                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5445-15T1

BALAKRISHNA S. KESAVAN,

          Plaintiff-Respondent,

v.

LAKSHMI L. BALAKRISHNA
SARAVANAN,

     Defendant-Appellant.
_____________________________

                    Submitted March 25, 2019 – Decided May 13, 2019

                    Before Judges Messano and Gooden Brown.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Hunterdon County,
                    Docket No. FM-10-0142-12.

                    Law Offices of Susheela Verma, attorneys for appellant
                    (Susheela V. Verma, of counsel and on the brief; Susan
                    M. Markenstein and Mildred V. Spiller, on the brief).

                    Respondent has not filed a brief.

PER CURIAM
      In this appeal from a final judgment of divorce (JOD), defendant, Lakshmi

Lekha Balakrishna Saravanan, challenges the Family Part's interlocutory orders

striking her answer and counterclaim and proceeding to a default hearing, at

which plaintiff, Balakrishna Saravanan Kesavan, was the sole witness. When

plaintiff filed the divorce complaint in 2011, defendant no longer lived in New

Jersey, having returned to her native country, India, with the parties' only child,

who was thirteen years old at the time. By the time of the default hearing in

2015, plaintiff had also left New Jersey and lived primarily in India, periodically

travelling to the United States as required for his employment.

      Defendant challenges only those portions of the JOD regarding equitable

distribution, alimony, child support and the award of counsel fees. 1 For reasons

explained below, we conclude the judge erred by striking defendant's pleadi ng

and proceeding by default.      We therefore vacate the JOD to the extent it

incorporates the judge's written decision regarding equitable distribution,

alimony, child support, and counsel fees. We remand the matter to the Family

Part for further proceedings, including resolution of whether the court continues

to have jurisdiction over the parties and those issues.



1
  A comprehensive written statement of reasons accompanied the JOD, which,
by its terms only dissolved the marriage and did not address the other issues.
                                                                           A-5445-15T1
                                        2
                                        I.

      Plaintiff filed his initial divorce complaint in August 2011 and, after some

fits and starts, the parties and issues were joined in March 2013 when defendant

filed her answer and counterclaim. Motion practice ensued virtually unabated,

resulting in, among other things, a $2500 per month pendente lite unallocated

spousal and child support order in favor of defendant. The judge then assigned

to the case denied without prejudice defendant's motion asserting that New

Jersey lacked jurisdiction to decide custody of the parties' child.

      The court appointed a retired judge as discovery master/mediator. In one

of his several directives, he recommended that the court treat plaintiff's

objections to defendant's discovery delinquencies as a motion to dismiss

defendant's pleading, subject to reinstatement if defendant complied and

supplied the requested information. In January 2014, a second judge ord ered

defendant to provide certain information within ten days, including a copy of

her mother's will and other documents related to any inheritance, documents

confirming a sale or buyout of defendant's interests in any businesses in India,




                                                                          A-5445-15T1
                                        3
and documents confirming her continued interest in any business in India. The

judge ordered the parties to attend a mandatory settlement conference in April. 2

        In the interim, the court entered additional orders designed to enforce the

discovery master's recommendations, which revealed both parties remained

deficient in discovery obligations, although defendant's "deficiencies [were]

more serious." The efforts, however, demonstrate the difficulty the court had

with conducting the litigation, given defendant's absence from New Jersey and

the significant time plaintiff spent in India. We note, as an example, the April

14, 2014 amended order, requiring plaintiff to execute consents so defendant

could obtain information regarding assets plaintiff may have had in Indian

banks.

        The discovery master concluded the parties were both in substantial

compliance with discovery obligations by June 2014, but, nevertheless, motion

practice continued. The court ordered both parties to attend another settlement

conference on January 27, 2015. Defendant did not appear, but her attorney was




2
    It is unclear from the record whether this conference actually took place.



                                                                           A-5445-15T1
                                         4
present.3 Counsel explained that defendant was unable to secure a visa to travel

to the United States.

      Plaintiff subsequently moved to strike defendant's pleadings for failure to

appear. A third judge, who had taken over management of the litigation, denied

the motion. In a written statement of reasons supporting the April 10, 2015

order, the judge noted both parties had "caused delay in the case," and "it would

be inequitable to dismiss . . . [d]efendant's pleadings" because of her

nonappearance, since plaintiff had failed "to pay $31,250[] in [p]endente [l]ite

support . . . ."   Nonetheless, the judge imposed sanctions for defendant's

nonappearance, awarding plaintiff a $4000 credit against child support arrears

for his counsel fees and travel expenses from India.         The judge ordered

defendant to obtain a visa within thirty days.

      The judge also ordered another mandatory settlement conference for April

29, 2015, with defendant's deposition to follow immediately thereafter if the

case did not settle. Trial dates were set for June. Defendant's request to appear

by teleconference or videoconference was denied by the judge, who reasoned



3
  Because inclement weather forced court closings, the conference occurred on
January 28, 2015. Plaintiff's certification in support of a subsequent motion
referenced the unsuccessful settlement conference that took place on that date.


                                                                         A-5445-15T1
                                        5
credibility was at issue and he would be unable to assess that adequately, and

plaintiff's counsel would be unable to effectively cross-examine defendant under

those circumstances.     The judge granted defendant's cross-motion for New

Jersey to retain jurisdiction.

      Another settlement and case management conference took place on April

29.4 We gather from the case management order the judge entered that day,

defendant failed to appear, although defense counsel was present. The court

found defendant in violation of its earlier April 10 order, which required her to

"secure and provide proof of a valid visa." The judge again denied without

prejudice plaintiff's request to strike defendant's pleadings and proceed to a

default hearing. He also ordered plaintiff to provide "documentary proofs" of

his "alleged residence in . . . New Jersey from the date of [the] filing of the

[c]omplaint . . . through the present . . . ." The order listed nine specific types

of documents, and "[a]ny other documents proving indicia of New Jersey

residence."

      At a pre-trial conference on May 18, the judge noted defendant's absence,

her earlier absence at the April settlement conference and her failure to appear



4
  We were not provided with the transcript of court proceedings that evidently
took place on that date.
                                                                           A-5445-15T1
                                        6
for deposition. Defense counsel advised the judge that defendant was unable to

secure a visa, but the judge found the contention "unpersuasive." He noted that

plaintiff had paid $5000 of the arrearages, so defendant had the financial ability

to travel, and defendant should have been attempting to obtain a visa since the

court first ordered her to appear for a settlement conference. The judge struck

defendant's pleadings without prejudice and scheduled a default hearing. He

filed two orders. One cited Rule 4:23-5(a)(1) as a basis for the dismissal without

prejudice. The second "amended" order cited Rule 1:2-4 as the basis.

      Plaintiff filed a "Notice of Proposed Final Judgment," Rule 5:5-10, in

advance of the default hearing, which commenced on June 29, 2015, and

continued for four mostly consecutive days thereafter.          Citing Clementi v.

Clementi, 434 N.J. Super. 529 (Ch. Div. 2013), the judge said defense counsel

would be permitted to "participate on a limited basis on behalf of her client . . . ."

He granted plaintiff a divorce at the outset on the grounds of desertion and

irreconcilable differences.

      Plaintiff was the sole witness, and defense counsel was permitted to cross-

examine. Toward the end of the testimony, on September 23, 2015, the judge

expressed concern about deciding issues regarding assets in India and said he

was "disinclined to adjudicate anything with regard to alimony" or child support


                                                                              A-5445-15T1
                                          7
for lack of jurisdiction over the child. Defense counsel asked, "[W]hy are we

going through this exercise . . . ?" To which the judge answered, "because both

. . . attorneys have insisted from the beginning that they want this [c]ourt to hear

this case, and to maintain jurisdiction, and grant a divorce." Although at one

point acknowledging "[t]here [are] no contacts with the State of New Jersey, no

nexus     whatsoever[,]"    the   judge       accepted   plaintiff's   documentation

demonstrating "sufficient minimum contacts with the [s]tate" and "other indicia"

of residency. Despite the complaint being "within a whisper of being dismissed

for lack of jurisdiction[,]" the judge observed "the lawyers insisted on how

important it was to their respective clients [that] they get divorced here, because

if it had to go to India, . . . it was going to take forever and there were other

social implications . . . ." As a result, the court "reluctantly and hesitantly

maintained jurisdiction by a thread."

        The judge entered the JOD on June 28, 2016, approximately nine months

after completion of the testimony, along with a uniform support order vacat ing

all child support arrears and directing probation to close the account. 5 An

extensive written statement of reasons supporting the judge's decision regarding

equitable distribution of assets in the United States and India, denying defendant


5
    The parties' child was already eighteen years of age by this time.
                                                                             A-5445-15T1
                                          8
any alimony, and awarding plaintiff $91,933 in counsel fees as an offset to

defendant's share of equitable distribution, accompanied the judgment.

      The judge found plaintiff to be a credible witness, and, apparently

accepted his assertion that financial documents submitted by defendant

regarding accounts in India were "doctored." The judge found "the veracity of

defendant's assertions in all pleadings . . . seriously and substantially impaired."

He based that finding on "plaintiff's credible proofs concerning defendant's

lifestyle in India, in combination with false, forged and fraudulent receipts

submitted by defendant in discovery and during mediation . . . ."

      The judge noted that plaintiff had "fully complied" with the discovery

master's requirement to submit a "CIS with extensive financial information,

including the value of each asset on the date of the filing of divorce complaint

and current values."6 The written decision failed to address earlier findings that

both parties had contributed to delays in the case, as well as plaintiff's repeated

failures to pay pendente lite support, while at the same time seeking sanctions

against defendant for alleged discovery misconduct. It suffices to say that the


6
   This is not entirely accurate. The discovery master noted that plaintiff had
"substantially (but not fully) complied" with document requests. At the close of
discovery, the discovery master found that defendant had substantially complied
with discovery, and he specifically made no findings as to the allegation that
some documents provided were forged or fraudulent.
                                                                            A-5445-15T1
                                         9
court's decision regarding alimony, equitable distribution and counsel fees

attached significant weight to, what the judge described, as defendant's

"dilatory, deceptive, bad faith litigation of this case . . . ."

                                          II.

      Defendant first argues the court mistakenly exercised its discretion by

striking her answer and counterclaim and proceeding to a default hearing as a

sanction for her nonappearance at the settlement conferences. To the extent the

judge premised his decision upon defendant's failure to appear for depositions,

she argues that the court's refusal to consider alternate means, such as

videoconferencing, to permit discovery to proceed was a mistaken exercise of

discretion. While we appreciate the judge's frustration with litigation that had

been pending for four years at that point, we agree with defendant.

      "The rules governing the practice [in the Family Part of the Chancery

Division] specifically provide that '[c]ivil family actions shall also be governed

by the rules in Part IV insofar as applicable and except as otherwise provided

by the rules in Part V.'" Greely v. Greely, 194 N.J. 168, 175 n.3 (2008) (quoting

R. 5:1-1) (second alteration in original). Rule 5:5-1 governs discovery in non-

summary "civil family actions," and permits depositions of parties in accordance

with the Part IV rules.


                                                                          A-5445-15T1
                                          10
      The original order striking defendant's pleading without prejudice cited

Rule 4:23-5(a)(1) as authority. See Clark v. Pomponio, 397 N.J. Super. 630,

634, 636 (App. Div. 2008) (discussing Rule 4:23-5(a)(1) in the context of

matrimonial discovery). Our review of a trial court's discovery order is limited,

and we will defer to the judge's rulings "absent an abuse of discretion or a . . .

misunderstanding or misapplication of the law." Capital Health Sys., Inc. v.

Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017) (citing Pomerantz

Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).

      However, Rule 4:23-5 provides sanctions for a party's failure to make

certain types of discovery, but not depositions. Moreover, plaintiff's motion

filed in March 2015, after defendant failed to appear at the January 28 settlement

conference, never asserted defendant was delinquent in discovery, much less

that she failed to sit for a properly noticed deposition. In addition, the discovery

master's last report indicated defendant was in substantial compliance with other

discovery.

      Of course, the judge's April 2015 order required defendant to submit to

depositions if the case did not settle.        Rule 4:12-3 specifically permits

depositions to be taken in a foreign country, but the record fails to reveal any

consideration of that procedure being utilized in this case. In any event, Rule


                                                                            A-5445-15T1
                                        11
4:23-4 provides sanctions for a party's failure to be deposed, and permits a court,

pursuant to Rule 4:23-2(b)(3), to strike pleadings or "render[] a judgment by

default . . . ." "The standard of review of a trial court's exercise of discretion

pursuant to Rule 4:23-2(b) is 'whether the court abused its discretion, a standard

that cautions appellate courts not to interfere unless it appears that an injustice

has been done.'" Kolczycki v. City of E. Orange, 317 N.J. Super. 505, 512 (App.

Div. 1999) (citing Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517

(1995)). Assuming the earlier case management order compelled defendant to

submit to depositions, we cannot say the entry of an order striking her pleadings

was a mistaken exercise of discretion. However, the record is less than clear,

particularly since alternatives, other than defendant's personal appearance in

America, were not explored.

      Critically, pursuant to Rule 5:5-10, in matrimonial litigation involving

issues of equitable distribution, alimony and child support, "[d]efaults shall be

entered in accordance with Rule 4:43-1, except that a default judgment . . . may

be entered without separate notice of motion as set forth in Rule 4:43-2." Rule

4:43-1, in turn, requires that the entry of default be predicated on a party's

"fail[ure] to plead or otherwise defend . . . or if the answer has been stricken

with prejudice . . . ." (Emphasis added).


                                                                           A-5445-15T1
                                       12
      As already noted, defendant's pleading was never dismissed with

prejudice prior to the default hearing. In Kolczycki, despite agreeing that the

judge did not abuse his discretion in suppressing defenses, we reversed a default

judgment because the orders were "without prejudice." 317 N.J. Super. at 516.

We held, "actions as profound in their effect as a suppression of defenses cannot

be informally ordered or informally enforced. Giving literal effect to the order,

defendants should not have been barred from any defenses, . . . until and unless

a 'with prejudice' order was entered." Ibid. Here, it was a mistaken exercise of

discretion for the judge to proceed to a default hearing based on alleged

discovery misconduct when defendant's pleading was dismissed without

prejudice.

      The judge's amended May 18, 2015 order cited Rule 1:2-4 as a basis to

suppress defendant's pleading without prejudice.       While the above analysis

applies equally to this order, Rule 1:2-4 is not relevant to the circumstances of

this case.

      The rule provides:

             If without just excuse or because of failure to give
             reasonable attention to the matter, no appearance is
             made on behalf of a party . . . at a pretrial conference,
             settlement conference, or any other proceeding
             scheduled by the court, . . . the court may order any one
             or more of the following: . . . (c) the dismissal of the

                                                                         A-5445-15T1
                                       13
            complaint, cross-claim, counterclaim or motion, or the
            striking of the answer and the entry of judgment by
            default, . . . ; or (d) such other action as it deems
            appropriate.

            [R. 1:2-4(a).]

Here, the court ordered defendant to appear at three settlement panels and she

failed to appear. However, defense counsel did appear, and she made clear that

she had authority to settle the litigation. See N.J. Div. of Youth & Family Servs.

v. P.W.R., 410 N.J. Super. 501, 506 (App. Div. 2009) (holding that default was

improper "[b]ecause a party represented by counsel may defend at trial without

being physically present"), rev'd on other grounds, 205 N.J. 17 (2011).

      The failure to comply with a court order must be "rooted in a 'failure to

defend'" in order to support the entry of default. N.J. Div. of Youth & Family

Servs. v. M.G., 427 N.J. Super. 154, 169 (App. Div. 2012).       Moreover, "trial

courts have the means available under other rules to respond to a litigant's

willfully contumacious failure to comply with an order . . . ." Id. at 170 (citing

R. 1:1.1 and -2). "The Supreme Court has instructed that the assessment of the

appropriate sanction for the violation of an order requires consideration of 'a

number of factors, including whether the plaintiff acted willfully and whether

the defendant suffered harm, and if so, to what degree.'" Id. at 171 (quoting

Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005)).              "The

                                                                          A-5445-15T1
                                       14
'overriding objective' remains to allow 'the defaulting party his day in court.'"

Ibid. (quoting Il Grande v. DiBenedetto, 366 N.J. Super. 597, 622 (App. Div.

2004)). We conclude, therefore, that it was a mistaken exercise of the court's

discretion to enter default against defendant.

      As noted, the judge permitted defense counsel to cross-examine plaintiff,

although plaintiff's counsel repeatedly interrupted with objections, which the

judge frequently overruled. Because the court struck her pleadings, defendant

was unable to adduce affirmative proofs. While the judge evidenced a bona fide

attempt to provide defendant with fair opportunity to impeach plaintiff's

assertions regarding defendant's lifestyle in India, the cost of living in that

country, and her alleged pre-trial misconduct, we conclude the error in striking

defendant's pleadings and thereby limiting her participation was "clearly capable

of producing an unjust result . . . ." R. 2:10-2.

      We are therefore compelled to reverse those provisions of the JOD

regarding equitable distribution, alimony, child support and the award of

counsel fees contained in the incorporated written statement of reasons that

accompanied the judgment. 7 We remand the matter to the Family Part for further



7
   Although the parties' daughter has reached majority, there were substantial
arrearages in child support due from plaintiff when the litigation ended.
                                                                         A-5445-15T1
                                        15
proceedings consistent with this opinion. Because the judge made credibility

determinations, we order the remand to take place before a different judge. See

J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div. 1999) (remanding to different

judge because original judge had found a party's position not credible) . As a

result, we need not consider defendant's arguments on the merits regarding these

provisions of the JOD.

      We also direct that the judge consider on remand whether the court should

exercise continuing jurisdiction over these issues. We reach no determination

ourselves, noting only that both parties took alternating positions on the

question, particularly as it related to equitable distribution of assets held in

India, and there may indeed be legal support for the continued exercise of this

state's jurisdiction. Defendant has not briefed the issue before us, and we urge

the trial judge to reconsider the question on remand.

      Reversed and remanded. We do not retain jurisdiction.




                                                                        A-5445-15T1
                                      16
