                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-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
      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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                                       2
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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                                        3
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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                                         4
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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                                        5
      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.




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