On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-1535-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Alvarez.
Defendant Chaudhry Ahmed appeals the Family Part's February 27, 2009 denial of reconsideration, after it declined his initial post-judgment application to vacate the May 29, 2007 final judgment of divorce, entered by default, to plaintiff Saba Hasan. Defendant also appeals the award of counsel fees. We affirm.
Although defendant now advances Rules 4:50-1(d) and (f) as the bases for his requested relief, the arguments presented to the trial court in support of reconsideration were framed in more general terms. Defendant simply contended the divorce decree should be vacated in favor of a judgment of divorce he obtained in Pakistan because of a lack of personal service upon, and/or jurisdiction over him, in New Jersey.
At the October 3, 2008 proceeding in which he sought to vacate the judgment, without citation to authority, defendant's prior counsel argued that because the parties were divorced in Pakistan, the New Jersey divorce should be vacated in its entirety, child support decreased, joint legal custody granted, and parenting time allocated to defendant. Defendant also alleged that plaintiff accomplished service by publication despite actual knowledge of his whereabouts and that the judgment should be vacated for that reason alone.
A detailed discussion of the circumstances in dispute is warranted. On March 31, 2006, after the complaint for divorce was filed and while she was attempting to serve defendant, plaintiff appeared before the Family Part seeking pendente lite custody of the parties' son, who was then four and one-half years old, as well as interim child support. During argument, plaintiff's counsel reiterated the facts set forth in the documents submitted in support of the motion. Plaintiff alleged that, on January 19, 2005, she and defendant, United States citizens who had resided in Jersey City at least since their marriage in 1998, traveled to Pakistan for defendant's brother's wedding. Plaintiff and defendant had been married in Pakistan, and plaintiff believed their visit would extend for approximately one month.
Upon arrival, however, plaintiff was kept in isolation in the lower portion of defendant's parents' home. She eventually learned that defendant had divorced her, and that it was he, not his brother, who planned to marry.
Once plaintiff's sister became aware of the situation, she came to plaintiff's aid and convinced defendant's family to release her and the parties' child. Although defendant's family agreed to permit plaintiff and the child to leave their home, they did not hand over plaintiff's and the child's passports. Defendant had obtained a court order placing the child on a "no exit" list, and it took plaintiff approximately eight months to leave Pakistan because she was required to appeal the order before she and the child were permitted to leave the country.
During the pendente lite hearing, plaintiff's counsel also referred to documents in plaintiff's possession indicating that defendant owned, at a minimum, a Taxi and Limousine Commission (TLC) license in New York City. Plaintiff's counsel said she had the TLC license number, as well as the license plate number for defendant's taxi. Counsel noted that a process server had unsuccessfully attempted service on defendant at his workplace on more than one occasion and that those present denied even knowing him. Counsel stated that as a result she believed defendant was deliberately avoiding service.
Accordingly, after the hearing, the court granted plaintiff temporary sole custody of the child, but denied child support. When a support order was finally entered, the judge said, she would likely make the order retroactive to March 14, 2006, the filing date of the initial motion.
Service on defendant was subsequently accomplished by publication in accord with Rule 4:4-5(a)(3). Although we have not been supplied with a copy of counsel's affidavit or certification submitted prior to the issuance of an order permitting such service, publication - including notice to defendant of a demand for custody, child support, and equitable distribution - was made on April 25, 2007.*fn1
Consequently, on May 29, 2007, following the admission of the publication notice, the divorce was heard as an uncontested matter. No copy of the notice is included in the record.
Plaintiff briefly testified through an interpreter that defendant earned approximately $70,000 annually in the years the parties lived together and had sent approximately $400,000 home to Pakistan. Plaintiff did not request allocation of any portion of defendant's ownership of a taxi medallion or license and the record does not clearly indicate which of the two he owns.*fn2 In light of plaintiff's testimony with regard to her confinement in defendant's parents' home ...