NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 13, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-861-12.
Robert J. MacNiven argued the cause for appellant (Shamy, Shipers, Lonski, P.C., attorneys; Mr. MacNiven, on the brief).
Justin F. LaPiana argued the cause for respondent.
Before Judges Sapp-Peterson and Nugent.
Defendant Michael Kaznosky appeals from the Family Part order that denied his motion to vacate a default judgment of divorce and file an answer and counterclaim. We reverse and remand.
Defendant Michael Kaznosky and plaintiff Charlene Kaznosky, who have one child, were married on November 15, 2003. Eight years later, on November 18, 2011, plaintiff filed a divorce complaint seeking dissolution of the marriage, primary physical custody of the parties' child, child support from defendant, equitable distribution, and an order directing defendant to maintain life insurance policies designating plaintiff as the beneficiary.
Plaintiff served defendant with a summons and the complaint on December 2, 2011. Defendant did not file an answer and default was entered against defendant on February 22, 2012. By April 4, 2012, defendant had made no attempt to vacate the default or file an answer, so plaintiff served him with a Notice of Proposed Final Judgment as required by Rule 5:5-10.
The parties appeared before the court for a proof hearing on May 9, 2012. Defendant represented to the court that he was prepared to proceed. During plaintiff's testimony she asked the court, among other things, to order defendant to pay the outstanding balances on their credit card bills in exchange for her abandoning any claim to the landscaping business he operated out of his home. Following her testimony, defendant asked that plaintiff remain responsible for the debt on one of their credit cards.
Defendant also acknowledged plaintiff was seeking to have him pay weekly alimony of fifty dollars and weekly child support of $261. He told the court her attorney had called him a couple of days earlier and left a message on his answering machine that he would "pass that to $173." The attorney denied making that statement. In response, defendant said that he could not make the requested alimony and support payments "without becoming homeless and having to claim bankruptcy." He also represented that he had attempted to retain counsel but was unable to afford an attorney.
At the conclusion of the hearing, the court entered a final judgment of divorce (FJOD). One week later, on May 17, 2012, defendant filed a motion seeking to vacate the default judgment and file an answer and counterclaim.
In support of his motion, plaintiff certified that he had earned $27, 000 per year during the parties' marriage. He explained that he tried to represent himself in the divorce action because he was "unable financially to retain an attorney[.]" After being served with the divorce complaint, he had several telephone conversations with plaintiff's attorney about custody, parenting time, child care, and support. According to defendant, ...