April 3, 2009
NWAKOZOH REMY OKAFOR, PLAINTIFF-APPELLANT,
CHINWE J. OKAFOR, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-796-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Yannotti and LeWinn.
Plaintiff Nwakozoh Okafor appeals from the order entered in the Family Part on July 20, 2007, requiring him to pay defendant Chinwe Okafor $6,582.72, representing his share of unreimbursed medical expenses incurred on behalf of the parties' children. He also appeals from the order of December 7, 2007, denying his motion to vacate the July order. For the reasons that follow, we affirm.
The parties were married on May 13, 1988, and have three children. Their judgment of divorce, entered on May 8, 2002, incorporates their property settlement agreement (PSA), which provides in pertinent part that the parties shall equally share "all unreimbursed reasonable and necessary medical, dental, hospital, psychiatric, psychological, and prescription drug expenses of the children."
On June 22, 2007, defendant filed a motion to enforce litigant's rights, seeking to have plaintiff reimburse her fifty percent of the children's medical expenses not covered by her insurance. Defendant appended numerous receipts and other documentary evidence of these expenses.
On June 27, 2007, plaintiff filed a motion to dismiss defendant's motion, claiming that defendant had not served him with a copy. Plaintiff filed a supporting brief, in which he stated:
On June 21, 2007, I called the [d]efendant... and advised her that I would leave for Nigeria in a week from that call.... The [d]efendant did not mention that she was planning to submit the notice of motion....
On June 26, 2007, I received a handwritten note from the [d]efendant... advising that the motion filed by her on June 22, 2007 would be heard on July 20, 2007. Today, June 27, 2007, I called Judge Convery's [c]hambers which confirmed that such motion was filed on June 22, 2007. No copy was sent to me, the adversary, in contravention of court rule. I called the [d]efendant both on her home and cell phones two times on each phone and left a message on the cell phone, asking the [d]efendant to call me immediately in connection with her court business. I received no calls from [d]efendant.
On the return date of defendant's motion, July 20, 2007, she appeared, but plaintiff did not. In response to questioning by the judge, defendant stated that she served her motion upon plaintiff by "[certified] mail and regular mail, and [she had] the certified receipts and the mail was returned to [her]...." The judge noted that the certified mail had been returned marked "unclaimed." This included both defendant's motion and her June 25, 2007 letter to plaintiff advising him that the return date on her motion would be July 20, 2007. There was no evidence that the regular mail had been returned.
The judge concluded that plaintiff "ha[d] received due process notice." At a later point in the hearing, defendant stated that she tracked delivery of the certified mail to plaintiff over the internet and had printed out a notice that delivery was attempted on June 23, 2007, at 8:34 a.m., and plaintiff "chose not to pick up his mail."
The judge then proceeded to consider defendant's motion on the merits. He found that the PSA provided for the parties to share the children's unreimbursed medical expenses "50/50." The judge reviewed defendant's exhibits and questioned her about them at length. Based upon that review, the judge concluded that plaintiff owed defendant $6,582.72.
On October 25, 2007, plaintiff filed a motion to vacate the July 20 order. In his supporting certification, plaintiff acknowledged that "[o]n June 26, 2007, [he] received a handwritten note from... [d]efendant... advising that a motion filed by her on June 22, 2007 would be heard on July 20, 2007." When he was unable to reach defendant by phone, plaintiff called the judge's chambers and confirmed that defendant had in fact filed a motion to enforce litigant's rights. In response, plaintiff stated that he "rushed to the library to write a... motion asking the court for an order dismissing [d]efendant's motion" for lack of service.
Plaintiff further certified that he left for Nigeria on June 28, 2007, for his annual summer visit there, and had his "representative" file his motion with the court and serve a copy on defendant. When the "representative" failed to pay the required filing fee, however, plaintiff's motion was returned, unbeknownst to him, on July 6, 2007. Plaintiff attached an itinerary from the office of a travel agent, showing that he had a flight to Nigeria on June 28, 2007, and a return flight to Newark on August 31, 2007. Plaintiff offered no explanation for the almost two-month delay in filing his motion after he returned from Nigeria. As noted, the trial judge denied plaintiff's motion by order entered December 7, 2007.
On appeal, plaintiff contends that he "was not served with [d]efendant's motion filed June 22, 2007, in non-conformity with court [r]ule." He raises three additional points, which are all addressed to the merits of defendant's claims for reimbursement.
Having reviewed the record in light of plaintiff's contentions, we conclude his argument is "without sufficient merit to warrant discussion in a written opinion...." R. 2:11-3(e)(1)(E). We add only the following brief comments.
Plaintiff acknowledged that he had notice of defendant's motion by June 26, 2007 at the latest. Even giving him the benefit of the doubt that he had not been served as of that date, once on notice that such a motion had been filed, plaintiff had an opportunity to pursue the matter, obtain the motion, file a response or, if necessary, obtain an adjournment from the court because of his impending travel plans. Instead, by his own admission, plaintiff "rushed to the library to write a motion" to dismiss defendant's motion.
Defendant stated that she served plaintiff by regular and certified mail. The postal service attempted delivery of the certified mail on the morning of June 23, 2007, before plaintiff left for Nigeria; that mail was returned marked "unclaimed." As noted earlier, the record does not reflect that the regular mail was returned.
Rule 1:6-3(c) provides that "service of motion papers is complete... on receipt at... the address of a pro se party. If service is by ordinary mail, receipt will be presumed on the third business day after mailing." Rule 5:5-4, which governs the filing of motions in the Family Part, incorporates the same presumptive three-day delivery period by regular mail.
R. 5:5-4(c). Assuming defendant mailed her motion, by both regular and certified mail, on June 22, 2007, plaintiff is presumed to have received regular mail service by June 27, the third business day thereafter.*fn1
Plaintiff's remaining arguments, concerning the merits of defendant's claims for reimbursement, should properly have been addressed to the Family Part. Plaintiff never made these arguments below; therefore, we will not consider them on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).