July 30, 2009
SOPHIA FEDEROW (N/K/A: NEKRASOV), PLAINTIFF-APPELLANT,
GEORGE FEDEROW, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 9, 2009
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 of Maria Federow v. George Federow of ten (10) years ago.
9. Defendant believes that Plaintiff is also retired and is currently receiving government benefits and/or pension.
10. Therefore, defendant respectfully requests that his alimony payments to plaintiff be modified and/or terminated in lieu of above changed circumstances.
There is no reference made anywhere in the moving papers to a past or recently updated case information statement. None was furnished by defendant's attorney to plaintiff's attorney when the motion papers were requested. Yet, in the transcript of the Family Part judge's July 5, 2007 decision terminating alimony, the judge said he had "received, and reviewed a case information statement of the defendant prepared, and signed on the 20th of June, 2007." The proof of service filed by defendant's attorney was dated May 7, 2007. The attorney stated that the motion was served on "Plaintiff, Sophia Federow," at a specified address, which without dispute was at all relevant times plaintiff's correct address, by certified mail, return receipt requested, and by regular mail. No reference is made in the proof of service as to what other documents were served, other than the notice of motion. Nor does the proof of service state when service was made. Importantly, the proof of service is not in the form of an affidavit or certification.
On August 1, 2008, the judge who had ordered termination of alimony heard plaintiff's motion to vacate that order. He acknowledged the absence of a court file. Relying upon those documents that defendant's attorney had furnished to plaintiff's attorney, he noted that those documents contained "a proof of service indicating that the original notice of motion was served on the plaintiff, Sophia Federow, at [the undisputedly correct address.]" The judge further noted that when the order terminating alimony was sent to plaintiff at the same address, she received it. The judge rejected plaintiff's argument that because the motion papers were purportedly addressed to her under the name of Sophia Federow they were not delivered. Indeed, the judge framed the issue before him as limited to that consideration. He said: "The question for the Court is whether the use of plaintiff's married name is a substantial deviation on the service of process rules. I'm satisfied that it is not."
In support of her motion to vacate the earlier order, plaintiff certified that she was never served with the motion papers. No opposition was filed by defendant. Therefore, plaintiff's certification of lack of service was unrefuted. Further, the proof of service furnished by defendant's attorney was deficient because it was not in certification or affidavit form. See R. 1:5-3. Therefore, we believe the judge defined the issue before him too narrowly when considering the motion to vacate. The broader issue was whether any moving papers were ever indeed mailed to plaintiff. The record contains no competent evidence that they were.
There are further irregularities here. By their terms, the moving papers did not even purport to include, as required by Rule 5:5-4(a), copies of defendant's prior case information statement and current case information statement. Those are foundational documents for a change of circumstances evaluation. Indeed, in granting the termination order, the judge stated that he had before him a current case information statement signed by defendant on June 20, 2007. That document has never been produced. Its date was well after the filing of the motion and purported service of that motion on plaintiff. And, there is no reference anywhere to a prior case information statement. A further and striking irregularity is that defendant's entire motion to terminate alimony was based upon his attorney's certification, which contained nothing more than conclusory hearsay statements, essentially stating that defendant could no longer afford to pay alimony. This was not competent evidence that could support a termination of alimony.
Relief from orders may be granted for various reasons, including that the order is void due to lack of personal jurisdiction resulting from the absence of service of process.
R. 4:50-1(d); Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004). Plaintiff certified without contradiction that she was not served with the motion papers, and the record does not contain competent evidence to the contrary. We conclude that the judge mistakenly exercised his discretion in denying plaintiff's motion to vacate the order terminating alimony as void for lack of service of process.
We need not address plaintiff's remaining arguments that she was also entitled to relief from the order based upon other grounds in Rule 4:50-1, namely excusable neglect, or the catchall, "any other reason justifying relief from the operation of the judgment or order." We do note, however, that, considering the loss of the court file, the refusal or inability of defendant's former counsel to produce all relevant documents, and the patently deficient evidentiary basis to support a termination of alimony, we have no confidence in the correctness of the order, and, even if plaintiff had been properly served, she probably would have been entitled to relief on some other ground.
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