LAUREN NEIDERT VS. BRIAN NEIDERTÂ (FM-03-1140-16, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1992-16T2
LAUREN NEIDERT,
Plaintiff-Respondent,
v.
BRIAN NEIDERT,
Defendant-Appellant.
________________________________
Argued November 13, 2017 – Decided December 1, 2017
Before Judges Sabatino and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FM-03-1140-16.
Christine A. Dolan argued the cause for
appellant (Cordell Law, LLP, attorneys; Ms.
Dolan, on the briefs).
Matthew Podolnick argued the cause for
respondent (Sherman, Silverstein, Kohl, Rose
& Podolsky, P.A., attorneys; Mr. Podolnick,
on the brief).
PER CURIAM
Defendant Brian Neidert appeals from a November 30, 2016
default final judgment of divorce incorporating the proposed terms
of equitable distribution that had been presented to the court by
his wife, plaintiff Lauren Neidert.
Plaintiff filed a complaint for divorce in the Family Part
in May 2016. Defendant failed to answer the complaint. Nor did
he appear at the scheduled default hearing in November 2016,
despite being served personally with advance notice of that
proceeding. At the hearing, the trial court adopted the terms set
forth in plaintiff's notice of equitable distribution, including
an award to plaintiff of exclusive ownership of the marital home.
Dissatisfied with the terms of divorce entered by the court
in his absence, defendant retained counsel and sought relief from
the final judgment. However, rather than moving before the Family
Part to vacate the judgment pursuant to Rule 4:50-1, defendant
filed the present appeal.1 His brief contests various procedural
and substantive aspects of the judgment. He further argues that
the trial court failed to set forth adequate findings of fact and
conclusions of law in support of the judgment, as required by Rule
1:7-4(a).
In her opposing brief, plaintiff argues that this appellate
court presently lacks jurisdiction over her ex-husband's challenge
1
At oral argument on the appeal, defendant's counsel explained
that her client contacted her law firm only a few days before the
forty-five-day deadline for an appeal was about to expire, and
that the firm took prompt action to preserve defendant's rights.
2 A-1992-16T2
to the default judgment. She maintains that the appropriate
procedure would have been for defendant to attempt first to obtain
relief from the trial court under Rule 4:50-1. If such a motion
had been denied in full or in part, defendant could have then
appealed that denial to this court. Defendant urges this court
to excuse him from pursuing this trial level process, and to
consider directly his various attacks upon the judgment.
Well-established authority clearly obligates a defendant in
these circumstances to attempt to secure relief first from the
trial court by filing a motion under Rule 4:50-1; a party may not
directly appeal a judgment entered in default. See, e.g., Haber
v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992) (citing
McDermott v. Patterson, 122 N.J.L. 81, 84 (E. & A. 1939)). As was
recognized long ago in McDermott, such a direct appeal is improper
because the appellate tribunal may only correct "errors which a
court below may have committed, and a court below cannot be said
to have committed an error when its judgment was never called into
exercise, and the point of law was never taken into consideration,
but was abandoned by acquiescence or default of the party who
raised it." McDermott, supra, 122 N.J.L. at 84 (citing Walter v.
Keuthe, 98 N.J.L. 823, 826 (E. & A. 1923)).
The applicable grounds under Rule 4:50-1 may include: (a)
mistake, inadvertence, surprise, or excusable neglect; (b) newly
3 A-1992-16T2
discovered evidence that would probably alter the judgment, and
which by due diligence could not have been discovered in time to
move for a new trial; (c) the adverse party's fraud,
misrepresentation, or other misconduct; (d) voidness; (e)
satisfaction, release, or discharge of the judgment; or (f) any
other reason justifying relief from the operation of the judgment.
Rule 4:50-1. Such relief is not, of course, automatically granted
on mere request. In general, a default judgment "will not be
disturbed unless the failure to answer or otherwise appear and
defend was excusable under the circumstances and unless the
defendant has a meritorious defense[.]" Pressler & Verniero,
Current N.J. Court Rules, comment 4.1 on R. 4:50-1 (2017). See
also US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 468 (2012).
We therefore agree with plaintiff that defendant's appeal is
not properly before this court. Although it would have been
preferable for plaintiff to have moved to dismiss the appeal before
the parties incurred the expenses and devoted the time to brief
and argue the matter in this court, the correct path is to dismiss
the appeal without prejudice.
We suggest that the trial court convene a case management
conference within thirty days to confer with counsel and plan the
4 A-1992-16T2
next steps, including a motion by defendant under Rule 4:50-1.2
In advance of that conference, counsel should furnish the trial
court with courtesy copies of their appellate briefs.
Appeal dismissed, without prejudice.
2
In light of defendant's mistaken filing in the wrong forum, the
one-year limitation in Rule 4:50-2 for motions under subsections
(a), (b), and (c) of Rule 4:50-1 shall be deemed to have been
tolled since the filing of the improvident notice of appeal.
Hence, all six possible grounds for relief under Rule 4:50-1 are
still available.
5 A-1992-16T2