October 16, 2008
MAHROOSA AHMED-HASAN,*FN1 PLAINTIFF-RESPONDENT,
SALAH-ELDIN MAHMOUD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, No. FM-12-2014-05-H.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Wefing and Yannotti.
Defendant Mahmoud is plaintiff's former husband. He appeals from a default judgment entered against him in connection with the divorce proceedings commenced by plaintiff in April 2005. Following a hearing, the trial court entered a judgment of divorce on October 2, 2005. Under the terms of this judgment, plaintiff was awarded alimony of $500 per week, counsel fees of $15,000, and 100% of all the assets she identified as being owned by defendant, including all the proceeds ultimately recovered in connection with a personal injury suit then pending in which Mahmoud sought damages for injuries he had received in an automobile accident.
In June 2007 Mahmoud filed a motion to set aside this judgment. The trial court denied his motion, and this appeal followed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant filed his motion seeking relief under Rule 4:50-1, specifically subsections (c) and (d) of the rule. To come within subsection (c), defendant contended the judgment was obtained by fraud or misrepresentation; to come within subsection (d), he also contended the judgment was void.
The parties were married for more than twenty-five years and had three daughters. The parties are of Egyptian background, have family living in Egypt and traveled frequently to Egypt. Defendant was a physician licensed to practice in New Jersey but, according to the papers he submitted in support of his motion, was no longer licensed. It is unclear from the record whether this loss of license is temporary or permanent and whether it is the result of a voluntary action on defendant's part or the result of action by the Board of Medical Examiners.
At the time of the hearing on plaintiff's complaint, defendant was in Egypt and he did not appear to contest any of plaintiff's claims. When the divorce proceeding commenced, however, defendant was represented by counsel, who filed an answer on defendant's behalf. Defendant participated in that proceeding to some extent, even going so far as to file a motion to vacate an order granting plaintiff pendente lite support. That motion was denied. The attorneys exchanged correspondence seeking to resolve the question of equitable distribution. Those efforts were unsuccessful, however. Defendant did not provide discovery and eventually default was entered against him.
Plaintiff, in accordance with Rule 5:5-10, served a notice of proposed equitable distribution upon defendant's attorney. Defendant did not respond and made no appearance at the hearing.
In support of his motion to set aside that judgment, defendant presented to the trial court various items intended to demonstrate that the results of the equitable distribution awarded to plaintiff were unfair to him. He presents those same contentions to us.
We, however, are not called upon to consider whether the equitable distribution provisions of the judgment of divorce are supported by the record of the default hearing. The only question before us is whether the trial court erred when it denied defendant's motion to reopen that judgment. As to that question, we are satisfied defendant has not established any reversible error.
As we noted, defendant sought relief under Rule 4:50-1; he was thus required to meet the conditions of that rule in order to obtain relief. One of those conditions is a showing of excusable neglect. Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280, 285 (App. Div. 2005). That condition is equally applicable to motions to set aside a default judgment for support and equitable distribution. Haber v. Haber, 253 N.J. Super. 413, 417 (App. Div. 1992). The Supreme Court has described excusable neglect as "an honest mistake that is compatible with due diligence or reasonable prudence." Mancini v. EDS, 132 N.J. 330, 335 (1993) (citations omitted).
The record is barren of anything that would support an inference of excusable neglect on defendant's part. Defendant included as part of his motion papers a letter from a physician stating that defendant suffered from depression. The opinion expressed within that letter, however, dealt only with defendant's fitness to practice medicine, not with his ability to assist his counsel in connection with a pending divorce action. Shannon v. Academy Lines, Inc., 346 N.J. Super. 191, 197-98 (App. Div. 2001).
Further, default was entered against defendant because of his failure to meet his discovery obligations. Nothing within defendant's motion acknowledged that deficiency or made an attempt to cure it.
The determination whether to grant or deny a motion under Rule 4:50-1 is vested in the sound discretion of the trial court. Mancini, supra, 132 N.J. at 334; Haber, supra, 253 N.J. Super. at 417. From this record, we can find no abuse of that discretion.