NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 26, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1873-11.
James J. McGuire, Jr., attorney for appellant (Mr. McGuire and Philip C. Pyle, on the brief).
Keith, Winters & Wenning, attorneys for respondent (Brian D. Winters, on the brief).
Before Judges Ostrer and Kennedy.
Defendant Eugene Lanzaro appeals from a final judgment of divorce by default entered on October 6, 2011, after eight years of marriage. He argues the court erred in denying his counsel's oral request to vacate default, made at the hearing held following plaintiff's notice for final judgment under Rule 5:5-10. He also asserts error in the court's conduct of the hearing. Having considered his arguments in light of the record and applicable law, we affirm.
Plaintiff filed her complaint for divorce on May 24, 2011, and served defendant on July 1, 2011. Plaintiff had previously obtained a domestic violence restraining order against defendant. On July 22, 2011, the court granted plaintiff's motion for sale of the marital home, to which defendant had not responded. The court also ordered defendant to contribute to roof expenses, restrained the parties from the dissipation of marital assets, and awarded plaintiff counsel fees.
In response to plaintiff's request pursuant to Rule 4:43-1, the court, on August 10, 2011, entered defendant's default on the docket based on his failure to answer the complaint or otherwise defend the action. Also in August, plaintiff filed multiple applications for relief regarding the marital home, which were served on defendant. Although some applications were denied, the court in early September granted plaintiff's motion in aid of litigant's rights, granting her power of attorney for the limited purpose of selling the marital home, and for counsel fees.
On September 15, 2011, she filed a notice of proposed final judgment of divorce pursuant to Rule 5:5-10, and served defendant. She sought equitable distribution, but not alimony. The parties had no children together. The court scheduled the hearing for October 6, 2011.
On October 4, 2011, defense counsel wrote to the court requesting an adjournment "to permit me to file an answer" and to stop the distribution of assets in which defendant had an interest. He stated he was "[r]ecently asked to commit to the captioned matter by the family of the defendant, " his client was incarcerated in the county jail, and had been grappling with substance abuse issues. Counsel previously represented defendant in connection with criminal charges against him. Plaintiff opposed the request, and the court denied it.
On October 6, 2011, the court held a hearing at which plaintiff and both counsel appeared. It is unclear whether defendant appeared, although we infer he did, because his counsel sought unsuccessfully to call him as a witness. Defense counsel renewed his request for an adjournment, asserting his client had either been incarcerated or hospitalized for sixty of the previous ninety days. Counsel conceded he did not file a formal motion to vacate default. However, he asked the court to accept ...