Award of Sole Custody, Equitable Distribution, Debt Allocation, Child Support, and Counsel Fee Award From a Default Hearing
Docket No. A-4423-18T3
Decided October 8, 2020
Submitted by New Jersey Family Law Firm, Hark and Hark.
In a recent unpublished decision the Appellate Division reviewed a trial court’s award of sole custody, equitable distribution, debt allocation, child support, and counsel fee award from a default hearing against the defendant.
In K.M.L., plaintiff obtained a Temporary Restraining Order (TRO) against defendant which was dismissed on two occasions for civil restraints, and on the third application, defendant consented to turn the TRO into a Final Restraining Order (FRO). Thereafter, plaintiff filed for divorce. Defendant did not file an answer and default was entered against him. Default was vacated and defendant entered an appearance.
After defendant failed to cooperate in a Custody Neutral Evaluation (CNA) ordered the previous year, the Court required defendant to hire an expert on custody within 30 days. Defendant had also failed to complete an ordered psychological evaluation. The defendant was also served with requests for admission propounded by plaintiff directing him to respond within 30 days or they would be admitted.
After several years of contentious litigation, a trial adjournment, a Division of Child Permanency and Placement (DCPP) investigation, trial was scheduled one last time absent exceptional circumstances. Defendant arrived two hours late, and the Court dismissed defendant’s pleadings and permitted plaintiff to file a default. At the default hearing defendant was permitted to cross examine the plaintiff and also managed to insult the Trial Judge and plaintiff’s attorney. The Court, in a 63 page opinion, entered sole custody, set child support, and awarded counsel fees payable by defendant to plaintiff.
Defendant appealed. The Appellate Division found no abuse of discretion on a part of the Trial Court. Defendant’s arguments that the default should have been vacated were meritless because of the years of litigation, several adjournments, and constant warnings to defendant that his continued failure to abide by court orders would result in a dismissal of his pleadings. Further, defendant’s actions and the FRO gave the Trial Court appropriate avenue to grant plaintiff sole custody after analyzing the factors. The Appellate Division remanded on the award of $23,000 in attorney fees to plaintiff because the Trial Court did not analyze all appropriate factors.
This case is important to understand the discretion Trial Courts have for final determinations. Unless you challenge a trial court’s application of the law, a family judge can make factual determinations, credibility determinations, and decisions regarding custody, child support, and even attorney’s fees so long as they analyze the appropriate legal tests with the facts provided. If a party wants to challenge a trial court’s decision on this basis, the challenger must demonstrate that the judge abused his or her discretion – a standard that is very difficult to overcome. Therefore, it is important to hire an experienced family attorney early at the trial level to ensure your rights and interests are protected.
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