On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-10328-91.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Before Judges Yannotti, Espinosa and Skillman.
The parties each waived oral argument in their motion and cross-motion in this post-judgment matrimonial matter. Nevertheless, the court heard oral argument and took testimony on the return date without notice to defendant. Defendant appeals from the order entered and, for the reasons that follow, we reverse.
Plaintiff and defendant were married on December 6, 1954.
Plaintiff filed a complaint for divorce on December 11, 1990.
Initial efforts to serve the summons and complaint were unsuccessful. Service was eventually accomplished in February 1991 by regular and certified mail pursuant to an order entered after an appropriate motion.
On April 3, 1991, an order was entered that required defendant to pay support to plaintiff. Defendant contends he was not in court that day and in fact "never appeared in any court in the State of New Jersey, at any time, on the matter of or during the course of the divorce action." However, the order states that defendant appeared in court on March 22, 1991, and gave testimony.
A default judgment was entered against defendant on May 23, 1991, for his failure to answer the divorce complaint. Plaintiff filed a notice for equitable distribution on June 1, 1991, and served defendant by Federal Express. The final judgment of divorce (JOD), entered on June 24, 1991, noted defendant's failure to appear despite being served and provided, in pertinent part:
4. Plaintiff shall be entitled to receive forty-five percent (45%) of the gross pension received by Defendant by virtue of his retirement with the United States Navy. A Qualified Domestic Relations Order shall be drafted by counsel for Plaintiff.
5. Plaintiff shall be entitled to receive fifty percent (50%) of the gross pension enjoyed by Defendant by virtue of his retirement from the United States Postal Service. A Qualified Domestic Relations Order shall be drafted by counsel for Plaintiff.
A Qualified Domestic Relations Order (QDRO) that
implemented these provisions was entered that ...