On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-11259-89C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Collester.
Plaintiff, Sophia Federow, who is now known as Sophia Nekrasov, appeals from the August 1, 2008 order denying her motion to vacate an order entered on July 6, 2007 which terminated her alimony payments. She argues that the judge erred because (1) she was never served with the moving papers seeking to terminate alimony, and the record does not contain a valid proof of service to the contrary, and (2) defendant's moving papers were so deficient that they failed to provide substantive support for the decision to terminate alimony. We agree with plaintiff and reverse.
The parties were divorced in 1992. An order of January 7, 1997 required defendant to pay plaintiff $75 per week in permanent alimony. The order also authorized plaintiff, Sophia Federow, to resume the use of her prior name, Sophia Nekrasov.
Some time after July 6, 2007, plaintiff received in the mail a copy of the order of July 6, 2007 terminating alimony. According to her, she had never been served with any moving papers and receipt of the order was her first notice that there was a problem regarding her entitlement to alimony. She eventually retained counsel, who continues to represent her on this appeal. Counsel made a diligent effort to obtain court records pertaining to the motion. The court file could not be located in the Monmouth County Courthouse, nor could any of the motion papers be obtained from the Superior Court Records Office in Trenton. Counsel was able to ascertain the attorney who represented defendant on the motion to vacate. That attorney eventually provided copies of (1) the notice of motion for modification of alimony, (2) proof of service, and (3) certification of defendant's attorney in support of the motion.
The notice of motion was dated May 1, 2007 and filed by the court on May 14, 2007. By its terms, the motion stated that defendant would rely on the certification of his attorney in support of the application. No other supporting document was referenced in the body of the motion. Indeed, the only attachment provided by defendant's attorney was that attorney's certification. It is dated May 1, 2007. It contained the following relevant statements:
1. This Certification is submitted to the Court in support of defendant's motion for modification and/or termination of alimony to plaintiff due to defendant's substantial change of circumstances.
4. Defendant fully complied with the terms of the order until he has retired in and became unable to pay the said amount of alimony.
5. Defendant is also under obligations for alimony in the matter of Maria Federow v. George Federow, in the amount of $70.00 per week.
6. Due to his age defendant no longer is employed and is unable to support himself.
7. Defendant's earning capacity has been significantly diminished due to his retirement.
8. Due to defendant's retirement his present day income is well below his earning capacity that yielded the alimony payments of $300.00 per month in the present case [and] the additional alimony payments in the matter ...