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Kenneth Mitchem v. Delishia Mitchem


October 4, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-0688-11.

Per curiam.


Submitted May 8, 2012 -

Before Judges Espinosa and Kennedy.

Defendant appeals from a judgment of divorce entered by the Family Part on June 23, 2011. The judgment was entered on grounds of irreconcilable differences between the parties, and incorporated an agreement on equitable distribution purportedly reached by the parties earlier that day. Defendant contends on appeal that the trial judge erred by entering a "default" against her prior to the trial date and by not making findings of fact on equitable distribution as required by N.J.S.A. 2A:34-23.1.

The parties were married on April 4, 2010, and no children were born of the marriage. On November 4, 2010, plaintiff filed a complaint for divorce on grounds of irreconcilable differences. On December 15, 2010, defendant filed an answer and counterclaim for divorce on grounds of both irreconcilable differences and extreme cruelty.

It appears that the trial judge scheduled pretrial conferences at which defendant did not appear. On May 26, 2011, defendant's counsel appeared, but defendant herself was unable to appear because she had an "allergic reaction" and was home on medication. The judge called her and agreed to carry the matter until June 7, 2011. Thereafter, defendant contacted the court and asked for another date, and the court agreed to hear the matter on May 31, 2011.

On May 31, defendant did not appear because of a medical problem that resulted in her admission to a hospital that day. Defendant's counsel stated that he learned that morning of defendant's unavailability. The judge stated that defendant had not, at that point, provided "enough information" to justify an adjournment and asked plaintiff's counsel to submit a "notice of equitable distribution" and rescheduled the matter for June 23, 2011.

On June 3, 2011, plaintiff's counsel forwarded to the court and defendant's counsel a "notice of equitable distribution" returnable on June 23, 2011, setting forth a proposal for equitable distribution and seeking dissolution of the marriage. On June 6, defendant's counsel provided the court with records showing that defendant was, in fact, hospitalized on May 31, 2011, and he asked the court to "reconsider the default" against defendant.

The judge replied by letter to all counsel on June 8 in which she noted that the matter is scheduled for a "[d]efault hearing" on June 23 and that she would "entertain any testimony from [defendant] provided she appears that day." The judge added that if defendant failed to appear, "the Court wants to be in a position of proceeding by entering a [d]ivorce by


Defendant did not file any opposition to the notice of equitable distribution, but did appear on June 23 with her counsel. The parties spent a few hours discussing equitable distribution and the grounds of divorce prior to appearing before the judge.

When the case was called, defendant's counsel told the judge that "we are in agreement on all the items" except that "each party wants to put in their own cause of action." Plaintiff's counsel stated that his client wanted the divorce to proceed on grounds of irreconcilable differences. The judge, after noting that both parties had asserted irreconcilable differences in their divorce pleadings, explained that the divorce will be granted on grounds of irreconcilable differences, "whether it's entered under his [complaint] or hers."

Thereafter, defendant's counsel presented a marked-up copy of the notice of equitable distribution to defendant and defendant stated under oath that "I agreed to them because we were supposed to be talking about the cause of action." The judge then inquired if defendant was repudiating her agreement to the equitable distribution proposal because "I won't let her put the cause of action on for divorce?" Defendant replied, "No, ma'am, that's not the case at all." At that point, the judge explained that she would enter a divorce judgment "on the papers." This appeal followed.

Frankly, while we do not endorse the procedural decisions made by the trial judge, we fail to perceive any harm to defendant that would warrant intervention on appeal. Defendant herself pled irreconcilable differences in her counterclaim for divorce. The judge was thus presented with two parties who pled identical causes of action, and there was no harm to defendant in electing to proceed on that basis, rather than on the basis of defendant's alternate theory of extreme cruelty. In Kinsella v. Kinsella, 150 N.J. 276, 314 (1977), the Court explained that the practical consequences of succeeding in a divorce action on fault-based grounds are minimal. Here, there were no consequences at all.

With respect to equitable distribution, defendant's only claim of error is that the trial court did not explicitly state her findings as required by N.J.S.A. 2A:34-23.1. Defendant does not challenge the substantive provisions of the divorce judgment other than to claim vaguely that her "housing and transportation were severely affected." Further, despite her claim that she did not agree to the equitable distribution terms, the record plainly reveals that defendant consented to the terms, under oath.



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