A.T.M. v. S.M.

A.T.M.,¹ Plaintiff-Appellant, v. S.M., Defendant-Respondent.

DOCKET NO. A-1370-18T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued October 15, 2020

November 10, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Alvarez and Geiger.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0540-16.

Peter Ventrice argued the cause for appellant (Brause, Brause & Ventrice LLC, attorneys; Peter Ventrice and Pamela L. Brause, on the briefs).

Patricia Garity Smits argued the cause for respondent.

PER CURIAM

Plaintiff A.T.M. appeals from an October 19, 2018 final judgment of divorce (FJOD) granted to defendant-counterclaimant S.M. following a default hearing. We vacate the judgment and remand for further proceedings.

We discern the following facts from the record. The parties were married in Pakistan on September 14, 1991. Defendant worked as a physician in Pakistan until he emigrated to the United States in July 1992. Meanwhile, plaintiff remained in Pakistan but soon moved to live with her parents in England.

In September 1993, the parties had their first child, U.S., who was born in England. In January 1994, plaintiff and U.S. moved to the United States to live with defendant.² Two other children were also born of the marriage.

In July 1993, defendant began his medical career in the United States with an internship and residency in internal medicine at Jersey City Medical Center, which he completed in June 1996. From July 1996 until August 1998, defendant worked for another physician's practice. Following this, he started his own practice in Jersey City and worked as a primary care provider. At that time, plaintiff worked with defendant as a full-time office manager.

Defendant described his marriage as "very difficult . . . right from [the] first month." For instance, he testified about several incidents of domestic violence beginning in November 1999. Defendant filed five domestic violence complaints against plaintiff from June 2003 to September 2012. Plaintiff filed a domestic violence complaint against defendant in 2003. A final restraining order under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, was entered in defendant's favor in March 2012. It was dismissed about six weeks later.

In April 2004, defendant filed for divorce but later voluntarily dismissed the complaint. The parties remained married and entered into an August 12, 2004 consent order, which provided that plaintiff would no longer be involved in defendant's medical practice, defendant would pay plaintiff $5000 per month for personal expenses, and defendant would also pay the mortgage on one of their homes along with certain utility bills. At that point, defendant blocked plaintiff's access to his personal checking accounts and credit cards while also forbidding her from handling any financial transactions at his medical office.

Defendant testified that from 2009 to 2015, plaintiff spent much of her time in Pakistan, putting constant pressure on him because he alone cared for the children. At the same time, the parties were purchasing numerousinvestment properties in the United States and Pakistan. Defendant explained he was "under constant financial demand from [plaintiff] to send more money" for a home construction project she undertook in Pakistan.

On November 12, 2015, plaintiff filed the complaint in this matter. The complaint sought a divorce based on alleged irreconcilable differences, extreme mental and physical cruelty, and adultery. It also alleged a cause of action for intentional infliction of emotion distress that sought compensatory damages, punitive damages, and injunctive relief.

In January 2016, defendant filed an answer and counterclaim for divorce based on irreconcilable differences and extreme cruelty. The counterclaim also included alleged causes for assault and battery and intentional infliction of emotional distress.

A February 19, 2016 consent order resolved certain pendente lite issues, including defendant's agreement to continue paying: (1) plaintiff non-taxable support of $5000 per month; (2) monthly stipends to their three children; (3) the automobile insurance on the three family vehicles; (4) the health insurance premiums for plaintiff and the three children; (5) the automobile loan installments on the three family vehicles; and (6) the mortgage, utilities, association dues, taxes, repairs, and maintenance on the marital home and the other real estate owned by the parties in the United States and Pakistan.Defendant also agreed to be responsible for advancing the retainers for all jointly appointed or court-appointed neutral experts, including real estate appraisers and forensic experts. The order further provided that the marital tort claims pleaded by plaintiff and defendant were dismissed with prejudice. The parties reserved the right to seek counsel fees and deemed the $15,000 advanced by defendant to plaintiff's counsel to be payment of counsel fees without prejudice to subsequent reallocation. All other rights not expressly addressed in the consent order were also reserved.

Ten months later, the parties entered into an October 24, 2016 consent order that resolved all issues of the equitable distribution of all jointly owned real estate except the properties located in Pakistan. Meanwhile, the court entered several case management orders setting discovery deadlines, including dates for the completion of appraisals and expert reports.

In October 2017, the trial court appointed a retired judge as a special master to oversee discovery. The special master found extensive deficiencies in plaintiff's discovery responses.

In early 2018, plaintiff moved back to Pakistan and did not provide her family with an address or contact information. U.S. testified that she was only able to communicate with plaintiff through WhatsApp Messenger service.

A May 7, 2018 pre-trial order set a trial date of September 17 to September 28, 2018 and stated there would be "No Adjournments." The order noted the following issues remained outstanding: spousal support; marital torts; child support and education expenses; equitable distribution of defendant's medical practice and the property in Pakistan; and "[d]issipation of assets (which may include embezzlement, and forgery but not . . . punitive damages)."

On May 31, 2018, plaintiff signed a substitution of attorney allowing counsel to withdraw with plaintiff proceeding pro se. Although plaintiff now claims she did not do so voluntarily because of the medication she was taking, plaintiff did not move to set aside the substitution of attorney.

On June 26, 2018, plaintiff wrote to the court from Pakistan requesting an adjournment of her upcoming trial until November. Plaintiff stated she was representing herself, had fallen ill, was on bed rest, and "may have to undergo surgery and certain post-operative treatment as well." She also stated that her physician "advised [her] against travelling for at least [thirty] days" but noted she had been released from the hospital. Plaintiff indicated she did not want to disclose the nature of her illness. She promised to "keep the court updated of [her] medical condition" but did not do so.

The letter further indicated that plaintiff was forced to intervene in litigation filed by defendant's brother against defendant in Pakistan, which she claimed was frivolous and based on false allegations. Plaintiff alleged that "[d]efendant and his brother [were] conspiring to deprive [her] of [her] share of [their] marital [p]roperty in Pakistan." She claimed defendant did not oppose "his brother's false claims in Pakistan because his intent [was] to avoid paying [her her] share of the Pakistan [p]roperty." Plaintiff also claimed defendant filed a fraudulent deed in Pakistan. Plaintiff later informed the court that she would be arrested if she left Pakistan.

In response to plaintiff's letter, the court conducted a case management conference in the presence of defense counsel and defendant but without plaintiff being present. Defendant objected to plaintiff's counsel withdrawing from the case without obtaining the court's permission and questioned whether plaintiff's decision to allow her counsel to withdraw was voluntary considering her illness and the fact that she was in Pakistan. The court was unable to reach plaintiff by telephone. The court nevertheless issued a July 6, 2018 case management order requiring plaintiff to provide documentation verifying her medical condition to the court by July 20, 2018. Plaintiff was directed to provide a physician's report concerning her present condition, including her present diagnosis, prognosis, dates of treatment, dates of hospitalization, anyrestrictions on travel, and any restrictions on participating in the legal process including trial. The order further directed plaintiff to immediately call the judge's chambers. The court emailed the order to plaintiff. Plaintiff did not make further direct contact with the court until over two months later.

On September 19, 2018, the first day of trial, the court commented that this was a "contentious," and "very problematic case" involving frequent motion practice, the appointment of a discovery master, and properties and lawsuits in Pakistan, including a divorce action.

At the start of the trial, the court noted that plaintiff was absent from the courtroom and had not complied with its July 6, 2018 order. Accordingly, it entered default against plaintiff for failure to prosecute her action. The following day, plaintiff contacted the court by phone and explained the reason for her absence. She stated that "the judge in Pakistan told [her she]...