintiff's request for the relief granted in that order.

In entering the order of March 5, 2007, the judge found that defendant had notice of but did not respond to plaintiff's order to show cause. The judge relied upon plaintiff's proof of service of an order to show cause on January 31, 2007, but the order to show cause plaintiff served on that date did not specify a return date. There is no evidence that defendant received any further notice that the judge would entertain the order to show cause as a motion.

On defendant's motion for reconsideration of the order of March 5, 2007, he acknowledged receipt of the January 31, 2007, order to show cause and denied any further notice. Plaintiff did not dispute his assertions. In denying defendant's motion for reconsideration, the judge did not address defendant's undisputed claim that he had no notice that the order to show cause would be heard as a motion.

With few exceptions not applicable here, a motion may not be heard without proper notice. R. 5:5-4; see generally Enourato v. N.J. Bldg. Auth., 182 N.J. Super. 58 (App. Div. 1981), aff'd, 90 N.J. 396 (1982). Accordingly, we remand for reconsideration of the order of March 5, 2007.

Affirmed in part; reversed in part, and remanded for reconsideration of the order of March 5, 2007.

20080304

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