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Mabinty Koroma v. Joseph K. Tellewoyan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 27, 2012

MABINTY KOROMA, PLAINTIFF-RESPONDENT,
v.
JOSEPH K. TELLEWOYAN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1586-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 1, 2012 -

Before Judges Graves and Koblitz.

Defendant Joseph K. Tellewoyan appeals the January 14, 2011 order denying his application to vacate a default divorce judgment and granting plaintiff $1005 in counsel fees. After reviewing the record in light of the contentions advanced on appeal, we affirm the decision not to vacate the judgment and remand to the motion judge to amplify his reasons for imposing counsel fees.

The parties were married on December 27, 2003. Defendant indicates in his brief that he is a naturalized citizen born in the Republic of Liberia and that his wife is from Sierra Leone. No children were born of the marriage. Plaintiff filed for divorce on June 23, 2010.

Defendant acknowledges being served on July 10, 2010, with the complaint seeking divorce on the grounds of eighteen months separation. N.J.S.A. 2A:34-2(d). He responded by sending his wife's counsel and the court a one-page document titled "Notice of Motion to Annul Marriage" by certified mail, return receipt requested, on July 10, 2010. The court received its copy on July 12, 2010. Plaintiff's counsel signed for the document on July 15, 2010. Defendant did not otherwise respond and a default judgment was entered on September 29, 2010, granting only the requested divorce with no other relief.

On October 9, 2010, defendant filed what he referred to as a motion for reconsideration, seeking an annulment and reimbursement for $8000 of expenses he incurred in connection with the marriage. The judge considered this application as a motion for relief from judgment. R. 4:50-1. He found that defendant did not demonstrate excusable neglect for his failure to answer the complaint and denied relief.

On November 30, 2010, defendant filed a motion to vacate default judgment alleging that the "summons and complaint was not served in accordance with court rules"*fn1 and that his "answer and counterclaim [were] ignored by plaintiff's attorney."

The motion judge denied defendant's application, finding that his answer and counterclaim were untimely, as they were prepared on November 20, 2010. The judge noted further that defendant did not present excusable neglect as the reason for his failure to timely respond to the complaint. The judge indicated that the earlier filed "Notice of Motion to Annul Marriage" did not appear to be properly filed and that defendant took no other action prior to his receipt of the judgment. The judge dismissed defendant's argument concerning improper service as being completely unsupported.

The judge then listed the factors that he considered in awarding the requested counsel fees.

On appeal defendant raises the following issues:

POINT I: DID JUDGE [] ERR IN GRANTED DIVORCE TO PLAINTIFF MABINTY KOROMA THROUGH SUMMARY JUDG[]MENT WITHOUT CONSIDERING MY ANSWER AND COUNTERCLAIM?

POINT II: DID JUDGE [] ERR IN NOT VACATING SUMMARY JUDG[]MENT THAT GRANTED DIVORCE TO MABINTY KOROMA?

POINT III: DID JUDGE [] ERR IN GRANTING LEGAL FEES TO PLAINTIFF MABINTY KOROMA?

POINT IV: DID JUDGE [] ERR IN NOT ALLOWING ME TO SAY A WORD AT THE HEARING FOR THE MOTION FOR RECONSIDERATION?

We agree with the motion judge that defendant did not meet the required standard to vacate final judgment and that the document he sent to the court and plaintiff's counsel did not constitute an answer, even when read in a manner generous to defendant. See R. 4:5-3; Dellbridge v. Office of Pub. Defender, 238 N.J. Super. 288, 312--13 (App. Div. 1989) (stating that courts are to construe pleadings liberally). In two brief paragraphs in the document, defendant indicates that he seeks an annulment and $8500 in expenses. He does not in any way respond to plaintiff's complaint.

Defendant also presents no reasons why he failed to file an answer within thirty-five days as required by Rule 4:6-1(a). Thus, the motion judge correctly determined that defendant failed to demonstrate excusable neglect as required by Rule 4:50-1. Defendant's lack of legal representation does not excuse his failure to comply with the Rules. See In re Estate of Schifftner, 385 N.J. Super. 37, 44 (App. Div. 2006) (citing Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997)).

We are, however, constrained to grant some relief to defendant on his third point. When deciding whether or not to award counsel fees, a judge must "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23; R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971).

In awarding the requested counsel fees to plaintiff, the motion judge correctly delineated the relevant factors for consideration. He did not, however, express how the circumstances of this matter related to those factors. This omission precludes meaningful appellate review. "It bears repeating that an articulation of reasons is essential to the fair resolution of a case. The failure to perform this duty 'constitutes a disservice to the litigants, the attorneys and the appellate court.'" O'Brien v. O'Brien, 259 N.J. Super. 402, 407 (App. Div. 1992) (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)); see also R. 1:6-2(f); Italiano v. Rudkin, 294 N.J. Super. 502, 507 (App. Div. 1996) (remanding, in part, because the judge did not provide a statement of reasons for failure to award counsel fees in post-divorce proceedings).

Contrary to defendant's assertions in his final point, the judge did allow him to speak at oral argument. The motion judge and defendant engaged in a colloquy, during which the judge attempted to direct defendant's comments towards the procedural difficulties in his position. Defendant refused to be sidetracked from his comments on plaintiff's lack of credibility. This point of appeal is therefore without merit.

Affirmed in part and reversed and remanded in part.


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