No Modifaction Of Alimony Or Child Support For Party Failing To Appear In Divorce
- December 22, 2014
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In the recent Appellate Division case, Vaish v. Vaish, the Plaintiff, Rajiv Vaish, appealed from a 2012 Family Court Order that denied his Motion to vacate parts of his Judgment of Divorce as with regard to issues of equitable distribution, alimony and child support. The parties in this case were married 1986 and two (2) children were born of the marriage. The first child was born in 1990 and the second in 1994. In 2010, the Defendant, Sanmati Vaish, filed for divorce. For reasons that were unclear the court initially dismissed her Complaint and then later reinstated it, and before the reinstatement, the Plaintiff filed a Complaint for Divorce which the parties decided to proceed under. Before a scheduled Early Settlement Panel (ESP) at the court problems arose between the Plaintiff and his attorney which lead the attorney to withdraw from representation and the Plaintiff to fail to attend the ESP. The court then dismissed the Plaintiff’s Complaint for failure to appear at the ESP meeting. In 2011, the Defendant filed a request for a Default Judgment to be entered against the Plaintiff followed by an application for equitable distribution of the parties’ assets and property. Copies of these documents were provided to the Plaintiff’s new attorneys at that time. In October of 2011, the Family Court held a hearing on the Defendant’s application for equitable distribution and the Plaintiff failed to appear. Upon hearing the Defendant’s testimony and considering her expert’s report the court entered a Final Divorce Judgment and accepted the Defendant’s uncontested submission for equitable distribution, child support, and alimony. In October of 2012, 364 days after this judgment was entered, the Plaintiff filed a Motion with the court to vacate parts of the divorce judgment with regard to child support and alimony. The judge denied the Plaintiff’s Motion finding that he did not demonstrate good cause to vacate the judgment and he did not prove that there had been changed circumstances that would warrant a modification. The Plaintiff then appealed arguing that the judgment of divorce should be vacated under N.J. court Rule 4:50-1(a). According the Appellate Division, the portion of N.J. Court Rule 4:50-1(a) that was relevant to this appeal is subsection (a) which allows relief from a judgment due to “mistake, inadvertence, surprise, or excusable neglect.” These categories include instances where a party “through no fault of its own, has [made] . . . a mistaken judgment on a material point at issue in the litigation. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242 262 (2009). The Plaintiff’s claim for relief based upon excusable neglect is based upon his argument that he did not know that a default hearing was scheduled in 2011. The Plaintiff’s own attorney admitted that the Plaintiff had notice of the hearing. Therefore, the decision of the Family Court was affirmed. The equitable distribution of assets is of the most emotional and complex aspects of a divorce. If you are involved in a battle over the division of marital property, assets, or debts it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, post-judgment modification, contested divorce, spousal support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.