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Odionu v. Enekebe


April 15, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-2875-06.

Per curiam.


Argued January 30, 2008

Before Judges Parker and Lyons.

Plaintiff Priscilla Odionu appeals from an order entered on March 16, 2007 denying her motion to vacate a child support order entered on December 5, 2006. We reverse and remand.

The parties were married on January 16, 1996. They had four children ranging in age from three and one-half to eleven years old. The parties separated in May 2005 after plaintiff filed a domestic violence complaint. A final restraining order was entered against defendant on September 22, 2005.

On August 1, 2005, defendant was ordered to pay $346 a week in child support in the dissolution action. Although he was not present at the hearing, the court imputed income to him based upon his employment as a registered nurse.

After the final restraining order was entered, incorporating the child support ordered from the dissolution action, defendant moved for a downward modification. That motion was denied.

The Essex County Division of Welfare (Welfare) filed a complaint for paternity and support on behalf of plaintiff. Plaintiff, however, was never served with the complaint and received no notice of a hearing.*fn1 On November 17, defendant and his attorney attended a "consent conference" in plaintiff's absence. As a result of the consent conference, an order was entered on December 5, 2005 reducing defendant's support obligation from $346 to $265 per week.

In February 2006, Welfare advised plaintiff of the December 5, 2005 order. As a result of the decrease in support, plaintiff was only able to afford a one-bedroom apartment for herself and the four children. At the time, plaintiff was attending nursing school full time and taking care of the children when they were not in school or daycare. Consequently, she was not able to work more than a few hours per week at a part-time work study program.

On October 6, 2006, plaintiff moved to vacate the December 5, 2005 order. In denying plaintiff's motion to vacate, the trial court simply stated that plaintiff's motion was out of time. In this appeal, plaintiff argues that (1) the trial court erred in denying her motion to vacate pursuant to R. 4:50-1(d) because plaintiff was denied due process; and (2) principles of equity and justice require that the default order of December 5, 2005 be vacated pursuant to R. 4:50-1(f).

Rule 5:6-1 provides that "a summary action for support may be brought by either the party entitled thereto or an assistance agency provided no other family action is pending in which the issue of support has been or could be raised." (Emphasis added). Here, support had been addressed in the dissolution and domestic violence actions. Support was not, therefore, subject to a summary action by Welfare. Moreover, summary action for support pursuant to R. 5:6-1 must be served on the parties in accordance with R. 4:67-2, governing service of summary actions. See R. 5:4-1(b). Here, there is no proof of service indicating that the summary action was ever served on plaintiff.

Notice is a basic procedural necessity to ensure that a party's due process rights are enforced. "It is elementary that service must be accomplished in accordance with the pertinent 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 Atlantic and Pacific 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)).

"[T]he opening of default judgments should be viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div. 1964). When service is defective or non-existent and a default judgment results, the judgment is generally void. Rosa v. Araujo, 260 N.J. Super. 458, 462 (App. Div. 1992). "A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice . . . . Such a judgment will usually be set aside under R. 4:50-1(d)." Jameson, supra, 363 N.J. Super. at 425 (citations omitted). "All doubts . . . should be resolved in favor of the parties seeking relief." Mancini v. EDS, 132 N.J. 330, 334 (1993). Motions to vacate void judgments pursuant to R. 4:50-1(d) should be made within a reasonable time after the judgment is entered. Last v. Audubon Park Associates, 227 N.J. Super. 602 (App. Div. 1988), certif. denied, 114 N.J. 491 (1989); Citibank, N.A. v. Russo, 334 N.J. Super. 346, 353 (App. Div. 2000). But see Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200 (App. Div. 1990) (holding that a void judgment is not entitled to enforcement or execution and a motion to vacate may be made at any time).

Here, plaintiff moved to vacate the December 5, 2005 order ten months later on October 6, 2006. The trial court gave no reason for its decision other than that the motion was not filed timely. The trial court did not find, and defendant does not claim, any prejudice in plaintiff's ten-month delay in moving to vacate the December 5, 2005 order. There are no innocent third parties whose rights will be affected by vacating the December 5, 2005 order. See City of Newark v. 497 Block 1854, 244 N.J. Super. 402 (App. Div. 1990); Friedman v. Monaco and Brown Corp., 258 N.J. Super. 539, 545 (App. Div. 1992). Under these circumstances, we find nothing unreasonable in plaintiff's ten-month delay in moving to vacate the void order.

Accordingly, we reverse the order entered on March 16, 2007 denying plaintiff's motion to vacate the December 5, 2006 order and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

Reversed and remanded.

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