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PROCEDURAL HISTORY

On or around February 22, 2002, plaintiff filed a Complaint for Divorce in Hudson County, Docket Number XXXXXXXXXXX. [Da1]

On or around February 26, 2002, plaintiff filed her Family Case Information Statement. [Da4]

In or around April 2002, defendant filed a motion for change of venue from Hudson to Ocean County. [Da23-Da27] Plaintiff filed no response to this motion. An Order granting the motion was entered on May 14, 2002. [Da28] In Ocean County, the matter was provided a new Docket Number, XXXXXXXXXXXX. [Da23]

On September 9, 2002, plaintiff filed a Request for Default under Docket Number XXXXXXXXXX in Ocean County. [Da46]

On November 8, 2002, plaintiff filed a motion for change of venue back to Hudson County. [Da52]

On November 19, 2002, plaintiff's Complaint was dismissed sua sponte for lack of prosecution regarding plaintiff's failure to file a Notice of Equitable Distribution as instructed by the court. [Da29]

On or around February 20, 2003, plaintiff filed a second complaint for divorce, this time filing again in Hudson County and having a third Docket Number, XXXXXXXXXX. [Da30]

Upon being served with a copy of the second Complaint (XXXXXXXXX), defendant filed another motion on May 16, 2003 to change venue from Hudson to Ocean County. [Da33] Plaintiff filed a Response on May 27, 2003. [Da38] Defendant filed a Reply on [Da49] That motion was denied.

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Plaintiff filed a Notice of Equitable Distribution on or around October 28, 2003. [Da68] Defendant filed no Response.

On or around October 28, 2003, plaintiff filed a motion for equitable distribution. [Da68]

On or around November 21, 2003, the court entered a Final Judgment of Divorce including provisions pertaining to equitable distribution. [Da110]

On or around March 19, 2004, defendant filed a motion to vacate judgment and to transfer to Ocean County. [Da75] Plaintiff's counsel cross-moved on April 20, 2004 for, inter alai, contempt. [Da89] Both of those motions were denied.

On June 3, 2004, defendant filed a motion for modification of judgment. [Da123] That motion was denied.

On August 12, 2003, defendant filed a timely Notice of Appeal. [Da139]

STATEMENT OF FACTS

Plaintiff filed her Complaint in Hudson County on February 22, 2002. [Da1] In April 2002, after the time limitations for filing an Answer had already expired, defendant's counsel filed a motion for change of venue based upon his disability. [Da23-Da27] That motion, although granted [Da28], never asked for leave to file an Answer out of time. Once venue was transferred, defendant's counsel still failed to file an Answer or to otherwise filed a motion for leave to file one out of time. The case, however, was dismissed for plaintiff's own lack of prosecution regarding a failure to file a motion for equitable distribution. [Da29]

In any event, plaintiff refilled the complaint again on February 20, 2003, this time filing again in Hudson County. [Da30] Defendant's counsel filed another motion for change of venue on May 16, 2003, but not until the time limitation for filing an Answer had expired again. [Da33] The motion for change of venue was denied. Instead of then filing an Answer or a motion for leave to file one out of time, defendant's counsel did nothing. Plaintiff's counsel then filed for equitable distribution on October 28, 2003 [Da68], and defendant's counsel filed no response. Defendant's counsel also failed to appear in court for the equitable distribution hearing. [See accompanying transcript of the hearing.]

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A timely Notice of Appeal was filed [Da139], but the transcripts were not ordered or filed with the Appellate Division or the adversary. The initial brief was not filed on time, the case was dismissed and defendant's counsel blamed the mishap on a paralegal. Thereafter, defendant called the Appellate Division learned what was happening with his case and fired his trial counsel and hired an appellate attorney.

LEGAL ARGUMENT

I. DEFENDANT SHOULD BE PERMITTED TO PRESENT ISSUES ON THIS APPEAL THAT WERE NOT RAISED BELOW

This is an interesting appeal. This appeal does not concern what happened below, but what rather what did not happen below. The problem is that nothing happened. Defendant's counsel did not file an Answer, unbeknownst to defendant he went into default and final judgment was rendered against him.

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.

Id.

The arguments presented on this appeal concern defendant's right as a blameless party to have his day in court. That is a fundamental principle of procedural due process that, of course, is a matter "of great public concern". Id.; Art. I, Sec. I, N.J. Const.

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In addition, defendant had no opportunity to present to the trial court his arguments pertaining to the misconduct of his prior attorneys because he was still being represented by them and had no knowledge of their negligence. In fact, they were just relieved as his counsel during this appeal when the case was dismissed for lack of prosecution. Thus, defendant respectfully submits that he had no "opportunity for such a presentation" below. Id.

II. THE COURT SHOULD VACATE FINAL JUDGMENT BECAUSE DEFENDANT HAS BEEN DEPRIVED OF HIS DAY IN COURT BY THE STARK IMPRUDENCE OF HIS TRIAL COUNSEL (NOT RAISED BELOW)

It is axiomatic that "the sins or faults of an errant attorney should not be visited upon his client." Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 405-06 (App. Div. 2002), quoting Wilkins vs. Hudson County Jail, 217 N.J. Super. 39, 41 (App. Div.), certif. denied, 109 N.J. 520 (1987), and Jansson vs. Fairleigh Dickinson University, 198 N.J. Super. 190, 194 (App. Div. 1987). "[T]he salutary principle [is] that the sins of counsel not be visited on the blameless litigant …" Rabboh v. Lamattina, 312 N.J. Super. 487, 491 (App. Div. 1998).

The defendant has done no wrong in this case. He retained counsel as any prudent person would have, he paid a cash retainer, put his trust into attorney and an Answer was not even filed to plaintiff's Complaint and counsel failed to appear at the default hearing. Counsel then filed a notice of appeal, forgot to order the transcript and had the case dismissed for lack of prosecution. They did not even pay the filing fee for their motion to reinstate the appeal. Defendant's new counsel was required to pay it along with the filing of this initial brief.

A. The Trial Court Abused Its Discretion by not Vacating the Default.

It violates the public policy of the State of New Jersey for an innocent party under such circumstances to be subject to a default judgment where significant issues of equitable distribution are at stake.

"Cases should be won or lost on their merits and not because litigants have failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available." Connors vs. Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div. 1994). The court below never took into consideration whether a lesser sanction could have sufficed. It may have even been apparent at some point that a party was being neglected by his or her legal counsel. It is inequitable under those circumstances to punish the client who was blameless.

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Putting a default against defendant and subsequently declining to vacate the Order upon defendant's motion was akin to the extreme sanction of dismissal of a case with prejudice. Only the most extreme circumstances warrant such a sanction. Thomas v. Hargest, 834 A.2d 409, 599 (App. Div. 2003) ("severe sanction of a dismissal"); Abtrax Pharms., Inc. vs. Elkins-Sinn, Inc., 139 N.J. 499, 521 (1995)("extreme sanction of dismissal"). Likewise, only the most extreme circumstances should warrant a dismissal with prejudice in this case. See Pedraza v. Abbatiello, 1998 WL 34072740, *2 (App. Div. 1998) (default should be vacated if party is blameless).

Defendant has done no wrong, yet he has been deprived of his day in court. "[E]very person is entitled to his day in court." Biddle v. Biddle, 166 N.J. Super. 1, 5 (App. Div. 1979), citing Brunetti vs. New Milford, 68 N.J. 576 (1975), Bd. of Directors, Ajax, etc. vs. First Nat'l Bank of Princeton, 33 N.J. 456 (1960).

III. DEFENDANT HAS MERITORIOUS DEFENSES TO PLAINTIFF'S CLAIMS FOR EQUITABLE DISTRIBUTION

By being denied the right to file an Answer, defendant has been deprived of the right to contest plaintiff's claims for equitable distribution. Defendant has meritorious defenses to present.

IV. DEFENDANT WAS NOT PROVIDED ADEQUATE NOTICE OF THE HEARING

[This argument drafted by counsel of record, not On-Point Paralegal Services, LLC.]

V. PLAINTIFF WAS IMPROPERLY PERMITTED TO VENUE SHOP BY FILING A COMPLAINT IN HUDSON COUNTY AFTER VENUE WAS ALREADY TRANSFERRED TO OCEAN COUNTY AND THE CASE WAS DISMISSED FOR PLAINTIFF'S LACK OF PROSECUTION

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Plaintiff filed her initial Complaint in Hudson County. [Da1] The Hudson County court transferred venue to Ocean County [Da28] and subsequently dismissed plaintiff's case for lack of prosecution on her part. [Da29] Plaintiff, in lieu of filing a motion to reinstate, refilled the case in Hudson County. [Da30]

Plaintiff then filed a motion in Hudson County to transfer venue to Ocean County due to the fact that defendant is 100% disabled and cannot sit for periods of longer than 20 minutes. [Da33] The drive to Hudson County Courthouse is 1.5 hours from defendant's residence in Ocean County. [Da33] The evidence of defendant's 100% disability went uncontested below. That motion to transfer venue was denied.

Defendant's motion was akin to a request for a reasonable accommodation by the Superior Court of New Jersey due to his handicap. Defendant has a right to access the court notwithstanding his handicap, and with stopping and taking a break every 20 minutes, it would take defendant approximately 3 hours to drive to Hudson County from Ocean County. [Da33]

It was an abuse of discretion under the circumstances for the court not to transfer venue back to Ocean County, especially since plaintiff in filing the second Complaint in Hudson County was in total disregard of the court's previous order that transferred venue. [Da28] See U.S. v. Lopez, 2002 WL 31498984, *3 (D. Kan. 2002) ("This disability makes venue here extremely difficult for the defendant. The issue of travel coupled with the problems of coping with being away from home strongly favor transfer").

CONCLUSION

The court is asked to vacate the default judgment, vacate the final judgment of divorce and equitable distribution and remand the case to the trial court to enable defendant to file an Answer to plaintiff's Complaint with his new counsel.

XXXXXXXXXXX X& ASSOCIATE

__________________________________
XXXXXXXXXXXXXXX, Esq.
Attorneys for Defendant

Dated:

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