On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-993-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lisa and Simonelli.
Defendant, Mortimer Myer, appeals from denial of his motion for a plenary hearing for equitable distribution of property acquired during his marriage to plaintiff, Esther Segal Myer. Defendant's motion was filed twenty-seven months after the judgment of divorce. The sole basis upon which the motion was denied was that it was not timely filed. Considering all of the circumstances, and the relative positions taken by the parties in connection with the motion, we conclude that denial of the motion constituted a mistaken exercise of discretion. Accordingly, we reverse.
The parties met in January or February 2001. Defendant was then eighty-one years old, and plaintiff was sixty-nine years old. Both parties' spouses from previous long-term marriages, by which they had children, had died. The parties married soon after they met, on April 1, 2001.
At that time, defendant was the sole owner of a condominium in Florida, which he apparently owned free of encumbrances, and which was his most significant asset. Plaintiff owned a home in Margate. Shortly before the marriage, on March 21, 2001, plaintiff executed a deed conveying title to the Margate home to herself and her four daughters as joint tenants. Plaintiff's daughter, an attorney, prepared the deed and was one of the grantees.
Soon after the marriage, on May 15, 2001, defendant executed a deed placing title to the condominium in his and plaintiff's names as tenants in common. On October 11, 2001, defendant purportedly signed a second deed, along with plaintiff, reconveying title to the condominium to themselves as tenants in common, but this time with a life estate to each spouse and to include all personalty in the premises.
About three years after the marriage, the parties separated. Plaintiff returned to New Jersey. Through the services of her attorney-daughter, plaintiff filed a divorce complaint on grounds of extreme cruelty on April 29, 2004. The complaint made no mention of property acquired during the course of the marriage and did not seek relief with respect to equitable distribution of property. Defendant was served with the complaint and a summons. He did not respond.
On June 29, 2004, plaintiff's daughter filed with the clerk a request to enter default and supporting certification, with copies served on defendant. However, it appears that the court refused to accept the certification because it failed to mention whether equitable distribution was sought. See R. 5:5-10 (formerly R. 5:5-2(e)). A new certification was filed with the court, in which plaintiff certified, in relevant part, "There are no issues of alimony, child support or equitable distribution." This certification was dated July 22, 2004, and it was not served on defendant.
On July 22, 2004, the court entered a judgment of divorce, which granted as the sole relief dissolution of the marriage.
The judgment made no mention of equitable distribution of property.
Defendant was served with a copy of the divorce judgment. He corresponded with the court, disputing that he committed the alleged acts of extreme cruelty. The Family Part judge who had entered the divorce judgment responded by letter of August 10, 2004. The judge advised defendant that if he wished to seek relief he must file a motion. The judge enclosed a pro se motion packet.
Defendant contends that it was his understanding all along with plaintiff that when they separated they would be restored to the positions they were in before they married. Accordingly, defendant contends that he fully expected that plaintiff would convey title to her interest in the condominium to him. Defendant also contends that plaintiff had in her possession ...