ESTER SHIRA FRIEDMAN VS. CHAIM FRIEDMANÂ (FM-15-1285-14, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-4635-15T1
ESTER SHIRA FRIEDMAN,
Plaintiff-Respondent,
v.
CHAIM FRIEDMAN,
Defendant-Appellant.
_____________________________________
Submitted September 27, 2017 – Decided October 24, 2017
Before Judges Alvarez and Geiger.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Ocean
County, Docket No. FM-15-1285-14.
August J. Landi, attorney for appellant.
Keith Winters & Wenning, LLC, attorneys for
respondent (Brian D. Winters, on the brief).
PER CURIAM
We dismiss this appeal from a May 19, 2016 default judgment
of divorce. Defendant Chaim Friedman must file an application in
the trial court, pursuant to Rule 4:50-1 or on other grounds as
he may deem appropriate, in order to set aside the divorce decree.
Plaintiff Ester Shira Friedman and defendant were married in
1998 and have seven children. The oldest child was born in 1999,
and the youngest children, a set of twins, were born in 2010.
Defendant claims that beginning in 2008, he experienced
financial reversals from which he has never recovered. Whether
this was the product of his claimed bipolar disorder, changes in
the economy, or both, is not important to our decision.
Defendant filed a Case Information Statement (CIS), Rule 5:5-
2, in July 2014, setting forth joint lifestyle expenses for the
family totaling $10,865 monthly. That figure was approximately
$200 less per month than the expenses listed on plaintiff's CIS.
If either party attached documentation to the CIS he or she filed,
it was not included in the appendices.
On his CIS, defendant claimed a net average weekly income of
only $1,000, far less than his own reckoning of the family's needs.
In his CIS, defendant did not specify his sources of income,
stating only that he "[t]akes funds when available[,]" and that
his annual salary was "[a]s yet undetermined."
Defendant alleged that the parties were in serious financial
trouble when they separated in 2013, and that plaintiff filed
bankruptcy to discharge her share of the marital obligations. He
stated that his businesses, whatever they may have been, are
2 A-4635-15T1
defunct, and that all his real estate holdings, including the
marital residence titled in both names, were under water.
Since the separation, defendant has contributed little
towards the support of his former wife, who essentially did not
work outside the home during the marriage, or towards the support
of his seven children. Plaintiff's CIS indicated that she and the
children received food stamps monthly and that she earned meager
pay as an intermittent babysitter, and later as a part-time
teacher's aide. In September 2015, defendant paid $5,000 on
account of support arrears, as a result of which the first default
entered against him was set aside. In addition to that $5,000
payment, as a further condition of vacating the default, defendant
was ordered to cooperate with discovery. He did not. It is
possible that he later also paid $1,400 to avoid a utility service
shut-off for the marital home, then occupied by the children and
their mother.
When defendant convinced the trial judge to set aside the
first default in September 2015, contingent upon the $5,000 payment
and compliance with discovery obligations, it was no doubt also
attributable to defendant's submission of a certification
explaining his circumstances as we have described them, and a
letter from a psychiatric nurse who had been treating defendant
since 2004. She opined that he suffered from bipolar disease,
3 A-4635-15T1
controlled to a limited extent by medication. Since defendant
allegedly did not have access to funds with which to pay for
treatment, medical insurance, or daily medication, he had gone
through periods of time while the divorce was pending in which he
was unmedicated. Although it was then probable that defendant was
residing in New York, he claimed he was virtually homeless.
Nowhere did defendant indicate what efforts, if any, he had made
to secure employment, the status of his defunct corporations, or
the status of his three rental units in Trenton.
An unallocated support order of $475 per week was initially
entered in 2014, a period of time in which defendant was
represented and appears to have been participating to some extent
in the divorce proceedings. Defendant was then also ordered to
pay Schedule A shelter expenses and Schedule B transportation
costs, including payments on plaintiff's 2012 Honda.
Defendant never cooperated with discovery, never paid any
expert's fees as ordered, or any counsel fees on plaintiff's
behalf. She filed some sixteen motions in an effort to move the
matter along and enforce the support orders.
In May 2015, defendant's driver's license was suspended and
a bench warrant was issued for his arrest because of his arrears.
A second default entered against him in January 2016. From what
4 A-4635-15T1
we can discern from the record, there has been virtually no contact
between defendant and the children since the parties' separation.
Before the default divorce hearing, a proposed form of order
was forwarded to defendant's counsel. Prompted by his receipt of
the proposed judgment of divorce, the attorney appeared but could
not explain defendant's absence. The judge would not allow
defendant's attorney to cross-examine the plaintiff. The judge
barred cross-examination because of defendant's disregard for his
obligation in the litigation over a period of years.
The divorce judgment requires defendant to pay $7,500 a month
in alimony and $3,000 a month in child support. The judge's
decision was based solely on the 2014 CISs filed by the parties.
Plaintiff was awarded ownership of the marital home and a power
of attorney that would enable her to sign any paperwork necessary
to address the pending mortgage foreclosure. Defendant was awarded
sole ownership of any remaining assets, including his rental units.
The judge granted custody of the children to plaintiff. No
visitation was specified, however, the judgment states
"defendant's parenting-time shall be by agreement between the
parties and in a manner that serves and protects the best interest
of the children."
An amended judgment was filed thereafter, in which the judge
amplified his legal reasoning. At this point, defendant owes well
5 A-4635-15T1
in excess of $30,000 in child support arrears, no doubt increasing
exponentially as the current obligation of $10,500 a month goes
unpaid.
Defendant now raises the following points on appeal:
Point One
The Trial Judge['s] ruling at Final Hearing
barring cross-examination by Defendant's
counsel, resulted in a denial of due process.
[a] The Trial Court erred by
continuing a Bench Warrant for
Defendant's arrest without con-
ducting an ability to pay hearing.
[b] The Court erred by not lifting
the Bench Warrant for Defendant's
arrest so that he could be present
at Final Hearing, and consult with
counsel.
[c] The Trial Court's findings as to
Defendant's financial circumstances
were arbitrary, capricious, and
contrary to the ground truth in this
case; given the foreclosures of
record, abandoned Trenton
properties, and the modest earnings
reflected in tax returns; and
Appellant's long-standing psychi-
atric history.
Point Two
The financial compliance conditions imposed by
the June 8, 2015 Order vacating Default was
entered without taking testimony of the
parties, leading to an onerous and oppressive
result, given Appellant's dire financial
circumstances and lack of resources or income
to comply.
6 A-4635-15T1
Point Three
Appellant's fundamental constitutional
liberty rights to parent the children are
abridged. The seven Friedman children were
not represented by R.5:8A counsel during these
proceedings.
Point Four
The Final Judgment of Divorce based upon
pendente lite Orders entered on competing
certifications is infirm and non-reviewable on
Appeal as there are no findings of fact or
conclusions of law. The present status
severely abridges the rights of seven children
requiring remand.
Based on the record available to us, this family is in dire
straits. Plaintiff, whose principal role during the marriage was
to care for her children, has struggled alone with the
responsibility of feeding and caring for them in a home she knew
was under threat of foreclosure. Her utilities were cut off, or
under threat of being cut off, at various times while the divorce
was pending because she could not pay the bills. She and the
children relied on food stamps to make ends meet.
If defendant is to be believed, his struggles with crippling
mental health issues have cost him his marriage, his relationship
with his children, his home and other assets, and his work.
Assuming for the moment that defendant's certification filed long-
ago was truthful in that he was unemployed because he was
7 A-4635-15T1
unemployable, continuing to accumulate ruinous arrears that by
statute cannot be discharged, is not going to advance anyone's
best interests. Nor is it in the children's best interest to have
no contact with their father.
Nonetheless, this case, like all others, must be addressed
by way of existing precedent. The notice of appeal encompasses
the default judgment of divorce and the amended judgment of
divorce. But it is well established that appeals must be dismissed
when taken against a judgment by default. Haber v. Haber, 253 N.J.
Super. 413, 416 (App. Div. 1992). As we said in Haber:
The reason underlying this rule is that the
very theory and constitution of the court of
appellate jurisdiction is only the correction
of errors which a court below may have
committed, and a court below cannot be have
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.
Ibid.; see also Pressler and Verniero, Current N.J. Court Rules,
comment 4.4 on Rule 4:50-1. ("This rule ordinarily provides the
sole recourse for relief from default judgment; direct appeal does
not lie.")
It is the trial judge, not an appellate panel, who is in the
best position to assess the merits of a defaulted litigant's
contentions. See N.J. Div. of Youth & Family Servs. v. T.R., 331
8 A-4635-15T1
N.J. Super. 360, 364 (App. Div. 2010). Additionally, in fairness
to plaintiff: "[d]efendant's voluntary conduct in absenting
himself from the proceedings should not give him a better advantage
on direct appeal than he would have as a movant under R[ule] 4:50-
1 where he is obligated to prove both excusable neglect and a
meritorious defense." Haber, supra, 253 N.J. Super. at 417.
These rules of law are particularly suited to this case. The
record we have is wholly devoid of information that would enable
us to meaningfully weigh the merits of the final judgment of
divorce. Neither CIS is particularly enlightening, and if
supported by documentation, none was provided to us.
We know nothing regarding defendant's earnings at the time
the judgment was entered, or beforehand for that matter, and
whether $10,500 per month is fair or realistic. We do not know
if the disposition of the assets had any impact on either party,
as the CISs indicated all real estate was under water, and may
have since been foreclosed upon.
Assuming defendant's mental health is an issue, and that he
has not seen his children for several years, there may be a need
for a reunification plan developed with the aid of a counselor or
therapist before contact is resumed. Only a Family Part judge has
the authority and ability to fairly revisit the judgment in this
9 A-4635-15T1
case, if defendant demonstrates some or all aspects of it warrant
reconsideration.
The initiative for filing the appropriate Rule 4:50-1 or
other motion rests with defendant. This appeal is not only
procedurally barred, it is simply a poor substitute for meaningful
resolution in the trial court. Every day that passes is another
day defendant has no contact with the children, plaintiff likely
receives no support, and defendant continues to accumulate non-
dischargeable debt.
Appeal dismissed.
10 A-4635-15T1