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(NOTE: The status of this decision is unpublished.)


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6879-03T16879-03T1

BARBARA CATARELLA,

Plaintiff-Appellant,

v.

JAMES CATARELLA,

Defendant-Respondent.

_________________________________________________


Argued October 11, 2005 - Decided

Before Judges C.S. Fisher and Yannotti.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-18138-86.

Robert J. Pompliano argued the cause for appellant.

Patricia B. Demeter argued the cause for respondent (Bielan, Saminski & Associates, attorneys; Jonathan D. Gordon, on the brief).

PER CURIAM

In this appeal, we consider the significance of a supported spouse's failure to oppose a Lepis motion, which resulted in a termination of alimony, followed -- and compounded -- by her failure to seek relief from that order for nearly one year. We conclude that the trial judge correctly found the supported spouse's motion to be unreasonably tardy, and properly denied retroactive relief. But we also conclude that, in denying prospective relief, the judge's decision produced an inequitable result and, therefore, causes us, in this unusual case, to reverse in part.

The parties were married in 1968 and divorced in 1987. The judgment of divorce, as presently relevant, required that defendant James Catarella pay plaintiff Barbara Catarella $100 per week in permanent alimony, provided plaintiff with the right to one-sixth of the monthly pension payments due defendant upon his retirement, and obligated defendant to maintain a $40,000 life insurance policy for plaintiff's benefit.

Many years ago, cross-motions produced an order that, among other things, re-characterized plaintiff's right to share in defendant's pension, which had not then gone into pay status, as "non-taxable alimony which shall be in addition to alimony previously awarded." The reason for this provision's inclusion in the July 22, 1988 order is elusive. And, since neither party has provided copies of those motion papers or a transcript of the judge's decision, apparently now lost through the passage of time, we are unable to assess the order's purpose or validity. That ruling has a significant bearing on the present matter. But for that order, plaintiff's interest in defendant's pension represented a portion of the property equitably distributed to her when they divorced. If viewed as an aspect of equitable distribution, those pension payments could not be reduced or eliminated upon a change in circumstances. Mahoney v. Mahoney, 91 N.J. 488, 498 (1982). However, the July 22, 1988 order, by transforming that interest into alimony, rendered plaintiff's interest in defendant's pension vulnerable to a later Lepis motion.

Nearly fifteen years later, this July 22, 1988 advisory determination finally generated actual consequences. On April 8, 2003, defendant moved for an order terminating alimony and discharging his life insurance obligation. Defendant predominantly argued that circumstances had changed because he had retired, even though his eventual retirement was undoubtedly foreseen, or was at least foreseeable, at the time of the divorce. In that motion, defendant also sought the trial court's "evaluat[ion] [of] whether it continues to be equitable for [plaintiff] to receive any of [his] pension benefits as alimony pursuant to the [July 22,] 1988 order."

Plaintiff did not respond to defendant's Lepis motion. As a result, an order was entered on May 9, 2003 that terminated alimony, ostensibly ended plaintiff's right to monthly pension payments, and vacated defendant's life insurance obligation. Plaintiff later acknowledged that she had timely received a copy of defendant's motion, and explained that she brought the papers to her attorney at the time and gave him a $1,250 retainer. But plaintiff claims she was "stunned and shocked" upon receiving the May 9, 2003 order soon after its entry, causing her to attempt to communicate with her attorney and seek his advice. Plaintiff described that her attorney

deliberately avoided contact with me for months until some time in October of 2003 when we had a meeting, at which time he indicated that he had requested an adjournment of the matter and that he thought it was adjourned but apparently he had made a mistake and he would rectify it. He assured me every time he would cancel our meeting, that he would "take care of this."

More months went by and finally in late February of 2004 I insisted on going to his office and he indicated that he made a mistake and he returned my retainer and apologized.

Thereafter, it took me approximately four weeks to secure the services of another attorney, who is my present attorney. . . .

Additional time was expended while plaintiff's new attorney gathered documents or other information necessary for filing a motion to vacate the May 9, 2003 order. This motion to vacate was filed on May 7, 2004.

On June 29, 2004, in a brief written decision, the trial judge invoked R. 4:50-2, labeled as unreasonable plaintiff's delay, and relegated plaintiff's claim for relief to another forum, stating: "[p]laintiff's remedy, if any, is against her former attorney and not against her former husband." As a result, the judge did not consider plaintiff's argument that circumstances had not changed and that her rights should never have been terminated. Plaintiff appealed and we now reverse in part.

R. 4:50-1 is grounded upon and its implementation guided by equitable principles, Hodgson v. Applegate, 31 N.J. 29, 37 (1959); Shammas v. Shammas, 9 N.J. 321, 328 (1952), affording courts with the opportunity to undo the results of the valid uses of its procedures if an undisturbed status quo results in injustice. This font of equitable power has proven particularly bountiful when addressing orders emanating from default. Our courts have repeatedly held, as said in the widely-cited Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964), that motions to vacate orders produced by a party's default should be "viewed with great liberality, and every reasonable ground for indulgence [should be] tolerated to the end that a just result is reached." Accord Housing Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994); Mancini v. EDS, 132 N.J. 330, 334 (1993); Regional Constr. Corp. v. Ray, 364 N.J. Super. 534, 540-41 (App. Div. 2003); Jameson v. Great Atlantic, 363 N.J. Super. 419, 430 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004); Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 99 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999).

The conduits emanating from this reservoir, however, become increasingly occluded the longer a movant delays in seeking its benefits. R. 4:50-2 directs that a motion not made within "a reasonable time," and, in some instances, when not made within one year of the order's entry, will be barred. Here, plaintiff moved for relief, pursuant to R. 4:50-1(a), a few days short of the May 9, 2003 order's first anniversary. Thus, her motion was brought within R. 4:50-2's one-year outermost time limit. But a motion may be found time-barred even if filed within one year if the movant's delay is nevertheless "unreasonable." In other words, to be timely, a motion based on subsections (a), (b), or (c) of R. 4:50-1 must be filed within "a reasonable time" and no later than one year from the order's entry. Sonderman v. Remington Const. Co., Inc., 127 N.J. 96, 106 (1992).

Considering the circumstances, even when resolving all doubts in favor of plaintiff, Mancini, supra, 132 N.J. at 334, we find no abuse of discretion in the judge's finding that plaintiff's delay was unreasonable even though it endured for less than one year. Since it was conceded that plaintiff was conscious of the May 9, 2003 order soon after it was entered, and yet did not forthwith move for relief but instead, for a considerable period of time, acceded to her attorney's apparent indifference -- while the flow of alimony remained obstructed and the pension payments blocked -- provides more than ample evidence of an unreasonable delay. In her own words, plaintiff tolerated the attorney's avoidance of her until October 2003, approximately five months after the entry of the May 9, 2003 order. The attorney advised that he would rectify matters, but, as plaintiff recognizes, he took no action for another four months. In February 2004, plaintiff finally rescued her retainer and sought out her current attorney. By this time, plaintiff's delay could already be deemed unreasonable. Things, however, were not improved by plaintiff's failure, for another month, to find an attorney, or when another two more months passed before the motion to vacate was filed. Accepting, for present purposes only, the truth of plaintiff's assertions, no justifiable reason was presented for her failure to meet R. 4:50-2's time requirements, and the trial judge correctly so held.

Notwithstanding plaintiff's unreasonable delay, we conclude that the judge's denial of all aspects of plaintiff's motion represented an inequitable response. Unlike more routine applications of R. 4:50-2 that occur in our civil courts, the order in question vacated a permanent alimony order -- the type of order that is expected to have a greater duration than most others and also intended to replicate an otherwise irretrievable loss of income caused by divorce. When defendant filed his motion to terminate alimony, the support order had been in force for sixteen years. Considering the parties' current ages (he is 60; she is 59), this alimony order could have been reasonably expected to endure much longer. Yet, because of plaintiff's failure to response to defendant's motion or to timely address its consequences, it has been determined that plaintiff forever lost the right to present and future alimony and forever lost the right to her fair share of defendant's pension. Mindful of this particular context, we find the judge's holding to be unnecessarily broad. In determining that the May 9, 2003 order must remain forever inviolate, the judge mistakenly provided defendant with a remedy incommensurate with what the circumstances should have permitted.

The policies and equitable principles that formed R. 4:50 require, in circumstances such as this, a limitation on the effect of a movant's unreasonable delay. Certainly the policy in favor of the finality of adjudications plays a role in determining the extent to which R. 4:50-2's time-bar should apply. See In re Estate of Arlinghaus, 158 N.J. Super. 139, 146 (App. Div. 1978). This policy, however, is not absolute. As Justice Proctor stated in Hodgson, that interest "must be weighed in the balance with the equally salutary principle that justice should be done in every case." 31 N.J. at 43.

Expectations of finality in support orders are delusive. As the Court said in Lepis, "[t]he frequency with which courts are called upon to make or modify support awards needs no documentation." 83 N.J. at 149. In the twenty-five years since Lepis, this observed frequency has only increased, perhaps exponentially. Since no party to a permanent alimony order may rightfully lay claim to a realistic expectation in its finality, the ruling at hand -- exalting over all else the finality of the May 9, 2003 termination order -- dissonantly overpowered R. 4:50's true goals. Accordingly, we hold that even when there has been an unreasonable delay, R. 4:50-2 need not always be mechanically applied to deny all relief, but instead may be judiciously administered when the exercise of discretion in an appropriate case so suggests. In such circumstances a less drastic remedy may be tailored to achieve a just result. The matter at hand is an example of how, to paraphrase Justice Jackson, R. 4:50-2's consequences should have been "tempered . . . with a little practical wisdom." Termeniello v. Chicago, 337 U.S. 1, 37, 69 S. Ct. 894, 911, 93 L. Ed. 1131, 1151 (1949) (dissenting opinion).

In this regard, we observe that as R. 4:50-1 has its roots in equitable principles, the time-bar set forth in R. 4:50-2 has a logical kinship with the equitable doctrine of laches. See Garza v. Paone, 44 N.J. Super. 553, 557-59 (App. Div. 1957). Laches authorizes the barring of a claim when there has been a delay in its assertion "for a length of time which, unexplained and unexcused, is unreasonable under the circumstances and has been prejudicial to the other party." West Jersey Title & Guar. Co. v. Industrial Trust Co., 27 N.J. 144, 153 (1958). While we do not mean to suggest that the prejudice component of laches is an element to be considered in all applications of R. 4:50-2, it may provide a valuable guide in uncertain cases. See, e.g., Farrell v. TCI of Northern N.J., 378 N.J. Super. 341, 354 (App. Div. 2005) ("Our decisions suggest a rule of liberality in interpreting motions to vacate in situations like this, especially when . . . there is no actual prejudice demonstrated by the defense."). Other than the loss of a windfall generated by plaintiff's failure to oppose the motion to terminate alimony and her failure to move pursuant to R. 4:50 with greater alacrity, defendant will suffer no cognizable prejudice by the future consideration of the merits of his Lepis motion and plaintiff's response to it. Despite the expansive result that might seem required by R. 4:50-2's wording, it is a fallacy to assume that there might not be situations that warrant a less draconian application of the time-bar. In so holding, we do not ignore the plain meaning of the rule's language, but rather embrace its intent -- and honor its equitable roots.

In assessing the extent to which the R. 4:50-2 time-bar should apply, and in considering the availability of a more flexible remedy that will aptly serve the rule's purposes, it is helpful to recognize the retroactive and prospective components of the trial judge's ruling. We find no fault in the judge's determination to the extent it barred any retroactive relief. That is, we agree that even if there is merit to plaintiff's position that alimony, pension benefits, and the life insurance obligation should not have been terminated, it would be inequitable to provide a remedy to plaintiff for the period of her unreasonable delay from May 9, 2003 (the date the trial judge terminated alimony) to May 7, 2004 (the date plaintiff finally moved for relief from that order). In barring plaintiff from such relief, defendant will justifiably retain that which he acquired during -- and was proximately caused by -- plaintiff's inactivity. However, we can discern no equitable purpose to be served by foreclosing a consideration of the merits insofar as plaintiff sought the prospective restoration, in whole or in part, of the rights that were terminated by the May 9, 2003 order.

Accordingly, we affirm that part of the June 29, 2004 order that barred plaintiff's motion for retroactive relief from the order of May 9, 2003, which terminated defendant's alimony, pension and insurance rights, but we reverse that part of the June 29, 2004 order that denied consideration of plaintiff's motion for relief from the May 9, 2003 order insofar as she sought prospective relief. Since the trial judge only previously considered whether plaintiff's motion was time-barred, we direct the judge on remand to consider the merits of plaintiff's application and whether, or to what extent, there should be a restoration of plaintiff's rights. If the judge determines to restore all or part of what was terminated on May 9, 2003, the judge should also determine the date to which that restoration should be made effective, so long as the effective date chosen is no earlier than May 7, 2004. We lastly emphasize that, in so ruling, we have neither expressed nor intimated a view about the merits of the parties' arguments regarding the presence or absence of changed circumstances that would warrant any of the relief sought or opposed.

We affirm in part, reverse in part, and remand for further proceedings in conformity with this opinion. We do not retain jurisdiction.


Lepis v. Lepis, 83 N.J. 139 (1980).

The order states only that alimony was terminated but it has apparently been assumed, because of the July 22, 1988 order, that plaintiff's right to a portion of defendant's pension was also then abrogated.

R. 4:50-2 states: "The motion shall be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken."

The nearly identical Federal Rule of Civil Procedure 60 has been so interpreted. See, e.g., Bank of Calif., N.A. v. Arthur Andersen & Co., 709 F.2d 1174, 1176 (7th Cir. 1983); Mayfair Extension, Inc. v. Magee, 241 F.2d 453, 454 (D.C. Cir. 1957).

We hasten to observe that we are in no position to opine about the truth of the claim that plaintiff's former attorney was negligent or that the May 9, 2003 order was proximately caused by this alleged negligence. We only conclude that, in this context, absent valid fact-finding based upon the weighing of evidence adduced at a plenary hearing on that subject, the judge should have assumed the truth of plaintiff's allegations. See Mancini, supra, 132 N.J. at 334 ("[D]oubt should be resolved in favor of the party seeking relief.").

We, of course, only assume for purposes of this appeal, that the changed circumstances alleged by defendant did not warrant a termination of support, in whole or in part.

(continued)

(continued)

14

A-6879-03T1

November 7, 2005




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