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Jeremy Dello Russo v. Jamie Arvay

July 11, 2012

JEREMY DELLO RUSSO, PLAINTIFF-RESPONDENT,
v.
JAMIE ARVAY, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-257-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 15, 2012 -

Before Judges Fisher, Baxter and Carchman.

Defendant Jamie Arvay*fn1 appeals from two orders of the trial court. The first, issued November 16, 2010, granted plaintiff Jeremy Dello Russo's request for default judgment against defendant. The order entered a judgment of divorce, denied alimony to either party, and divided the marital assets and debts. The second, issued February 4, 2011, denied defendant's request that: the default judgment and judgment of divorce be dismissed; she receive $6000 per month in alimony; the court reconsider its equitable distribution; and she be awarded attorney's fees. Defendant assigns error to all of these decisions. Defendant also argues that the trial court erred in awarding attorney's fees to plaintiff in connection with a later motion to enforce litigant's rights. We affirm the entry of the judgment of divorce, without prejudice to defendant's challenge to jurisdiction, but reverse and remand on all other issues.

Since we conclude that there are substantial issues that should be addressed at the trial of this matter, we provide an expansive review of the relevant facts.

Plaintiff and defendant were married on May 17, 2006. During their marriage, they resided in New York. The parties had no children together, although defendant has a son from a previous marriage. On July 21, 2010, plaintiff filed a complaint for divorce against defendant based on irreconcilable differences. In his complaint, plaintiff asserted that he lived in Tenafly, New Jersey, and had been living there since May 1, 2009. Plaintiff's counsel served the summons and complaint on defendant -- who continued to reside in New York --when she appeared in a family court in New Jersey on July 26, 2010, in response to a temporary restraining order (TRO) filed by plaintiff against defendant on July 16. That TRO was ultimately vacated, and plaintiff's domestic violence complaint against defendant was dismissed.

Defendant did not respond to plaintiff's summons and complaint, and on September 10, 2010, plaintiff filed a request for an entry of default. The court scheduled a proof hearing for October 27, 2010.

In early- to mid-October 2010, plaintiff filed his Notice of Proposed Final Judgment, which also contained plaintiff's Case Information Statement (CIS). At the same time, plaintiff served defendant by regular and certified mail. Although defendant complains about the timing of the service, the hearing resulting in the judgment under review was not held until well after the twenty-day period relevant to such notice. R. 5:5-10.

On October 27, 2010, both parties appeared for the proof hearing. At the hearing, defendant, appearing pro se, admitted that she had not answered plaintiff's complaint, and claimed that "I thought I just had to come in here." She noted, however, that she had received plaintiff's proposed final judgment, had "[m]ajor issues" with it, and requested an adjournment so that she could hire an attorney. The court granted defendant's request for adjournment and set the next hearing date for November 16, 2010 at 9 a.m. That same day, plaintiff's counsel sent a letter to defendant notifying her of the new hearing date and time. Plaintiff's counsel also received the notice of rescheduling on November 4, 2010, and sent a copy of it to defendant that same day. The proof hearing was held on November 16, 2010, from 9:15 a.m. to 9:31 a.m. Defendant failed to appear, and no attorney appeared on her behalf.

Plaintiff testified at the hearing in accordance with his complaint, CIS, and proposed final judgment. He confirmed that at the time of the hearing he lived in Tenafly, New Jersey, and had been living there for approximately one-and-one-half years. He indicated that defendant lived in Manhattan, in the parties' former marital residence, and that irreconcilable differences had existed between the parties for over six months.

According to plaintiff's CIS, he had an annual salary of $52,000, although at the hearing, he indicated that he was "between jobs" because he had just completed his residency at Englewood Hospital. He noted that defendant was not employed, but said she had worked in the past as a bartender. Plaintiff sought no alimony from defendant, and argued that he should not be ordered to pay any alimony to her. With regard to income taxes, plaintiff advised the court that the parties had filed separately in 2006 and 2009, and jointly in 2007 and 2008. He requested that each party be responsible for his or her own taxes for 2006 and 2009, and that he be responsible for any taxes incurred in 2007 and 2008. He claimed that he was entitled to any refunds attributable to the 2007 and 2008 returns.

As to the marital residence, which the parties rented but did not own, plaintiff proposed that he be responsible for paying an estimated $11,000 in outstanding rent incurred through August 2010, and that defendant be responsible for the rent thereafter. Plaintiff also proposed that he be responsible for debts owed to Con Edison through February 1, 2010 (approximately $1,550), and to Time Warner through August 9, 2010 (approximately $550), and that defendant be responsible for any bills or debts to those entities incurred after those dates.

Plaintiff noted that two vehicles were "registered and owned" by him -- a Honda Accord and a Mercedes-Benz. He valued the vehicles at $18,730 and $36,800, respectively, and advised that the Mercedes-Benz was encumbered with an $18,000 loan. He proposed that he ...


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