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Jose G. Rivera v. Alicia I. Rivera

June 2, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1540-09H.

Per curiam.


Submitted May 10, 2011

Before Judges Parrillo and Yannotti.

Defendant Alicia I. Rivera appeals from a November 13, 2009 amended final judgment of divorce (FJD) that did not award her spousal support. We affirm.

Briefly, by way of background, defendant and plaintiff Jose G. Rivera were married on July 23, 2000. One child was born of their union in February, 1995. The parties separated two or three years before plaintiff filed a complaint for divorce on February 17, 2009. During their separation, plaintiff resided in New Jersey while defendant lived in North Carolina with their minor child. One week after the divorce complaint was filed, on February 24, 2009, defendant moved for pendente lite child and spousal support as well as other relief. By order of June 19, 2009, the Family Part judge denied the request for child support without prejudice, believing that child support had been ordered in North Carolina. Subsequently, however, the court revisited the issue when it learned that North Carolina had not yet established child support and, by order of November 10, 2009, set plaintiff's obligation at $131 per week. This order was then incorporated into the November 13, 2009 FJD.

The pendente lite order of June 19, 2009 also denied interim spousal support to defendant. In this regard, the court noted that on February 16, 2009, the Social Security Administration denied defendant's request for Supplemental Security Income payments, finding her medical condition was not disabling. The court also noted that defendant did not provide any information on the marital standard of living and had not been supported by plaintiff for at least one year, or as many as three years, of separation. There being no demonstration that defendant was unable to work and earn income, the court concluded that defendant was not entitled to pendente lite spousal support.

In any event, defendant never answered the divorce complaint and, consequently, default was entered. A default hearing was scheduled for August 11, 2009. In the interim, plaintiff filed a Notice of Equitable Distribution on July 22, 2009, which was served on defendant in North Carolina by regular and certified mail. Both parties appeared on the August 11, 2009 hearing date - defendant without counsel - and because defendant neither moved to vacate default nor filed a response to the Notice of Equitable Distribution, the matter proceeded to a hearing. During that proceeding, however, it became clear that the Notice provided defendant was not sufficiently detailed as to the marital debt that plaintiff alleged was defendant's responsibility. As a result, the court adjourned the hearing to September 8, 2009 to permit plaintiff to supplement the Notice and to allow defendant to retain counsel and file either a motion to vacate default or a response to plaintiff's supplemental notice.

Plaintiff filed a Supplemental Notice of Equitable Distribution on August 19, 2009 and properly served defendant. The hearing thus resumed on September 8, 2009 with both parties present. Once again, defendant appeared without counsel, but acknowledged receiving the supplemental Notice, although she had failed to either respond thereto or move to vacate default.

The court proceeded to a hearing on the issues in the Supplemental Notice of Equitable Distribution. Despite the entry of default, defendant was afforded the opportunity to present her proofs. It appears defendant never made a request for alimony. At the close of evidence, the court placed its equitable distribution findings on the record and issued a default FJD on September 8, 2009, incorporating those findings. On November 13, 2009, the court issued an amended FJD incorporating, as noted, its interim November 10, 2009 child support order.

On appeal, defendant contends the court erred in not awarding her alimony given the disparity in the parties' income. We reject this argument as clearly without merit, not warranting discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). Suffice it to say, defendant never moved to vacate the default entered against her, and when afforded the opportunity, never presented proofs warranting the relief she now requests on appeal. In fact, the record, as recounted in the Family Part's June 19, 2009 denial of pendente lite spousal support, reveals that defendant never demonstrated the marital standard of living, her need for spousal support, or her inability to work and earn income. Under the circumstances, we find no warrant for interference with the November 13, 2009 amended FJD.



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