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Jovic v. Jovic

April 28, 2009

ANKICA JOVIC, PLAINTIFF-RESPONDENT,
v.
MILAN JOVIC, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-106-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2008

Before Judges Wefing, Parker and LeWinn.

In this matrimonial matter, defendant Milan Jovic appeals from the judgment of divorce entered on December 19, 2007 and three orders: one entered on July 2, 2007 denying his request to vacate an order entered on January 5, 2007 dismissing defendant's answer and counterclaim without prejudice for failure to file a case information statement (CIS) or a proposed notice of equitable distribution; an order entered on January 25, 2008 denying as untimely his motion for a new trial; and an order entered on February 8, 2008 denying his request for a new trial and for a stay pending appeal. We affirm.

I.

Plaintiff filed the complaint for divorce on July 12, 2006. Defendant filed a timely answer and counterclaim. He then left the country and on October 25, 2006, Family Case Management sent a notice of dismissal to his attorney because he failed to file a timely CIS or a proposed notice of equitable distribution. On November 16, 2006, a case management order was entered requiring defendant to file a CIS by November 30, 2006. The matter was originally scheduled for a hearing on December 1, 2006 and was adjourned at defendant's request until January 5, 2007. Defendant still had not filed a CIS by January 5 and an order was entered dismissing the answer and counterclaim without prejudice. Thereafter, plaintiff moved to enter a default and filed a notice of equitable distribution.

The default hearing was scheduled for March 7, 2007 but was adjourned, again at defendant's request. On April 13, 2007, defendant moved to vacate the dismissal and reinstate the pleadings. The return date on the motion was adjourned and plaintiff again moved for a default hearing. The motion was ultimately decided on the papers and an order was entered on July 2, 2007 denying defendant's motion to vacate the January 5, 2007 order of dismissal.

A default hearing commenced on August 20 and continued on October 10 and 24, 2007. A decision was rendered on December 18, 2007 in defendant's absence and a judgment of divorce was entered on December 19, 2007. Defendant was traveling when the judgment was entered and his attorney advised him that the judgment required that he be removed from the marital home within fourteen days. Defendant moved on short notice for a stay and that application was denied in the January 25, 2008 order.

II.

The parties were married on July 5, 1981 in Yugoslavia, which no longer exists. They have one daughter, now emancipated, who was born in Yugoslavia. They moved to New Jersey in 1984. According to plaintiff's testimony at the default hearing, they began having marital problems in 1994. Plaintiff testified that the parties made an oral agreement to separate and divide their assets and finances. She stated that they agreed to remain married for the sake of their daughter but did not maintain a traditional marriage relationship after 1994; they had separate bedrooms and defendant was absent from the home for extended periods of time.

Plaintiff testified that at the time they made the agreement in 1994, the parties did not have any joint bank accounts or real property but had two joint credit cards. Plaintiff could not recall having a joint bank account with defendant at Somerset Savings Bank. In January 1995, the parties requested the credit card companies to remove plaintiff from the joint accounts.

Plaintiff further testified that her father gave her large sums of money as gifts that she used to purchase real property and to cover her and her daughter's living expenses. These gifts were made by transfers from German banks into plaintiff's bank account. Plaintiff testified that she did not co-mingle any gifted funds from her father with defendant's assets.

Plaintiff testified that she used only her father's money to purchase two properties in Bound Brook (the properties). She first purchased 303 West High Street in 1995 for $121,900, with a $32,000 down payment from her father's gift and a $91,900 mortgage. Plaintiff testified that defendant did not contribute any money to the down payment. The deed and mortgage for 303 West High Street are in plaintiff's name only.

In 1996, plaintiff received a $200,000 inheritance from her father. In 2002, she purchased 309 West High Street with the inherited funds. She maintains that she used only her inherited funds for the $37,129 down payment. The deed and the first mortgage for 309 West High Street are also in plaintiff's name.

Plaintiff testified that defendant did not contribute to the carrying costs of either property, and she provided cancelled checks from her separate bank account as evidence that she alone paid the mortgages, utility bills, maintenance, condo fees, insurance, and property taxes for the properties.

After acquiring 309 West High Street, plaintiff decided to live there and use 303 West High Street as a rental property. She testified that she assumed all responsibilities for the rental property, including paying for repairs and appliances. The leases stated that plaintiff was the sole owner of the property.

Plaintiff provided financial support for the parties' daughter, including payment of her college tuition, studies abroad, and travel expenses without any contribution from defendant. Plaintiff also purchased a car for their daughter and paid for the insurance and maintenance without any contribution from defendant. Plaintiff claimed she incurred $36,969 in credit card debt paying for her daughter's expenses. She took out a home equity loan on 309 West ...


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