SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

- 2745

- 18T3

TRACEY LOCKWOOD,

Plaintiff

- Respondent,

v.

FRANK N. LOCKWOOD, II

,

Defendant

- Appellant.

______________________________

Argued telephonically May 18, 2020

–

Decided June 18, 2020

Before Judges Ostrer and Susswein.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Burlington County,

Do cket No. FM

- 03

- 0606

- 18.

Mark J. M olz argued the cause for appellant.

Mark Steven Guralnick argued the cause for

respondent.

PER CURIAM NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall no t "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

- 2745

- 18T3

Defendant Frank Lockwood appeals from the trial court's January 11,

2019 order denying his motion to vacate certain portions of the April 19, 2018

final judgment of divorce (FJD) entered against him by default. We affirm.

Plaintiff filed for divorce after over eighteen years of marriage. The

parties have two children. One was then an unemancipated daughter in high

s chool; the second, an emancipated daughter in her early twenties. Defendant

was duly served and did not answer. Eventually, he was served with a notice of

a proposed final judgment seeking an award of alimony and child support, and

an order equitably dis tributing the parties' assets and debts. Defendant appeared

pro se at the default hearing.

Plaintiff described her dire financial straits, which were exacerbated by

two circumstances. First, plaintiff is unable to work as a result of injuries from

an ac cident . Since 2008, plaintiff has relied on : Soc ial Security Disability

income that left her with $824 in disposable monthly income for herself; $369

in Social Security Disability for her daughter; and assorted other governmental

assistance programs.

Se cond, defendant's support ceased following his incarceration.

Defendant was arrested in November 2011 and later convicted of an offense

.

Previously, he had earned $22 an hour as a truck driver with a commercial3 A

- 2745

- 18T3

driver's license. After defendant's r eleas e, plaintiff obtained an order in

November 2015 for $100 a week in spousal support and $ 1 6 a week in child

support; the court imputed $400 a week income to defendant.

At the default hearing, defendant declined to cross

- examine plaintiff,

although he st ated he did not agree with the entirety of her testimony. In

response to plaintiff's counsel's questioning, he stated he earned only $10 an

hour until he suffered a disabling arm injury; and he was then receiving workers '

compensation payments.

Plainti ff's counsel asked the court to award $200 a week in spousal

support, based on imputing defendant's pre

- incarceration wage, noting that his

reduced earning capacity resulted from his own criminal behavior. Counsel also

asked the court to equitably distrib ute to her the home she purchased in 2012 for

$200,000

. To buy the home, she used some of a $380,000 settlement she

obtained in December 2011 for a personal injury she sustained at a McDonald's

restaurant in 2008 . She stated she used the remainder for le gal fees for

defendant, until she became convinced of his guilt; and for living expenses and

a new vehicle. She also asked the court to require defendant to pay half of a

$5000 loan the parties took out against the previous marital home, and half of4 A

- 2745

- 18T3

any o utstanding tax liabilities; and to pay all of a $69 violation he incurred

during the marriage.

The court imputed $20 an hour to defendant and awarded plaintiff $150 a

week in alimony for fifteen years (although the FJD mistakenly provided only

for seven years of alimony). The court calculated child support of $143 based

on the Child Support Guidelines, although the separate child support order

prepared two months after the FJD did not include the parties' respective

incomes upon which it was based, nor does the record before us include the

worksheet. The court ordered plaintiff to continue to maintain the minor child's

health insurance, and required the parties to split unreimbursed medical

expenses over $250 in accordance with the guidelines.

The co urt equitably distributed the house purchased with the personal

injury settlement proceeds. As requested, the court divided the $5000

outstanding home loan and tax debt, and order ed defendant to pay his $69

violation (although the FJD omitted this as well)

.

Defendant did not file a timely appeal from the judgment. Instead, seven

months after entry of the FJD, he filed a counseled motion for relief from the

judgment. Defendant did not state in his notice of motion the specific grounds5 A

- 2745

- 18T3

upon which he soug ht relief. 1 However, in his supporting certification,

defendant focused on his excusable neglect in answering the complaint, which

indicated that he was relying on Rule 4:50

- 1(a), which provides for relief from

judgments in cases of excusable neglect.

D efendant asserted that his neglect was excusable because he could not

afford a lawyer, and he believed that the uncontested divorce did not involve

alimony, child support, or equitable distribution of the house. He also contended

he had a meritorious defe nse. Regarding the issue of alimony and child support,

he asserted the court erred in imputing $20 an hour to him, as he earned only

$10 an hour since his release from prison in August 2015. As a result of an

October 2017 injury, he was receiving $560 bi weekly in workers' compensation

benefits on the date of the default hearing. He attached a copy of his 2017 tax

return that reflected gross annual income of just under $14,000. 2 He also

suggested that the child support calculation did not adequately acco unt for their

1 It is unclear whether defendant filed a brief that identified the grounds for

relief, as none is referenced in the notice of motion. But see R. 4:50

- 1 (re quiring

a supporting brief).

2 However, he failed to provide an appropriate foundation for the document.

See R. 1:6

- 6; Pressler & Verniero, Current N.J. Court Rules , comment on R.

1:6

- 6 (2020) (stating that "documents must be incorporated by reference in an

appropriate affidavit or certification, which properly authenticates material

which is otherwise admissible").6 A

- 2745

- 18T3

daughter's Social Security Disability income. Regarding equitable distributi on,

defendant argued that th e $380,000 personal injury settlement was subject to

equitable distribution.

Plaintiff cross

- moved for the court to correct the FJD to a ccurately reflect

the court's oral decision regarding the duration of alimony, and the disposition

of the parties' debts, and the violation.

The court denied defendant's request for relief on the papers , and ordered

correction of the FJD as plaintiff requ ested. The court held defendant's failure

to obtain cou nsel was not excusable neglect. The court also noted that defendant

was afforded an opportunity to participate in the default hearing, and he failed

to seek reconsideration or file an appeal after en try of the FJD. With respect to

defendant's asserted defenses, the court held that defendant had not shown

exceptional circumstances, or demonstrated that "it would be unfair or

inequitable to enforce" the judgment. The court noted that the court imputed

income based on the "unchallenged evidence" plaintiff presented regarding

defendant's past income.

On appeal, defendant contends the trial court abused its discretion, in

declining to correct the alleged errors in the original FJD: the court imputed too

much income to defendant; erred in awarding all marital assets to plaintiff; and7 A

- 2745

- 18T3

failed to consider equitable distribution in calculating alimony. Defendant relies

on both subsection (a), providing for relief from a judgment for excusable

neglect, and sub section (f), for "any other reason justifying relief."

We review the trial court's decision for an abuse of discretion. Mancini

v. EDS , 132 N.J. 330, 334 (1993). A motion to vacate default judgment pursuant

to Rule 4:50

- 1 implicates two often competin g goals: the desire to resolve

disputes on the merits, and the need to efficiently resolve cases and provide

finality and stability to judgments. "The rule is designed to reconcile the strong

interests in finality of judgments and judicial efficiency with the equitable

notion that courts should have authority to avoid an unjust result in any given

case." Manning Eng'g Inc. v. Hudson County Park Comm'n , 74 N.J. 113, 120

(1977). The rule establishes six alternative grounds for relief from a final

judgment, whether obtained by default or after a trial on the merits. 3 We focus

3 The six grounds are: "(a) mistake, inadvertence, surprise, or excusable neglect;

(b) newly discovered evidence which would probably alte r the judgment or order

and which by due diligence could not have been discovered in time to move for

a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic

or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the

judgment or order is void; (e) the judgment or order has been satisfied, released

or discharged, or a prior judgment or order upon which it is based has been

reversed or otherwise vacated, or it is no longer equitable that the judgment or

order sho uld have prospective application; or (f) any other reason justifying

relief from the operation of the judgment or order." R. 4:50

- 1.8 A

- 2745

- 18T3

on defendant's claim of excusable neglect under Rule 4:50

- 1(a), and his claim

of "any other reason justifying relief," under Rule 4:50

- 1(f).

Regarding the first, it is well

- settled that a defendant claiming excusable

neglect must also demonstrate that he or she has a meritorious defense, as it

would make little sense to reopen a default judgment if the ultimate result will

be the same. See US Bank Nat'l Ass'n v. Guillaume , 209 N.J. 449, 469 (2012).

A meritorious defense need be more than a bald denial, but less than a showing

of likelihood of prevailing on the merits. 10 James W. Moore, Moore's Federal

Practice

- Civil ¶¶ 55.70[2][d], 55.70[3] (2020) (interpreting federal rule).

A gainst that test, we acknowledge that defendant has presented a

meritorious defense, without deciding whether it would ultimately be a

successful one. As for imputed income, defendant has raised a plausible defense

that it was unreasonable to impute $20 a n hour, as he had not reached that level

since his incarceration, several years before the default hearing. Although

plaintiff's counsel argued that defendant's reduced earning capacity resulted

from his own voluntary, criminal conduct, we have eschewed a bright line test

in such circumstances. Kuron v. Hamilton

, 331 N.J. Super. 561, 570

- 72 (App.

Div. 2000). On the other hand, defendant has not presented any evidence

regarding his efforts to obtain a job utilizing his CDL, or any evidence that his9 A

- 2745

- 18T3

crimin al record actually impeded his ability to earn more than minimum wage. 4

Also, it is unclear whether the trial court considered its equitable distribution

decision in calculating alimony, as the court did not expressly review the

alimony factors under N.J. S.A. 2A:34

- 23(b), including

- 23(b)(10), pertaining to

the equitable distribution of property.

Regarding the court's distribution of th e entirety of the house she

purchased with her personal injury settlement, we acknowledge that the court

did not perfor m the analysis required by Landwehr v. Landwehr

, 111 N.J. 491,

493 (1988). The Landwehr Court held that the portion of a personal injury

settlement intended to compensate lost earnings and medical expenses is subject

to equitable distribution, but the por tion intended to compensate for pain,

suffering, and physical disability is not. Ibid.

Even if we presume for argument's sake that defendant has presented a

meritorious defense, he has failed to establish excusable neglect. Excusable

neglect refers to a default that is " ' attributable to an honest mistake that is

compatible with due diligence or reasonable prudence. ' " Guillaume

, 209 N.J. at

4 Defendant is free to file a motion to modify the calculation of alimony and

child support based on a change of circumst ance

– that he has been unable to

achieve the imputed income, despite diligent efforts. However, that would not

attack the correctness of the underlying judgment. We express no views as to

the ultimate merits of such a motion.10 A

- 2745

- 18T3

468 (quoting Mancini

, 132 N.J. at 335 )

. His claim that he did not understand

the nature of the default hearing i s belied by his acknowledgement at the hearing

that he received the Notice of Proposed Final Judgment, which we presume set

forth plaintiff's request for entry of a final judgment that addressed alimony,

child support, and equitable distribution. To the e xtent defendant asserts that

the notice was deficient, we shall not reach the issue, as he failed to include the

notice in the record on appeal

. See State v. Cordero

, 438 N.J. Super. 472, 489

(App. Div. 2014) (denying consideration of an issue when "defen dant has failed

to provide us with an adequate record to review a decision on the merits").

Defendant's alternative basis for excusable neglect

– his inability to hire

a lawyer

– also must fail. Defendant admitted at the default hearing that he was

serv ed with the summons and complaint. He could have filed an answer pro se.

Defendant presents no explanation for his failure to do so. Cf. Tradesmens Nat'l

Bank & Trust Co. v. Cummings , 38 N.J. Super. 1, 4 (App. Div. 1955) ( affirming

finding of excusable neglect where defendant's "mental upset" over wife's death

and son's illness led him to ignore complaint)

.

Nor can de fendant succeed by resort to subsection (f). The subsection

provides relief "only when truly exceptional circumstances are present and on ly

when the court is presented with a reason not included among any of the reasons11 A

- 2745

- 18T3

subject to" Rule 4:50

- 1(a), (b) or (c). Baumann v. Marinaro , 95 N.J. 380, 395

(1984). Just as inability to afford a lawyer does not satisfy excusable neglect

under subsect ion (a), it does not satisfy exceptional circumstances under

subsection (f). As we stated in In re Estate of Schifftner , 385 N.J. Super. 37, 44

(App. D i v. 2006):

[I] ndigence is not, in these circumstances, an

"extraordinary" reason justifying relief. I t is an

unfortunate fact that many litigants are unwilling to

obtain, or unable to afford, representation.

Nevertheless, our Rules specifically permit the real

party in interest to appear in any court. R. 2:21

- 1(a).

. . . Since pro se litigants are affo rded the opportunity

to be heard, we cannot conclude that indigence alone is

so extraordinary as to justify the invocation of R. 4:50

-

1.

Finally, a mere claim of trial court error cannot suffice as a basis for

extraordinary relief under subsection (f). Hodgson v. Applegate

, 31 N.J. 29, 40

(1959) (stating "[w]e have no doubt that trial errors can never in themselves

justify relief under subsection (f)")

. Thus, defendant's claim that the trial court

at the default hearing committed error

– in imputing his income, and denying

him any interest in plaintiff's personal injury recovery

– cannot support relief

under subsection (f). Were it otherwise, then relief under subsection (f) would

provide an opportunity, unlimited by time, to seek review of a trial cour t error

,

thereby undermining the strict time limits for appeals. Id. at 37, 41; see also12 A

- 2745

- 18T3

Schifftner

, 385 N.J. Super. at 43 (declining to grant subsection (f) relief, noting

that "[o]rdinarily,

. . . R. 4:50

- 1 may not be used as a substitute for appeal");

Wausau Ins. Co. v. Prudential Prop. & Cas. Ins. Co.

, 312 N.J. Super. 516, 519

(App. Div. 1998) (stating, with regard to the "mistake" ground for relief under

subsection (a), which must be raised within one year of judgment, under Rule

4:50

- 2, "[t]he rule m ay not be used to convert a 'trial error' from which an appeal

must be taken within 45 days into a 'mistake' which may be corrected within one

year" (quoting Di Pietro v. Di Pietro

, 193 N.J. Super. 533, 539 (App. Div.

1984) ) )

. 5

In sum, we discern no abuse of discretion in the trial court's denial of relief

under Rule 4:50

- 1(a), or (f).

Affirmed.

5 We recognize that the Co urt declined to "de cide whether, in other cases,

counsel's failure to seek appropriate appellate remedies would be a proper

"reason" for which relief under subdivision (f) might be granted by the trial

court." Hodgson

, 31 N.J. at 41. However, we need not address the issue, as

defendant did not expressly raise it.