RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3384-17T2

PATRICK O'NEILL,

Plaintiff-Appellant,

v.

THERESA O'NEILL,

Defendant-Respondent.

_______________________________

Submitted February 6, 2019 - Decided March 22, 2019

Before Judges Accurso and Moynihan.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Warren County, 

Docket No. FM-21-0311-16.

Celli, Schlossberg, De Meo & Giusti, PC, attorneys for 

appellant (Alfonse A. De Meo, on the briefs).

Margolin & Neuner, attorneys for respondent (Mona F. 

Ressaissi, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Plaintiff Patrick J. O'Neill appeals from a post-judgment order entered on 

March 2, 2018. Because the record is clear plaintiff was not afforded the full 

period provided by R. 5:5-4(c) in which to respond to the motion, we reverse.

Defendant Theresa O'Neill, through counsel, filed a post-trial motion to 

enforce terms of the parties' 2017 marital settlement agreement. The 24-day 

motion was filed and served on counsel for plaintiff on Thursday, February 8, 

2018, returnable on Friday, March 2. The Family Division, apparently failing 

to realize the motion was filed too late for the March 2 return date, see R. 5:5-

4(c), calendared the motion for March 2.

Counsel for plaintiff wrote to the court on February 23, with the consent 

of defendant's counsel, requesting an adjournment of the motion "one cycle" to 

permit the filing of a response. The court wrote to both counsel the same day 

denying the adjournment, "[d]ue to the untimely nature of the request . . . 

submitted long after responsive papers were due." The court advised the motion 

would "be decided on the papers as unopposed on the presently scheduled return 

date of March 2, 2018." Plaintiff's counsel wrote again to the court that same 

afternoon requesting reconsideration in light of defendant's failure to file her 

motion by February 6 in order to secure a March 2 return date in accordance 

with the Rules. The court denied the request and entered the "unopposed" order 
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on March 2, granting all the relief requested on the motion, including a counsel 

fee award.

Following the denial of his adjournment request, plaintiff's counsel filed 

a "cross-motion" on March 2, returnable March 16, seeking the denial of 

defendant's motion and affirmative relief relating to defendant's alleged failure 

to comply with the terms of the marital settlement agreement. Plaintiff's motion 

papers were returned to him unfiled as "out of time." Plaintiff thereafter filed a 

new motion seeking essentially the same relief, to which defendant filed 

opposition and a cross-motion.

By that time, however, plaintiff's request for a stay of the March 2 order 

had been denied, and he had filed a notice of appeal with this court. The trial 

court, determining it was without jurisdiction to hear the pending motions in 

light of the appeal, rejected both motions and returned them to the parties.

Thereafter, the Appellate Division clerk's office undertook a finality 

review of the case as "it appear[ed] that further proceedings [were] scheduled in

the trial court," and thus the March 2 order might be an interlocutory order for 

which leave to appeal would be required. See R. 2:2-4; R. 2:5-6(a). Plaintiff's 

counsel responded to the inquiry from our clerk's office explaining that nothing 

further was pending in the trial court as it considered itself divested of 
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jurisdiction by the appeal. Defendant thereafter filed a motion to dismiss the 

appeal as interlocutory, which we denied. The parties thereafter filed their 

merits briefs, and the matter was placed on our February 6, 2019 waiver 

calendar.

We think it apparent from our rendition of this history that the March 2, 

2018 order cannot stand. Defendant concedes, as she must, that she filed her 

motion too late for a March 2 return date. Although we have no doubt the trial 

court possessed the power to shorten plaintiff's response time for good reason, 

see Enourato v. N.J. Bldg. Auth., 182 N.J. Super. 58, 64-66 (App. Div. 1981), 

aff’d, 90 N.J. 396 (1982), no such reason appears on this record.

As we noted over thirty years ago, "[i]t is a mistaken exercise of judgment 

to close the courtroom doors to a litigant whose opposition papers are late but 

are in the court's hands before the return day for a motion which determines the 

meritorious outcome of a consequential lawsuit. 'Swift justice demands more 

than just swiftness.'" Tyler v. N.J. Auto. Full Ins. Underwriting Ass'n, 228 N.J. 

Super. 463, 468 (App. Div. 1988) (quoting Henderson v. Bannan, 256 F.2d 363, 

390 (6th Cir. 1958) (Potter, J., dissenting)).

This is a matter consequential to these parties. They were obviously 

desirous of a decision on the merits, evidenced by defendant's counsel's consent 
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to adjourn the motion to a date permitting plaintiff his full period to respond. 

The error here was not one of plaintiff's making. The court mis-calendared this 

motion. Plaintiff had a right to rely on the Rules governing the filing and service 

of his opposition. The court misapplied its discretion in not adjourning the 

motion.

Judge Pressler addressed precisely the problems engendered by a court 

unreasonably refusing a litigant an opportunity to respond to a post-judgment 

motion in a family matter in Rubin v. Rubin, 188 N.J. Super. 155 (App. Div. 

1982). We quote her words here, switching only the position of the parties:

Had [plaintiff] been fairly dealt with by being 

given an opportunity to file answering papers . . . all 

that would have ensued would have been a two-week 

delay in the disposition of [defendant's] nonemergent 

motion. Instead, over a year has now passed without a 

final determination of [defendant's] application on the 

merits. The resources, financial and otherwise, of the 

parties, their attorneys and the court system as a whole 

have been needlessly expended in the meantime. It was 

thus obviously and inexcusably unproductive and 

uneconomical to all of the legitimate interests here 

involved, both personal and institutional, for an appeal 

to have had to be taken here to rectify so clear a denial 

of procedural due process, particularly in view of the 

rectification opportunity afforded to the trial judge by 

way of the motion for reconsideration.

[Id. at 159-60.]
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Were we able to exercise our original jurisdiction to bring this matter to a 

fair conclusion for the litigants, we would do so. Unfortunately, the parties' 

factual disputes preclude that option. We thus reverse the March 2, 2018 order 

and remand to permit plaintiff the opportunity to oppose defendant's motion and 

the court to hear the parties' dispute on the merits. We do not retain jurisdiction.

Reversed.